jealousies were met by a series of ingenious compromises and financial
devices to which both the larger and smaller colonies were persuaded to
agree, while the love of each community for its own political
independence was overborne by the rising tide of national sentiment. An
ambition which aspired to make Australia take its place in the world as
a great nation, mistress of the Southern hemisphere, had been growing
for some time with the growth of a new generation born in the new home,
and was powerfully roused by the vision of a Federal Government which
should resemble that of the United States and warn off intruders in the
Western Pacific, as the American Republic had announced by the pen of
President Monroe that she would do on the North-American Continent. The
same nationally self-assertive spirit and desire for expansion which has
recently spurred four great European Powers into a rivalry for new
colonial possessions, and which in 1899 made the United States forswear
its old-established principles of policy, has been astir in the mind of
the Australians. It had been stimulated by the example of a similar
spirit in the mother country, and by the compliments which the English
had now begun to lavish upon their colonies. It had gained strength with
the growth to manhood of a generation born in Australia, and nurtured in
Australian patriotism. Such a patriotism, finding no fit scope in
devotion to the particular colonies, longed for a larger ideal. It
supplied the motive force needed to create a national union. Without it,
all the sober reasonings which counselled confederation might have
failed to prevail. No equally strenuous or forward-reaching spirit moved
the Canadians in 1867, nor are the traces of such a spirit conspicuous
in the American debates of 1787-9. Some men were then solicitous for
liberty, others for order and good government, but of imperial greatness
in the present sense of the term little was said. Liberty and peace at
home, not military strength and domination abroad, were the national
ideals of those days.
The history of the Federation movement illustrates the truth that a
great change is seldom effected in politics save by the coincidence of
two moving forces—the prospect of material advantage and the power of
sentiment. In every community there are many who can be moved only by
one or other of these two forces, and nearly every man responds better
to the first if he can be warmed by the second. In the American debates
of 1788-9 feeling was mostly arrayed against the proposed federation,
though reason was almost entirely for it. Reason prevailed, but
prevailed with far more difficulty than the cause of Federalism, with
less cogent economic grounds behind it, prevailed in Australia.
Like America in 1787, Australia was fortunate in having a group of able
statesmen, most of whom were also lawyers, and so doubly qualified for
the task of preparing a constitution. Their learning, their acuteness,
and their mastery of constitutional principles can best be appreciated
by any one who will peruse the interesting debates in the two
Conventions. They used the experience of the mother country and of their
predecessors in the work of federation-making, but they did so in no
slavish spirit, choosing from the doctrines of England and from the
rules of America, Switzerland, and Canada those which seemed best fitted
to the special conditions of their own country. And like the founders of
the American and Canadian Unions, they were not only guided by a clear
practical sense, but were animated by a spirit of reasonable compromise,
a spirit which promises well for the conduct of government under the
instrument which they have framed.
IV. THE CONDITIONS FOR A FEDERAL COMMONWEALTH.
Before examining the provisions of the Constitution which is bringing
the hitherto independent colonies into one political body, it is well to
consider for a moment the territory and the inhabitants that are to be
thus united.
The total area of Australia is nearly 3,000,000 square miles, not much
less than that of Europe. Of this a comparatively small part is peopled
by white men, for the interior, as well as vast tracts stretching inland
from the south-western and north-western coasts, is almost rainless, and
supplies, even in its better districts, nothing more than a scanty
growth of shrubs. Much of it is lower than the regions towards the
coast, and parts are but little above sea-level. It has been hitherto
deemed incapable of supporting human settlement, and unfit even for such
ranching as is practised on arid tracts in western North America and in
South Africa. Modern science has brought so many unexpected things to
pass, that this conclusion may prove to have been too hasty. Still no
growth of population in the interior can be looked for corresponding to
that which marked the development of the United States west of the
Alleghanies in the beginning of the nineteenth century.
Of the six Australian colonies, one, Tasmania, occupies an island of its
own, fertile and beautiful, but rather smaller (26,000 square miles)
than Scotland or South Carolina. It lies 150 miles from the coast of
Victoria. Western Australia covers an enormous area (nearly 1,000,000
square miles, between three and four times the size of Texas), and South
Australia, which stretches right across the Continent to the Gulf of
Carpentaria, is almost as large (a little over 900,000 square miles).
Queensland is smaller, with 668,000 square miles; New South Wales, on
the other hand, has only 310,000 square miles (_i.e._ is rather larger
than Sweden and Norway, and about the size of California, Oregon, and
Washington put together); Victoria only 87,000 (_i.e._ is as large as
Great Britain and a little larger than Idaho). The country (including
Tasmania) stretches from north to south over 32° of latitude (11° S. to
43° S.), a wider range than that of the United States (lat. 49° N. to
26° N.). There are thus even greater contrasts of climate than in the
last-named country, for though the Tasmanian winters are less cold than
those of Montana, the tropical heats of North Queensland and the shores
of the Gulf of Carpentaria exceed any temperature reached in Louisiana
and Texas. Fortunately, Northern Australia is, for its latitude,
comparatively free from malarial fevers. But it is too hot for the
out-door labour of white men. In these marked physical differences
between the extremities of the Continent there lie sources whence may
spring divergences not only of material interests but ultimately even of
character, divergences comparable to those which made the Gulf States of
the American Union find themselves drawn apart from the States of the
North Atlantic and Great Lakes.
It must also be noted that the great central wilderness cuts off not
only the tropical north and north-west, but also the more temperate
parts of the west from the thickly peopled regions of the south-east.
Western Australia communicates with her Eastern sisters only by a long
sea voyage[210]. She is almost in the position held by California when,
before the making of the first transcontinental railway, people went
from New York to San Francisco via Panama. Nor is there much prospect
that settlements will arise here and there in the intervening desert.
-----
Footnote 210:
It is four days’ voyage from Adelaide, the capital of S. Australia, to
Perth, the capital of W. Australia.
-----
The population of the Continent, which has now reached nearly 4,000,000,
is very unequally distributed. The three colonies of widest area,
Western Australia, South Australia, and Queensland, have none of them
500,000 inhabitants. Tasmania has about 170,000. Two others, New South
Wales and Victoria, have each more than 1,000,000[211]. This disparity
ranges them for political purposes into two groups, the large ones with
2,500,000 people in two colonies, and the small ones with 1,500,000 in
four colonies.
-----
Footnote 211:
Two-fifths of the population of Victoria live in Melbourne, one-fourth
of the population of New South Wales in Sydney.
-----
Against these two sets of differences, physical and social, which might
be expected to induce an opposition of economic and political interests,
there is to be placed the fact that the Australian colonies are
singularly homogeneous in population. British North America is peopled
by a French as well as by an English race, British South Africa by a
Dutch race as well as an English. But Australia is purely British. Even
the Irish and the Scotch, though both races are specially prone to
emigrate, seem less conspicuous than they are in Canada[212]. Australia
is to-day almost as purely English as Massachusetts, Connecticut, and
Virginia were in 1776, and probably more English than were the thirteen
original States taken as a whole. In this fact the colonies found not
only an inducement to a closer union, but a security against the
occurrence of one of the dangers which most frequently threatens the
internal concord of a federation. Race antagonisms have troubled not
only Canada and South Africa but the United Kingdom itself, and they now
constitute the gravest of the perils that surround the Austro-Hungarian
monarchy.
-----
Footnote 212:
In 1891, out of that part of the total population of Australia which
had been born in the United Kingdom, about one-fourth had been born in
Ireland and one-sixth in Scotland. Of the whole population of
Australia, 95 per cent. are of British stock.
-----
Among the other favouring conditions may be enumerated the use of one
language only (whereas in Canada and in South Africa two are spoken),
the existence of one system of law, the experience of the same form of
political institutions, a form modelled on that which the venerable
traditions of the mother country have endeared to Englishmen in all
parts of the world. It has also been a piece of good fortune that
religion has not interposed any grounds for jealousy or division. The
population of Australia is divided among various Christian denominations
very much as the population of England is, and the chief difference
between the old and the new country lies in the greater friendliness to
one another of various communions which exists in the new country, a
happy result due partly to the absence of any State Establishment of
religion, and partly to that sense of social equality which is strong
enough to condemn any attempt on the part of one religious body to claim
social superiority over the others.
Finally, there is the unique position which Australia occupies. She has
a perfect natural frontier, because she is surrounded by the sea, an
island continent, so far removed from all other civilized nations that
she is not likely to be either threatened by their attacks or entangled
in their alliances. The United States had, when its career began,
British possessions on the north, French and Spanish on the south. But
the tropical islands which Holland, Germany and France claim as theirs
to the north and east of the Australian coasts are cut off by a wide
stretch of ocean[213]. They are not now, and are not likely at any time
we can foresee, to contain a white population capable of disturbing the
repose of Australia. Such a country seems made for one nation, though
the fact that its settled regions lie scattered round a vast central
wilderness suggests that it is better fitted for a federation than for a
government of the unified type. But, on the other hand, this very
remoteness might, in removing the force of external pressure, have
weakened the sense of need for a federal union had there not existed
that homogeneity of race and that aspiring national sentiment to which I
have adverted.
-----
Footnote 213:
The nearest point of Dutch New Guinea is about 150 miles from
Australia.
-----
Compare these conditions with those of the three other Federations. The
thirteen colonies which have grown into the present forty-five States of
the American Union lay, continuous with one another, along the coast of
the Atlantic. England held Canada to the north of them, France held the
Mississippi Valley to the west of them, and, still further to the west,
Spain held the coasts of the Pacific. They had at that time no natural
boundaries on land; and the forces that drew them together were local
contiguity, race unity, and above all, the sense that they must combine
to protect themselves against powerful neighbours as well as against the
evils which had become so painfully evident in the governments of the
several States. Nature prescribed union, though few dreamt that Nature
meant that union to cover the whole central belt of a Continent. In the
case of Canada, Nature spoke with a more doubtful voice. She might
rather have appeared to suggest that this long and narrow strip of
habitable but only partially inhabited land, stretching from the Gulf of
St. Lawrence to Puget Sound, should either all of it unite with its
mighty neighbour to the south, or should form three or four separate
groups, separated by intervening wildernesses. Political feelings
however, compounded of attachment to Britain and a proud resolve not to
be merged in a rival power which had done nothing to conciliate them,
led the Canadians to form a confederation of their own, which Nature has
blessed in this point at least, that its territories are so similar in
climate and in conditions for industrial growth that few economic
antagonisms seem likely to arise among them. Switzerland, however, is
the most remarkable case of a Federation formed by historical causes in
the very teeth, as it might seem, of ethnological obstacles. Three
races, speaking three languages, have been so squeezed together by
formidable neighbours as to have grown into one. The help of Nature has
however been given in providing them with mountain fastnesses from which
the armies of those neighbours could be resisted; and the physical
character of the country has joined with the traditions of a splendid
warlike heroism in creating a patriotism perhaps more intense than any
other in the modern world.
V. THE CONSTITUTION AS A FEDERAL INSTRUMENT.
In examining any Federal Constitution, it is convenient to consider the
system it creates first as a Federation, _i.e._ a contrivance for
holding minor communities together in a greater one; and then as a Frame
of Government, composed of organs for discharging the various functions
of administration. Although the former of these influences the latter,
because the federal character of a State prescribes to some extent the
character of that State’s governmental machinery, it conduces to
clearness to deal with these two aspects separately. Accordingly I begin
with the federal aspect of the Constitution.
Federations are of two kinds. In some, the supreme power of the Central
Government acts upon the communities which make it up only as
communities. In others this power acts directly, not only upon the
component communities, but also upon the individual citizens as being
citizens of the Nation no less than of the several communities. The
former kind of Federation may be described as really a mere League of
States; the latter kind is a National as well as a Federal State.
The Australian Federation is of this latter type. So are the United
States, the Swiss Confederation, and the Canadian Federation. It was
however to the former type that both the United States before 1788 and
Switzerland before 1848 belonged. So Germany was a mere League of States
before 1866, but has been a National as well as Federal State since 1866
and 1871.
The essential feature of this latter type, with which alone we are here
henceforth concerned, consists in the existence above every individual
citizen of two authorities, that of the State, or Canton (as in
Switzerland) or Province (as in Canada), to which he belongs, and that
of the Nation, which includes all the States, and operates with equal
force upon all their citizens alike. Thus each citizen has an allegiance
which is double, being due both to his own particular State and to the
Nation. He lives under two sets of laws, the laws of his State and the
laws of the Nation. He obeys two sets of officials, those of his State
and those of the Nation, and pays two sets of taxes, besides whatever
local taxes or rates his city or county may impose.
Accordingly the character of each and every Federation depends upon the
distribution of powers between the Nation and the several States, since
some powers must be allotted to the larger, some to the smaller entity.
With regard to certain powers there can be no doubt. The navy, for
instance, the post office, the control of all foreign relations, must
obviously be assigned to the National Government, together with the
levying of customs duties at the frontiers and the raising of revenue
for the purposes above mentioned. On the other hand, matters of an
evidently local nature, such as police, prisons and asylums, the system
of municipal or county administration, with the power of taxing for
these purposes, will be allotted to the State Governments. But between
these two sets there lies a large field of legislation and
administration which may, according to the circumstances of each
particular country and the wishes of the people who enact their
constitution, be granted either to the Nation or to the States. The law
of marriage and divorce, for instance[214], criminal law[214],
bankruptcy, the traffic in intoxicating liquors[215], the regulation of
railways[215], the provision of schools or universities[216], are all
matters which have both a national and a local significance, and may be
entrusted either to the National legislature or to the State
legislatures according as one or other aspect of them predominates in
the mind of the people.
-----
Footnote 214:
In the U.S.A. a State, in Canada a Federal matter.
Footnote 215:
In Switzerland a Federal matter, in the U.S.A. partly a Federal,
partly a State matter.
Footnote 216:
In the U.S.A. and Germany a State Matter, in Switzerland and Canada
partly a Federal Matter.
-----
VI. DISTRIBUTION OF POWERS BETWEEN NATION
AND STATES.
Now the fundamental question in the distribution of powers between the
Nation and the States is this—To which authority does the unallotted
residue of powers belong? It has been found that no distribution,
however careful, can exhaust beforehand all the powers that a
legislature or an executive may possibly have to exercise, and it
therefore becomes essential to provide, whenever a power not
specifically mentioned needs to be exercised, whether it should be
deemed to be rightfully exerciseable by the National or by the State
authority. In other words, which of these authorities is to be deemed
general legatee of any undistributed residue?
This question has been answered differently by different Federations.
The United States and Switzerland leave to the States (to which they had
belonged previously) the undistributed powers. Canada (whose Provinces
were in a different position) bestows them upon the National (Dominion)
Government[217]. The question is the more important, because it creates
in all sorts of doubtful matters a presumption in favour of the National
Government or the State Governments, as the case may be. And it is
specially important at the moment of creating a new Federation, because
one of the difficulties always then experienced is to induce the States
to resign powers they have hitherto enjoyed. Hence it reassures and
comforts them to have the residue of powers not specifically distributed
left still in their hands.
-----
Footnote 217:
See U.S.A. Constitution, Amendment X: Constitution of Swiss
Confederation, Art. 3: British North American Act (1867), sect. 91.
-----
The Australians have followed the example of the United States and
Switzerland rather than that of Canada; and they have done so for the
sake of appeasing the local sentiment of the several colonies, and
especially of the smaller colonies, who naturally feared that, as they
would have less weight than their larger neighbours in the national
legislature, they would be in more danger of being subjected to laws
which their local opinion did not approve. Section 107 provides that—
‘Every power of the Parliament of a Colony which has become or becomes a
State shall, unless it is by this Constitution exclusively vested in the
Parliament of the Commonwealth or withdrawn from the Parliament of the
State, continue as at the establishment of the Commonwealth, or as at
the admission or establishment of the State[218], as the case may be.’
-----
Footnote 218:
These words are used to cover the case of the creation and admission
of future States.
The name ‘State,’ which the Australians have substituted for
‘Colonies,’ is significant. It imports a slightly greater independence
and has a more imposing sound than the Canadian term ‘Province.’
-----
Comparatively few powers of legislation are ‘exclusively vested’ in the
Commonwealth Parliament; so that upon subjects other than these the
State Parliaments retain for the present their previous power to
legislate. But as it is also provided that all Acts of the Commonwealth
Parliament, within the range of the powers granted, shall override laws
of any State Parliament, such laws as the latter may pass upon subjects
open to both legislatures are left at the mercy of the Commonwealth
Parliament, which may, as and when it finds time or occasion, pass Acts
extinguishing, or modifying the effect of, those enacted by the States.
Now the range of powers granted to the National or Commonwealth
Parliament is very wide, wider than that of Congress or of the Swiss
National Assembly, or even of the Dominion Parliament in Canada. I need
not enumerate the powers granted, forty-two in number, for they will be
found in sects. 52 and 53 of the Australian Constitution. Among them are
the following, which are not specifically given to, and nearly all of
which are not even claimed by, the United States Congress:—Powers to
take over State railways, and to construct and extend railways (with the
consent of the State in which the railway lies), to control telegraphs
and telephones and also trading and financial corporations, to take over
State debts[219], to legislate on marriage and divorce, on bills of
exchange and promissory notes, on invalid and old-age pensions, on
arbitration and conciliation in trade disputes (where these extend
beyond one State), on bounties on the production or export of goods, on
the service and execution throughout the Commonwealth of the civil and
criminal process and judgements of the State Courts. If these powers
come to be all put in force they may leave for State action a narrower
and less interesting field than it enjoys in the United States, where
nevertheless the State legislatures are bodies of no great account,
seldom enlisting the services of men of first-rate capacity.
-----
Footnote 219:
Canada directs the Dominion to take over the Provincial debts existing
at the time of the Union. In the U.S.A. the war debts of the States
were taken over by the first Congress of the Union.
-----
VII. CONSTITUTIONAL POSITION OF THE
AUSTRALIAN STATES.