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Metamorphosis by Franz Kafka-1915

by Franz Kafka

German: Die Verwandlung

I

One morning, when Gregor Samsa woke from troubled dreams, he found himself transformed in his bed into a horrible vermin. He lay on his armour-like back, and if he lifted his head a little he could see his brown belly, slightly domed and divided by arches into stiff sections. The bedding was hardly able to cover it and seemed ready to slide off any moment. His many legs, pitifully thin compared with the size of the rest of him, waved about helplessly as he looked.

“What’s happened to me?” he thought. It wasn’t a dream. His room, a proper human room although a little too small, lay peacefully between its four familiar walls. A collection of textile samples lay spread out on the table—Samsa was a travelling salesman—and above it there hung a picture that he had recently cut out of an illustrated magazine and housed in a nice, gilded frame. It showed a lady fitted out with a fur hat and fur boa who sat upright, raising a heavy fur muff that covered the whole of her lower arm towards the viewer.

Gregor then turned to look out the window at the dull weather. Drops of rain could be heard hitting the pane, which made him feel quite sad. “How about if I sleep a little bit longer and forget all this nonsense”, he thought, but that was something he was unable to do because he was used to sleeping on his right, and in his present state couldn’t get into that position. However hard he threw himself onto his right, he always rolled back to where he was. He must have tried it a hundred times, shut his eyes so that he wouldn’t have to look at the floundering legs, and only stopped when he began to feel a mild, dull pain there that he had never felt before.

“Oh, God”, he thought, “what a strenuous career it is that I’ve chosen! Travelling day in and day out. Doing business like this takes much more effort than doing your own business at home, and on top of that there’s the curse of travelling, worries about making train connections, bad and irregular food, contact with different people all the time so that you can never get to know anyone or become friendly with them. It can all go to Hell!” He felt a slight itch up on his belly; pushed himself slowly up on his back towards the headboard so that he could lift his head better; found where the itch was, and saw that it was covered with lots of little white spots which he didn’t know what to make of; and when he tried to feel the place with one of his legs he drew it quickly back because as soon as he touched it he was overcome by a cold shudder.

He slid back into his former position. “Getting up early all the time”, he thought, “it makes you stupid. You’ve got to get enough sleep. Other travelling salesmen live a life of luxury. For instance, whenever I go back to the guest house during the morning to copy out the contract, these gentlemen are always still sitting there eating their breakfasts. I ought to just try that with my boss; I’d get kicked out on the spot. But who knows, maybe that would be the best thing for me. If I didn’t have my parents to think about I’d have given in my notice a long time ago, I’d have gone up to the boss and told him just what I think, tell him everything I would, let him know just what I feel. He’d fall right off his desk! And it’s a funny sort of business to be sitting up there at your desk, talking down at your subordinates from up there, especially when you have to go right up close because the boss is hard of hearing. Well, there’s still some hope; once I’ve got the money together to pay off my parents’ debt to him—another five or six years I suppose—that’s definitely what I’ll do. That’s when I’ll make the big change. First of all though, I’ve got to get up, my train leaves at five.”

And he looked over at the alarm clock, ticking on the chest of drawers. “God in Heaven!” he thought. It was half past six and the hands were quietly moving forwards, it was even later than half past, more like quarter to seven. Had the alarm clock not rung? He could see from the bed that it had been set for four o’clock as it should have been; it certainly must have rung. Yes, but was it possible to quietly sleep through that furniture-rattling noise? True, he had not slept peacefully, but probably all the more deeply because of that. What should he do now? The next train went at seven; if he were to catch that he would have to rush like mad and the collection of samples was still not packed, and he did not at all feel particularly fresh and lively. And even if he did catch the train he would not avoid his boss’s anger as the office assistant would have been there to see the five o’clock train go, he would have put in his report about Gregor’s not being there a long time ago. The office assistant was the boss’s man, spineless, and with no understanding. What about if he reported sick? But that would be extremely strained and suspicious as in five years of service Gregor had never once yet been ill. His boss would certainly come round with the doctor from the medical insurance company, accuse his parents of having a lazy son, and accept the doctor’s recommendation not to make any claim as the doctor believed that no-one was ever ill but that many were workshy. And what’s more, would he have been entirely wrong in this case? Gregor did in fact, apart from excessive sleepiness after sleeping for so long, feel completely well and even felt much hungrier than usual.

He was still hurriedly thinking all this through, unable to decide to get out of the bed, when the clock struck quarter to seven. There was a cautious knock at the door near his head. “Gregor”, somebody called—it was his mother—“it’s quarter to seven. Didn’t you want to go somewhere?” That gentle voice! Gregor was shocked when he heard his own voice answering, it could hardly be recognised as the voice he had had before. As if from deep inside him, there was a painful and uncontrollable squeaking mixed in with it, the words could be made out at first but then there was a sort of echo which made them unclear, leaving the hearer unsure whether he had heard properly or not. Gregor had wanted to give a full answer and explain everything, but in the circumstances contented himself with saying: “Yes, mother, yes, thank-you, I’m getting up now.” The change in Gregor’s voice probably could not be noticed outside through the wooden door, as his mother was satisfied with this explanation and shuffled away. But this short conversation made the other members of the family aware that Gregor, against their expectations was still at home, and soon his father came knocking at one of the side doors, gently, but with his fist. “Gregor, Gregor”, he called, “what’s wrong?” And after a short while he called again with a warning deepness in his voice: “Gregor! Gregor!” At the other side door his sister came plaintively: “Gregor? Aren’t you well? Do you need anything?” Gregor answered to both sides: “I’m ready, now”, making an effort to remove all the strangeness from his voice by enunciating very carefully and putting long pauses between each, individual word. His father went back to his breakfast, but his sister whispered: “Gregor, open the door, I beg of you.” Gregor, however, had no thought of opening the door, and instead congratulated himself for his cautious habit, acquired from his travelling, of locking all doors at night even when he was at home.

The first thing he wanted to do was to get up in peace without being disturbed, to get dressed, and most of all to have his breakfast. Only then would he consider what to do next, as he was well aware that he would not bring his thoughts to any sensible conclusions by lying in bed. He remembered that he had often felt a slight pain in bed, perhaps caused by lying awkwardly, but that had always turned out to be pure imagination and he wondered how his imaginings would slowly resolve themselves today. He did not have the slightest doubt that the change in his voice was nothing more than the first sign of a serious cold, which was an occupational hazard for travelling salesmen.

It was a simple matter to throw off the covers; he only had to blow himself up a little and they fell off by themselves. But it became difficult after that, especially as he was so exceptionally broad. He would have used his arms and his hands to push himself up; but instead of them he only had all those little legs continuously moving in different directions, and which he was moreover unable to control. If he wanted to bend one of them, then that was the first one that would stretch itself out; and if he finally managed to do what he wanted with that leg, all the others seemed to be set free and would move about painfully. “This is something that can’t be done in bed”, Gregor said to himself, “so don’t keep trying to do it”.

The first thing he wanted to do was get the lower part of his body out of the bed, but he had never seen this lower part, and could not imagine what it looked like; it turned out to be too hard to move; it went so slowly; and finally, almost in a frenzy, when he carelessly shoved himself forwards with all the force he could gather, he chose the wrong direction, hit hard against the lower bedpost, and learned from the burning pain he felt that the lower part of his body might well, at present, be the most sensitive.

So then he tried to get the top part of his body out of the bed first, carefully turning his head to the side. This he managed quite easily, and despite its breadth and its weight, the bulk of his body eventually followed slowly in the direction of the head. But when he had at last got his head out of the bed and into the fresh air it occurred to him that if he let himself fall it would be a miracle if his head were not injured, so he became afraid to carry on pushing himself forward the same way. And he could not knock himself out now at any price; better to stay in bed than lose consciousness.

It took just as much effort to get back to where he had been earlier, but when he lay there sighing, and was once more watching his legs as they struggled against each other even harder than before, if that was possible, he could think of no way of bringing peace and order to this chaos. He told himself once more that it was not possible for him to stay in bed and that the most sensible thing to do would be to get free of it in whatever way he could at whatever sacrifice. At the same time, though, he did not forget to remind himself that calm consideration was much better than rushing to desperate conclusions. At times like this he would direct his eyes to the window and look out as clearly as he could, but unfortunately, even the other side of the narrow street was enveloped in morning fog and the view had little confidence or cheer to offer him. “Seven o’clock, already”, he said to himself when the clock struck again, “seven o’clock, and there’s still a fog like this.” And he lay there quietly a while longer, breathing lightly as if he perhaps expected the total stillness to bring things back to their real and natural state.

But then he said to himself: “Before it strikes quarter past seven I’ll definitely have to have got properly out of bed. And by then somebody will have come round from work to ask what’s happened to me as well, as they open up at work before seven o’clock.” And so he set himself to the task of swinging the entire length of his body out of the bed all at the same time. If he succeeded in falling out of bed in this way and kept his head raised as he did so he could probably avoid injuring it. His back seemed to be quite hard, and probably nothing would happen to it falling onto the carpet. His main concern was for the loud noise he was bound to make, and which even through all the doors would probably raise concern if not alarm. But it was something that had to be risked.

When Gregor was already sticking half way out of the bed—the new method was more of a game than an effort, all he had to do was rock back and forth—it occurred to him how simple everything would be if somebody came to help him. Two strong people—he had his father and the maid in mind—would have been more than enough; they would only have to push their arms under the dome of his back, peel him away from the bed, bend down with the load and then be patient and careful as he swang over onto the floor, where, hopefully, the little legs would find a use. Should he really call for help though, even apart from the fact that all the doors were locked? Despite all the difficulty he was in, he could not suppress a smile at this thought.

After a while he had already moved so far across that it would have been hard for him to keep his balance if he rocked too hard. The time was now ten past seven and he would have to make a final decision very soon. Then there was a ring at the door of the flat. “That’ll be someone from work”, he said to himself, and froze very still, although his little legs only became all the more lively as they danced around. For a moment everything remained quiet. “They’re not opening the door”, Gregor said to himself, caught in some nonsensical hope. But then of course, the maid’s firm steps went to the door as ever and opened it. Gregor only needed to hear the visitor’s first words of greeting and he knew who it was—the chief clerk himself. Why did Gregor have to be the only one condemned to work for a company where they immediately became highly suspicious at the slightest shortcoming? Were all employees, every one of them, louts, was there not one of them who was faithful and devoted who would go so mad with pangs of conscience that he couldn’t get out of bed if he didn’t spend at least a couple of hours in the morning on company business? Was it really not enough to let one of the trainees make enquiries—assuming enquiries were even necessary—did the chief clerk have to come himself, and did they have to show the whole, innocent family that this was so suspicious that only the chief clerk could be trusted to have the wisdom to investigate it? And more because these thoughts had made him upset than through any proper decision, he swang himself with all his force out of the bed. There was a loud thump, but it wasn’t really a loud noise. His fall was softened a little by the carpet, and Gregor’s back was also more elastic than he had thought, which made the sound muffled and not too noticeable. He had not held his head carefully enough, though, and hit it as he fell; annoyed and in pain, he turned it and rubbed it against the carpet.

“Something’s fallen down in there”, said the chief clerk in the room on the left. Gregor tried to imagine whether something of the sort that had happened to him today could ever happen to the chief clerk too; you had to concede that it was possible. But as if in gruff reply to this question, the chief clerk’s firm footsteps in his highly polished boots could now be heard in the adjoining room. From the room on his right, Gregor’s sister whispered to him to let him know: “Gregor, the chief clerk is here.” “Yes, I know”, said Gregor to himself; but without daring to raise his voice loud enough for his sister to hear him.

“Gregor”, said his father now from the room to his left, “the chief clerk has come round and wants to know why you didn’t leave on the early train. We don’t know what to say to him. And anyway, he wants to speak to you personally. So please open up this door. I’m sure he’ll be good enough to forgive the untidiness of your room.” Then the chief clerk called “Good morning, Mr. Samsa”. “He isn’t well”, said his mother to the chief clerk, while his father continued to speak through the door. “He isn’t well, please believe me. Why else would Gregor have missed a train! The lad only ever thinks about the business. It nearly makes me cross the way he never goes out in the evenings; he’s been in town for a week now but stayed home every evening. He sits with us in the kitchen and just reads the paper or studies train timetables. His idea of relaxation is working with his fretsaw. He’s made a little frame, for instance, it only took him two or three evenings, you’ll be amazed how nice it is; it’s hanging up in his room; you’ll see it as soon as Gregor opens the door. Anyway, I’m glad you’re here; we wouldn’t have been able to get Gregor to open the door by ourselves; he’s so stubborn; and I’m sure he isn’t well, he said this morning that he is, but he isn’t.” “I’ll be there in a moment”, said Gregor slowly and thoughtfully, but without moving so that he would not miss any word of the conversation. “Well I can’t think of any other way of explaining it, Mrs. Samsa”, said the chief clerk, “I hope it’s nothing serious. But on the other hand, I must say that if we people in commerce ever become slightly unwell then, fortunately or unfortunately as you like, we simply have to overcome it because of business considerations.” “Can the chief clerk come in to see you now then?”, asked his father impatiently, knocking at the door again. “No”, said Gregor. In the room on his right there followed a painful silence; in the room on his left his sister began to cry.

So why did his sister not go and join the others? She had probably only just got up and had not even begun to get dressed. And why was she crying? Was it because he had not got up, and had not let the chief clerk in, because he was in danger of losing his job and if that happened his boss would once more pursue their parents with the same demands as before? There was no need to worry about things like that yet. Gregor was still there and had not the slightest intention of abandoning his family. For the time being he just lay there on the carpet, and no-one who knew the condition he was in would seriously have expected him to let the chief clerk in. It was only a minor discourtesy, and a suitable excuse could easily be found for it later on, it was not something for which Gregor could be sacked on the spot. And it seemed to Gregor much more sensible to leave him now in peace instead of disturbing him with talking at him and crying. But the others didn’t know what was happening, they were worried, that would excuse their behaviour.

The chief clerk now raised his voice, “Mr. Samsa”, he called to him, “what is wrong? You barricade yourself in your room, give us no more than yes or no for an answer, you are causing serious and unnecessary concern to your parents and you fail—and I mention this just by the way—you fail to carry out your business duties in a way that is quite unheard of. I’m speaking here on behalf of your parents and of your employer, and really must request a clear and immediate explanation. I am astonished, quite astonished. I thought I knew you as a calm and sensible person, and now you suddenly seem to be showing off with peculiar whims. This morning, your employer did suggest a possible reason for your failure to appear, it’s true—it had to do with the money that was recently entrusted to you—but I came near to giving him my word of honour that that could not be the right explanation. But now that I see your incomprehensible stubbornness I no longer feel any wish whatsoever to intercede on your behalf. And nor is your position all that secure. I had originally intended to say all this to you in private, but since you cause me to waste my time here for no good reason I don’t see why your parents should not also learn of it. Your turnover has been very unsatisfactory of late; I grant you that it’s not the time of year to do especially good business, we recognise that; but there simply is no time of year to do no business at all, Mr. Samsa, we cannot allow there to be.”

“But Sir”, called Gregor, beside himself and forgetting all else in the excitement, “I’ll open up immediately, just a moment. I’m slightly unwell, an attack of dizziness, I haven’t been able to get up. I’m still in bed now. I’m quite fresh again now, though. I’m just getting out of bed. Just a moment. Be patient! It’s not quite as easy as I’d thought. I’m quite alright now, though. It’s shocking, what can suddenly happen to a person! I was quite alright last night, my parents know about it, perhaps better than me, I had a small symptom of it last night already. They must have noticed it. I don’t know why I didn’t let you know at work! But you always think you can get over an illness without staying at home. Please, don’t make my parents suffer! There’s no basis for any of the accusations you’re making; nobody’s ever said a word to me about any of these things. Maybe you haven’t read the latest contracts I sent in. I’ll set off with the eight o’clock train, as well, these few hours of rest have given me strength. You don’t need to wait, sir; I’ll be in the office soon after you, and please be so good as to tell that to the boss and recommend me to him!”

And while Gregor gushed out these words, hardly knowing what he was saying, he made his way over to the chest of drawers—this was easily done, probably because of the practise he had already had in bed—where he now tried to get himself upright. He really did want to open the door, really did want to let them see him and to speak with the chief clerk; the others were being so insistent, and he was curious to learn what they would say when they caught sight of him. If they were shocked then it would no longer be Gregor’s responsibility and he could rest. If, however, they took everything calmly he would still have no reason to be upset, and if he hurried he really could be at the station for eight o’clock. The first few times he tried to climb up on the smooth chest of drawers he just slid down again, but he finally gave himself one last swing and stood there upright; the lower part of his body was in serious pain but he no longer gave any attention to it. Now he let himself fall against the back of a nearby chair and held tightly to the edges of it with his little legs. By now he had also calmed down, and kept quiet so that he could listen to what the chief clerk was saying.

“Did you understand a word of all that?” the chief clerk asked his parents, “surely he’s not trying to make fools of us”. “Oh, God!” called his mother, who was already in tears, “he could be seriously ill and we’re making him suffer. Grete! Grete!” she then cried. “Mother?” his sister called from the other side. They communicated across Gregor’s room. “You’ll have to go for the doctor straight away. Gregor is ill. Quick, get the doctor. Did you hear the way Gregor spoke just now?” “That was the voice of an animal”, said the chief clerk, with a calmness that was in contrast with his mother’s screams. “Anna! Anna!” his father called into the kitchen through the entrance hall, clapping his hands, “get a locksmith here, now!” And the two girls, their skirts swishing, immediately ran out through the hall, wrenching open the front door of the flat as they went. How had his sister managed to get dressed so quickly? There was no sound of the door banging shut again; they must have left it open; people often do in homes where something awful has happened.

Gregor, in contrast, had become much calmer. So they couldn’t understand his words any more, although they seemed clear enough to him, clearer than before—perhaps his ears had become used to the sound. They had realised, though, that there was something wrong with him, and were ready to help. The first response to his situation had been confident and wise, and that made him feel better. He felt that he had been drawn back in among people, and from the doctor and the locksmith he expected great and surprising achievements—although he did not really distinguish one from the other. Whatever was said next would be crucial, so, in order to make his voice as clear as possible, he coughed a little, but taking care to do this not too loudly as even this might well sound different from the way that a human coughs and he was no longer sure he could judge this for himself. Meanwhile, it had become very quiet in the next room. Perhaps his parents were sat at the table whispering with the chief clerk, or perhaps they were all pressed against the door and listening.

Gregor slowly pushed his way over to the door with the chair. Once there he let go of it and threw himself onto the door, holding himself upright against it using the adhesive on the tips of his legs. He rested there a little while to recover from the effort involved and then set himself to the task of turning the key in the lock with his mouth. He seemed, unfortunately, to have no proper teeth—how was he, then, to grasp the key?—but the lack of teeth was, of course, made up for with a very strong jaw; using the jaw, he really was able to start the key turning, ignoring the fact that he must have been causing some kind of damage as a brown fluid came from his mouth, flowed over the key and dripped onto the floor. “Listen”, said the chief clerk in the next room, “he’s turning the key.” Gregor was greatly encouraged by this; but they all should have been calling to him, his father and his mother too: “Well done, Gregor”, they should have cried, “keep at it, keep hold of the lock!” And with the idea that they were all excitedly following his efforts, he bit on the key with all his strength, paying no attention to the pain he was causing himself. As the key turned round he turned around the lock with it, only holding himself upright with his mouth, and hung onto the key or pushed it down again with the whole weight of his body as needed. The clear sound of the lock as it snapped back was Gregor’s sign that he could break his concentration, and as he regained his breath he said to himself: “So, I didn’t need the locksmith after all”. Then he lay his head on the handle of the door to open it completely.

Because he had to open the door in this way, it was already wide open before he could be seen. He had first to slowly turn himself around one of the double doors, and he had to do it very carefully if he did not want to fall flat on his back before entering the room. He was still occupied with this difficult movement, unable to pay attention to anything else, when he heard the chief clerk exclaim a loud “Oh!”, which sounded like the soughing of the wind. Now he also saw him—he was the nearest to the door—his hand pressed against his open mouth and slowly retreating as if driven by a steady and invisible force. Gregor’s mother, her hair still dishevelled from bed despite the chief clerk’s being there, looked at his father. Then she unfolded her arms, took two steps forward towards Gregor and sank down onto the floor into her skirts that spread themselves out around her as her head disappeared down onto her breast. His father looked hostile, and clenched his fists as if wanting to knock Gregor back into his room. Then he looked uncertainly round the living room, covered his eyes with his hands and wept so that his powerful chest shook.

So Gregor did not go into the room, but leant against the inside of the other door which was still held bolted in place. In this way only half of his body could be seen, along with his head above it which he leant over to one side as he peered out at the others. Meanwhile the day had become much lighter; part of the endless, grey-black building on the other side of the street—which was a hospital—could be seen quite clearly with the austere and regular line of windows piercing its façade; the rain was still falling, now throwing down large, individual droplets which hit the ground one at a time. The washing up from breakfast lay on the table; there was so much of it because, for Gregor’s father, breakfast was the most important meal of the day and he would stretch it out for several hours as he sat reading a number of different newspapers. On the wall exactly opposite there was photograph of Gregor when he was a lieutenant in the army, his sword in his hand and a carefree smile on his face as he called forth respect for his uniform and bearing. The door to the entrance hall was open and as the front door of the flat was also open he could see onto the landing and the stairs where they began their way down below.

“Now, then”, said Gregor, well aware that he was the only one to have kept calm, “I’ll get dressed straight away now, pack up my samples and set off. Will you please just let me leave? You can see”, he said to the chief clerk, “that I’m not stubborn and I like to do my job; being a commercial traveller is arduous but without travelling I couldn’t earn my living. So where are you going, in to the office? Yes? Will you report everything accurately, then? It’s quite possible for someone to be temporarily unable to work, but that’s just the right time to remember what’s been achieved in the past and consider that later on, once the difficulty has been removed, he will certainly work with all the more diligence and concentration. You’re well aware that I’m seriously in debt to our employer as well as having to look after my parents and my sister, so that I’m trapped in a difficult situation, but I will work my way out of it again. Please don’t make things any harder for me than they are already, and don’t take sides against me at the office. I know that nobody likes the travellers. They think we earn an enormous wage as well as having a soft time of it. That’s just prejudice but they have no particular reason to think better of it. But you, sir, you have a better overview than the rest of the staff, in fact, if I can say this in confidence, a better overview than the boss himself—it’s very easy for a businessman like him to make mistakes about his employees and judge them more harshly than he should. And you’re also well aware that we travellers spend almost the whole year away from the office, so that we can very easily fall victim to gossip and chance and groundless complaints, and it’s almost impossible to defend yourself from that sort of thing, we don’t usually even hear about them, or if at all it’s when we arrive back home exhausted from a trip, and that’s when we feel the harmful effects of what’s been going on without even knowing what caused them. Please, don’t go away, at least first say something to show that you grant that I’m at least partly right!”

But the chief clerk had turned away as soon as Gregor had started to speak, and, with protruding lips, only stared back at him over his trembling shoulders as he left. He did not keep still for a moment while Gregor was speaking, but moved steadily towards the door without taking his eyes off him. He moved very gradually, as if there had been some secret prohibition on leaving the room. It was only when he had reached the entrance hall that he made a sudden movement, drew his foot from the living room, and rushed forward in a panic. In the hall, he stretched his right hand far out towards the stairway as if out there, there were some supernatural force waiting to save him.

Gregor realised that it was out of the question to let the chief clerk go away in this mood if his position in the firm was not to be put into extreme danger. That was something his parents did not understand very well; over the years, they had become convinced that this job would provide for Gregor for his entire life, and besides, they had so much to worry about at present that they had lost sight of any thought for the future. Gregor, though, did think about the future. The chief clerk had to be held back, calmed down, convinced and finally won over; the future of Gregor and his family depended on it! If only his sister were here! She was clever; she was already in tears while Gregor was still lying peacefully on his back. And the chief clerk was a lover of women, surely she could persuade him; she would close the front door in the entrance hall and talk him out of his shocked state. But his sister was not there, Gregor would have to do the job himself. And without considering that he still was not familiar with how well he could move about in his present state, or that his speech still might not—or probably would not—be understood, he let go of the door; pushed himself through the opening; tried to reach the chief clerk on the landing who, ridiculously, was holding on to the banister with both hands; but Gregor fell immediately over and, with a little scream as he sought something to hold onto, landed on his numerous little legs. Hardly had that happened than, for the first time that day, he began to feel alright with his body; the little legs had the solid ground under them; to his pleasure, they did exactly as he told them; they were even making the effort to carry him where he wanted to go; and he was soon believing that all his sorrows would soon be finally at an end. He held back the urge to move but swayed from side to side as he crouched there on the floor. His mother was not far away in front of him and seemed, at first, quite engrossed in herself, but then she suddenly jumped up with her arms outstretched and her fingers spread shouting: “Help, for pity’s sake, Help!” The way she held her head suggested she wanted to see Gregor better, but the unthinking way she was hurrying backwards showed that she did not; she had forgotten that the table was behind her with all the breakfast things on it; when she reached the table she sat quickly down on it without knowing what she was doing; without even seeming to notice that the coffee pot had been knocked over and a gush of coffee was pouring down onto the carpet.

“Mother, mother”, said Gregor gently, looking up at her. He had completely forgotten the chief clerk for the moment, but could not help himself snapping in the air with his jaws at the sight of the flow of coffee. That set his mother screaming anew, she fled from the table and into the arms of his father as he rushed towards her. Gregor, though, had no time to spare for his parents now; the chief clerk had already reached the stairs; with his chin on the banister, he looked back for the last time. Gregor made a run for him; he wanted to be sure of reaching him; the chief clerk must have expected something, as he leapt down several steps at once and disappeared; his shouts resounding all around the staircase. The flight of the chief clerk seemed, unfortunately, to put Gregor’s father into a panic as well. Until then he had been relatively self controlled, but now, instead of running after the chief clerk himself, or at least not impeding Gregor as he ran after him, Gregor’s father seized the chief clerk’s stick in his right hand (the chief clerk had left it behind on a chair, along with his hat and overcoat), picked up a large newspaper from the table with his left, and used them to drive Gregor back into his room, stamping his foot at him as he went. Gregor’s appeals to his father were of no help, his appeals were simply not understood, however much he humbly turned his head his father merely stamped his foot all the harder. Across the room, despite the chilly weather, Gregor’s mother had pulled open a window, leant far out of it and pressed her hands to her face. A strong draught of air flew in from the street towards the stairway, the curtains flew up, the newspapers on the table fluttered and some of them were blown onto the floor. Nothing would stop Gregor’s father as he drove him back, making hissing noises at him like a wild man. Gregor had never had any practice in moving backwards and was only able to go very slowly. If Gregor had only been allowed to turn round he would have been back in his room straight away, but he was afraid that if he took the time to do that his father would become impatient, and there was the threat of a lethal blow to his back or head from the stick in his father’s hand any moment. Eventually, though, Gregor realised that he had no choice as he saw, to his disgust, that he was quite incapable of going backwards in a straight line; so he began, as quickly as possible and with frequent anxious glances at his father, to turn himself round. It went very slowly, but perhaps his father was able to see his good intentions as he did nothing to hinder him, in fact now and then he used the tip of his stick to give directions from a distance as to which way to turn. If only his father would stop that unbearable hissing! It was making Gregor quite confused. When he had nearly finished turning round, still listening to that hissing, he made a mistake and turned himself back a little the way he had just come. He was pleased when he finally had his head in front of the doorway, but then saw that it was too narrow, and his body was too broad to get through it without further difficulty. In his present mood, it obviously did not occur to his father to open the other of the double doors so that Gregor would have enough space to get through. He was merely fixed on the idea that Gregor should be got back into his room as quickly as possible. Nor would he ever have allowed Gregor the time to get himself upright as preparation for getting through the doorway. What he did, making more noise than ever, was to drive Gregor forwards all the harder as if there had been nothing in the way; it sounded to Gregor as if there was now more than one father behind him; it was not a pleasant experience, and Gregor pushed himself into the doorway without regard for what might happen. One side of his body lifted itself, he lay at an angle in the doorway, one flank scraped on the white door and was painfully injured, leaving vile brown flecks on it, soon he was stuck fast and would not have been able to move at all by himself, the little legs along one side hung quivering in the air while those on the other side were pressed painfully against the ground. Then his father gave him a hefty shove from behind which released him from where he was held and sent him flying, and heavily bleeding, deep into his room. The door was slammed shut with the stick, then, finally, all was quiet.

II

It was not until it was getting dark that evening that Gregor awoke from his deep and coma-like sleep. He would have woken soon afterwards anyway even if he hadn’t been disturbed, as he had had enough sleep and felt fully rested. But he had the impression that some hurried steps and the sound of the door leading into the front room being carefully shut had woken him. The light from the electric street lamps shone palely here and there onto the ceiling and tops of the furniture, but down below, where Gregor was, it was dark. He pushed himself over to the door, feeling his way clumsily with his antennae—of which he was now beginning to learn the value—in order to see what had been happening there. The whole of his left side seemed like one, painfully stretched scar, and he limped badly on his two rows of legs. One of the legs had been badly injured in the events of that morning—it was nearly a miracle that only one of them had been—and dragged along lifelessly.

It was only when he had reached the door that he realised what it actually was that had drawn him over to it; it was the smell of something to eat. By the door there was a dish filled with sweetened milk with little pieces of white bread floating in it. He was so pleased he almost laughed, as he was even hungrier than he had been that morning, and immediately dipped his head into the milk, nearly covering his eyes with it. But he soon drew his head back again in disappointment; not only did the pain in his tender left side make it difficult to eat the food—he was only able to eat if his whole body worked together as a snuffling whole—but the milk did not taste at all nice. Milk like this was normally his favourite drink, and his sister had certainly left it there for him because of that, but he turned, almost against his own will, away from the dish and crawled back into the centre of the room.

Through the crack in the door, Gregor could see that the gas had been lit in the living room. His father at this time would normally be sat with his evening paper, reading it out in a loud voice to Gregor’s mother, and sometimes to his sister, but there was now not a sound to be heard. Gregor’s sister would often write and tell him about this reading, but maybe his father had lost the habit in recent times. It was so quiet all around too, even though there must have been somebody in the flat. “What a quiet life it is the family lead”, said Gregor to himself, and, gazing into the darkness, felt a great pride that he was able to provide a life like that in such a nice home for his sister and parents. But what now, if all this peace and wealth and comfort should come to a horrible and frightening end? That was something that Gregor did not want to think about too much, so he started to move about, crawling up and down the room.

Once during that long evening, the door on one side of the room was opened very slightly and hurriedly closed again; later on the door on the other side did the same; it seemed that someone needed to enter the room but thought better of it. Gregor went and waited immediately by the door, resolved either to bring the timorous visitor into the room in some way or at least to find out who it was; but the door was opened no more that night and Gregor waited in vain. The previous morning while the doors were locked everyone had wanted to get in there to him, but now, now that he had opened up one of the doors and the other had clearly been unlocked some time during the day, no-one came, and the keys were in the other sides.

It was not until late at night that the gaslight in the living room was put out, and now it was easy to see that his parents and sister had stayed awake all that time, as they all could be distinctly heard as they went away together on tip-toe. It was clear that no-one would come into Gregor’s room any more until morning; that gave him plenty of time to think undisturbed about how he would have to re-arrange his life. For some reason, the tall, empty room where he was forced to remain made him feel uneasy as he lay there flat on the floor, even though he had been living in it for five years. Hardly aware of what he was doing other than a slight feeling of shame, he hurried under the couch. It pressed down on his back a little, and he was no longer able to lift his head, but he nonetheless felt immediately at ease and his only regret was that his body was too broad to get it all underneath.

He spent the whole night there. Some of the time he passed in a light sleep, although he frequently woke from it in alarm because of his hunger, and some of the time was spent in worries and vague hopes which, however, always led to the same conclusion: for the time being he must remain calm, he must show patience and the greatest consideration so that his family could bear the unpleasantness that he, in his present condition, was forced to impose on them.

Gregor soon had the opportunity to test the strength of his decisions, as early the next morning, almost before the night had ended, his sister, nearly fully dressed, opened the door from the front room and looked anxiously in. She did not see him straight away, but when she did notice him under the couch—he had to be somewhere, for God’s sake, he couldn’t have flown away—she was so shocked that she lost control of herself and slammed the door shut again from outside. But she seemed to regret her behaviour, as she opened the door again straight away and came in on tip-toe as if entering the room of someone seriously ill or even of a stranger. Gregor had pushed his head forward, right to the edge of the couch, and watched her. Would she notice that he had left the milk as it was, realise that it was not from any lack of hunger and bring him in some other food that was more suitable? If she didn’t do it herself he would rather go hungry than draw her attention to it, although he did feel a terrible urge to rush forward from under the couch, throw himself at his sister’s feet and beg her for something good to eat. However, his sister noticed the full dish immediately and looked at it and the few drops of milk splashed around it with some surprise. She immediately picked it up—using a rag, not her bare hands—and carried it out. Gregor was extremely curious as to what she would bring in its place, imagining the wildest possibilities, but he never could have guessed what his sister, in her goodness, actually did bring. In order to test his taste, she brought him a whole selection of things, all spread out on an old newspaper. There were old, half-rotten vegetables; bones from the evening meal, covered in white sauce that had gone hard; a few raisins and almonds; some cheese that Gregor had declared inedible two days before; a dry roll and some bread spread with butter and salt. As well as all that she had poured some water into the dish, which had probably been permanently set aside for Gregor’s use, and placed it beside them. Then, out of consideration for Gregor’s feelings, as she knew that he would not eat in front of her, she hurried out again and even turned the key in the lock so that Gregor would know he could make things as comfortable for himself as he liked. Gregor’s little legs whirred, at last he could eat. What’s more, his injuries must already have completely healed as he found no difficulty in moving. This amazed him, as more than a month earlier he had cut his finger slightly with a knife, he thought of how his finger had still hurt the day before yesterday. “Am I less sensitive than I used to be, then?”, he thought, and was already sucking greedily at the cheese which had immediately, almost compellingly, attracted him much more than the other foods on the newspaper. Quickly one after another, his eyes watering with pleasure, he consumed the cheese, the vegetables and the sauce; the fresh foods, on the other hand, he didn’t like at all, and even dragged the things he did want to eat a little way away from them because he couldn’t stand the smell. Long after he had finished eating and lay lethargic in the same place, his sister slowly turned the key in the lock as a sign to him that he should withdraw. He was immediately startled, although he had been half asleep, and he hurried back under the couch. But he needed great self-control to stay there even for the short time that his sister was in the room, as eating so much food had rounded out his body a little and he could hardly breathe in that narrow space. Half suffocating, he watched with bulging eyes as his sister unselfconsciously took a broom and swept up the left-overs, mixing them in with the food he had not even touched at all as if it could not be used any more. She quickly dropped it all into a bin, closed it with its wooden lid, and carried everything out. She had hardly turned her back before Gregor came out again from under the couch and stretched himself.

This was how Gregor received his food each day now, once in the morning while his parents and the maid were still asleep, and the second time after everyone had eaten their meal at midday as his parents would sleep for a little while then as well, and Gregor’s sister would send the maid away on some errand. Gregor’s father and mother certainly did not want him to starve either, but perhaps it would have been more than they could stand to have any more experience of his feeding than being told about it, and perhaps his sister wanted to spare them what distress she could as they were indeed suffering enough.

It was impossible for Gregor to find out what they had told the doctor and the locksmith that first morning to get them out of the flat. As nobody could understand him, nobody, not even his sister, thought that he could understand them, so he had to be content to hear his sister’s sighs and appeals to the saints as she moved about his room. It was only later, when she had become a little more used to everything—there was, of course, no question of her ever becoming fully used to the situation—that Gregor would sometimes catch a friendly comment, or at least a comment that could be construed as friendly. “He’s enjoyed his dinner today”, she might say when he had diligently cleared away all the food left for him, or if he left most of it, which slowly became more and more frequent, she would often say, sadly, “now everything’s just been left there again”.

Although Gregor wasn’t able to hear any news directly he did listen to much of what was said in the next rooms, and whenever he heard anyone speaking he would scurry straight to the appropriate door and press his whole body against it. There was seldom any conversation, especially at first, that was not about him in some way, even if only in secret. For two whole days, all the talk at every mealtime was about what they should do now; but even between meals they spoke about the same subject as there were always at least two members of the family at home—nobody wanted to be at home by themselves and it was out of the question to leave the flat entirely empty. And on the very first day the maid had fallen to her knees and begged Gregor’s mother to let her go without delay. It was not very clear how much she knew of what had happened but she left within a quarter of an hour, tearfully thanking Gregor’s mother for her dismissal as if she had done her an enormous service. She even swore emphatically not to tell anyone the slightest about what had happened, even though no-one had asked that of her.

Now Gregor’s sister also had to help his mother with the cooking; although that was not so much bother as no-one ate very much. Gregor often heard how one of them would unsuccessfully urge another to eat, and receive no more answer than “no thanks, I’ve had enough” or something similar. No-one drank very much either. His sister would sometimes ask his father whether he would like a beer, hoping for the chance to go and fetch it herself. When his father then said nothing she would add, so that he would not feel selfish, that she could send the housekeeper for it, but then his father would close the matter with a big, loud “No”, and no more would be said.

Even before the first day had come to an end, his father had explained to Gregor’s mother and sister what their finances and prospects were. Now and then he stood up from the table and took some receipt or document from the little cash box he had saved from his business when it had collapsed five years earlier. Gregor heard how he opened the complicated lock and then closed it again after he had taken the item he wanted. What he heard his father say was some of the first good news that Gregor heard since he had first been incarcerated in his room. He had thought that nothing at all remained from his father’s business, at least he had never told him anything different, and Gregor had never asked him about it anyway. Their business misfortune had reduced the family to a state of total despair, and Gregor’s only concern at that time had been to arrange things so that they could all forget about it as quickly as possible. So then he started working especially hard, with a fiery vigour that raised him from a junior salesman to a travelling representative almost overnight, bringing with it the chance to earn money in quite different ways. Gregor converted his success at work straight into cash that he could lay on the table at home for the benefit of his astonished and delighted family. They had been good times and they had never come again, at least not with the same splendour, even though Gregor had later earned so much that he was in a position to bear the costs of the whole family, and did bear them. They had even got used to it, both Gregor and the family, they took the money with gratitude and he was glad to provide it, although there was no longer much warm affection given in return. Gregor only remained close to his sister now. Unlike him, she was very fond of music and a gifted and expressive violinist, it was his secret plan to send her to the conservatory next year even though it would cause great expense that would have to be made up for in some other way. During Gregor’s short periods in town, conversation with his sister would often turn to the conservatory but it was only ever mentioned as a lovely dream that could never be realised. Their parents did not like to hear this innocent talk, but Gregor thought about it quite hard and decided he would let them know what he planned with a grand announcement of it on Christmas day.

That was the sort of totally pointless thing that went through his mind in his present state, pressed upright against the door and listening. There were times when he simply became too tired to continue listening, when his head would fall wearily against the door and he would pull it up again with a start, as even the slightest noise he caused would be heard next door and they would all go silent. “What’s that he’s doing now”, his father would say after a while, clearly having gone over to the door, and only then would the interrupted conversation slowly be taken up again.

When explaining things, his father repeated himself several times, partly because it was a long time since he had been occupied with these matters himself and partly because Gregor’s mother did not understand everything the first time. From these repeated explanations Gregor learned, to his pleasure, that despite all their misfortunes there was still some money available from the old days. It was not a lot, but it had not been touched in the meantime and some interest had accumulated. Besides that, they had not been using up all the money that Gregor had been bringing home every month, keeping only a little for himself, so that that, too, had been accumulating. Behind the door, Gregor nodded with enthusiasm in his pleasure at this unexpected thrift and caution. He could actually have used this surplus money to reduce his father’s debt to his boss, and the day when he could have freed himself from that job would have come much closer, but now it was certainly better the way his father had done things.

This money, however, was certainly not enough to enable the family to live off the interest; it was enough to maintain them for, perhaps, one or two years, no more. That’s to say, it was money that should not really be touched but set aside for emergencies; money to live on had to be earned. His father was healthy but old, and lacking in self confidence. During the five years that he had not been working—the first holiday in a life that had been full of strain and no success—he had put on a lot of weight and become very slow and clumsy. Would Gregor’s elderly mother now have to go and earn money? She suffered from asthma and it was a strain for her just to move about the home, every other day would be spent struggling for breath on the sofa by the open window. Would his sister have to go and earn money? She was still a child of seventeen, her life up till then had been very enviable, consisting of wearing nice clothes, sleeping late, helping out in the business, joining in with a few modest pleasures and most of all playing the violin. Whenever they began to talk of the need to earn money, Gregor would always first let go of the door and then throw himself onto the cool, leather sofa next to it, as he became quite hot with shame and regret.

He would often lie there the whole night through, not sleeping a wink but scratching at the leather for hours on end. Or he might go to all the effort of pushing a chair to the window, climbing up onto the sill and, propped up in the chair, leaning on the window to stare out of it. He had used to feel a great sense of freedom from doing this, but doing it now was obviously something more remembered than experienced, as what he actually saw in this way was becoming less distinct every day, even things that were quite near; he had used to curse the ever-present view of the hospital across the street, but now he could not see it at all, and if he had not known that he lived in Charlottenstrasse, which was a quiet street despite being in the middle of the city, he could have thought that he was looking out the window at a barren waste where the grey sky and the grey earth mingled inseparably. His observant sister only needed to notice the chair twice before she would always push it back to its exact position by the window after she had tidied up the room, and even left the inner pane of the window open from then on.

If Gregor had only been able to speak to his sister and thank her for all that she had to do for him it would have been easier for him to bear it; but as it was it caused him pain. His sister, naturally, tried as far as possible to pretend there was nothing burdensome about it, and the longer it went on, of course, the better she was able to do so, but as time went by Gregor was also able to see through it all so much better. It had even become very unpleasant for him, now, whenever she entered the room. No sooner had she come in than she would quickly close the door as a precaution so that no-one would have to suffer the view into Gregor’s room, then she would go straight to the window and pull it hurriedly open almost as if she were suffocating. Even if it was cold, she would stay at the window breathing deeply for a little while. She would alarm Gregor twice a day with this running about and noise making; he would stay under the couch shivering the whole while, knowing full well that she would certainly have liked to spare him this ordeal, but it was impossible for her to be in the same room with him with the windows closed.

One day, about a month after Gregor’s transformation when his sister no longer had any particular reason to be shocked at his appearance, she came into the room a little earlier than usual and found him still staring out the window, motionless, and just where he would be most horrible. In itself, his sister’s not coming into the room would have been no surprise for Gregor as it would have been difficult for her to immediately open the window while he was still there, but not only did she not come in, she went straight back and closed the door behind her, a stranger would have thought he had threatened her and tried to bite her. Gregor went straight to hide himself under the couch, of course, but he had to wait until midday before his sister came back and she seemed much more uneasy than usual. It made him realise that she still found his appearance unbearable and would continue to do so, she probably even had to overcome the urge to flee when she saw the little bit of him that protruded from under the couch. One day, in order to spare her even this sight, he spent four hours carrying the bedsheet over to the couch on his back and arranged it so that he was completely covered and his sister would not be able to see him even if she bent down. If she did not think this sheet was necessary then all she had to do was take it off again, as it was clear enough that it was no pleasure for Gregor to cut himself off so completely. She left the sheet where it was. Gregor even thought he glimpsed a look of gratitude one time when he carefully looked out from under the sheet to see how his sister liked the new arrangement.

For the first fourteen days, Gregor’s parents could not bring themselves to come into the room to see him. He would often hear them say how they appreciated all the new work his sister was doing even though, before, they had seen her as a girl who was somewhat useless and frequently been annoyed with her. But now the two of them, father and mother, would often both wait outside the door of Gregor’s room while his sister tidied up in there, and as soon as she went out again she would have to tell them exactly how everything looked, what Gregor had eaten, how he had behaved this time and whether, perhaps, any slight improvement could be seen. His mother also wanted to go in and visit Gregor relatively soon but his father and sister at first persuaded her against it. Gregor listened very closely to all this, and approved fully. Later, though, she had to be held back by force, which made her call out: “Let me go and see Gregor, he is my unfortunate son! Can’t you understand I have to see him?”, and Gregor would think to himself that maybe it would be better if his mother came in, not every day of course, but one day a week, perhaps; she could understand everything much better than his sister who, for all her courage, was still just a child after all, and really might not have had an adult’s appreciation of the burdensome job she had taken on.

Gregor’s wish to see his mother was soon realised. Out of consideration for his parents, Gregor wanted to avoid being seen at the window during the day, the few square meters of the floor did not give him much room to crawl about, it was hard to just lie quietly through the night, his food soon stopped giving him any pleasure at all, and so, to entertain himself, he got into the habit of crawling up and down the walls and ceiling. He was especially fond of hanging from the ceiling; it was quite different from lying on the floor; he could breathe more freely; his body had a light swing to it; and up there, relaxed and almost happy, it might happen that he would surprise even himself by letting go of the ceiling and landing on the floor with a crash. But now, of course, he had far better control of his body than before and, even with a fall as great as that, caused himself no damage. Very soon his sister noticed Gregor’s new way of entertaining himself—he had, after all, left traces of the adhesive from his feet as he crawled about—and got it into her head to make it as easy as possible for him by removing the furniture that got in his way, especially the chest of drawers and the desk. Now, this was not something that she would be able to do by herself; she did not dare to ask for help from her father; the sixteen year old maid had carried on bravely since the cook had left but she certainly would not have helped in this, she had even asked to be allowed to keep the kitchen locked at all times and never to have to open the door unless it was especially important; so his sister had no choice but to choose some time when Gregor’s father was not there and fetch his mother to help her. As she approached the room, Gregor could hear his mother express her joy, but once at the door she went silent. First, of course, his sister came in and looked round to see that everything in the room was alright; and only then did she let her mother enter. Gregor had hurriedly pulled the sheet down lower over the couch and put more folds into it so that everything really looked as if it had just been thrown down by chance. Gregor also refrained, this time, from spying out from under the sheet; he gave up the chance to see his mother until later and was simply glad that she had come. “You can come in, he can’t be seen”, said his sister, obviously leading her in by the hand. The old chest of drawers was too heavy for a pair of feeble women to be heaving about, but Gregor listened as they pushed it from its place, his sister always taking on the heaviest part of the work for herself and ignoring her mother’s warnings that she would strain herself. This lasted a very long time. After labouring at it for fifteen minutes or more his mother said it would be better to leave the chest where it was, for one thing it was too heavy for them to get the job finished before Gregor’s father got home and leaving it in the middle of the room it would be in his way even more, and for another thing it wasn’t even sure that taking the furniture away would really be any help to him. She thought just the opposite; the sight of the bare walls saddened her right to her heart; and why wouldn’t Gregor feel the same way about it, he’d been used to this furniture in his room for a long time and it would make him feel abandoned to be in an empty room like that. Then, quietly, almost whispering as if wanting Gregor (whose whereabouts she did not know) to hear not even the tone of her voice, as she was convinced that he did not understand her words, she added “and by taking the furniture away, won’t it seem like we’re showing that we’ve given up all hope of improvement and we’re abandoning him to cope for himself? I think it’d be best to leave the room exactly the way it was before so that when Gregor comes back to us again he’ll find everything unchanged and he’ll be able to forget the time in between all the easier”.

Hearing these words from his mother made Gregor realise that the lack of any direct human communication, along with the monotonous life led by the family during these two months, must have made him confused—he could think of no other way of explaining to himself why he had seriously wanted his room emptied out. Had he really wanted to transform his room into a cave, a warm room fitted out with the nice furniture he had inherited? That would have let him crawl around unimpeded in any direction, but it would also have let him quickly forget his past when he had still been human. He had come very close to forgetting, and it had only been the voice of his mother, unheard for so long, that had shaken him out of it. Nothing should be removed; everything had to stay; he could not do without the good influence the furniture had on his condition; and if the furniture made it difficult for him to crawl about mindlessly that was not a loss but a great advantage.

His sister, unfortunately, did not agree; she had become used to the idea, not without reason, that she was Gregor’s spokesman to his parents about the things that concerned him. This meant that his mother’s advice now was sufficient reason for her to insist on removing not only the chest of drawers and the desk, as she had thought at first, but all the furniture apart from the all-important couch. It was more than childish perversity, of course, or the unexpected confidence she had recently acquired, that made her insist; she had indeed noticed that Gregor needed a lot of room to crawl about in, whereas the furniture, as far as anyone could see, was of no use to him at all. Girls of that age, though, do become enthusiastic about things and feel they must get their way whenever they can. Perhaps this was what tempted Grete to make Gregor’s situation seem even more shocking than it was so that she could do even more for him. Grete would probably be the only one who would dare enter a room dominated by Gregor crawling about the bare walls by himself.

So she refused to let her mother dissuade her. Gregor’s mother already looked uneasy in his room, she soon stopped speaking and helped Gregor’s sister to get the chest of drawers out with what strength she had. The chest of drawers was something that Gregor could do without if he had to, but the writing desk had to stay. Hardly had the two women pushed the chest of drawers, groaning, out of the room than Gregor poked his head out from under the couch to see what he could do about it. He meant to be as careful and considerate as he could, but, unfortunately, it was his mother who came back first while Grete in the next room had her arms round the chest, pushing and pulling at it from side to side by herself without, of course, moving it an inch. His mother was not used to the sight of Gregor, he might have made her ill, so Gregor hurried backwards to the far end of the couch. In his startlement, though, he was not able to prevent the sheet at its front from moving a little. It was enough to attract his mother’s attention. She stood very still, remained there a moment, and then went back out to Grete.

Gregor kept trying to assure himself that nothing unusual was happening, it was just a few pieces of furniture being moved after all, but he soon had to admit that the women going to and fro, their little calls to each other, the scraping of the furniture on the floor, all these things made him feel as if he were being assailed from all sides. With his head and legs pulled in against him and his body pressed to the floor, he was forced to admit to himself that he could not stand all of this much longer. They were emptying his room out; taking away everything that was dear to him; they had already taken out the chest containing his fretsaw and other tools; now they threatened to remove the writing desk with its place clearly worn into the floor, the desk where he had done his homework as a business trainee, at high school, even while he had been at infant school—he really could not wait any longer to see whether the two women’s intentions were good. He had nearly forgotten they were there anyway, as they were now too tired to say anything while they worked and he could only hear their feet as they stepped heavily on the floor.

So, while the women were leant against the desk in the other room catching their breath, he sallied out, changed direction four times not knowing what he should save first before his attention was suddenly caught by the picture on the wall—which was already denuded of everything else that had been on it—of the lady dressed in copious fur. He hurried up onto the picture and pressed himself against its glass, it held him firmly and felt good on his hot belly. This picture at least, now totally covered by Gregor, would certainly be taken away by no-one. He turned his head to face the door into the living room so that he could watch the women when they came back.

They had not allowed themselves a long rest and came back quite soon; Grete had put her arm around her mother and was nearly carrying her. “What shall we take now, then?”, said Grete and looked around. Her eyes met those of Gregor on the wall. Perhaps only because her mother was there, she remained calm, bent her face to her so that she would not look round and said, albeit hurriedly and with a tremor in her voice: “Come on, let’s go back in the living room for a while?” Gregor could see what Grete had in mind, she wanted to take her mother somewhere safe and then chase him down from the wall. Well, she could certainly try it! He sat unyielding on his picture. He would rather jump at Grete’s face.

But Grete’s words had made her mother quite worried, she stepped to one side, saw the enormous brown patch against the flowers of the wallpaper, and before she even realised it was Gregor that she saw screamed: “Oh God, oh God!” Arms outstretched, she fell onto the couch as if she had given up everything and stayed there immobile. “Gregor!” shouted his sister, glowering at him and shaking her fist. That was the first word she had spoken to him directly since his transformation. She ran into the other room to fetch some kind of smelling salts to bring her mother out of her faint; Gregor wanted to help too—he could save his picture later, although he stuck fast to the glass and had to pull himself off by force; then he, too, ran into the next room as if he could advise his sister like in the old days; but he had to just stand behind her doing nothing; she was looking into various bottles, he startled her when she turned round; a bottle fell to the ground and broke; a splinter cut Gregor’s face, some kind of caustic medicine splashed all over him; now, without delaying any longer, Grete took hold of all the bottles she could and ran with them in to her mother; she slammed the door shut with her foot. So now Gregor was shut out from his mother, who, because of him, might be near to death; he could not open the door if he did not want to chase his sister away, and she had to stay with his mother; there was nothing for him to do but wait; and, oppressed with anxiety and self-reproach, he began to crawl about, he crawled over everything, walls, furniture, ceiling, and finally in his confusion as the whole room began to spin around him he fell down into the middle of the dinner table.

He lay there for a while, numb and immobile, all around him it was quiet, maybe that was a good sign. Then there was someone at the door. The maid, of course, had locked herself in her kitchen so that Grete would have to go and answer it. His father had arrived home. “What’s happened?” were his first words; Grete’s appearance must have made everything clear to him. She answered him with subdued voice, and openly pressed her face into his chest: “Mother’s fainted, but she’s better now. Gregor got out.” “Just as I expected”, said his father, “just as I always said, but you women wouldn’t listen, would you.” It was clear to Gregor that Grete had not said enough and that his father took it to mean that something bad had happened, that he was responsible for some act of violence. That meant Gregor would now have to try to calm his father, as he did not have the time to explain things to him even if that had been possible. So he fled to the door of his room and pressed himself against it so that his father, when he came in from the hall, could see straight away that Gregor had the best intentions and would go back into his room without delay, that it would not be necessary to drive him back but that they had only to open the door and he would disappear.

His father, though, was not in the mood to notice subtleties like that; “Ah!”, he shouted as he came in, sounding as if he were both angry and glad at the same time. Gregor drew his head back from the door and lifted it towards his father. He really had not imagined his father the way he stood there now; of late, with his new habit of crawling about, he had neglected to pay attention to what was going on the rest of the flat the way he had done before. He really ought to have expected things to have changed, but still, still, was that really his father? The same tired man as used to be laying there entombed in his bed when Gregor came back from his business trips, who would receive him sitting in the armchair in his nightgown when he came back in the evenings; who was hardly even able to stand up but, as a sign of his pleasure, would just raise his arms and who, on the couple of times a year when they went for a walk together on a Sunday or public holiday wrapped up tightly in his overcoat between Gregor and his mother, would always labour his way forward a little more slowly than them, who were already walking slowly for his sake; who would place his stick down carefully and, if he wanted to say something would invariably stop and gather his companions around him. He was standing up straight enough now; dressed in a smart blue uniform with gold buttons, the sort worn by the employees at the banking institute; above the high, stiff collar of the coat his strong double-chin emerged; under the bushy eyebrows, his piercing, dark eyes looked out fresh and alert; his normally unkempt white hair was combed down painfully close to his scalp. He took his cap, with its gold monogram from, probably, some bank, and threw it in an arc right across the room onto the sofa, put his hands in his trouser pockets, pushing back the bottom of his long uniform coat, and, with look of determination, walked towards Gregor. He probably did not even know himself what he had in mind, but nonetheless lifted his feet unusually high. Gregor was amazed at the enormous size of the soles of his boots, but wasted no time with that—he knew full well, right from the first day of his new life, that his father thought it necessary to always be extremely strict with him. And so he ran up to his father, stopped when his father stopped, scurried forwards again when he moved, even slightly. In this way they went round the room several times without anything decisive happening, without even giving the impression of a chase as everything went so slowly. Gregor remained all this time on the floor, largely because he feared his father might see it as especially provoking if he fled onto the wall or ceiling. Whatever he did, Gregor had to admit that he certainly would not be able to keep up this running about for long, as for each step his father took he had to carry out countless movements. He became noticeably short of breath, even in his earlier life his lungs had not been very reliable. Now, as he lurched about in his efforts to muster all the strength he could for running he could hardly keep his eyes open; his thoughts became too slow for him to think of any other way of saving himself than running; he almost forgot that the walls were there for him to use although, here, they were concealed behind carefully carved furniture full of notches and protrusions—then, right beside him, lightly tossed, something flew down and rolled in front of him. It was an apple; then another one immediately flew at him; Gregor froze in shock; there was no longer any point in running as his father had decided to bombard him. He had filled his pockets with fruit from the bowl on the sideboard and now, without even taking the time for careful aim, threw one apple after another. These little, red apples rolled about on the floor, knocking into each other as if they had electric motors. An apple thrown without much force glanced against Gregor’s back and slid off without doing any harm. Another one however, immediately following it, hit squarely and lodged in his back; Gregor wanted to drag himself away, as if he could remove the surprising, the incredible pain by changing his position; but he felt as if nailed to the spot and spread himself out, all his senses in confusion. The last thing he saw was the door of his room being pulled open, his sister was screaming, his mother ran out in front of her in her blouse (as his sister had taken off some of her clothes after she had fainted to make it easier for her to breathe), she ran to his father, her skirts unfastened and sliding one after another to the ground, stumbling over the skirts she pushed herself to his father, her arms around him, uniting herself with him totally—now Gregor lost his ability to see anything—her hands behind his father’s head begging him to spare Gregor’s life.

III

No-one dared to remove the apple lodged in Gregor’s flesh, so it remained there as a visible reminder of his injury. He had suffered it there for more than a month, and his condition seemed serious enough to remind even his father that Gregor, despite his current sad and revolting form, was a family member who could not be treated as an enemy. On the contrary, as a family there was a duty to swallow any revulsion for him and to be patient, just to be patient.

Because of his injuries, Gregor had lost much of his mobility—probably permanently. He had been reduced to the condition of an ancient invalid and it took him long, long minutes to crawl across his room—crawling over the ceiling was out of the question—but this deterioration in his condition was fully (in his opinion) made up for by the door to the living room being left open every evening. He got into the habit of closely watching it for one or two hours before it was opened and then, lying in the darkness of his room where he could not be seen from the living room, he could watch the family in the light of the dinner table and listen to their conversation—with everyone’s permission, in a way, and thus quite differently from before.

They no longer held the lively conversations of earlier times, of course, the ones that Gregor always thought about with longing when he was tired and getting into the damp bed in some small hotel room. All of them were usually very quiet nowadays. Soon after dinner, his father would go to sleep in his chair; his mother and sister would urge each other to be quiet; his mother, bent deeply under the lamp, would sew fancy underwear for a fashion shop; his sister, who had taken a sales job, learned shorthand and French in the evenings so that she might be able to get a better position later on. Sometimes his father would wake up and say to Gregor’s mother “you’re doing so much sewing again today!”, as if he did not know that he had been dozing—and then he would go back to sleep again while mother and sister would exchange a tired grin.

With a kind of stubbornness, Gregor’s father refused to take his uniform off even at home; while his nightgown hung unused on its peg Gregor’s father would slumber where he was, fully dressed, as if always ready to serve and expecting to hear the voice of his superior even here. The uniform had not been new to start with, but as a result of this it slowly became even shabbier despite the efforts of Gregor’s mother and sister to look after it. Gregor would often spend the whole evening looking at all the stains on this coat, with its gold buttons always kept polished and shiny, while the old man in it would sleep, highly uncomfortable but peaceful.

As soon as it struck ten, Gregor’s mother would speak gently to his father to wake him and try to persuade him to go to bed, as he couldn’t sleep properly where he was and he really had to get his sleep if he was to be up at six to get to work. But since he had been in work he had become more obstinate and would always insist on staying longer at the table, even though he regularly fell asleep and it was then harder than ever to persuade him to exchange the chair for his bed. Then, however much mother and sister would importune him with little reproaches and warnings he would keep slowly shaking his head for a quarter of an hour with his eyes closed and refusing to get up. Gregor’s mother would tug at his sleeve, whisper endearments into his ear, Gregor’s sister would leave her work to help her mother, but nothing would have any effect on him. He would just sink deeper into his chair. Only when the two women took him under the arms he would abruptly open his eyes, look at them one after the other and say: “What a life! This is what peace I get in my old age!” And supported by the two women he would lift himself up carefully as if he were carrying the greatest load himself, let the women take him to the door, send them off and carry on by himself while Gregor’s mother would throw down her needle and his sister her pen so that they could run after his father and continue being of help to him.

Who, in this tired and overworked family, would have had time to give more attention to Gregor than was absolutely necessary? The household budget became even smaller; so now the maid was dismissed; an enormous, thick-boned charwoman with white hair that flapped around her head came every morning and evening to do the heaviest work; everything else was looked after by Gregor’s mother on top of the large amount of sewing work she did. Gregor even learned, listening to the evening conversation about what price they had hoped for, that several items of jewellery belonging to the family had been sold, even though both mother and sister had been very fond of wearing them at functions and celebrations. But the loudest complaint was that although the flat was much too big for their present circumstances, they could not move out of it, there was no imaginable way of transferring Gregor to the new address. He could see quite well, though, that there were more reasons than consideration for him that made it difficult for them to move, it would have been quite easy to transport him in any suitable crate with a few air holes in it; the main thing holding the family back from their decision to move was much more to do with their total despair, and the thought that they had been struck with a misfortune unlike anything experienced by anyone else they knew or were related to. They carried out absolutely everything that the world expects from poor people, Gregor’s father brought bank employees their breakfast, his mother sacrificed herself by washing clothes for strangers, his sister ran back and forth behind her desk at the behest of the customers, but they just did not have the strength to do any more. And the injury in Gregor’s back began to hurt as much as when it was new. After they had come back from taking his father to bed Gregor’s mother and sister would now leave their work where it was and sit close together, cheek to cheek; his mother would point to Gregor’s room and say “Close that door, Grete”, and then, when he was in the dark again, they would sit in the next room and their tears would mingle, or they would simply sit there staring dry-eyed at the table.

Gregor hardly slept at all, either night or day. Sometimes he would think of taking over the family’s affairs, just like before, the next time the door was opened; he had long forgotten about his boss and the chief clerk, but they would appear again in his thoughts, the salesmen and the apprentices, that stupid teaboy, two or three friends from other businesses, one of the chambermaids from a provincial hotel, a tender memory that appeared and disappeared again, a cashier from a hat shop for whom his attention had been serious but too slow,—all of them appeared to him, mixed together with strangers and others he had forgotten, but instead of helping him and his family they were all of them inaccessible, and he was glad when they disappeared. Other times he was not at all in the mood to look after his family, he was filled with simple rage about the lack of attention he was shown, and although he could think of nothing he would have wanted, he made plans of how he could get into the pantry where he could take all the things he was entitled to, even if he was not hungry. Gregor’s sister no longer thought about how she could please him but would hurriedly push some food or other into his room with her foot before she rushed out to work in the morning and at midday, and in the evening she would sweep it away again with the broom, indifferent as to whether it had been eaten or—more often than not—had been left totally untouched. She still cleared up the room in the evening, but now she could not have been any quicker about it. Smears of dirt were left on the walls, here and there were little balls of dust and filth. At first, Gregor went into one of the worst of these places when his sister arrived as a reproach to her, but he could have stayed there for weeks without his sister doing anything about it; she could see the dirt as well as he could but she had simply decided to leave him to it. At the same time she became touchy in a way that was quite new for her and which everyone in the family understood—cleaning up Gregor’s room was for her and her alone. Gregor’s mother did once thoroughly clean his room, and needed to use several bucketfuls of water to do it—although that much dampness also made Gregor ill and he lay flat on the couch, bitter and immobile. But his mother was to be punished still more for what she had done, as hardly had his sister arrived home in the evening than she noticed the change in Gregor’s room and, highly aggrieved, ran back into the living room where, despite her mothers raised and imploring hands, she broke into convulsive tears. Her father, of course, was startled out of his chair and the two parents looked on astonished and helpless; then they, too, became agitated; Gregor’s father, standing to the right of his mother, accused her of not leaving the cleaning of Gregor’s room to his sister; from her left, Gregor’s sister screamed at her that she was never to clean Gregor’s room again; while his mother tried to draw his father, who was beside himself with anger, into the bedroom; his sister, quaking with tears, thumped on the table with her small fists; and Gregor hissed in anger that no-one had even thought of closing the door to save him the sight of this and all its noise.

Gregor’s sister was exhausted from going out to work, and looking after Gregor as she had done before was even more work for her, but even so his mother ought certainly not to have taken her place. Gregor, on the other hand, ought not to be neglected. Now, though, the charwoman was here. This elderly widow, with a robust bone structure that made her able to withstand the hardest of things in her long life, wasn’t really repelled by Gregor. Just by chance one day, rather than any real curiosity, she opened the door to Gregor’s room and found herself face to face with him. He was taken totally by surprise, no-one was chasing him but he began to rush to and fro while she just stood there in amazement with her hands crossed in front of her. From then on she never failed to open the door slightly every evening and morning and look briefly in on him. At first she would call to him as she did so with words that she probably considered friendly, such as “come on then, you old dung-beetle!”, or “look at the old dung-beetle there!” Gregor never responded to being spoken to in that way, but just remained where he was without moving as if the door had never even been opened. If only they had told this charwoman to clean up his room every day instead of letting her disturb him for no reason whenever she felt like it! One day, early in the morning while a heavy rain struck the windowpanes, perhaps indicating that spring was coming, she began to speak to him in that way once again. Gregor was so resentful of it that he started to move toward her, he was slow and infirm, but it was like a kind of attack. Instead of being afraid, the charwoman just lifted up one of the chairs from near the door and stood there with her mouth open, clearly intending not to close her mouth until the chair in her hand had been slammed down into Gregor’s back. “Aren’t you coming any closer, then?”, she asked when Gregor turned round again, and she calmly put the chair back in the corner.

Gregor had almost entirely stopped eating. Only if he happened to find himself next to the food that had been prepared for him he might take some of it into his mouth to play with it, leave it there a few hours and then, more often than not, spit it out again. At first he thought it was distress at the state of his room that stopped him eating, but he had soon got used to the changes made there. They had got into the habit of putting things into this room that they had no room for anywhere else, and there were now many such things as one of the rooms in the flat had been rented out to three gentlemen. These earnest gentlemen—all three of them had full beards, as Gregor learned peering through the crack in the door one day—were painfully insistent on things’ being tidy. This meant not only in their own room but, since they had taken a room in this establishment, in the entire flat and especially in the kitchen. Unnecessary clutter was something they could not tolerate, especially if it was dirty. They had moreover brought most of their own furnishings and equipment with them. For this reason, many things had become superfluous which, although they could not be sold, the family did not wish to discard. All these things found their way into Gregor’s room. The dustbins from the kitchen found their way in there too. The charwoman was always in a hurry, and anything she couldn’t use for the time being she would just chuck in there. He, fortunately, would usually see no more than the object and the hand that held it. The woman most likely meant to fetch the things back out again when she had time and the opportunity, or to throw everything out in one go, but what actually happened was that they were left where they landed when they had first been thrown unless Gregor made his way through the junk and moved it somewhere else. At first he moved it because, with no other room free where he could crawl about, he was forced to, but later on he came to enjoy it although moving about in that way left him sad and tired to death, and he would remain immobile for hours afterwards.

The gentlemen who rented the room would sometimes take their evening meal at home in the living room that was used by everyone, and so the door to this room was often kept closed in the evening. But Gregor found it easy to give up having the door open, he had, after all, often failed to make use of it when it was open and, without the family having noticed it, lain in his room in its darkest corner. One time, though, the charwoman left the door to the living room slightly open, and it remained open when the gentlemen who rented the room came in in the evening and the light was put on. They sat up at the table where, formerly, Gregor had taken his meals with his father and mother, they unfolded the serviettes and picked up their knives and forks. Gregor’s mother immediately appeared in the doorway with a dish of meat and soon behind her came his sister with a dish piled high with potatoes. The food was steaming, and filled the room with its smell. The gentlemen bent over the dishes set in front of them as if they wanted to test the food before eating it, and the gentleman in the middle, who seemed to count as an authority for the other two, did indeed cut off a piece of meat while it was still in its dish, clearly wishing to establish whether it was sufficiently cooked or whether it should be sent back to the kitchen. It was to his satisfaction, and Gregor’s mother and sister, who had been looking on anxiously, began to breathe again and smiled.

The family themselves ate in the kitchen. Nonetheless, Gregor’s father came into the living room before he went into the kitchen, bowed once with his cap in his hand and did his round of the table. The gentlemen stood as one, and mumbled something into their beards. Then, once they were alone, they ate in near perfect silence. It seemed remarkable to Gregor that above all the various noises of eating their chewing teeth could still be heard, as if they had wanted to show Gregor that you need teeth in order to eat and it was not possible to perform anything with jaws that are toothless however nice they might be. “I’d like to eat something”, said Gregor anxiously, “but not anything like they’re eating. They do feed themselves. And here I am, dying!”

Throughout all this time, Gregor could not remember having heard the violin being played, but this evening it began to be heard from the kitchen. The three gentlemen had already finished their meal, the one in the middle had produced a newspaper, given a page to each of the others, and now they leant back in their chairs reading them and smoking. When the violin began playing they became attentive, stood up and went on tip-toe over to the door of the hallway where they stood pressed against each other. Someone must have heard them in the kitchen, as Gregor’s father called out: “Is the playing perhaps unpleasant for the gentlemen? We can stop it straight away.” “On the contrary”, said the middle gentleman, “would the young lady not like to come in and play for us here in the room, where it is, after all, much more cosy and comfortable?” “Oh yes, we’d love to”, called back Gregor’s father as if he had been the violin player himself. The gentlemen stepped back into the room and waited. Gregor’s father soon appeared with the music stand, his mother with the music and his sister with the violin. She calmly prepared everything for her to begin playing; his parents, who had never rented a room out before and therefore showed an exaggerated courtesy towards the three gentlemen, did not even dare to sit on their own chairs; his father leant against the door with his right hand pushed in between two buttons on his uniform coat; his mother, though, was offered a seat by one of the gentlemen and sat—leaving the chair where the gentleman happened to have placed it—out of the way in a corner.

His sister began to play; father and mother paid close attention, one on each side, to the movements of her hands. Drawn in by the playing, Gregor had dared to come forward a little and already had his head in the living room. Before, he had taken great pride in how considerate he was but now it hardly occurred to him that he had become so thoughtless about the others. What’s more, there was now all the more reason to keep himself hidden as he was covered in the dust that lay everywhere in his room and flew up at the slightest movement; he carried threads, hairs, and remains of food about on his back and sides; he was much too indifferent to everything now to lay on his back and wipe himself on the carpet like he had used to do several times a day. And despite this condition, he was not too shy to move forward a little onto the immaculate floor of the living room.

No-one noticed him, though. The family was totally preoccupied with the violin playing; at first, the three gentlemen had put their hands in their pockets and come up far too close behind the music stand to look at all the notes being played, and they must have disturbed Gregor’s sister, but soon, in contrast with the family, they withdrew back to the window with their heads sunk and talking to each other at half volume, and they stayed by the window while Gregor’s father observed them anxiously. It really now seemed very obvious that they had expected to hear some beautiful or entertaining violin playing but had been disappointed, that they had had enough of the whole performance and it was only now out of politeness that they allowed their peace to be disturbed. It was especially unnerving, the way they all blew the smoke from their cigarettes upwards from their mouth and noses. Yet Gregor’s sister was playing so beautifully. Her face was leant to one side, following the lines of music with a careful and melancholy expression. Gregor crawled a little further forward, keeping his head close to the ground so that he could meet her eyes if the chance came. Was he an animal if music could captivate him so? It seemed to him that he was being shown the way to the unknown nourishment he had been yearning for. He was determined to make his way forward to his sister and tug at her skirt to show her she might come into his room with her violin, as no-one appreciated her playing here as much as he would. He never wanted to let her out of his room, not while he lived, anyway; his shocking appearance should, for once, be of some use to him; he wanted to be at every door of his room at once to hiss and spit at the attackers; his sister should not be forced to stay with him, though, but stay of her own free will; she would sit beside him on the couch with her ear bent down to him while he told her how he had always intended to send her to the conservatory, how he would have told everyone about it last Christmas—had Christmas really come and gone already?—if this misfortune hadn’t got in the way, and refuse to let anyone dissuade him from it. On hearing all this, his sister would break out in tears of emotion, and Gregor would climb up to her shoulder and kiss her neck, which, since she had been going out to work, she had kept free without any necklace or collar.

“Mr. Samsa!”, shouted the middle gentleman to Gregor’s father, pointing, without wasting any more words, with his forefinger at Gregor as he slowly moved forward. The violin went silent, the middle of the three gentlemen first smiled at his two friends, shaking his head, and then looked back at Gregor. His father seemed to think it more important to calm the three gentlemen before driving Gregor out, even though they were not at all upset and seemed to think Gregor was more entertaining than the violin playing had been. He rushed up to them with his arms spread out and attempted to drive them back into their room at the same time as trying to block their view of Gregor with his body. Now they did become a little annoyed, and it was not clear whether it was his father’s behaviour that annoyed them or the dawning realisation that they had had a neighbour like Gregor in the next room without knowing it. They asked Gregor’s father for explanations, raised their arms like he had, tugged excitedly at their beards and moved back towards their room only very slowly. Meanwhile Gregor’s sister had overcome the despair she had fallen into when her playing was suddenly interrupted. She had let her hands drop and let violin and bow hang limply for a while but continued to look at the music as if still playing, but then she suddenly pulled herself together, lay the instrument on her mother’s lap who still sat laboriously struggling for breath where she was, and ran into the next room which, under pressure from her father, the three gentlemen were more quickly moving toward. Under his sister’s experienced hand, the pillows and covers on the beds flew up and were put into order and she had already finished making the beds and slipped out again before the three gentlemen had reached the room. Gregor’s father seemed so obsessed with what he was doing that he forgot all the respect he owed to his tenants. He urged them and pressed them until, when he was already at the door of the room, the middle of the three gentlemen shouted like thunder and stamped his foot and thereby brought Gregor’s father to a halt. “I declare here and now”, he said, raising his hand and glancing at Gregor’s mother and sister to gain their attention too, “that with regard to the repugnant conditions that prevail in this flat and with this family”—here he looked briefly but decisively at the floor—“I give immediate notice on my room. For the days that I have been living here I will, of course, pay nothing at all, on the contrary I will consider whether to proceed with some kind of action for damages from you, and believe me it would be very easy to set out the grounds for such an action.” He was silent and looked straight ahead as if waiting for something. And indeed, his two friends joined in with the words: “And we also give immediate notice.” With that, he took hold of the door handle and slammed the door.

Gregor’s father staggered back to his seat, feeling his way with his hands, and fell into it; it looked as if he was stretching himself out for his usual evening nap but from the uncontrolled way his head kept nodding it could be seen that he was not sleeping at all. Throughout all this, Gregor had lain still where the three gentlemen had first seen him. His disappointment at the failure of his plan, and perhaps also because he was weak from hunger, made it impossible for him to move. He was sure that everyone would turn on him any moment, and he waited. He was not even startled out of this state when the violin on his mother’s lap fell from her trembling fingers and landed loudly on the floor.

“Father, Mother”, said his sister, hitting the table with her hand as introduction, “we can’t carry on like this. Maybe you can’t see it, but I can. I don’t want to call this monster my brother, all I can say is: we have to try and get rid of it. We’ve done all that’s humanly possible to look after it and be patient, I don’t think anyone could accuse us of doing anything wrong.”

“She’s absolutely right”, said Gregor’s father to himself. His mother, who still had not had time to catch her breath, began to cough dully, her hand held out in front of her and a deranged expression in her eyes.

Gregor’s sister rushed to his mother and put her hand on her forehead. Her words seemed to give Gregor’s father some more definite ideas. He sat upright, played with his uniform cap between the plates left by the three gentlemen after their meal, and occasionally looked down at Gregor as he lay there immobile.

“We have to try and get rid of it”, said Gregor’s sister, now speaking only to her father, as her mother was too occupied with coughing to listen, “it’ll be the death of both of you, I can see it coming. We can’t all work as hard as we have to and then come home to be tortured like this, we can’t endure it. I can’t endure it any more.” And she broke out so heavily in tears that they flowed down the face of her mother, and she wiped them away with mechanical hand movements.

“My child”, said her father with sympathy and obvious understanding, “what are we to do?”

His sister just shrugged her shoulders as a sign of the helplessness and tears that had taken hold of her, displacing her earlier certainty.

“If he could just understand us”, said his father almost as a question; his sister shook her hand vigorously through her tears as a sign that of that there was no question.

“If he could just understand us”, repeated Gregor’s father, closing his eyes in acceptance of his sister’s certainty that that was quite impossible, “then perhaps we could come to some kind of arrangement with him. But as it is …”

“It’s got to go”, shouted his sister, “that’s the only way, Father. You’ve got to get rid of the idea that that’s Gregor. We’ve only harmed ourselves by believing it for so long. How can that be Gregor? If it were Gregor he would have seen long ago that it’s not possible for human beings to live with an animal like that and he would have gone of his own free will. We wouldn’t have a brother any more, then, but we could carry on with our lives and remember him with respect. As it is this animal is persecuting us, it’s driven out our tenants, it obviously wants to take over the whole flat and force us to sleep on the streets. Father, look, just look”, she suddenly screamed, “he’s starting again!” In her alarm, which was totally beyond Gregor’s comprehension, his sister even abandoned his mother as she pushed herself vigorously out of her chair as if more willing to sacrifice her own mother than stay anywhere near Gregor. She rushed over to behind her father, who had become excited merely because she was and stood up half raising his hands in front of Gregor’s sister as if to protect her.

But Gregor had had no intention of frightening anyone, least of all his sister. All he had done was begin to turn round so that he could go back into his room, although that was in itself quite startling as his pain-wracked condition meant that turning round required a great deal of effort and he was using his head to help himself do it, repeatedly raising it and striking it against the floor. He stopped and looked round. They seemed to have realised his good intention and had only been alarmed briefly. Now they all looked at him in unhappy silence. His mother lay in her chair with her legs stretched out and pressed against each other, her eyes nearly closed with exhaustion; his sister sat next to his father with her arms around his neck.

“Maybe now they’ll let me turn round”, thought Gregor and went back to work. He could not help panting loudly with the effort and had sometimes to stop and take a rest. No-one was making him rush any more, everything was left up to him. As soon as he had finally finished turning round he began to move straight ahead. He was amazed at the great distance that separated him from his room, and could not understand how he had covered that distance in his weak state a little while before and almost without noticing it. He concentrated on crawling as fast as he could and hardly noticed that there was not a word, not any cry, from his family to distract him. He did not turn his head until he had reached the doorway. He did not turn it all the way round as he felt his neck becoming stiff, but it was nonetheless enough to see that nothing behind him had changed, only his sister had stood up. With his last glance he saw that his mother had now fallen completely asleep.

He was hardly inside his room before the door was hurriedly shut, bolted and locked. The sudden noise behind Gregor so startled him that his little legs collapsed under him. It was his sister who had been in so much of a rush. She had been standing there waiting and sprung forward lightly, Gregor had not heard her coming at all, and as she turned the key in the lock she said loudly to her parents “At last!”.

“What now, then?”, Gregor asked himself as he looked round in the darkness. He soon made the discovery that he could no longer move at all. This was no surprise to him, it seemed rather that being able to actually move around on those spindly little legs until then was unnatural. He also felt relatively comfortable. It is true that his entire body was aching, but the pain seemed to be slowly getting weaker and weaker and would finally disappear altogether. He could already hardly feel the decayed apple in his back or the inflamed area around it, which was entirely covered in white dust. He thought back of his family with emotion and love. If it was possible, he felt that he must go away even more strongly than his sister. He remained in this state of empty and peaceful rumination until he heard the clock tower strike three in the morning. He watched as it slowly began to get light everywhere outside the window too. Then, without his willing it, his head sank down completely, and his last breath flowed weakly from his nostrils.

When the cleaner came in early in the morning—they’d often asked her not to keep slamming the doors but with her strength and in her hurry she still did, so that everyone in the flat knew when she’d arrived and from then on it was impossible to sleep in peace—she made her usual brief look in on Gregor and at first found nothing special. She thought he was laying there so still on purpose, playing the martyr; she attributed all possible understanding to him. She happened to be holding the long broom in her hand, so she tried to tickle Gregor with it from the doorway. When she had no success with that she tried to make a nuisance of herself and poked at him a little, and only when she found she could shove him across the floor with no resistance at all did she start to pay attention. She soon realised what had really happened, opened her eyes wide, whistled to herself, but did not waste time to yank open the bedroom doors and shout loudly into the darkness of the bedrooms: “Come and ’ave a look at this, it’s dead, just lying there, stone dead!”

Mr. and Mrs. Samsa sat upright there in their marriage bed and had to make an effort to get over the shock caused by the cleaner before they could grasp what she was saying. But then, each from his own side, they hurried out of bed. Mr. Samsa threw the blanket over his shoulders, Mrs. Samsa just came out in her nightdress; and that is how they went into Gregor’s room. On the way they opened the door to the living room where Grete had been sleeping since the three gentlemen had moved in; she was fully dressed as if she had never been asleep, and the paleness of her face seemed to confirm this. “Dead?”, asked Mrs. Samsa, looking at the charwoman enquiringly, even though she could have checked for herself and could have known it even without checking. “That’s what I said”, replied the cleaner, and to prove it she gave Gregor’s body another shove with the broom, sending it sideways across the floor. Mrs. Samsa made a movement as if she wanted to hold back the broom, but did not complete it. “Now then”, said Mr. Samsa, “let’s give thanks to God for that”. He crossed himself, and the three women followed his example. Grete, who had not taken her eyes from the corpse, said: “Just look how thin he was. He didn’t eat anything for so long. The food came out again just the same as when it went in”. Gregor’s body was indeed completely dried up and flat, they had not seen it until then, but now he was not lifted up on his little legs, nor did he do anything to make them look away.

“Grete, come with us in here for a little while”, said Mrs. Samsa with a pained smile, and Grete followed her parents into the bedroom but not without looking back at the body. The cleaner shut the door and opened the window wide. Although it was still early in the morning the fresh air had something of warmth mixed in with it. It was already the end of March, after all.

The three gentlemen stepped out of their room and looked round in amazement for their breakfasts; they had been forgotten about. “Where is our breakfast?”, the middle gentleman asked the cleaner irritably. She just put her finger on her lips and made a quick and silent sign to the men that they might like to come into Gregor’s room. They did so, and stood around Gregor’s corpse with their hands in the pockets of their well-worn coats. It was now quite light in the room.

Then the door of the bedroom opened and Mr. Samsa appeared in his uniform with his wife on one arm and his daughter on the other. All of them had been crying a little; Grete now and then pressed her face against her father’s arm.

“Leave my home. Now!”, said Mr. Samsa, indicating the door and without letting the women from him. “What do you mean?”, asked the middle of the three gentlemen somewhat disconcerted, and he smiled sweetly. The other two held their hands behind their backs and continually rubbed them together in gleeful anticipation of a loud quarrel which could only end in their favour. “I mean just what I said”, answered Mr. Samsa, and, with his two companions, went in a straight line towards the man. At first, he stood there still, looking at the ground as if the contents of his head were rearranging themselves into new positions. “Alright, we’ll go then”, he said, and looked up at Mr. Samsa as if he had been suddenly overcome with humility and wanted permission again from Mr. Samsa for his decision. Mr. Samsa merely opened his eyes wide and briefly nodded to him several times. At that, and without delay, the man actually did take long strides into the front hallway; his two friends had stopped rubbing their hands some time before and had been listening to what was being said. Now they jumped off after their friend as if taken with a sudden fear that Mr. Samsa might go into the hallway in front of them and break the connection with their leader. Once there, all three took their hats from the stand, took their sticks from the holder, bowed without a word and left the premises. Mr. Samsa and the two women followed them out onto the landing; but they had had no reason to mistrust the men’s intentions and as they leaned over the landing they saw how the three gentlemen made slow but steady progress down the many steps. As they turned the corner on each floor they disappeared and would reappear a few moments later; the further down they went, the more that the Samsa family lost interest in them; when a butcher’s boy, proud of posture with his tray on his head, passed them on his way up and came nearer than they were, Mr. Samsa and the women came away from the landing and went, as if relieved, back into the flat.

They decided the best way to make use of that day was for relaxation and to go for a walk; not only had they earned a break from work but they were in serious need of it. So they sat at the table and wrote three letters of excusal, Mr. Samsa to his employers, Mrs. Samsa to her contractor and Grete to her principal. The cleaner came in while they were writing to tell them she was going, she’d finished her work for that morning. The three of them at first just nodded without looking up from what they were writing, and it was only when the cleaner still did not seem to want to leave that they looked up in irritation. “Well?”, asked Mr. Samsa. The charwoman stood in the doorway with a smile on her face as if she had some tremendous good news to report, but would only do it if she was clearly asked to. The almost vertical little ostrich feather on her hat, which had been a source of irritation to Mr. Samsa all the time she had been working for them, swayed gently in all directions. “What is it you want then?”, asked Mrs. Samsa, whom the cleaner had the most respect for. “Yes”, she answered, and broke into a friendly laugh that made her unable to speak straight away, “well then, that thing in there, you needn’t worry about how you’re going to get rid of it. That’s all been sorted out.” Mrs. Samsa and Grete bent down over their letters as if intent on continuing with what they were writing; Mr. Samsa saw that the cleaner wanted to start describing everything in detail but, with outstretched hand, he made it quite clear that she was not to. So, as she was prevented from telling them all about it, she suddenly remembered what a hurry she was in and, clearly peeved, called out “Cheerio then, everyone”, turned round sharply and left, slamming the door terribly as she went.

“Tonight she gets sacked”, said Mr. Samsa, but he received no reply from either his wife or his daughter as the charwoman seemed to have destroyed the peace they had only just gained. They got up and went over to the window where they remained with their arms around each other. Mr. Samsa twisted round in his chair to look at them and sat there watching for a while. Then he called out: “Come here, then. Let’s forget about all that old stuff, shall we. Come and give me a bit of attention”. The two women immediately did as he said, hurrying over to him where they kissed him and hugged him and then they quickly finished their letters.

After that, the three of them left the flat together, which was something they had not done for months, and took the tram out to the open country outside the town. They had the tram, filled with warm sunshine, all to themselves. Leant back comfortably on their seats, they discussed their prospects and found that on closer examination they were not at all bad—until then they had never asked each other about their work but all three had jobs which were very good and held particularly good promise for the future. The greatest improvement for the time being, of course, would be achieved quite easily by moving house; what they needed now was a flat that was smaller and cheaper than the current one which had been chosen by Gregor, one that was in a better location and, most of all, more practical. All the time, Grete was becoming livelier. With all the worry they had been having of late her cheeks had become pale, but, while they were talking, Mr. and Mrs. Samsa were struck, almost simultaneously, with the thought of how their daughter was blossoming into a well built and beautiful young lady. They became quieter. Just from each other’s glance and almost without knowing it they agreed that it would soon be time to find a good man for her. And, as if in confirmation of their new dreams and good intentions, as soon as they reached their destination Grete was the first to get up and stretch out her young body.





An Introduction to Roman-Dutch Law by Robert Warden Lee-1915

GENERAL INTRODUCTION

The Roman-Dutch Law: The phrase ‘Roman-Dutch Law’ was invented by Simon van Leeuwen,[1] who employed it as the subtitle of his work entitled Paratitula Juris Novissimi, published at Leyden in 1652 and republished in 1656. Subsequently his larger and better known treatise on the ‘Roman-Dutch Law’ was issued under that name in the year 1664.

The system of law thus described is that which obtained in the province of Holland during the existence of the Republic of the United Netherlands. Its main principles were carried by the Dutch into their settlements in the East and West Indies; and when some of these, namely the Cape of Good Hope, Ceylon, and part of Guiana, at the end of the eighteenth and the beginning of the nineteenth century, passed under the dominion of the Crown of Great Britain, the old law was retained as the common law of the territories which now became British colonies. With the expansion of the British Empire in South Africa, the sphere of the Roman-Dutch Law has extended its boundaries, until the whole of the area comprised within the Union of South Africa, representing the four former colonies of the Cape of Good Hope, Natal, the Transvaal, and the Orange River, as well as the country administered by the British South Africa Company under the name of Southern Rhodesia, has adopted this system as its common law. This is the more remarkable since in Holland itself and in the Dutch colonies of the present day, the old law has been replaced by modern codes; so that the statutes and text-books, which are still consulted and followed in the above-mentioned British dominions, in the land of their origin are no longer of practical interest.[2]

Though to indicate in general terms the nature of the Roman-Dutch Law is a matter of no great difficulty, precisely to define its extent in time or space is not so easy. Its origin,Derived from the two sources of Germanic Custom and Roman Law, the Roman-Dutch Law may be said to have existed, so soon as the former of these incorporated elements derived from the latter. Undoubtedly such a process was at work from very early times. Long before the Corpus Juris of Justinian had been ‘received’ in Germany, the Codex Theodosianus (A. D. 438) had left its mark upon the tribal customs of the country now comprised within the limits of the kingdoms of Holland and Belgium.[3] and development.Later, the various influences of the Frankish Monarchy and of the Church and Canon Law[4] forged fresh links between Rome and Germany. The general reception of the Roman Law into Germany and Holland in the fifteenth and sixteenth centuries completed a process, which in various ways and through various channels had been at work for upwards of a thousand years.[5]

For many centuries after the dissolution of the Frankish Empire there was no general legislation. Under the rule of the Counts of Holland the law of that province consisted principally in general and local customs supplemented to an uncertain degree by Roman Law. The numerous privileges (handvesten) wrung from the Counts by the growing power of the towns only tended to complicate the law by a multiplication of local anomalies.[6] In such a state of things it is not surprising that men should have resorted to the Roman Law as to a system logical, coherent, and complete.[7] Later, under Spanish rule, came an era of constructive legislation; but by that time the victory of the Roman Law was already assured.

The reception of the Roman Law in the Netherlands; Prominent amongst the causes which stimulated the reception of the Roman Law in this its latest phase was the establishment of the Great Council at Mechlin[8] in the year 1473 with jurisdiction over all the provinces of the Netherlands then subject to the Duke of Burgundy. This Court, which continued to exist until the War of Independence,[9] did much to assimilate the law in the various provinces, and thus exercised a jurisdiction comparable to that of the Judicial Committee of the Privy Council or (in a narrower field) of the Appellate Division of the Supreme Court of South Africa at the present day. Nicholaus Everardus,[10] one of our earliest authorities for the Roman-Dutch Law, was President of this Court in 1528.[11] Perhaps we shall not be wrong, then, if we select the year of the institution of this tribunal as the starting-point of the system which we know by the name of the Roman-Dutch Law.[12]

Unequal in the various provinces.The reception of the Roman Law was by no means equally complete in all the provinces of the Dutch Netherlands.[13] It was most far-reaching in Friesland, least so in Overijssel and Drenthe. The other provinces lay at various points between these extremes. It follows that the laws of no two provinces were precisely the same. There is no reason why we should not, if we please, include all these systems imder the name of ‘Roman-Dutch Law’. In practice, however, the phrase is usually applied more particularly to the law of the province of Holland. This is accounted for partly by the hegemony, constantly tending to domination, which Holland exercised over the other provinces during the whole continuance of the Republic, partly by the fact that the principal writers upon the romanized law of the Dutch Netherlands belonged to this province.

The extent of the reception matter of controversy. If we ask to what extent the Roman Law was received in the Netherlands in general and in the province of Holland in particular, we incur the risk of taking sides in a controversy of rival schools.[14] There are those who regard Grotius, Van Leeuwen, Voet, and the other romanists as traitors to the law of their country, which, it is inferred, they enslaved to an alien system. So far as the issue is purely historical the present writer does not offer an opinion. For the lawyer, he submits, the question is not what the law was when these jurists wrote, but what it was when they had written. In the history of institutions it is sometimes more important to know what was thought to be true than to know what was true in fact. At all events, no one disputes the fact of the reception of the Roman Law. What is questioned is the degree to which the reception went. For our part, we shall be content to accept the dictum of Van der Linden: ‘In order to answer the question what is the law in such and such a case we must first inquire whether any general law of the land or local ordinance (plaatselijke keur) having the force of law or any well-established custom can be found affecting it. The Roman Law as a model of wisdom and equity is, in default of such a law, accepted by us through custom in order to supply this want.’[15] The limits of this acceptance are defined by Van der Keessel in a series of theses[16] which Professor Fockema Andreae recognizes to be substantially correct.[17]

Legislation under Spanish rule. During the period of Spanish rule legislation became active. Many useful measures were promulgated by Charles V, such as the Placaat of May 10, 1529,[18] relating to the transfer and hypothecation of immovable property, and, above all, the Perpetual Edict of October 4, 1540.[19] In 1570 his son Philip II issued a Code of Criminal Procedure,[20] which regulated the practice of the Dutch Colonies until superseded by the humaner provisions of the English Law.[21] The Political Ordinance of April 1, 1580,[22] though enacted by the States of Holland and West Friesland, not by the States-General, must also be mentioned as one of the formative elements of the modern law. The Civil Procedure of all the Courts was regulated by another Ordinance of the same year and day.[23]

The Roman-Dutch Law in Holland. The history of the Roman-Dutch Law during the existence of the Dutch Republic is for our present purpose the history of the authorities from whom we derive our knowledge of it. To these we shall presently refer. In the home of its origin the Roman-Dutch Law as a separate system survived by a few years the dissolution of the Republic of the United Netherlands. In 1809 it was superseded by the Napoleonic Codes, which in turn gave place in 1838 to the existing codes in force in the kingdom of the Netherlands. Van der Linden, the latest writer on the old law, was also the earliest writer on the new. When the old system crumbled beneath his hands he left unfinished his projected Supplement to Voet’s Commentary upon the Pandects;[24] applying his tireless industry in a new field, he became to his countrymen the interpreter of the laws of their conqueror.[25] The existing Dutch Civil Code, however, in many respects reverts from the rules of the French law to the earlier law of Holland.

Having said thus much of the Roman-Dutch Law in general, we shall proceed next to speak more particularly of its history in the Roman-Dutch Colonies,[26] for by that name we may conveniently indicate the British possessions in which this system obtains. After that we shall go on to speak of the sources from which our knowledge of the Roman-Dutch Law is derived.

The Roman-Dutch Law in the Dutch Colonies. The two great trading companies of East and West, the Dutch East India Company incorporated in 1602, and the Dutch West India Company incorporated in 1621, carried the Roman-Dutch Law into their settlements. The Cape was occupied by Van Riebeek in 1652. The maritime districts of Ceylon were won from the Portuguese in 1656. The Dutch settlements upon the ‘Wild Coast’ of South America, which came to be known as Guiana, date from the early years of the seventeenth century. How far the Dutch Statute Law was in force in the Colonies.How far the statutes of the mother country were in force in these Colonies the evidence hardly allows us to say. On principle they would not apply unless expressly declared to be applicable, or at least unless locally promulgated;[27] but some may have been accepted by custom as part of the common law.[28] As regards laws of the patria passed subsequently to the date of settlement it may be thought that the burden of proof lies on him who alleges their application. The fact is that the States-General legislated but seldom for the Colonies, having delegated their functions in this regard to the two Chartered Companies of East and West. These acted through their Committees, the Councils of XVII and the Council of X respectively; and the East India Company also, through its Governor-General in Batavia, issued rules for the government of the various stations, which, if locally promulgated, had binding force until superseded or forgotten.[29] In addition to these there were the enactments of the local governors. Failing all the above and any colonial custom having the force of law, recourse was had to ‘the laws statutes and customs of the United Netherlands’ and, where these were silent, in the last resort to the Law of Rome.[30] It may be supposed, since the Dutch Colonies stood in no peculiar relation to the province of Holland more than to any other provinces of the Union, that even general customs of this province had no preferential claim to acceptance in the Colonies. In theory this is true. In practice, perhaps, the predominant partner carried the day. In South Africa at all events there seems to be some presumption in favour of the admission of a general custom of Holland rather than that of any other province as part of the common law of the Colony.[31]

The Roman-Dutch Law in the Colonies under British Rule:

(a) At the Cape;The Dutch settlements of the Cape of Good Hope, Ceylon, and Guiana, passed into the hands of the British at the end of the eighteenth and the beginning of the nineteenth century. The Cape was taken from the Dutch in 1795, given back in 1803, and retaken in 1806, since when it has remained part of the British Dominions. It does not appear that any express stipulation was made upon the occasion of either the first or the second cession for the retention of the Roman-Dutch law. Its continuance is the expression of the settled principle of English law and policy that colonies acquired by cession or by conquest retain their old law, so long and so far as it remains unrepealed. In a system derived from the Civil Law repeal may be effected tacito consensu as well as alia postea lege lata; so that as regards the Cape Province we may state the presumption to be that, except so far as they have been abrogated by legislation or by the growth of a custom inconsistent therewith, the laws which obtained under the Dutch Government remain in force at the present day.[32] Custom, however, seems to have made short work with the pre-British statute law of the Colony. The earliest collected edition of the local statutes (1862) contains only nine enactments prior to 1795, and the latest edition (1895) only five. The remainder of the Dutch placaatenreglementenadvertissementen, &c. (whether emanating from the home country or from Batavia, or locally enacted) seems to have been abrogated by disuse. We are speaking, of course, of the statute law subsequent to 1652, the date of the Dutch occupation of the Cape. The home legislation prior to that date may, unless inapplicable or abrogated by disuse, be regarded as forming part of the common law of the Colony. An exception, too, must be admitted in favour of the Octrooi to the East India Company of January 10, 1661, which, together with the Political Ordinance of 1580 and the Interpretation thereof of 1594, defines the law of intestate succession for the whole of Roman-Dutch South Africa.

(b) In Ceylon;In Ceylon the continuance of the Roman-Dutch Law was guaranteed by the Proclamation of Governor the Honourable Francis North of September 23, 1799, which declared that the administration of justice and police should ‘henceforth and during His Majesty’s pleasure be exercised in all Courts of Judicature, Civil and Criminal, according to the laws and institutions that subsisted under the ancient government of the United Provinces subject to such deviations and alterations as have been or shall be by lawful authority ordained and published’.[33] The central portion of the island did not pass under British rule until 1815, but the Dutch Law was applied to this region also by Ord. No. 5 of 1852.[34] (c) In British Guiana.In Guiana the existing laws and usages were expressly retained in the articles of capitulation of Essequibo and Demerara dated September 18, 1803. A similar provision is contained in the Letters Patent of March 4, 1831, by which the three settlements were constituted a single colony under the name of British Guiana[35].

General result.It results from what has been said that the foundation of the law of Cape Colony is the Dutch Law as it existed in that settlement in the year 1806; that the law of Ceylon is based upon the Roman-Dutch system administered in the island in 1796;[36] and that the law of British Guiana rests upon a substructure of Dutch laws and usages having authority in the settlements of Essequibo, Demerara, and Berbice in the year 1803.

It remains to speak of the geographical extension of the Roman-Dutch Law in South Africa.

Geographical extension of the Roman-Dutch Law in South Africa.So long as the boundaries of Cape Colony enlarged themselves by gradual and inevitable advance, so long the Dutch civil law extended its sphere by the same natural process of expansion without express enactment. But before the middle of the last century the era of annexation had begun.

Natal.Natal was annexed to the Cape by Letters Patent of May 31, 1844, and this was followed by Cape Ordinance No. 12 of 1845, confirming the Roman-Dutch Law in and for the district of Natal. This remains the common law of the Colony, which was called into existence as a separate entity by Royal Charter of July 15, 1856; and now the Natal Act No. 39 of 1896 provides that: ‘The system, code, or body of laws commonly called the Roman-Dutch law as accepted and administered by the legal tribunals of the Colony of the Cape of Good Hope up to August 27, 1845, and as modified by the Ordinances, Laws, and Acts now in force, heretofore made or passed in this Colony by the Governor or Legislature thereof, is the law for the time being of the Colony of Natal, and of His Majesty’s subjects and all others within the said Colony’.

Zululand.The law of Natal, with some reservations, obtains also in Zululand, which became part of Natal on December 30, 1897.

Basutoland.In Basutoland, by proclamation dated May 29, 1884, the law to be administered (save between natives) is, as nearly as the circumstances of the country permit, the same as the law for the time being in force in the Colony of the Cape of Good Hope; but Acts of the Cape Legislature passed after the date of the Proclamation do not apply.

Bechuanaland Protectorate.By Proclamation No. 36 of 1909, the law of Cape Colony is to be administered, as far as practicable, in the Bechuanaland Protectorate to the exclusion, however, of subsequent Cape statutes.

Southern Rhodesia. By the Southern Rhodesia Order in Council of October 20, 1898, s. 49 (2), the law of Cape Colony as it stood on June 10, 1891, applies in Southern Rhodesia, except so far as that law has been modified by any Order in Council, Proclamation, Regulation or Ordinance in force at the date of the commencement of the Order.

Transvaal and Orange Free State. In the Republics the Roman-Dutch Law remained in force almost unaltered up to the date of annexation.[37] It is continued in the Orange River Colony (now, once more, the Free State) by Proclamation No. 3 of 1902, s. 1, and in the Transvaal by Proclamation No. 14 of 1902, s. 17. But in each of the new Colonies extensive alterations have been made so as to bring the law into closer harmony with the system obtaining in the adjoining territories.

Swaziland. By Proclamation of February 22, 1907, the Roman-Dutch common law, save in so far as the same has been modified by statute, is law in Swaziland.

The Union of South Africa.By the South Africa Act, 1909 (9 Edw. 7, ch. 9), which took effect on May 31, 1910, the four Colonies of the Cape of Good Hope, Natal, the Transvaal, and the Orange River Colony[38] were united in a Legislative Union under one Government under the name of the Union of South Africa (s. 4), and became original provinces of the Union under the names of Cape of Good Hope, Natal, Transvaal, and Orange Free State respectively. Subject to the provisions of the Act, all laws[39] in force in the several Colonies at the estabUshment of the Union are continued in force in the respective provinces until repealed or amended by the Parliament of the Union, or by the provincial Councils in matters in respect of which the power to make ordinances is reserved or delegated to them (s. 135).

The sources of the Roman-Dutch Law.The last portion of this Introduction relates to the authentic sources of the Roman-Dutch Law, which are also the primary sources of our knowledge of that system. These are:

  1. Treatises.
  2. Statute Law.
  3. Decisions of the Courts.
  4. Opinions of Jurists.
  5. Custom.

i. Treatises.I. Treatises.[40] The numerous works of the Dutch jurists, written in Dutch and Latin at various dates from the sixteenth to the nineteenth centuries, are cited to-day as authoritative statements of the law with which they deal. A modern text-book has no such authority. The rules therein expressed are merely opinions which Counsel in addressing the Court may, if he pleases, incorporate in his argument, but which have no independent claim to attention, however eminent their author. The works of the older writers, on the contrary, have a weight comparable to that of the decisions of the Courts, or of the limited number of ‘books of authority’ in English Law. They are authentic statements of the law itself, and, as such, hold their ground until shown to be wrong. Of course the opinions of these writers are very often at variance amongst themselves or bear an archaic stamp. In such event the Courts will adopt the view which is supported by authority or most consonant with reason; or will decline to follow any, if all of the competing doctrines seem to be out of harmony with the conditions of modern life; or, again, will take a rule of the old law, and explain or modify it in the sense demanded by convenience.

Writers of the seventeenth century.The principal writers on the old law and their principal works are the following:

Seventeenth Century

H. de Groot. Inleiding tot de Hollandsche Rechtsgeleertheyd (‘s Gravenhage, 1631); the same with notes by Groenewegen (1644); the same with added and more extensive notes by W. Schorer (1767).[41] This is the best old edition. The best modern edition is that with historical notes by Professor Fockema Andreae. There is a translation by Sir A. F. S. Maasdorp.

Arnoldus Vinnius.[42] Commentarius in IV libros Institutionum Imperialium (1642). This well-known work contains copious references to the jus hodiernum. The best edition is that with notes by the Prussian jurist Heineccius.

S. van Groenewegen van der Made edited the Inleiding of Grotius in 1644. In 1649 he produced his well-known Tractatus de legibus abrogatis et inusitatis in Hollandia vicinisque regionibus, in which he goes through the whole of the Corpus Juris by book and title and considers how far it has been received or disused in the modern law.

Simon van Leeuwen published his Censura Forensis in 1662, and his Roomsch Hollandsch Recht in 1664.[43] The last-named work was an amplification of a slighter treatise called Paratitula Juris Novissimi published in 1652 and again in 1656. The best edition of the Roomsch Hollandsch Recht is that with notes by W. Decker issued in 1780. This last-named edition has been translated with additional notes by Mr. Justice Kotzé.

Ulrik Huber issued the first volume of his Praelectiones Juris Civilis, containing his commentary on the Institutes of Justinian, in the year 1678. This was followed after a considerable interval by his commentary on the Digest in two additional volumes. The best edition is that of J. Le Plat of Louvain issued in 1766. The same author published in 1686 his treatise entitled Heedensdaegse Rechtsgeleertheyt, soo elders, als in Frieslandt gebruikelyk. The last-named work, though principally concerned with the law of Friesland, not of Holland, is a valuable contribution to the study of the Roman-Dutch Law. It was edited after the author’s death by his son Zacharias Huber, who, like his father, was a Judge of the Frisian High Court.

Johannes Voet. Commentarius ad Pandectas. This work was published simultaneously at the Hague and at Leyden in 1698 and 1704 in two volumes folio. It has gone through innumerable editions. The best is the Paris edition of A. Maurice of 1829, which is free from most of the misprints which disfigure the folio editions. The whole of Voet has not been systematically translated into English,[44] but translations varying in merit are procurable of many of the separate titles. In 1793 Van der Linden published, in folio, a Supplement to Voet’s Commentary. It extends only to Book xi of the Pandects. Amongst the lesser works of Voet may be mentioned his Compendium of the Pandects, which, though originally issued before the larger work, serves the purpose of an analysis of it. A little book in Dutch published in the eighteenth century under the name of De beginselen des rechts volgens Justinianus is a translation from the Latin of Voet’s analysis of the Institutes (Elementa Juris), supplemented with a translation of those passages in Vinnius’ Commentary in which reference is made to the modern law.

Eighteenth Century

Writers of the eighteenth century. Cornelis van Bijnkershoek is beyond controversy the most eminent Dutch jurist of the eighteenth century. He was President of the Supreme Court of Holland, Zeeland, and West Friesland from 1724 to 1743. For our present purpose the most useful of his works is the Quaestiones Juris Privati, published in Latin in 1744, and in a Dutch translation in 1747.

Mention has already been made of Schorer’s edition of Grotius (1767) and of Decker’s edition of Van Leeuwen (1780). A Dutch translation of Schorer’s notes on Grotius, which contains also additional matter supplied to the translator by the author, appeared from the hand of J. E. Austen in 1784–6. This is the edition referred to in the margin of Professor Fockema Andreae’s edition of Grotius.

A useful work was published by Van der Linden and other jurists in 1776 under the name of Rechtsgeleerde Observatien, dienende tot opheldering van verscheide duistere, en tot nog toe voor het grootste gedeelte onbewezene passagien uyt de Inleidinge tot de Hollandsche Rechtsgeleertheid van wylen Mr. H. de Groot.

D. G. Van der Keessel, a Professor at Leyden, issued in the year 1800 his Theses Selectae juris Hollandici et Zelandici ad supplendam Hugonis Grotii Introductionem ad Jurisprudentiam Hollandicam. The work was reprinted in 1860. There is a translation by C. A. Lorenz. The Dictata in which the author of the Theses expanded and supported them still circulate in manuscript, but have never been printed. There is a fine MS. copy in the University Library at Leyden corrected in Van der Keessel’s own hand. I am told that the author’s own manuscript is in the Bar Library at Colombo. A typewritten copy of the Leyden MS. was presented to the Supreme Court Library at Capetown by the late Dr. C. H. van Zyl.

Joannes van der Linden is the last of the old text-writers. In 1794 he published his Verhandeling over de judicieele practijcq, which is still consulted. But his best-known work is his Introduction to Roman-Dutch Law, issued in 1806 under the name of Regtsgeleerd, Practicaal, en Koopmans Handboek. The book is very elementary, but has enjoyed great favour amongst students, particularly in Sir H. Juta’s translation entitled Institutes of Holland. Another work by the same author which may be mentioned (besides his Supplement to Voet referred to above) is his Dutch translation of Pothier on Obligations with short notes from his own hand (1804–8).

If the student wishes to supplement the above-mentioned list of books with a handy law dictionary he will find Boey’s Woorden-tolk easily procurable and sometimes useful. Kersteman’s larger work (1768) and the supplementary volumes by Lucas Willem Kramp[45] enjoy a reputation which is scarcely merited. The collection of pleadings by Willem van Alphen known by the quaint name of Papegay (originally published in 1642) is deservedly famous. If Van der Linden’s work on Procedure proves inadequate, reference may be made to Paul Merula’s Manier van Procederen, the last and best edition of which, under the names of Didericus Lulius and Joannes van der Linden, was issued in the years 1781–3.

ii. Statute Law.II. Statute Law. The enactments of the States-General and of the States of Holland and West Friesland are to be found in the ten folio volumes of the Groot Placaat Boek. The statutes of Batavia are printed in Van der Chijs, Nederlandsch-Indisch Plakaat Boek. The pre-British statutes of the Cape exist but have not been printed.

iii. Decisions of the Courts.III. Decisions of the Courts. Many published volumes of Decisions have come down to us and are a valuable source of law. Particular mention may be made of the Sententien en gewezen Zaken van den Hoogen en Provincialen Raad in Holland, Zeeland en West-Friesland, published by Joannes Naeranus at Rotterdam in 1662; of the Utriusque Hollandiae, Zelandiae, Frisiaeque Curiae Decisiones of Cornelius Neostadius, printed at the Hague in 1667; and of the Decisiones Frisicae sive rerum in Suprema Frisiorum Curia judicatarum libri V of Johannes à Sande, himself a Judge of the Court whose decisions he reports. The Latin original of this work is dated 1634. There is also a Dutch translation. These three volumes of Reports are often cited by Voet. Van der Keessel frequently refers to a volume entitled Decisien en Besolutien van den Hove van Holland, published at the Hague in 1751; but this and Van der Linden’s Verzameling van merkwaardige Gewijsden der Gerechtshoven in Holland,[46] published at Leyden in 1803, are rarely obtainable.

iv. Opinions of Jurists.IV. Opinions of Jurists. The numerous volumes of ConsultatienAdvysen, &c., are a very interesting and characteristic feature of the Roman-Dutch system of jurisprudence. It is enough here to refer more particularly to the well-known collection entitled Consultatien, Advysen en Advertissementen gegeven ende geschreven by verscheijden Treffelijke Rechtsgeleerden in Hollant en elders (commonly known as the Hollandsche Consultatien), originally published by Naeranus in 1645,[47] containing the opinions of Grotius and other eminent lawyers. The opinions of Grotius, in particular, have been translated and edited by the late Mr. D. P. de Bruyn (1894). Other collections designed to supplement the above-named work were issued at various dates during the eighteenth century. The latest work of the kind, containing opinions by the eminent jurist J. D. Meijer, was published at Amsterdam in 1842.

v. Custom.V. Custom. This is in every country a source of law. We mention it here more particularly because, as observed above, it is through custom that the Roman Law found its way into Holland, and it is as custom that it continues to exist in the Roman-Dutch Colonies. Without attempting a bibliography of the jus civile we may perhaps be allowed to recommend the student to supply himself with the Mommsen-Krüger edition of the Corpus Juris. For a law lexicon he will consult the older works of Calvin[48] or Vicat[49] or Heumann’s Hand-Lexicon,[50] or the exhaustive Vocabularium jurisprudentiae in course of publication under the auspices of the Savigny Foundation.

Sources of the Modern Law.Such, then, are the sources of the Roman-Dutch Law, or such were its sources while it still flowed in an undivided stream. They remain to-day the sources of law for the several Roman-Dutch Colonies, supplemented by enactments of the local legislatures, decisions of the local tribunals, and local authoritative custom. The treatises and opinions of modern lawyers do not make law, though they often help the inquirer to find out what the law is.

Works on Colonial Law. The principal works on the modern law of South Africa are: The Common Law of South Africa, in 4 vols., by Dr. Manfred Nathan; The Institutes of Cape Law, by Chief Justice Sir A. F. S. Maasdorp; English and Roman-Dutch Law, by Mr. George T. Morice.

For the Law of Ceylon the student may refer to The Laws of Ceylon, by Mr. Justice Pereira (2nd ed., Colombo, 1913); to A Digest of the Civil Law of Ceylon, by Sir P. Arunachalam (vol. i, ‘Persons Natural and Juristic’, London, 1910); and to the earlier work entitled Institutes of the Laws of Ceylon, by Henry Byerley Thomson, a Puisne Judge of the Supreme Court of Ceylon, published in 1846. Sir Charles Marshall’s Judgments, &c., of the Supreme Court of the Island of Ceylon, published at Paris in 1839, furnishes a conspectus of the Law of the Colony as it existed in the first half of the last century.

For British Guiana no text-book exists.

Reception of the English Law in the Roman-Dutch Colonies;The reader who may use this book, or one of the older text-books mentioned in the preceding pages, as an introduction to his study of the modern law in one or other of the Roman-Dutch Colonies must bear in mind that just as the Roman-Dutch law of Holland was a complex system drawn from different sources, so the law of every one of these Colonies, Roman-Dutch in origin, has been affected in almost every department by the encroaching influences of English Law. the result of
(a) express enactment,
This has been the result partly of express enactment, partly of judicial decisions, partly of tacit acceptance.

As examples of statutory introduction of the law of England, mention may be made of the Ceylon Ordinance No. 5 of 1852, which enacts that the law of England is to be observed in maritime matters and in respect of all contracts and questions relating to bills of exchange, promissory notes, and cheques; and of the Ceylon Ordinance No. 22 of 1866, which makes similar provisions with respect to the law of partnerships, joint-stock companies, corporations, banks and banking, principals and agents, carriers by land, life and fire insurance.

In British Guiana by Ordinance No. 6 of 1864, s. 3, ‘all questions relating to the following matters, namely ships, and the property therein, and the owners thereof, and the behaviour of the master and mariners and their respective rights, duties, and liabilities as regards the carriage of passengers and goods by ships; stoppage in transitu; freight; demurrage; insurance; salvage; average; collision between ships; bills of lading; and all rights, liabilities, claims, contracts, and matters arising in respect of any ship, or any such question as aforesaid, shall be adjudged, determined, construed, and enforced according to the Law of England applicable to such or the like case.’ By Ordinance No. 3 of 1909 the law of England for the time being was made the law of the Colony in relation to life and fire insurance.

At the Cape the General Law Amendment Act No. 8 of 1879, introduced the English law: (s. 1) in all questions relating to shipping; and (s. 2) in all questions of fire, life, and marine insurance, stoppage in transitu, and bills of lading. But (s. 3) English statutes passed subsequently to the date of the Act do not apply.

or imitation of English statute law;It would occupy too much space to speak of the numerous Colonial Statutes which follow more or less closely the language of English Acts of Parliament and through this channel admit into their own system the rules and principles of the law of England. As examples may be cited the Ceylon Sale of Goods Ordinance No. 11 of 1896, and the British Guiana Sale of Goods Ordinance No. 26 of 1913. The numerous changes produced by the statutory abolition of institutions of the Roman-Dutch common law will be illustrated in the course of this book.

(b) judicial decisions;We have not space to speak of the modification of the Roman-Dutch common law in the several Colonies by the jurisprudence whether of the Colonial Courts or of the Judicial Committee of the Privy Council. Fuller information on these matters must be sought elsewhere. It is enough to have warned the student that much of the learning of the old books is obsolete or superseded. To the extent of the topics included in this book, the points of contact between the Roman-Dutch and English systems will, it is hoped, be sufficiently indicated in the following pages.

(c) tacit acceptance.Lastly, much of the English law has found its way in by a process of silent and often unnoticed acceptance. It would be easy to accumulate instances in every branch of the law. But the student may better be left to draw his own conclusions from the pages of the law reports and, in course of time, from the practice of his profession.

The present condition of the Roman-Dutch system:In conclusion, a few words will be permitted with regard to the present condition and future prospects of the Roman-Dutch system within the British Empire. In South Africa, in Ceylon, and in British Guiana its fortunes have been widely different. Writing some years ago in the Journal of Comparative Legislation, I said:

in South Africa,‘In South Africa its tradition is continuous, its pre-eminence unchallenged. Bench and Bar have been trained to it. The best legal talent of the country has applied it in judgments or explained it in text-books. in Ceylon,Far other has been its fate in Ceylon. Here it has been mangled by the Legislature, and administered by judges sometimes frankly contemptuous of its principles. And yet it lives! The local Bar is vigilant and active. The Bench has been adorned by at least one profound civilian. There are text-books. There are law reports almost continuous since 1821. in British Guiana.In British Guiana these signs of activity have been absent. There are no text-books. There are no written records of judgments of earlier date than 1856. There are no reports, the series initiated in 1890 having been discontinued after four years’ life.[51] Upon a general view of the state of the Roman-Dutch Law in this Colony it may be said that except in the sphere of property and intestate succession not very much of it remains. What of it the Courts had spared the Legislature has quite lately set itself to destroy.’[52]

The future of the Roman-Dutch system:Since these words were written events have tended to confirm them. The institution of the Union of South Africa and with it of the Appellate Division of the Supreme Court, which hears appeals also from the Supreme Court of Southern Rhodesia, will before long lead to the production of a body of statutory and judge-made law, in which the principles of the Roman-Dutch Law will be expounded and developed. in South Africa,It may be anticipated that under such auspices the Roman-Dutch Law will assume a completeness and a symmetry which it has failed to attain in previous ages. It will be a system in which the best elements of the Roman and the English Law will be welded together in an harmonious and indissoluble union. As the corpus of South African Law grows to maturity the old folios and quartos, which some of us have learnt to handle with a feeling almost of affection, will be less and less consulted. Having served their turn they will yield to the fate of all things mortal. But the spirit of justice which inspires them and the rules of law which they express will live embodied in new forms. The reproach levied against the Roman-Dutch Law by a learned writer lately deceased, that its text-books are antiquated and its weapons rusty, if it is true to-day, will be true no longer.

in British Guiana,In British Guiana the doom of the Roman-Dutch Law has been pronounced. The ‘Common Law Commission’ appointed by the Governor of the Colony has recently reported in favour of its replacement by the Common Law of England, to the exclusion, however, of the English Law of Real Property. Whether this scheme will be carried out in its entirety remains to be seen.

Meanwhile the Commissioners append to their Report the draft of ‘An Ordinance to codify certain portions of the Roman-Dutch Law of the Colony and to substitute the English Common Law and principles of Equity for the Roman-Dutch common law’, and propose that it should come into operation by January 1, 1915.[53] The justification for a change of so uncompromising a character is found in the circumstances of the Colony.

‘While much has gone from the Roman-Dutch domain much remains. Roman-Dutch Law may be seldom quoted in the Courts and even then with little hope of the quotation seriously affecting the issue. English authorities and precedents may tend more and more to have weight with judges and lawyers to its exclusion. But it remains as an element of uncertainty. We have all the disadvantage of a mixed system without the elasticity of the Roman-Dutch jurisprudence.’

‘It increases the work of both judge and counsel. It wastes time and is a source of expense. In this country it is not a living system. We have no resident Dutch population and few even of the Dutch names survive. The colonists have no sentimental affection for any legal legacy of the Batavian Republic of 1803 or the Kingdom of the Netherlands of 1814. Our population is a small one, very mixed in race. East Indians and Portuguese make up some fifty per cent.; and natives of the West Indian Islands form no small proportion of the balance. Mixed as it is, it is overwhelmingly British in its attachments, traditions, and sympathies.’

in Ceylon.In Ceylon, if the Roman-Dutch Law is not so firmly established as it is in South Africa, yet it is not, as in British Guiana, in danger of immediate extinction. It seems more likely that in this Colony it will die slowly of asphyxia, smothered beneath legislation which may, however, continue in a greater or less degree to reflect its principles.

APPENDIX

How far the Statute Law of Holland obtains in the Colonies

In In re Insolvent Estate of Loudon, Discount Bank v. Dawes (1829) 1 Menz. at p. 388, the Court observed: ‘When this Colony was settled by the Dutch the general principles and rules of the law of Holland were introduced here, but by such introduction of the law of Holland it did not follow that special and local regulations should also be introduced; accordingly the provisions of the Placaat of 5th February, 1665, as to the payment of the 40th penny (3 G. P. B. 1005) have never been part of the law of this Colony, because this tax has never been imposed on the inhabitants of this Colony by any law promulgated by the legislative authorities within this Colony. In like manner until a law had been passed here creating a public register the provisions of the Placaat of 1st February 1580 (? 1st April—1 G. P. B. 330), were not in force or observance here.’

In Herbert v. Anderson (1839) 2 Menz. 166, the following Placaats were said to be merely fiscal and revenue laws of Holland, which had never become or been made law in Cape Colony, viz. Placaats, &c., of June 11, 1452 (3 G. P. B. 18), January 22, 1615 (1 G. P. B. 363), April 1, 1580 (Art. 31, 1 G. P. B. 337), March 29, 1677 (3 G. P. B. 672), April 3, 1677 (3 G. P. B. 1037). This decision was quoted with approval by Kotzé C.J. in Eckhardt v. Nolte (1885) 2 S. A. R. 48, who added (at p. 52): ‘From this it follows that the Placaats of [September 26] 1658 (2 G. P. B. 2515) and [February 24] 1696 (4 G. P. B. 465) and others in pari materia, merely renewing the earlier Placaats are likewise of no application at the present day.’ On the other hand, in De Vries v. Alexander (1880) Foord at p. 47, de Villiers C. J., referring to Herbert v. Anderson said: ‘The Court could only have intended to confine their decision to those portions of the Edicts (of 1515 and 1580) which are of a fiscal or of a purely local nature. So far as they had been incorporated in the general law of Holland, and were not inapplicable here, they were equally incorporated in the law of this Colony.’ Applying this principle, the learned Judge held that the 9th Art. of the Placaat of September 26, 1658, formed part of the law of Cape Colony.

In British Guiana the question arose in 1905 as to the validity of a gift by will to a Roman Catholic bishop: (a) for offering masses for the soul of testatrix; (b) for the benefit of Roman Catholic churches. The full Court (Bovell C.J., Lucie Smith, and Hewick JJ.) held that the Acts of: (1) October 28, 1446; (2) July 6, 1515; (3) March 20, 1524; (4) October 16, 1531; (5) May 4, 1655; (6) October 14, 1655; have never been part of the law of these Colonies (De Freitas v. Exor. of Jardim (1905) Brit. Gui. Off. Gaz., vol. xxii, p. 1193). [For Cape law herein see Act No. 11, 1868.] On the other hand, the Placaat of September 26, 1658, has been held to be in force in British Guiana (Liquidator of the Brit. Gui. Ice Co. v. Birch (1909) Brit. Gui. Off. Gaz., vol. xx, p. 3). ‘There was nothing in the original circumstances of this Colony which would show that this part of the Roman-Dutch Law was unnecessary, unsuitable, or inapplicable, or that cases could not reasonably be expected to arise in which the Placaat or any riiles founded thereon would be appropriate. … It is obvious that the mere non-existence of any concrete case to which the law could be applied at the date of the Colony’s foundation would not be a sufficient reason for holding that the Placaat and rules based thereon were not introduced here, as similar reasoning would prove the non-introduction of some of the most elementary laws for the preservation of life and property’ (Bovell C.J., Hewick, and Earnshaw JJ.).

For Ceylon Law see Karonchihamy v. Angohamy (1904) 8. N. L. R. 1, in which Middleton J. and Sampayo A.J. (Moncreiff A.C.J, dissenting) held that the Placaat of July 18, 1674, prohibiting marriage between an adulterer and his adulteress, was not in force in Ceylon, and that it is for those who assert and rely upon the operation of a law enacted since the date of the Dutch occupation of the island in 1656 to show beyond all question that it operates and applies. See also authorities cited in argument in Rabot v. de Silva [1909] A. C. 376, and Pereira, Laws of Ceylon, p. 12.


NOTES

  1.  See Journ. Comp. Leg., N.S., vol. xii (1911), p. 548.
  2.  On codification in Holland, see a note by Dr. W. R. Bisschop in Journ. Comp. Leg., N.S., vol. iii (1901), p. 109.
  3.  Van de Spiegel, Verhandeling over den Oorsprong en de Historie der Vaderlandsche Rechten, pp. 73–4.
  4.  Ibid. p. 110. For some remarks on the part played by the Canon Law in the formation of the mature system of R.-D. L. see Kotzé, S. A. L. J., vol. xxvi, pp. 510 ff.
  5.  Mr. Justice Kotzé says (S. A. L. J., vol. xxvi, p. 492) : ‘There is, no doubt, a good deal of what is true in this speculation of Van de Spiegel that Germanic and Frankish laws and customs formed the basis or component parts of the law under the early Dutch Counts; but there is a lack of historical evidence to show that the Roman Law ever had any influence in the Northern Netherlands during the Frankish régime, or that, in the period from the eleventh to the fifteenth century, it was adopted and relied on by the ordinary tribunals throughout the country. The opposite view to this is the more correct.’ This very learned writer accepts Bynkershoek’s view: Ego vix putem aliquam in Hollandia Juris Romani fuisse auctoritatem ante Carolum Audacem (Observationes Juris Romani, in praefat.). And again (p. 497): ‘Although the Roman Law was known in various ways before the time of Charles the Bold, it is clear that Bynkershoek is correct when he says that it first received authoritative and legislative recognition in 1462 (Instructie voor den Stadthouder ende Luyden van de Kamer van den Rade, Art. 42, 3 G. P. B. 635) from that Prince’ (S. A. L. J., vol. xxvi, p. 497). On the other hand, Mr. Justice Wessels (History of the Roman-Dutch Law) supports the view expressed in the text.
  6.  This was particularly the case when, as usually happened, the towns enjoyed the privilege of making local regulations (keuren). Wessels, p. 210.
  7.  Mr. Justice Kotzé in S. A. L. J., vol. xxvi, pp. 407–8.
  8.  The Great Council (De Groote Raad) was instituted in the year 1446 by Philip the Good, Duke of Burgundy and Count of Holland. It was fixed at Mechlin by Charles the Bold in 1473, and again by Philip the Fair in 1503 (Fruin, Geschiedenis der Staatsinstellingen in Nederland, pp. 136–7). The Provincial Court of Holland (Hof van Holland) also exercised an important influence in the same direction. See Professor Fockema Andreae’s edition of Grotius, Inleidinge tot de Hollandsche Recht-geleerdheid, vol. ii, p. 8. For a short history of these Courts, see Kotzé, S. A. L. J., vol. xxvi, pp. 39 ff.
  9.  Fruin, p. 255. Its place was taken, as regards Holland and Zeeland only, by the Hooge Raad van Holland (en Zeeland), established in the Hague in 1581. Zeeland submitted to its jurisdiction in 1587.
  10.  Kotzé, S. A. L. J., vol. xxvii, p. 29.
  11.  He had previously been President of the Court of Holland from 1509.
  12.  If we adopt Mr. Justice Kotzé’s view (supra, p. 2, n. 3), we shall date it from 1462.
  13. Kotzé, S. A. L. J., vol. xxvi, pp. 503 ff.
  14.  See, on the whole subject, the valuable tract of the late Professor Modderman, De Receptie van het Romeinsche Recht (Groningen, 1874).
  15.  Van der Linden, Rechtsgeleerd, Practicaal, en Koopmans Handboek (translated by Sir Henry Juta, under the name of Institutes of Holland), lib. I, cap. i, sec. 4. See also Gr. 1. 2. 22; Van Leeuwen, 1. 1. 11.
  16.  V. d. K. Th. 6–23.
  17. Inleidinge tot de Hollandsche Rechts geleerdheid, beschreven bij Hugo de Groot, met aanteekeningen van Mr. S. J. Fockema Andreæ, Hoogleeraar te Leiden (tweede uitgave), Arnhem, 1910, vol. ii, p. 9; Kotzé, ubi sup. at p. 508.
  18.  1 G. P. B. 374.
  19.  1 G. P. B. 311. Wessels (p. 218) summarizes its contents.
  20.  2 G. P. B. 1007; Wessels, p. 373: ‘The statute of 1570 regulated the procedure in the lower Courts. The same procedure was followed in the Supreme Court of Holland except in so far as it was modified by the rules of that Court.’
  21.  It remained part of the Law of British Guiana until 1829, when it was superseded by Rules of Criminal Procedure made under the authority of an Order in Council of December 15, 1828.
  22.  1 G. P. B. 330. Wessels (p. 222) summarizes its contents.
  23.  2 G. P. B. 695. See Wessels, Hist. R.-D. L., p. 186. An annotated edition of this Ordinance by Willem van Aller was published at Middelburg in 1664.
  24.  Johannis Voet, Commentarii ad Pandectas, tomus tertius: ejusdem commentarii continens supplementum, auctore Joanne van der Linden. Sectio prima, a libro I usque ad XII Pandectarum, Trajecti ad Rhenum, 1793.
  25.  In his Beredeneerd register op het wetboek Napoleon ingericht voor het Koningrijk Holland (Amsterdam, 1809), and other works.
  26.  See an article by the present writer on ‘The Fate of the Roman-Dutch Law in the British Colonies,’ Journ. Comp. Leg., N.S. vol. vii (1906), p. 356, which, by kind permission, is partly reproduced in the text.
  27.  As to the necessity of promulgation see Gr. 1. 2. 1, and Groenewegen and Schorer, ad loc.; Van Leeuwen, 1. 3. 14; V. d. K. Th. 1.
  28.  See Appendix to this Chapter (infra, p. 24).
  29.  The collected edition of the Statutes of Batavia of 1642 seems to have been promulgated at the Cape in 1715. Burge, Colonial and Foreign Laws (New Edition), vol. i, p. 115. Governor van der Parra’s New Statutes of Batavia of 1766 were never recognized by the States-General and had not strictly the force of law. The law in force in the West Indies was defined by the Ordre van Regeeringe of October 13, 1629 (2 G. P. B. 1235; Burge, vol. i, p. 119), and later by the resolutions of the States-General of October 4, 1774 (Laws of Brit. Gui., ed. 1905, vol. i, p. 1; Burge, vol. i, pp. 121 ff.).
  30.  Burge, vol. i, p. 116.
  31.  Per Kotzé J.P., in Fitzgerald v. Green [1911] E.D.L. at p. 493: ‘There is no rule which makes it incumbent upon us, under the circumstances, to adopt the law of North Holland in preference to that of South Holland, although in a conflict between the law of the different provinces of the Netherlands the Courts in South Africa, we are told, have generally followed that of the province of Holland.’ Dr. Bisschop (Burge, Colonial and Foreign Laws (2nd. ed.), vol. i, p. 91) directs attention to the preponderating influence in the affairs of the Company of the Chambers of Amsterdam and Middelburg, which accounts for the fact that the Company was held to be domiciled within the jurisdiction of the Court of Holland. The same writer has observed elsewhere that the Colonial Courts in most cases got their law, so far as it was not comprised in local statutes and customs, from text-books rather than from the original sources, with the result that ‘the local law of the Netherlands—so far as it was not referred to by writers on the Roman-Dutch Law—would be ignored’. ‘In the Dutch East and West Indies the same method of legal application and interpretation would be followed as in the Low Countries, viz., to apply first the local statutes and customs and subsidiarily the Roman law as explained by the learned jurists at home.’ Law Quarterly Review, vol. xxiv (1908), p. 169.
  32.  Per de Villiers C.J. in Seaville v. Colley (1891) 9 S. C. at p. 44: ‘The conclusion at which I have arrived as to the obligatory nature of the body of laws in force in this Colony at the date of the British occupation in 1806 may be briefly stated. The presumption is that every one of these laws, if not repealed by the local legislature, is still in force. This presumption will not however prevail in regard to any rule of law which is inconsistent with South African usages. The best proof of such usage is furnished by un-overruled judicial decisions. In the absence of such decisions the Court may take judicial notice of any general custom which is not only well-established but reasonable in itself. Any Dutch law which is inconsistent with such well-established and reasonable custom, and has not, although relating to matters of frequent occurrence, been distinctly recognized and acted upon by the Supreme Court may fairly be held to have been abrogated by disuse.’ This principle applies alike to the statute law and to the common law of Holland. See also Parker v. Reed (1904) 21 S. C. 496; McHattie V. Filmer (1894) 1 O. R. 305; Natal Bank v. Kuranda [1907] T. H. 155.
  33.  It has been doubted whether the Dutch ever applied their law to the native races of the low country. But since the British occupation the low-country, Sinhalese have had no distinctive law of their own, and have always been treated as subject to the Roman-Dutch law.
  34.  This Ordinance extends to the Kandyan provinces certain specified branches of the law of the Maritime Provinces, and further enacts that if the Kandyan Law is silent on any matter the law of the Maritime Provinces is to be applied. It says nothing as to the general law applicable to Europeans or low-country Sinhalese residing in the Kandyan provinces. The extension to them of the Roman-Dutch Law in general seems to be the work of judicial decisions (see Williams v. Robertson (1886) 8 S. C. C. 36).
  35.  For the history of the Roman-Dutch Law in British Guiana see Report of the Common Law Commission (Georgetown, Demerara, 1914) and ‘Roman-Dutch Law in British Guiana’ (Journ. Comp. Leg., N.S., vol. xiv (1914), p. 11), by the present writer.
  36.  The capitulation of Colombo to the British is dated February 15 of that year.
  37.  A resolution of the Volksraad of the South African Republic of September 19, 1859, gave statutory authority to the legal treatise of Van der Linden, which, failing the commentaries of Simon van Leeuwen and the Introduction of Hugo de Groot, were to be binding. This quaint enactment was repealed by Tr. Procl. No. 34 of 1901.
  38.  On annexation to the British Crown (May 31, 1902), the Orange Free State became the Orange River Colony.
  39.  ‘By the word Laws in that section the Legislature meant Statutes, and never intended that the section should apply to Judge-made Law.’ Webster v. Ellison [1911] A. D. at p. 99, per Solomon J.
  40.  For a bibliography of Roman-Dutch law books see The Commercial Laws of the World, vol. xv—South Africa—pp. 14 ff.
  41.  In the early editions of Grotius the paragraphs are not numbered. Van Leeuwen cites Grotius by book, chapter, and the initial words of the paragraphs, e.g. Grot., Introd., lib. 1, cap. 5, vers. Alle Mondigen. Voet makes the numeration of Groenewegen’s notes do duty for paragraphs. Thus: Hugo Grotius manuduct. ad Jurisprud. Holl. Libr. I, cap. 5, num. 13 (=Gr. I. 5. 9). The division of the chapters into paragraphs was first employed in an edition of the ‘Inleydinge’ published at Amsterdam by Ian Boom in 1727. I am indebted for this information to Mr. Justice Kotzé.
  42.  Wessels, Hist. R.-D. L., p. 294.
  43.  The title-page of this work and of its precursor, the Paratitula, affords an interesting indication of the uncertainty of seventeenth-century spelling. The first edition of the Paratitula has for its subtitle Een kort begrip van het Rooms-Hollandts-Reght. In the second edition this becomes Een kort begrip van het Rooms-Hollands-Recht. The first edition of the later work is described as Het Rooms-Hollands-Regt. Lastly, in Decker’s edition (1780) we have Roomsch Hollandsch Recht, and this I have followed.
  44. I am told that there is an Italian translation, which I have not seen.
  45.  As to the authorship of the Aanhangsel to Kersteman’s Woordenboek see Journ. Comp. Leg., N.S., vol, xii (1911), p. 549.
  46. The Introduction to this volume contains some valuable observations by the compiler on the authority of decided cases.
  47. 3 Wessels, p. 243.
  48.  Calvinus J., Lexicon juridicum juris Caesarei simul et Canonici, Geneva, 1670.
  49.  B. Philip Vicat, Vocabularium Juris utriusque, Lausanne, 1759.
  50. Heumanns Handlexicon zu den Quellen des römischen Rechts (9th ed.), Jena, 1907.
  51. Since September 1, 1900, all Supreme Court judgments have been published in the Gazette, previously only judgments in Appeal.
  52. Journ. Comp. Leg., N.S., vol. vii (1906), p. 369.
  53. This design has not been realized. See Preface.




Official witnesses before Australian Parliamentary Committees-Govt Guidelines 1915

1. INTRODUCTION

1.1.  Application and scope of the Guidelines

1.1.1.      The Guidelines are designed to assist departmental and agency officials, statutory office holders and the staff of statutory authorities in their dealings with the parliament. The term ‘official’ is used throughout the Guidelines; it includes all persons employed by the Commonwealth who are undertaking duties within a Commonwealth department or agency (whether employed under the Public Service Act 1999 or other legislation) and those in government business enterprises, corporations and companies. It is recognised, however, that the role and nature of some statutory office holders and their staff will require the selective application of these Guidelines, depending on the individual office holder’s particular statutory functions and responsibilities (see section 2.9).

1.1.2.      Contractors and consultants to departments and agencies and other individuals who are invited to give evidence to a parliamentary committee will also find these Guidelines useful.

1.1.3.      While the Guidelines apply primarily to the preparation of submissions and the giving of oral evidence, parts 7 to 11 cover certain other matters related to the parliament. The Guidelines should also generally apply to submissions to and appearances before other public inquiries, such as royal commissions, and to the preparation and presentation of speeches by officials in their official capacity (for further information on the involvement of APS employees in public information initiatives, see APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and agency heads (section 1: Relationship with the Government and the Parliament), published by the Australian Public Service Commission.

1.2.  Powers of the parliament

1.2.1.      There are obligations and protections that govern anyone who volunteers or is required to provide information to the parliament. These obligations and protections flow primarily from the Constitution and the Parliamentary Privileges Act 1987, supplemented by privilege resolutions adopted by both the Senate and the House of Representatives and by the Standing Orders of both houses. While very rarely called upon, the parliament has the power to impose penalties for contempt (see sections 5.1 and 5.2 on parliamentary privilege and contempt of parliament below).

1.2.2.      The Guidelines detail obligations and protections, providing references and links to primary documents.

1.3.  Accountability

1.3.1.      A fundamental element of Australia’s system of parliamentary government is the accountability of the executive government to the parliament. Ministers are accountable to the parliament for the exercise of their ministerial authority and are responsible for the public advocacy and defence of government policy. Officials are accountable to ministers for the administration of government policy and programmes. Officials’ accountability regularly takes the form of a requirement for them to provide full and accurate information to the parliament about the factual and technical background to policies and their administration.

1.3.2.      The most common ways that officials will be required to answer directly to the parliament is through submissions to and appearances before committees. They may also be required to support ministers’ accountability by, for example, drafting answers to parliamentary questions, advising a minister during the debate on legislation in the parliament or assisting a minister in responding to an order by one of the houses to produce documents.

1.3.3.      The Guidelines are intended to assist in the freest possible flow of information to the parliament.

1.4.  Types and powers of committees

1.4.1.      Parliamentary committees may be established by the Senate, the House of Representatives, jointly by the two houses or by legislation. They have either an ongoing role (statutory and standing committees) or are established for a specific purpose (select committees).

1.4.2.      Appearance as a witness before a Senate legislation committee conducting hearings into the Appropriation Bills (i.e. Senate estimates hearings) is the most common situation in which officials will appear before a parliamentary committee.

1.4.3.      The functions and powers of parliamentary committees derive from enabling statutes, resolutions or the standing orders of the houses. Committees are generally established and empowered, among other things, to:

  1. seek submissions and documents and invite persons to give evidence in relation to matters under consideration
  2. summon witnesses and require the production of documents in relation to those matters.

1.4.4.      The operations of joint statutory committees are governed by the relevant legislation (e.g. the Public Accounts and Audit Committee Act 1951, the Public Works Committee Act 1969 and the Australian Security Intelligence Organisation Act 1979). Select committees are governed by the resolutions which establish them.

1.5.  Types of witnesses

1.5.1.      Officials can make submissions and appear as witnesses in an official capacity or in a personal capacity. Within these two broad categories there are distinctions that affect the clearance of submissions, selection of witnesses and preparation for appearances before committees. Depending on the nature of the inquiry that the committee is undertaking, the same officials can fall into either or both of these categories.

Official witnesses

1.5.2.      Most often, officials will make submissions or appear before committees as representatives of their departments or agencies to explain the administration and implementation of government policies and programmes. For those witnesses, the Guidelines provide details of procedures for the clearance of submissions, choice of witnesses and consultation ahead of committee hearings.

1.5.3.      There are circumstances, however, where those procedures would not be appropriate. On occasion witnesses may choose or be required to give personal accounts of events or conduct that they have witnessed. This situation can arise in the course of any committee hearing but will most often arise when a committee is inquiring into a particular event and the accounts of individual witnesses are required to allow the committee to ascertain the facts surrounding the event. In such cases, witnesses must not have requirements placed upon them that might deter them from giving evidence or cause them to feel constrained about the nature or content of their evidence. Part 3 of the Guidelines provides information about the approach to be adopted in cases where witnesses have had direct involvement in or have direct knowledge of events under inquiry.

1.5.4.      It is, of course, possible that the same person may appear to explain the way that a particular programme is administered and to provide an account of an event that may have occurred in the administration of the programme.

Personal witnesses

1.5.5.      Officials may also make submissions and appear as witnesses in a personal capacity. Guidance on contributions by officials appearing in a personal capacity is in Part 6.

2.  PRELIMINARIES TO A COMMITTEE INQUIRY

2.1. Requests for written material and attendance

2.1.1.      Without providing an exhaustive list, requests for submissions to or for the attendance of an official at a committee hearing in an official capacity may be made to one of the following:

  1. the relevant minister
  2. the relevant departmental secretary or agency head
  3. an official who previously appeared before the committee in relation to the matter being considered
  4. an official who has been identified by a committee as a person who could assist the committee in establishing facts about a particular event

2.1.2.      There are exceptions to these formal requests e.g. for Senate estimates committees hearings.

2.1.3.      Committees often advertise publicly for written submissions from interested persons and organisations.

2.1.4.      A witness may first be invited to give evidence or produce documents, but a committee has the power to summon a witness if it considers circumstances warrant such an order. This is a rare occurrence, however, and departments are requested to bring any cases of an official receiving a summons to the attention of the Department of the Prime Minister and Cabinet (see Part 11 for contacts).

2.2.   Preparation of submissions

2.2.1.      If appropriate, departments and agencies making formal submissions should provide them in a written form; subsequent oral evidence would, if required, be based on the written submission but could also encompass other matters.

2.3.  Matters of policy in submissions

2.3.1.      Submissions:

  1. should not advocate, defend or canvass the merits of government policies (including policies of previous Commonwealth governments or state or foreign governments)
  2. may describe those policies and the administrative arrangements and procedures involved in implementing them
  3. should not identify considerations leading to government decisions or possible decisions unless those considerations have already been made public or the minister authorises the department to identify them
  4. may, after consultation with the minister, and especially when the government is encouraging public discussion of issues, set out policy options and list the main advantages and disadvantages, but should not reflect on the merits of any judgement the government may have made on those options or otherwise promote a particular policy viewpoint.

2.4.  Clearance of submissions by minister

2.4.1.      Submissions should be cleared to appropriate levels within the department or agency, and normally with the minister, in accordance with arrangements approved by the minister concerned.

2.4.2.      Where a committee seeks comments on the merits of government policies, it is for ministers to respond by making written submissions, by appearing personally or arranging for ministers representing them to appear personally, or by inviting committees to submit questions on policy issues in writing.

2.4.3.      Part 3 provides guidance in relation to officials giving evidence of personal knowledge of or involvement in events. Part 6 covers evidence given in a personal capacity.

2.5.    Declining to make a submission

2.5.1.      There may be occasions where a department is requested by a committee to make a submission and considers it inappropriate to do so e.g. where the issue being examined is administered by another department. In such cases it would be appropriate for the departmental secretary or agency head, or the official to whom a request was addressed, to write to the committee advising that the department does not intend to make a submission. If a committee persists with its request for a written submission, the department or agency may wish to seek the minister’s views.

2.6.   Requests for more time to prepare evidence

2.6.1.      If the notice is considered insufficient, the minister (or the department on the minister’s behalf) may ask a committee for more time to prepare evidence. The Senate resolutions provide for a witness to be given reasonable notice and an indication of the matters expected to be dealt with (Senate resolution 1.3).

2.7.  Confidentiality of submissions and draft reports of committees

2.7.1.      The release of submissions and the receipt of draft committee reports without the authority of a committee is prohibited by the Parliamentary Privileges Act 1987 and may be judged as a contempt of the parliament. (See sections 5.1 and 5.2.)

2.7.2.      It is sometimes necessary for the executive government to draw on contributions from various departments and agencies in order to provide accurate and comprehensive information. In such cases, draft submissions must be circulated between relevant agencies. The final submission may be made available to contributing departments and agencies at the time the submission is sent to the committee. Once forwarded to a committee, however, written submissions are confidential until the committee authorises their release or publication (see Senate Standing Order 37, House of Representatives Standing Order 242). Material in submissions may be used for other purposes, but the actual submission must not be published without the committee’s approval.

2.7.3.      Similarly, a draft report of a committee prepared for its own consideration is the property of the committee and must not be received or dealt with except with the committee’s authority. If an official receives a draft report, it should be returned promptly to the committee through the committee secretary, either directly or by returning it to the individual who provided it, who should be informed of the requirement to return it.

2.8.        Choice of witnesses

2.8.1.      A minister may delegate to a departmental secretary or agency head the responsibility for deciding the officials most appropriate to provide the information sought by a committee. It is essential that the officials selected have sufficient knowledge and authority to be able to satisfy the committee’s requirements. Where the matter before the committee involves the interests of several departments or agencies, it would be appropriate to inform the committee secretary (after consulting the other departments or agencies) so the committee can arrange for other witnesses to appear if required.

2.8.2.      Where a committee specifically requests an official to appear and the official is unavailable or the department considers it more appropriate that another official appear, it is desirable to advise the committee in advance and indicate the reason e.g. that another official or another department is now responsible for the matter in question. That course is likely to be inappropriate if the specified official has direct knowledge of an event under inquiry (see  paragraph 1.5.3 and Part 3).

2.9.        Official witnesses from statutory authorities

2.9.1.      Both Houses regard statutory office holders and the staff of statutory authorities as accountable to the parliament, regardless of the level of ministerial control of the authority. Most of them should comply with the usual rules about canvassing the merits or otherwise of policies. However, a number of statutory office holders and authorities, particularly those

with statutory responsibilities for promoting good practice in particular fields or protecting the interests of individuals or groups, may provide comment to committees on policies relevant to their areas of responsibility to the extent that the functions of their office properly permit that role. In doing so, they should take care to avoid taking partisan positions.

2.10.    How to prepare as a witness

2.10.1.  All witnesses should be thoroughly prepared for hearings. Preparation should include ensuring familiarity with probable lines of questioning by discussion with the committee secretariat or by examining Hansard (for parliamentary questions and previous, related inquiries) and other sources, including the media. Officials who have not previously attended committee hearings should be briefed on the requirements and should consider training offered by the Australian Public Service Commission and by the Departments of the Senate and the House of Representatives. Senior officials should satisfy themselves, as far as possible, that all witnesses are capable of giving evidence in a professional manner.

2.11.        Senate and House of Representative resolutions

2.11.1.  All officials appearing before Senate committees should also make themselves aware of the Senate resolutions relating to the rights of witnesses (Senate resolutions 1.1-1.18) and matters which may be treated as a contempt of the Parliament (Senate resolutions 3 and 6.1-6.16). Officials appearing before the House of Representatives Committee of Privileges and Members’ Interests should be aware of the resolution adopted by the House on 25 November 2009 in relation to the protection of witnesses.

2.12.        Consultation with ministers ahead of hearings

2.12.1.  The extent of consultation with ministers when preparing for hearings may vary depending on the committee and capacity in which a witness is appearing. For Senate estimates committee hearings, it is usual for officials to provide the minister, or the minister’s representative in the Senate, with a list of significant matters on which the department or agency is likely to be questioned and with copies of briefing if the minister wishes. Regardless of the type of committee, witnesses should alert the minister before a hearing if it is likely that a claim of public interest immunity (PII) will be required (see sections 4.4 to  4.11). In most cases, ministers should also be given advance notice by officials of likely requests for the hearing of evidence in camera (see section 4.12), although official witnesses who will give personal accounts of an event (see Part 3) are under no obligation to indicate that they intend to request an in camera hearing.

3.        OFFICIALS GIVING EVIDENCE OF EVENTS OR CONDUCT

3.1.1.      Parliamentary committees are occasionally established to inquire into particular events. Officials whose personal accounts of events or conduct are relevant to the inquiry should prepare themselves for the hearing in much the same way as officials appearing in a representative capacity (see section 2.10) by, for example, considering what questions might be asked, reviewing files and contemporaneous notes about the event and attempting to recall their experiences as exactly as possible. While these witnesses may choose to advise the minister or the departmental or agency executive before making a submission or attending a hearing, they should not be required to do so, nor should they be required to clear the content of their submissions or intended evidence.

3.1.2.      An official who is appearing in relation to a particular event should, like all official witnesses, be aware that they might need to restrict the evidence they give (see section 4.2). It is possible, for example, that certain information relevant to an inquiry should properly remain confidential (see sections 4.4 to 4.11). In this situation, the official should discuss the proposed evidence with senior officials familiar with the subject matter so as to ascertain whether the minister should be given an opportunity to consider making a PII claim in respect of the information.

3.1.3.      Officials giving evidence about particular events are entitled to request that their submissions and oral evidence remain confidential. This may be appropriate if the subject matter of the inquiry or the proposed evidence is inherently confidential (e.g. if it is related to defence capabilities and a PII claim is not being made), if the evidence would be damaging to personal reputations, or if the witness does not wish his or her identity to be made public.

3.1.4.      Officials who intend to give evidence about their personal experiences or observations should be careful, if they discuss their intended evidence with other officials or potential witnesses, to avoid creating the perception that they are trying to influence those other witnesses or being influenced by them.

3.1.5.      As indicated in paragraph 1.5.4, it is possible for the same official to be required to give evidence to the same inquiry both to explain the way a programme is administered and to provide an account of an event that might have occurred in the administration of the programme. In such cases, the witness needs to follow the appropriate clearance procedures for evidence relating to his or her evidence as a representative of the department or agency, while at the same time avoiding inappropriate processes in preparing to give evidence about his or her personal knowledge of the event or conduct in question.

4.  CONDUCT OF HEARINGS BY COMMITTEES

4.1.        General Principles

4.1.1.      As indicated above (paragraph 1.3.3), it is intended, subject to the application of certain necessary principles, that there be the freest flow of information between the public sector and the parliament. To that end, officials should be open with committees and if unable or unwilling to answer questions or provide information should say so and give reasons. It is also incumbent upon officials to treat parliamentary committee members with respect and courtesy. Officials who consider that a question or statement made by a committee member reflects unfairly on them can seek assistance from either the minister or the committee chair. (See also section 5.7 on Right of Reply.)

4.2.        Limitations on officials’ evidence

4.2.1.      There are three main areas in which officials need to be alert to the possibility that they may not be able to provide committees with all the information sought or may need to request restrictions on the provision of such information. These are:

  1. matters of policy
  2. material that may be the subject of a PII claim
  3. information where in camera evidence is desirable.

4.3.        Matters of policy in oral evidence

4.3.1.      It is not the role of an official witness to give opinions on matters of policy. It is the role of an official witness to speak to any written submission provided to the committee and to provide, in answer to questions, factual and background material to assist the understanding of the issues involved. The detailed rules applying to written submissions also apply to oral evidence. Not all restrictions necessarily apply to statutory officers (see section 2.9).

4.3.2.      The Senate resolutions (see section 2.11) provide that, “an officer of a department of the Commonwealth or of a State shall not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a Minister” (resolution 1.16).

4.3.3.      Senate resolutions also prescribe the procedure by which a witness may object to answering “any question put to the witness” on “any ground” (resolution 1.10). This would include the ground that the question requires the witness to give an opinion on a matter of policy contrary to Senate resolution 1.16. In such a situation an official may ask the person chairing the committee to consider whether questions which fall within the parameters of policy positions are in order.

4.3.4.      If an official witness is directed to answer a question that goes to the merits of government policy and has not previously cleared the matter with the minister, the official should ask to be allowed to defer the answer until such clearance is obtained. Alternatively, it may be appropriate for the witness to refer to the written material provided to the committee and offer, if the committee wishes, to seek elaboration from the minister or to request that the answer to a particular question be reserved for submission in writing.

4.4.        Public interest immunity

4.4.1.      While the parliament has the power to require the giving of evidence and the production of documents, it has been acknowledged by the parliament that the government holds some information which, in the public interest, should not be disclosed.

4.5.        Claims to be made by ministers

4.5.1.      Only ministers, or in limited circumstances statutory office holders, can claim that information should be withheld from disclosure on grounds of PII. However, committees, and especially Senate estimates committees, receive most of their evidence from officials, and it is officials who are most likely in the first instance to be asked to provide information or documents that might be the subject of a PII claim. Officials need in particular to be familiar with the Senate Order of 13 May 2009 on PII claims (see Attachment A).

4.5.2.      It is important that the public interest is not inadvertently damaged as a result of information or documents being released without a proper assessment of the possible consequences. Officials who consider that they have been asked to provide information or a document (either by way of a submission or in a hearing) that might properly be the subject of a PII claim should either:

  1. advise the committee of the grounds for that belief and specify the damage that might be done to the public interest if the information or document were disclosed; or
  2. ask to take the question on notice to allow discussion with the minister. A committee would be expected to allow an official or minister at the table to ascertain the portfolio minister’s views on the possible release of the information or document or seek further advice on whether a PII claim was warranted.

4.5.3.      If a minister concludes that it would not be in the public interest to disclose the information or document, a statement should be provided to the committee setting out the ground for that conclusion and specifying the harm to the public interest that could result from the disclosure of the information or document.

4.5.4.      Where practicable, decisions to claim PII should take place before hearings, so that the necessary documentation can be produced at the time. The normal means of claiming PII is by way of a letter from the minister to the committee chair. The Department of the Prime Minister and Cabinet should be consulted on the appropriateness of the claim in the particular circumstances and the method of making the claim.

4.5.5.      Before making a claim of PII, a minister or, in appropriate circumstances, a statutory office holder, might explore with a committee the possibility of providing the information in a form or under conditions which would not give rise to a need for the claim (including in camera, see section 4.12).

4.6.        Grounds for a PII claim

4.6.1.      There are several generally accepted grounds on which a minister or, in appropriate circumstances, a statutory office holder, may rely when claiming PII. For example, PII claims may be made in relation to information and documents the disclosure of which would, or might reasonably be expected to:

  1. damage Australia’s national security, defence or international relations
  2. damage relations between the Commonwealth and the States
  3. disclose the deliberations of Cabinet (other than a decision that has been officially published)
  4. prejudice the investigation of a possible breach of the law or the enforcement of the law in a particular instance
  5. disclose, or enable a person to ascertain, the existence or identity of a confidential source or information, in relation to the enforcement or administration of the law
  6. endanger the life or physical safety of any person
  7. prejudice the fair trial of a person or the impartial adjudication of a particular case
  8. disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures
  9. prejudice the maintenance or enforcement of lawful methods for the protection of public safety.

4.6.2.      The Senate Order of 13 May 2009 made it clear that committees will not accept a claim for public interest immunity based only on the ground that the document in question has not been published, is confidential, or is advice to or internal deliberations of government; a minister must also specify the harm to the public interest that may result from the disclosure of the information or document that has been requested. Further advice on the Senate Order and PII claims is at Attachment A.

4.6.3.      If a minister concludes that a PII claim would more appropriately be made by a statutory office holder because of the independence of that office from ministerial direction or control, the minister should inform the committee of that conclusion. A statutory office holder might, for example, consider the disclosure of particular information would be likely to have such a substantial adverse effect on the proper and efficient conduct of the operations of his or her agency that it would be contrary to the public interest to disclose that information.

4.7.        Classified documents

4.7.1.      Documents, and oral information relating to documents, having a national security classification of ‘confidential’, ‘secret’ or ‘top secret’ would normally be within one of the categories in paragraph 4.6.1, particularly sub-paragraph 4.6.1(a). If, however, a document bearing such a classification is to be provided to a committee, an official should seek declassification of the document in accordance with relevant government policies. (Note that it does not follow that documents without a security classification may not be the subject of a PII claim. Nor does it follow that classified documents may not in any circumstances be produced. Each document should be considered on its merits and, where classified, in consultation with the originator.)

4.8.        Legal professional privilege and legal advice

4.8.1.      Legal advisers owe a duty to their clients not to disclose the existence or content of any advice. It would therefore be inappropriate for any official who has provided legal advice to government, who has obtained advice from an external lawyer or who possesses legal advice provided to another agency, to disclose that advice. All decisions about disclosure of legal advice reside with the minister or agency who sought and received that advice. The Attorney-General or the Attorney-General’s Department must always be consulted about disclosure of constitutional, international and national security legal advice.

4.8.2.      If asked by a committee, it will generally be appropriate for an official to disclose whether legal advice had been sought and obtained on a particular issue and, if asked, who provided the advice and when it was provided, unless there are compelling reasons to keep that information confidential. Where an official has been asked a question about the content of legal advice, it may be appropriate to advise the committee that such information might properly be subject to a public interest immunity claim and refer the question of disclosure to the responsible minister as outlined in paragraph 4.5.2.

4.8.3.      While it has not been the practice for the government’s legal advisers to provide advice to parliamentary committees, situations may arise during a hearing where a committee asks an official a question which amounts, in effect, to a request for legal advice. Officials should provide committees with such information as they consider appropriate, consistent with the general understanding that the Government’s legal advisers do not provide or disclose legal advice to the parliament, and consistent more generally with these Guidelines. (It may be, for example, that officials are in a position to explain in general terms the intended operation of provisions of Acts or legal processes, particularly where this reflects the settled government view on the matter.)

4.9.    Freedom of information (FOI) legislation

4.9.1.      The Freedom of Information Act 1982 (FOI Act) establishes minimum standards of disclosure of documents held by the Commonwealth. The FOI Act has no application as such to parliamentary inquiries, but it may be considered a general guide to the grounds on which a parliamentary inquiry may reasonably be asked not to press for particular information. The converse also applies. Any material which would be, or has been, released under the FOI Act should (with the knowledge of the minister in sensitive cases or where the minister has a particular interest or has been involved) be produced or given to a parliamentary committee, on request. However, officials should bear in mind that, because of the Executive’s primary accountability to the parliament, the public interest in providing information to a parliamentary inquiry may be greater than the public interest in releasing information under the FOI Act. In addition, the ability to provide information and documents to the parliament on a confidential basis might provide scope to release information that would not be appropriate for release under the FOI Act (see section 4.12). For a more detailed understanding of the exemption provisions, refer to the FOI Act and separate guidelines on its operation issued by the Australian Information Commissioner and the FOI Guidance Notes issued by PM&C (references and links to these documents are in Part 12).

4.10.        Commercial-in-confidence material

4.10.1.      There is no general basis to refuse disclosure of commercial information to the parliament, even if it has been marked ‘commercial-in-confidence’. The appropriate balance between the interests of accountability (i.e. the public interest in disclosing the information) and appropriate protection of commercial interests (i.e. the public interest in the information remaining confidential) should be assessed in each case.

4.10.2.      A Senate order, adopted on 30 October 2003, states that, ‘the Senate and Senate committees shall not entertain any claim to withhold information from the Senate or a committee on the grounds that it is commercial-in-confidence, unless the claim is made by a minister and is accompanied by a statement setting out the basis for the claim, including a statement of any commercial harm that may result from the disclosure of the information.’

4.10.3.      As a general guide, it is inappropriate to disclose information which could disadvantage a contractor and advantage competitors in their business operations. Further information about the circumstances in which a PII claim based on commercial-in-confidence information might legitimately be made, and about information that would normally be disclosed, is at Attachment B.

4.10.4.      A department or agency receiving commercial information on the basis of undertakings of confidentiality does not automatically preclude release of that information to the parliament. Agencies should consider where, on balance, the public interest lies as part of their advice to the minister and may wish to seek the views of any person or organisation to whom undertakings were given about the possible release of the document.

4.10.5.      In most cases, the sensitivity of commercial-in-confidence material diminishes with time and this should be taken into account when assessing the public interest balance.

4.10.6.      As with any other PII claim, a claim around commercial-in-confidence information should be supported by reference to the particular detriment that could flow from release of the information.

4.11. Secrecy provisions in legislation

4.11.1.      Some Commonwealth legislation contains secrecy provisions that protect certain information from disclosure except to specified persons or in specified situations. Examples include s.37(1) of the Inspector-General of Taxation Act 2003, which protects information relating to a taxpayer’s affairs; s.86-2 of the Aged Care Act 1997 which protects information obtained under or for the purposes of that Act; and s.187(1) of the Gene Technology Act 2000 which limits the provision of commercial-in-confidence information.

4.11.2.      The existence of secrecy provisions in legislation does not provide an automatic exemption from providing information to the parliament unless it is clear from the provision that a restriction has been placed on providing information to a committee or a House of the parliament (section 37 of the Auditor-General Act 1997 is an example). The fact that the parliament has included secrecy provisions in legislation suggests, however, that an official may be able to put to a committee a satisfactory case for not providing requested information, at least in public hearings. If the official’s case is not accepted by the committee and the official remains concerned about providing the information, it would be open to the responsible minister to make a PII claim in the manner outlined in sections 4.4 to 4.10.

4.11.3.      In some instances it might be possible to meet a committee’s request by removing information that identifies individuals.

4.11.4.      Officials may wish to seek legal advice when a request for information covered by secrecy provisions is pressed by a committee.

4.12.  In camera evidence

4.12.1.      Witnesses may seek a committee’s agreement to give evidence in a private session (i.e. in camera). Senate estimates committees, however, must conduct hearings in public.

4.12.2.      It would be unusual for an official witness to seek to give evidence in camera, but it may be necessary in situations where:

  1. a case could be made for a PII claim but the minister considers, on balance, that the public interest lies in making information available to the committee;
  2. similar or identical evidence has previously been given in camera to other hearings of the committee or other committees of the parliament and has not been made public.

4.12.3.      Requests for an in camera hearing would normally be made by the minister or by a witness after consultation with the minister and departmental secretary or agency head. Such consultation might not be appropriate, however, in the case of officials giving evidence of events or conduct, as described in Part 3.

4.12.4.      It is important to be aware that committees (or the Senate or House of Representatives) are able to decide that evidence taken in camera or provided in confidential submissions should be published. Committees would usually inform a witness before publication, and possibly seek concurrence, but there is no requirement for that to occur.

4.12.5.      If a committee seeks an official witness’s concurrence to publish in camera evidence, the witness should ask the committee for time to allow him or her to consult the minister or the departmental secretary or agency head (noting that this may not be necessary if the witness is appearing in a personal capacity – see Part 6).

4.13.        Requests for evidence ‘off the record’

4.13.1.      There is no category of ‘off the record’ provision of information to a committee and officials should not offer to brief committees or members in this way. In the event that an official is asked to provide information to members of a committee ‘off the record’ or in any manner that would not appear to be covered by parliamentary privilege, the official should request a postponement until the minister can be consulted, unless the possibility has been clearly foreshadowed with the minister and the official has been authorised to provide the information.

4.13.2.      Some committees, such as the Joint Committee on Public Accounts and Audit, frequently hold relatively informal, or roundtable, committee hearings. These hearings are usually recorded by Hansard and are in all cases covered by parliamentary privilege.

4.14.        Qualifying evidence

4.14.1.      During hearings, committees may seek information which could properly be given, but where officials are unsure of the facts or do not have the information to hand. In such cases, witnesses, if they choose not to take the question on notice, should qualify their answers as necessary so as to avoid misleading the committee and, if appropriate, undertake to provide additional or clarifying information. It is particularly important to submit such further material promptly.

4.15.        Taking questions on notice

4.15.1.      While it is appropriate to take questions on notice if the information sought is not available or incomplete, officials should not take questions on notice as a way of avoiding further questions during the hearing. If officials have the information, but consider it necessary to consult the minister before providing it, they should state that as a reason for not answering rather than creating the impression that the information is not available.

4.16.        Written questions and questions taken on notice

4.16.1.      Where a committee asks written questions, written replies should be provided through the committee secretary. It is common practice at Senate estimates committee hearings for questions to be taken on notice. Responses should be provided promptly to the minister for clearance so that answers can be lodged with the committee by its deadline. Where answers cannot be provided by the deadline, the committee should be advised when responses are expected to be available.

4.16.2.      When the interests of several departments are involved, adequate consultation should take place in preparing material.

4.17.        Questions about other departments’ responsibilities

4.17.1.      It is important that witnesses take care not to intrude on responsibilities of other departments and agencies (see also paragraph 2.7.2). Where a question falls within the administration of another department or agency, an official may request that it be directed to that department or agency or be deferred until that department or agency is consulted.

5.   PROTECTION OF SUBMISSIONS AND WITNESSES

5.1.        Parliamentary privilege

5.1.1.      The act of submitting a document to a parliamentary committee is protected by parliamentary privilege (subsection 16(2)(b) of the Parliamentary Privileges Act 1987). Any publication of the submission other than to the committee, however, is protected by parliamentary privilege only if that publication takes place by or pursuant to the order of the committee, in which case the content of the document is also protected (subsection 16(2)(d) of the Act). The unauthorised disclosure of a document or evidence submitted to a parliamentary committee (that is, a disclosure not authorised by the committee or the House concerned) may be treated as a criminal offence under section 13 of the Act or as a contempt (Senate resolution 6.16.). (See also section 2.7.)

5.1.2.      The protection of parliamentary privilege means that a person cannot be sued or prosecuted in respect of the act or the material protected, nor can that act or material be used against a person in legal proceedings.

5.2.        Contempt of the parliament

5.2.1.      Officials need to be aware that the Parliamentary Privileges Act 1987 and Senate Resolutions have defined offences against a House. Each House has the power to declare an act to be a contempt of the House and to punish such an act.

5.2.2.      The Parliamentary Privileges Act 1987 creates the following offences in relation to attempts to improperly influence a person about evidence given or to be given:

  1. a person shall not, by fraud, intimidation, force or threat, by the offer or promise of any inducement or benefit, or by other improper means, influence another person in respect of any evidence given or to be given before a House or a committee, or induce another person to refrain from giving any such evidence (subsection 12(1));
  2. a person shall not inflict any penalty or injury upon any person, or deprive any person of any benefit, on account of the giving or proposed giving of any evidence, or any evidence given or to be given, before a House or a committee (subsection 12(2)).

5.2.3.      As indicated in paragraph 5.1.1 above, section 13 of the Parliamentary Privileges Act 1987 creates an offence in relation to the disclosure of submissions or evidence without the authority of the parliament or a committee.

5.2.4.      The giving of any evidence that a witness knows to be false or misleading is also a contempt (see Senate resolution 6(12)).

5.3.        Self incrimination

5.3.1.      In general, a witness cannot refuse to answer a question or produce documents on the ground that the answer to the question or the production of documents might incriminate the witness. The exceptions to this are witnesses appearing before the Joint Committee of Public Accounts and Audit or the Parliamentary Standing Committee on Public Works, who are permitted to refuse to give evidence on grounds on which a witness in court is able, including self incrimination.

5.3.2.      If concerned about self incrimination, a witness may request that the committee take the evidence in camera (see section 4.12).

5.4.        Access to counsel

5.4.1.      A witness may apply to have assistance from counsel in the course of a hearing. In considering such an application, a committee shall have regard to the need for the witness to be accompanied by counsel to ensure the proper protection of the witness. If an application is not granted, the witness shall be notified of reasons for that decision (see Senate resolution 1.14). If an application is granted, the witness shall be given reasonable opportunity to consult counsel during a committee hearing (see Senate resolution 1.15 and p 693 of House of Representatives Practice – references and links in Part 12).

5.4.2.      In normal circumstances officials should not need counsel when appearing before parliamentary committees. Should the need arise, however, the Attorney-General’s Department should be consulted.

5.5.        Publication of evidence

5.5.1.      Evidence provided to committees in a public hearing is normally published in the form of a Hansard record.

5.5.2.      Authority for the publication of evidence is vested in committees by virtue of ss.2(2) of the Parliamentary Papers Act 1908. Evidence taken in camera is confidential and its publication without a committee’s consent constitutes a contempt (see s.13 of the Parliamentary Privileges Act 1987 and Senate resolution 6.16.).

5.6.        Correction or clarification of evidence

5.6.1.      Witnesses will receive transcripts of their evidence in the days following their appearance. The transcript should be examined promptly to establish whether any evidence needs to be corrected or clarified. On occasions, a witness may become aware of the need for correction or clarification before the receipt of the transcript or, in the case of a written submission, before the commencement of hearings.

5.6.2.      Once the need to provide a committee with revised information has been established, it is most important that the committee receive that revised information at the earliest opportunity. In the case of officials who made submissions or appeared as witnesses in relation to the administration and implementation of government policy (but not necessarily those covered by Part 3), the departmental secretary or agency head (or senior official who represented the secretary at the hearing) should be informed that revised information is to be provided. Depending on the nature of the correction, it may also be appropriate to inform the minister. Officials need to keep in mind that, while their evidence remains uncorrected or unclarified they are vulnerable to allegations that they have misled a committee.

5.6.3.      Supplementary information for a committee should be forwarded to the committee secretary. If uncertain of the most appropriate way to provide a committee with additional or corrected information, officials should seek the guidance of the committee secretary.

5.7.        Right of reply

5.7.1.      Where evidence taken by a committee reflects adversely on an official, the committee shall provide reasonable opportunity for the official to have access to that evidence and to respond to that evidence by written submission and appearance before the committee (Senate resolution 1(13)).

5.7.2.      Officials have the same right as other citizens who have been adversely referred to in a House of the parliament (see Senate resolution 5 and House of Representatives resolution adopted on 27 August 1997 – pp 774-6 of House of Representatives Practice). They may make a submission to the President of the Senate or to the Speaker of the House of Representatives requesting that a response be published, and the relevant presiding officer may refer such a submission to the relevant Privileges Committee. The procedures of each House then provide for scrutiny of the submission and for the possibility of it being incorporated in Hansard or ordered to be published.

5.7.3.      Officials proposing to exercise their right of reply should inform their departmental secretary or agency head.

6.  APPEARANCE IN A PERSONAL CAPACITY

6.1.1.      Nothing in these guidelines prevents officials from making submissions or appearing before parliamentary committees in their personal capacity, and the Parliamentary Privileges Act 1987 makes it clear that an agency has no power to prevent an official from doing so. An official proposing to give evidence in a personal capacity should consult the APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and agency heads (section 1: Relationship with the Government and the Parliament), published by the Australian Public Service Commission. Individual agencies may also have developed advice for their own staff on these matters.

6.1.2.      An official giving evidence in a personal capacity might do so in relation to matters entirely unrelated to his or her current or recent responsibilities e.g. an official in the Attorney-General’s Department putting forward personal observations or suggestions on aged care accommodation. It would be a matter completely for that official to decide whether to inform either a senior official in his or her own department or anyone in the department responsible for aged care policy. The official should, of course, seek leave to attend the hearing, if necessary.

6.1.3.      There is no intention for there to be any restriction arising from these Guidelines on officials appearing before parliamentary committees in their ‘personal’ capacity. An official so called, however, should pay heed to the guidelines relating to public comment contained in the APS Values and Code of Conduct in Practice. As those guidelines emphasise, it is particularly important for senior officials to give careful consideration to the impact, by virtue of their positions, of any comment they might make. Indeed heads of agencies and other very senior officials need to consider carefully whether, in particular cases, it is possible for them realistically to claim to appear in a ‘personal’ rather than an ‘official’ capacity, particularly if they are likely to be asked to comment on matters which fall within or impinge on their area of responsibility. An official who is appearing before a committee in a personal capacity should make it clear to the committee that the officer’s appearance is not in an official capacity.

6.1.4.      An official contemplating giving evidence in a personal capacity in these circumstances might consider discussing his or her intentions with the departmental executive or agency head or other senior officials, as the views that he or she wishes to put forward might be covered in the agency’s submission or the evidence of official witnesses. There is, however, no obligation on the official to do so.

6.1.5.      An official who gives evidence in his or her personal capacity is protected by parliamentary privilege and must not be penalised for giving that evidence (see section 5.1).

7.        PARTY COMMITTEES

7.1.        General issues

7.1.1.      Officials may be invited to attend party committees, both government and non-government to, for instance, explain proposed legislation.

7.1.2.      Requests for briefing from any party committee should be directed to the minister concerned. It is also open to a minister to initiate proposals for briefing of committees where the minister considers that to be desirable.

7.1.3.      Officials will not be expected or authorised to express opinions on matters of a policy or party political nature.

7.1.4.      Unlike committees of the parliament, party committees do not have the powers or privileges of parliamentary committees, so officials appearing before them do not have the protection afforded to witnesses appearing before parliamentary committees. Party committee hearings are generally held in private.

7.1.5.      Where the minister does not attend the committee proceedings, officials should keep the minister informed of the nature of the discussions and of any matters the officials could not resolve to the committee’s satisfaction.

8.        REQUESTS FOR INFORMATION FROM NON-GOVERNMENT PARTIES AND MEMBERS OF PARLIAMENT

8.1.        Rules at times other than during the caretaker period

8.1.1.      Requests for information from members of parliament are usually made to the minister, but direct approaches to officials for routine factual information, particularly on constituency matters, are also traditional and appropriate.

8.1.2.      Depending on the nature or significance of a request, an official may judge it appropriate to inform the minister and departmental secretary or agency head of the request and response. Ministers should be informed of any matter which is likely to involve them.

8.1.3.      A request should also be referred to the minister if it seeks an expression of opinion on government policy or alternative policies, or would raise other issues of a sensitive nature, or where answering would necessitate the use of substantial resources of the department or agency.

8.1.4.      When a request is for readily available factual information, the information should be provided.

8.1.5.      Care should be taken to avoid unlawful disclosure of information, for example, unauthorised disclosure of information that is classified or otherwise confidential information such as where a breach of personal privacy or commercial confidentiality could be involved.

8.2.        Requests from shadow ministers

8.2.1.      Requests from shadow ministers for briefing by officials would normally be made through the appropriate minister and, where this is not the case, the minister should be informed. If the minister agrees to the briefing, it would be normal for him or her to set conditions on the briefing, such as the officials to attend, matters to be covered and whether a ministerial adviser should also be present. These conditions are matters for negotiation between the minister and shadow minister or their offices.

8.2.2.      With regard to the substance of such a briefing, officials will not be authorised to discuss advice given to government, such as in Cabinet documents, or the rationale for government policies, or to give opinions on matters of a party political nature. Officials should limit discussions to administrative and operational matters and observe the general restrictions relating to classified or PII material. If these latter matters arise, officials should suggest that they be raised with the minister.

8.2.3.      Where a ministerial adviser is not present, it would be usual for officials to advise the minister of the nature of matters discussed with the shadow minister.

8.3.        Special rules for pre-election consultation with officials during the caretaker period prior to an election

8.3.1.      On 5 June 1987 the government tabled in the parliament specific guidelines relating to consultation by the Opposition with officials during the pre-election period. These guidelines, which are almost identical to the guidelines first tabled on 9 December 1976, are as follows:

  1. The pre-election period is to date from three months prior to the expiry of the House of Representatives or the date of announcement of the House of Representatives election, whichever date comes first. It does not apply in respect of Senate only elections.
  2. Under the special arrangement, shadow ministers may be given approval to have discussions with appropriate officials of government departments. Party leaders may have other members of parliament or their staff members present. A departmental secretary may have other officials present.
  3. The procedure will be initiated by the relevant Opposition spokesperson making a request of the minister concerned, who is to notify the Prime Minister of the request and whether it has been agreed.
  4. The discussions will be at the initiative of the non-government parties, not officials. Officials will inform their ministers when the discussions are taking place.
  5. Officials will not be authorised to discuss government policies or to give opinions on matters of a party political nature. The subject matter of the discussions would relate to the machinery of government and administration. The discussions may include the administrative and technical practicalities and procedures involved in implementation of policies proposed by the non-government parties. If the Opposition representatives raise matters which, in the judgement of the officials, call for comment on government policies or expressions of opinion on alternative policies, the officials should suggest that the matter be raised with the minister.
  6. The detailed substance of the discussions will be confidential but ministers will be entitled to seek from officials general information on whether the discussions kept within the agreed purposes.

9.        APPEARANCES BEFORE THE BAR OF A HOUSE OF PARLIAMENT

9.1.1.      Only in exceptional circumstances would an official be summoned to the bar of a House of the parliament and each case would need individual consideration.

9.1.2.      As a general rule, it would be appropriate for these guidelines to be followed insofar as they apply to the particular circumstances.

10.        REQUESTS RELATING TO INQUIRIES OF STATE AND TERRITORY PARLIAMENTS

10.1.1.  Commonwealth officials may receive a request to appear before or make a submission to a state or territory parliamentary inquiry. In considering the appropriate response, officials should be aware that it would be rare for Commonwealth officials to participate in such inquiries.

10.1.2.  However, there may be cases where, after consulting the minister about the request, it is considered to be in the Commonwealth’s interests to participate. Officials should not participate in any state or territory parliamentary inquiry without consulting the minister.

10.1.3.  Where additional guidance is required regarding appearances before state or territory inquiries or if an official is summoned to appear at such an inquiry, advice should be sought from the Department of the Prime Minister and Cabinet, the Attorney-General’s Department, and the Australian Government Solicitor or the agency’s legal service provider1.

11.        USEFUL CONTACT NUMBERS

11.1.1. The following contact numbers are provided for use where these guidelines suggest consultation with the Department of the Prime Minister and Cabinet, the Attorney-General’s Department or the Australian Government Solicitor:

(a) Department of the Prime Minister and Cabinet:Assistant Secretary
Parliamentary and Government Branch phone: (02) 6271 5400
First Assistant Secretary Government Division phone: (02) 6271 5786
(b) Attorney-General’s Department:
General Counsel (Constitutional) Office of Constitutional Law phone: (02) 6250 3650OCL@ag.gov.au
(c) Australian Government Solicitor:
Australian Government Solicitor Office of General Counsel phone: (02) 6253 7000phone: (02) 6253 7074

12. REFERENCES

12.1.1. The following material is available to assist officials in their contact with parliament:

  1. Odgers’ Australian Senate Practice, 13th Edition, Canberra, 2012.
  2. House of Representatives Practice, Sixth Edition, Canberra, 2012.
  3. Procedures to be observed by Senate Committees for the Protection of Witnesses. Department of the Senate.
  4. Procedures for the protection of witnesses before the Committee of Privileges and Members’ Interests. Resolution adopted by the House of Representatives on 25 November 2009.
  5. Standing Orders and other orders of the Senate, July 2014.
  6. House of Representatives Standing and Sessional Orders (and Resolutions) as at 14 November 2013.
  7. Appearing Before Parliamentary Committees, Legal Practice Briefing No. 29, 1996, Australian Government Solicitor.
  8. How to make a submission to a Senate or Joint Committee inquiry. Department of the Senate.
  9. Preparing a submission to a Parliamentary Committee Inquiry. Department of the House of Representatives, 2011.
  10. Notes for the Guidance of Witnesses Appearing before Senate Committees. Department of the Senate.
  11. Appearing as a witness at a Parliamentary committee hearing. Department of the House of Representatives, 2011.
  12. Outline of the Inquiry Process. Department of the House of Representatives, 2011.
  13. Parliamentary Privileges Act 1987
  14. Public Accounts and Audit Committee Act 1951
  15. Public Works Committee Act 1969
  16. APS Values and Code of Conduct in practice. Australian Public Service Commission, 2009.
  17. Reports of the Senate Committee of Privileges, including the Committee of Privileges 1966-96 History, Practice and Procedures (76th Report).
  18. Reports of the House of Representatives Committee of Privileges and Members’ Interests.
  19. Guidelines on exemption provisions of the Freedom of Information Act 1982. Australian Information Commissioner 2011.
  20. FOI Guidance Notes. Department of the Prime Minister and Cabinet, July 2011.

ATTACHMENT A

Claims of public interest immunity

See also sections 4.4 to 4.11 in the Guidelines

On 13 May 2009, the Senate passed an Order setting out the process for making claims of public interest immunity (PII) in committee proceedings. A copy of the order is attached

(Attachment A1).

2.         The Senate Procedure Committee reviewed the operation of the Order in  August 2009. A copy of the Procedure Committee’s report can be downloaded from the Parliament of Australia website.

3.         Officials who are expected to appear at estimates and other parliamentary committee hearings need to be familiar with the requirements of the Order and the grounds for claiming public interest immunity as set out in the Guidelines.

4.         The process for claiming public interest immunity described in the Order is largely consistent with the process that is set out in sections 4.4 to 4.11. While the Guidelines explain the process for making public interest immunity claims to protect against the disclosure of information or documents at committee hearings, it has been relatively uncommon in practice for officials appearing as witnesses at committee hearings, particularly estimates hearings, to be asked to provide copies, for example of departmental briefs to ministers. The Order of 13 May 2009 makes it seem more likely that officials and ministers will be asked to provide information or documents of this kind at Senate committee hearings, including estimates hearings, than has been the case in the past.

Summary of advice

5.         It is important that the public interest is not inadvertently damaged as a result of information or documents being released without a proper assessment of the possible consequences. Accordingly, if an official is asked to provide information or documents to a Senate committee:

  • if the official is satisfied that its disclosure would not harm the public interest, he or she should advise the minister that the material can be provided;
  • if the official is satisfied that the disclosure of the material would damage the public interest, he or she should advise the committee that the material cannot be provided and explain how its disclosure would damage the public interest; and
  • if the official is uncertain whether the disclosure of the material would damage the public interest, he or she should take the question on notice.

The grounds for claiming public interest immunity and the process for making such a claim at estimates hearings are set out below.

Grounds for a public interest immunity claim

6.         While the parliament has the power to require the production of documents, it is acknowledged that the Government holds some information the disclosure of which would be contrary to the public interest. Where the public interest in the information remaining confidential outweighs the public interest in its disclosure, the Government would normally make a public interest immunity claim.

7.         There are several recognised and accepted grounds on which ministers may rely when claiming public interest immunity in relation to information or documents requested by the Senate or a Senate committee. These are set out at section 4.6 of the Guidelines. As the Procedure Committee notes in its report, however, it is conceivable that new grounds could arise.

8.         By way of example, public interest immunity claims may be made in relation to information or documents whose disclosure would, or might reasonably be expected to:

  • damage Australia’s national security, defence or international relations;
  • damage relations between the Commonwealth and the States;
  • disclose the deliberations of Cabinet; and
  • prejudice the investigation of a criminal offence, disclose the identity of a confidential source or methods of preventing, detecting or investigating breaches of the law, prejudice a fair trial or endanger the life or safety of any person.

9.         It is, of course, possible for more than one ground to apply to the same document, in which case all relevant grounds should be specified.

Public interest conditional exemption – deliberative processes

10.          A public interest immunity claim may also be made in relation to material disclosing matters in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purpose of, the deliberative processes involved in the functions of the Government where disclosure at that time would, on balance, be contrary to the public interest [emphasis added – see paragraph 4.6.2 of the Guidelines]. Because the Senate Order requires ministers to specify the harm that could result from disclosure of information or a document of this kind, claims for public interest immunity on this ground will involve a greater degree of judgment and subjectivity, and may therefore be less readily accepted, than claims based on the various grounds described in paragraph 8 above.

11.          Information and documents whose disclosure would not damage the public interest should be provided to parliamentary committees as soon as possible. It is important, however, that officials and ministers do not inadvertently damage the public interest by disclosing information that ought to remain confidential. Officials and ministers therefore need to consider carefully whether particular documents should be the subject of a public interest immunity claim before they are released. This will frequently not be possible in the relatively short timeframe available for estimates hearings, particularly as the responsible minister and relevant officials may need to devote their time to the hearings. If the request relates to a small number of documents, it may be possible to respond before the committee completes its hearings. If a large number of documents have been sought, or if the issues involved are complex, the minister may need to advise the committee that it will not be possible to respond until a later date (although it may be possible to provide some documents, or parts of some documents, while the committee is sitting).

12.          In briefing ministers on the question whether it is appropriate to disclose information or documents to a committee, officials must assess and balance the public interest in disclosure of the information or document against the public interest, if any, in maintaining its confidentiality. This is a similar process to that which is undertaken when officials provide advice to ministers in relation to a Senate order to produce documents, or in deciding whether to provide access to documents under section 47C of the Freedom of Information Act 1982 (although it should be noted that the provisions of the FOI Act have no direct application to questions about the provision of information to a Senate committee), or in response to an order to discover documents that are relevant to litigation involving the Commonwealth.

13.          It may also be appropriate to decline to provide information or documents if to do so would unreasonably disclose personal information or disclose material that could be the subject of a claim for legal professional privilege.

Process for claiming public interest immunity

14.          Public interest immunity claims must be made by ministers. However, Senate committees, particularly estimates committees, receive most of their evidence from officials, and it is they who are most likely in the first instance to be asked to provide information or documents that might be the subject of a public interest immunity claim.

15.          The Senate Order describes in some detail the process leading up to a claim for public interest immunity. An official who considers that he or she has been asked to provide information or a document that might properly be the subject of a public interest immunity claim could either:

  • advise the committee of the ground for that belief and specify the damage that might be done to the public interest if the information or document were disclosed (paragraph 1 of the Order); or
  • take the question on notice.

The official could also refer the question to the minister at the table, but it is unlikely that the minister would be well-placed to make a considered decision on the question at that time.

16.          The public interest in not disclosing information or documents on any of the grounds described in paragraph 8 above is self-evident and in many cases the need for such a claim would be readily apparent to officials at the hearing. If it is not, the official should ask if the question can be taken on notice so that it can be properly considered and the minister briefed.

17.          It would be reasonable to expect that an official’s evidence that a document is a Cabinet document or that, in his or her view, disclosure of the information or document in question might damage Australia’s national security, for example, would be accepted by individual senators and committees with the result that the matter would not be taken further.

18.          If that is not the case, however, the committee or the senator may request the official to refer the matter to the responsible minister (paragraph 2 of the Order). This would frequently mean that the question would need to be taken on notice. It is possible that the minister at the table, if he or she is not the relevant portfolio minister, may wish to ascertain the portfolio minister’s views on the possible release of the information or document.

19.          If the minister concludes that it would not be in the public interest to disclose the information or document, he or she “shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document” (paragraph 3 of the Order).

20.          Paragraph 4 of the Order is not relevant for the purposes of estimates committees, which cannot take evidence in camera, but needs to be considered in the context of other committee hearings.

21.          If a committee considers that a minister’s statement in support of a public interest immunity claim does not justify the withholding of the information or document, it can report the matter to the Senate (paragraph 5 of the Order). In that event, the Senate would probably consider whether to order that the documents be produced. If the committee decides not to report the matter to the Senate, the senator who sought the information or document may do so (paragraph 6 of the Order).

22.          In recent years, officials and ministers have not normally been pressed for copies of deliberative documents, particularly during Estimates hearings, with questions being limited to whether ministers have been briefed on particular issues and, if so, when that occurred. Paragraph 7 of the Order makes it clear, however, that committees will not accept a claim for public interest immunity based only on the ground that the document in question is a deliberative document: a minister must also specify the harm to the public interest that may result from the disclosure of the information or document that has been requested. Again, the need to give careful consideration to the issues involved will frequently mean that the matter has to be taken on notice.

23.          Finally, the Order recognises that there may be occasions when it would be more appropriate for the head of an agency, rather than the minister, to make a claim for public interest immunity (paragraph 8 of the Order). This might occur, for example, in relation to information or documents held by agencies that have a significant degree of independence from Government, such as law enforcement agencies, courts and tribunals, the Auditor-General, Commonwealth Ombudsman and some regulatory agencies.

A 1

Order of the Senate, 13 May 2009 Public interest immunity claims

That the Senate—

(a)        notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;

(b)        reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;

(c)        orders that the following operate as an order of continuing effect:

(1)        If:

(a)        a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and

(b)        an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee,

the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

(2)        If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.

(3)        If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.

(4)        A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.

(5)        If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.

(6)        A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

(7)        A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).

(8)        If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).

(d)        requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.

(13 May 2009)

ATTACHMENT B

Provision of commercial-in-confidence material to the Senate See also section 4.10 in the Guidelines

On 30 October 2003 the Senate agreed to the following motion on commercial-in-confidence material:

That the Senate and Senate committees shall not entertain any claim to withhold information from the Senate or a committee on the grounds that it is commercial-in-confidence, unless the claim is made by a minister and is accompanied by a statement setting out the basis for the claim, including a statement of any commercial harm that may result from the disclosure of the information.

Senate committees have not always pressed a request for material when officials have stated the grounds on which they consider material to be confidential-in-confidence. The Senate order set out above does not mean that officials should no longer indicate that they consider that material might appropriately be withheld. However, if the Committee presses its request, officials should refer it to the relevant minister. If the minister determines that a claim of public interest immunity should be made, the procedures set out at sections 4.4 to 4.11 should be followed.

As a general guide, it would be inappropriate to disclose information that could disadvantage a contractor and advantage their competitors in future tender processes, for example:

  1. details of commercial strategies or fee/price structures (where this would reveal information about the contractor’s cost structure or whether the contractor was making a profit or loss on the supply of a particular good or service)
  2. details of intellectual property and other information which would be of significant commercial value
  3. special terms which are unique to a particular contract, the disclosure of which may, or could reasonably be expected to, prejudice the contractor’s ability to negotiate contracts with other customers or adversely affect the future supply of information or services to the Commonwealth.

The following information would normally be disclosed:

  1. details of contracting processes including tender specifications, criteria for evaluating tenders, and criteria for measuring performance of the successful tenderer (but not information about the content or assessment of individual tenders)
  2. a description of total amounts payable under a contract (i.e., as a minimum the information that would be reported in the Commonwealth Gazette or, for consultants, the information that would be reported in an agency’s annual report)
  3. an account of the performance measures to be applied
  4. factual information about outcomes.

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Footnotes

1        Use of a legal service provider must be consistent with the Legal Service Directions issued by the Attorney-General under the Judiciary Act 1903.