after the Grondwet was adopted in 1858, a civil war broke out; and from
that time onward factions and troubles of all kinds were seldom wanting.
In 1877 the country, then threatened by native enemies, was annexed to
the British dominions against the will of the people: in 1881 its
autonomy was restored, subject to British suzerainty[206]. Its
government, however, continued to be pressed by financial and other
difficulties, till the discovery of rich gold-fields in 1884-6, while
suddenly increasing the revenue, drew in a stream of immigrants which
has steadily continued to flow, and therewith raised that new crop of
political troubles of which all the world has heard[207]. The result has
been that the Constitution has never had any period of comparative peace
in which its working could be fairly tested. If it has not worked as
smoothly as that of the Free State, this may be due not merely to
inherent defects but to the strain which civil and foreign wars have
placed upon it. The Legislature, however, has not played the leading
part. President Burgers, who held office from 1872 till 1877, was, like
President M. W. Pretorius before him, practically more powerful than the
Volksraad; and since 1881 President Kruger, who has been thrice
re-elected, has been the ruling force in the politics of the country. By
his influence over the people, by his constant presence and speeches in
the Volksraad, he threw its leaders entirely into the shade, and
probably exerted more actual power than the chief magistrate of any
other republic, though there was scarcely any other chief magistrate
whose legal authority was confined within such narrow limits. So much
may foreign troubles or economic and social facts, and so much do the
qualities of individual men, affect and modify and prevail over the
formal rules and constitutional machinery of government. The Legislature
therefore has not had in the Transvaal that career of encroachment upon
and triumph over the other authorities in the State which might have
been predicted for it. Its turn might have come when external relations
were tranquil and domestic controversies arose. When foreign affairs
occupy men’s minds, and call for rapid decision as well as for
continuity of policy, the Legislature is apt to be, in all countries,
dwarfed by the Executive.
-----
Footnote 206:
A further convention was made in 1884, whose articles, omitting all
reference to ‘suzerainty,’ conceded an independence qualified only in
respect of the veto retained by Britain over treaties with foreign
powers.
Footnote 207:
When these immigrants from all parts of the world swarmed into the
country, admission to the franchise was made more difficult, because
the conservative section of the citizens naturally feared that the
newcomers, many of whom did not intend to make the country their home,
might, if they forthwith acquired voting power, soon secure a majority
and overturn the existing system of the republic, including the
official use of the Dutch language and the relations of Church and
State. These non-burgher immigrants have been absurdly described as
‘helots.’ A closer parallel to them is to be found not in the
semi-serfs of Sparta but in the class of resident aliens known at
Athens as metics (μέτοικοι). But they were indeed far better off than
that class, since they enjoyed full civic rights in all matters of
private law, wanting only the right of sharing in the government.
-----
POSTSCRIPT.
Since the foregoing sketch of these remarkable experiments in the
construction of Frames of Government was written (in 1896), both the
Dutch republics have become involved in a deplorable war with England,
which has lasted for many months, and still continues at the time of
this writing. It has brought misery and desolation upon South Africa,
and not least upon that singularly happy, prosperous, peaceful and
well-governed community, the Orange Free State. While the flames are
still raging, no one can conjecture in what form these two constitutions
will emerge from the furnace, or whether indeed they will survive at
all. In the midst of so terrible a catastrophe, a catastrophe unredeemed
by any prospect of benefit to any of the combatants, and one whose
results must be fateful in many ways for the future of South Africa, and
possibly also of Britain, the destruction or transformation of
constitutions seems but a small matter. But had these two republics been
suffered to continue the normal course of their constitutional
development, that development would have been full of interest. It might
even have conveyed valuable instruction or suggested useful examples to
other small commonwealths, for in the scheme of these Constitutions, and
especially in that of the Free State, there are some merits not to be
found either in the American or in the British system. These simple Free
State farmers were wiser in their simplicity than some of the
philosophers who have at divers times planned frames of government for
nascent communities. But though Wisdom is justified of all her children,
she cannot secure that her children shall survive the shock of arms.
VIII
THE CONSTITUTION OF THE
COMMONWEALTH OF AUSTRALIA
I. INTRODUCTORY.
Australia is the first instance in history of a whole continent whose
inhabitants are all (if we exclude the vanishing aborigines) of one race
and all owe one allegiance. Thus it has supplied the only instance in
which a political constitution has been, or could have been, framed for
a whole continent. It is moreover one of the very few cases in history
in which a number of communities politically unconnected (save by their
common allegiance to a distant Crown) who had felt themselves to be
practically a nation have suddenly transformed themselves into a
National State, formally recognizing their unity and expressing it in
the national institutions which they proceeded to create. There could
hardly be a more striking illustration of the speed with which events
have been moving during the last and the present age than the fact that
Australia, or New Holland as it was then called, was, except as to part
of its coasts, marked as a _Terra Incognita_ upon our maps so late as
the beginning of the eighteenth century, that the first British
settlement was not planted in it at Sydney (not far from Captain Cook’s
Botany Bay) till 1788, that responsible government was not conferred
upon the oldest colony, New South Wales, until 1855, nor upon West
Australia till 1890.
Besides the interest with which every one must see the birth of a new
nation, occupying a vast and rich territory, the student of political
science finds further matter for inquiry and reflection in the enactment
of an elaborate constitution for the Commonwealth of Australia. Every
creation of a new scheme of government is a precious addition to the
political resources of mankind. It represents a survey and scrutiny of
the constitutional experience of the past. It embodies an experiment
full of instruction for the future. The statesmen of the Convention
which framed this latest addition to the world’s stock of Instruments of
Government had passed in review all previous experiments, had found in
them examples to follow and other examples to shun, had drawn from them
the best essence of the teachings they were fitted to impart. When the
Convention prepared its highly finished scheme of polity, it delivered
its judgement upon the work of all who had gone before, while
contributing to the materials which will be available for all who come
hereafter to the work of building up a State.
Nearly all the precedents which the Australian Convention had at its
disposal belong to very recent times, in fact to the last century and a
half. Though federal governments are ancient—the oldest apparently is
that formed by the cities of Lycia in the fourth century B.C.—the
ancient federations scarcely got beyond the form of leagues of small
republics for the purpose of common military defence. Such leagues never
quite grew into Federal States, properly so called, _i.e._ States in
which the central government exercises direct power over the citizens of
the component communities. The same remark applies to the confederacies
of the Middle Ages, such as that of the Hanse Towns and that of the old
Swiss Cantons, as well as to the United Provinces of the Netherlands.
The first true Federal State founded on a complete and scientific basis
was the United States, which dates from 1788, when its present
Constitution was substituted for the Articles of Confederation of 1776.
Next came the Constitution of the Swiss Confederation, enacted in 1848,
and replacing a much looser form of union which had previously joined
the Cantons of Switzerland. Its present amended form dates from 1874.
The third was the Constitution of Canada, established by the British
North America Act of 1867. Still later came the Constitution of the
North German Confederation (1866) enlarged into that of the new Germanic
Empire (1871), a remarkable Federal State with a monarch for its head,
and including as its members both large kingdoms, such as Bavaria and
Würtemberg, and the city republics of Lübeck, Bremen, and Hamburg[208].
But this last-named Federation, instructive as it is, deals with
conditions too dissimilar from those of Australia to furnish many
precedents in point. It was the Constitutions of the United States and
of Canada which the Australians studied most carefully, and whence they
drew as well inspiration as many useful suggestions. And the student who
examines the Australian scheme will find it interesting to note many
points that recall, by way either of likeness or of contrast, the
systems of the United States, of Switzerland, and of Canada. It is only
with these three that I propose to compare the Australian Constitution
in the pages that follow. As I am writing not for lawyers but for
students of history and of constitutions, who desire to understand the
nature of this new Government sufficiently to follow with intelligence
the course of political life under it, I shall pass lightly over its
more technical and more purely legal aspects, and dwell rather upon
those general features which will give to the future Australian polity
its character and spirit.
-----
Footnote 208:
One might add the Constitution of the Austro-Hungarian Monarchy, which
is a sort of double federation. But it is too peculiar to serve as an
example to other peoples proposing to federalize.
-----
II. THE MOVEMENT FOR FEDERATION.
Like the settlements of Britain in North America, the Australian
settlements were organized as Colonies at different dates, and several
of them independently of the others[209]. So, again like those of North
America, each remained legally unconnected with the others, except
through the allegiance they all owed to the British Crown, which sent
out Governors to administer them. These officers were at first
practically despotic; but when self-government was conferred upon a
Colony, they became the nominal heads of an executive which in fact
consisted of ministers responsible to the elective legislature of that
Colony.
-----
Footnote 209:
New South Wales in 1788, Tasmania in 1825, Western Australia in 1829,
South Australia in 1836, Victoria in 1851, Queensland in 1859.
Victoria and Queensland had however been originally settled (1836 and
1826), and for some time administered, from New South Wales, while
Tasmania had been made a penal settlement as early as 1804.
-----
Little as there was in the way of official connexion between the
scattered settlements, their inhabitants always deemed themselves
Australians, giving their sentimental attachment rather to the country
as a whole than to their respective colonies. They were all English;
they all lived under similar conditions: their local life had not lasted
long enough to form local traditions with which sentiment could entwine
itself. The very names of some of the colonies did not favour
individualization, for who would call himself a New-southwalesian? And
the idea that the colonies ought to be united into one political body
emerged very early. As far back as 1849 a Committee in England had
recommended that there should be a Governor-General for all Australia,
with power to convene a General Assembly to legislate on matters of
common colonial interest, and a bill introduced into Parliament in that
year contained clauses for establishing such a legislature. These
provisions were dropped, for the time was not ripe, yet the idea
continued to occupy the minds of Australian statesmen from that year
onwards; and it received a certain impulse from the creation of the
Canadian Confederation in 1867. What it wanted was motive power, that is
to say, a sense of actual evils or dangers to be averted, of actual
benefits to be secured, by the union of the Colonies into one National
State. Democratic communities, occupied by their own party
controversies, are little disposed to deal with questions which are not
urgent, and which hold out no definite promise either of benefit to the
masses or of political gain to the leaders. However, in 1883 events
occurred which evoked a new Pan-Australian feeling, and indicated
objects fit to be secured by a united Australian government. The late
Lord Derby, then Secretary of State for the Colonies, was the most
cautious and unsentimental of mankind. He belonged to the old school of
English statesmen who deprecated—and in some cases wisely
deprecated—further additions to the territories and responsibilities of
Britain. Disregarding the representations of the Governments of several
among the Colonies, he neglected to occupy the northern part of the
great neighbouring island of New Guinea which Australian opinion desired
to see British, and permitted it, to their great vexation, to be taken
by Germany. About the same time the escape of convicts into Australia
from the French penal settlement in New Caledonia had caused annoyance,
and movements were soon afterwards made by France which seemed to
indicate an intention to appropriate the New Hebrides group of islands.
These occurrences roused the Australians to desire an authority which
might deliver their common wishes to the Home Government and take any
other steps necessary for guarding their common interests. Accordingly a
conference of delegates from all the Colonies, including New Zealand and
Fiji, met in 1884, and prepared a scheme which was transmitted to
England, and was there forthwith enacted by the Imperial Parliament
under the name of The Federal Council of Australasia Act, 1885. This
scheme was, however, (as I observed when it was under discussion in the
House of Commons) a very scanty, fragmentary and imperfect sketch of a
Federal Constitution. It had no executive power and no command of money.
No colony need join unless it pleased, and each might withdraw when it
pleased. Thus it befell that the plan excited little popular interest,
and gave such faint promise of energetic action that only four colonies,
Victoria, Queensland, Tasmania, and South Australia, entered into it;
and of these South Australia presently withdrew. Meanwhile the need for
some general military organization for all the Colonies began to be
felt; and further objects attainable by union floated before men’s
minds. With the increase of trade and industry, the vexation of tariff
barriers between the colonies grew daily less tolerable. Subjects
emerged on which uniformity of legislation was felt to be needful. The
irrigation question, one of great importance for so arid a country,
brings New South Wales, where some of the large rivers have their
source, into close relation with Victoria and South Australia, and
requires to be treated on common lines. These and other grounds led to
an Inter-Colonial Conference of Ministers at Melbourne in 1890, and then
to the summoning of a Convention of Delegates from the Parliaments of
all the Colonies, including Tasmania. This latter body, which included
many leading men, met at Sydney in 1891, debated the matter with great
ability, and produced a Draft Bill, which became the basis of all
subsequent discussions. The movement, hitherto confined to a group of
political leaders, now began to be taken up by the people, and became,
especially when the financial troubles of 1893 had begun to pass away,
the principal subject in men’s minds. That crisis had shown all the
Colonies how closely their interests were bound together, and had made
them desire to remove every hindrance to an industrial and financial
recovery. A Conference of Prime Ministers at Hobart in 1895 led to the
passing by the several Colonial Parliaments of enabling Acts under which
delegates were chosen, this time (following recent American precedents)
by popular vote, to a new Convention which met at Adelaide (in South
Australia) in 1897. It produced a second draft constitution, based on
that of 1891, and laid it before the legislatures of the Colonies for
criticism. About seventy-five amendments were proposed, and were
considered by the Convention at its further sittings, which closed in
March, 1898. The draft Constitution was then submitted to a popular
vote, a new expedient in the British dominions, but one amply justified
by the need for associating the people with the work. New South Wales
alone failed to adopt it by the prescribed majority, because a large
section of her inhabitants thought that her interests had not been duly
regarded, but after a few amendments had been inserted at a conference
of the Colonial Prime Ministers, her people ratified it upon a second
vote. On this vote enormous majorities were secured in Victoria, South
Australia and Tasmania, smaller ones in New South Wales and Queensland.
The Constitution was then sent to England and passed into law by the
Parliament of the United Kingdom under the title of The Commonwealth of
Australia Constitution Act (63 & 64 Vict. cap. 12). Action by the
Imperial Parliament was not only a convenient way of overriding all the
colonial constitutions by one comprehensive Act, but was legally
necessary, inasmuch as some provisions of the Constitution transcended
the powers of all the colonial legislatures taken together. Since it had
from the first been understood that the wish of the mother country was
not to impose her own views but simply to carry out the wishes of the
Colonies, only one slight alteration, an alteration rather of form than
substance, was made in the draft as transmitted from Australia, the
ill-considered notion of introducing a larger change having been
eventually dropped by the British Ministry.
I have mentioned these details in order to emphasize the time, care and
pains bestowed by the Australians—for the work was entirely their
own—upon this latest effort of constructive statesmanship. The
Constitution of the United States was framed by a Convention which sat
at Philadelphia, with closed doors, for nearly five months, and was
accepted by Conventions in all the thirteen States without change,
though ten amendments were immediately thereafter passed by general
consent, their adoption having been the price paid for the ratification
of the main instrument by some doubtful States.
The Constitution of Canada took a little more than two years to settle.
The Resolutions on which it was based were first of all drafted by a
conference of delegates at Quebec. These were approved after full debate
by the legislatures of the Provinces, and were, after some
modifications, embodied in a Bill prepared by a small conference of
Canadian statesmen who met in London. The Bill was then passed by the
Imperial Parliament, never having been submitted to any popular vote.
But this Australian instrument is the fruit of debates in two
Conventions, of a minute examination by legislatures, of a subsequent
revision by the second Convention, of further modifications in a few
details by a conference of Prime Ministers, and has after all this
preparation been sealed by the approval of the peoples of the Colonies
concerned. The process of incubation lasted for nearly nine years, being
all the while conducted in the full blaze of newspaper reporting and
under the constant oversight of public opinion.
III. THE CAUSES WHICH BROUGHT ABOUT
FEDERATION.
The reasons and grounds assigned by the advocates of Federation were
more numerous than those urged in the United States in 1787-9, or in
Canada in 1864-6; but none of them were so imperative, for the
Australian Colonies were far less seriously menaced by actually
insistent evils, due to the want of a common national Government, than
was the welfare either of the American States in 1787, or of Switzerland
in 1848, or of Canada in 1867. In North America, it was the growing and
indeed hopeless weakness and poverty of the existing Confederation,
coupled with the barriers to commercial intercourse, the confusion and
depreciation of currency, and the financial demoralization of some of
the States, all of which had just emerged from an exhausting war, that
drew the wisest minds of the nation to Philadelphia, induced them to
persist in efforts to devise a better union, and enabled them to force
its acceptance upon a people largely reluctant. In Switzerland it was
the War of Secession (the so-called Sonderbund war) of 1847 that
compelled the victorious party to substitute a new and truly federal
constitution for the league which had proved too weak. In Canada the
relations of the French-speaking and English-speaking Provinces (Lower
and Upper Canada) had become so awkward that constitutional government
was being practically brought to a standstill, and nothing remained but
that the leaders of the two parties should devise some new system.
Australia was in no such straits. Her colonies might have continued to
go on and prosper, as six unconnected self-governing communities. It is
therefore all the more to the credit of her people that they forewent
the pleasures of local independence which are so dear to vivacious
democracies, perceiving that although necessity might not dictate a
federal union, reason recommended it.
The grounds which were used in argument to urge the adoption of the
Federal Constitution may be summed up as follows:—
The gain to trade and the general convenience to be expected from
abolishing the tariffs established on the frontiers of each colony.
The need for a common system of military defence.
The advantages of a common legislation for the regulation of railways
and the fixing of railway rates.
The advantages of a common control of the larger rivers for the purposes
both of navigation and of irrigation.
The need for uniform legislation on a number of commercial and
industrial topics.
The importance of finding an authority competent to provide for old-age
pensions and for the settlement of labour disputes all over the
country.
The need for uniform provisions against the entrance of coloured races
(especially Chinese, Malays, and Indian coolies).
The gain to suitors from the establishment of a High Court to entertain
appeals and avoid the expense and delay involved in carrying cases to
the Privy Council in England.
The probability that money could be borrowed more easily on the credit
of an Australian Federation than by each colony for itself.
The stimulus to be given to industry and trade by substituting one great
community for six smaller ones.
The possibility of making better arrangements for the disposal of the
unappropriated lands belonging to some of the colonies than could be
made by those colonies for themselves.
There was in these arguments something to move every class in the
community. To the commercial classes, the prospect of getting rid of
custom-houses and of finding a large free market close at hand for all
products was attractive; as was also that of sweeping away the vexation
of railway rates planned in the interests of each colony rather than for
the common benefit of trade. Large-minded men, thinkers as well as
statesmen, hoped that a wider field would bring a loftier spirit into
public life. The working-classes might expect, not only advantages in
the way of brisker employment, but the establishment of that provision
for old age and sickness which a Government covering the whole country
and commanding ample resources could make more efficiently and on more
uniform lines than even the richest colony could do. Some of these
grounds for union measure the distance which the world has travelled
since 1788. Railways are far older than was self-government in the
oldest Australian colony, far younger than the youngest of the original
thirteen American States. Even so late as 1867, when Canada was
confederated, no one thought of suggesting that the State should provide
old-age pensions.
The opponents of Australian Federation, although they came more and more
to feel their cause hopeless, were an active party, including many
influential men. Besides denying that the benefits just enumerated would
be attained, they dwelt upon the additional cost which a new Government,
superadded to the existing ones, must entail. They fanned the jealousies
which naturally exist between small and large communities, telling the
former that they would be overborne in voting, and the latter that they
would suffer in purse; and they wound up with the usual and often
legitimate appeals to local sentiment.