States to be already organized communities, and contains nothing
regarding their constitutions. The case of Canada was different, because
there the previous government of the Upper and Lower Provinces, which
had been one, had to be cut in two, and arrangements made for duly
constituting the two halves. But in the case of Australia, the
pre-existing constitutions of the Colonies, granted by the Imperial
Government at various times, go on unchanged, subject only to the
supersession of some of their functions by the Commonwealth, and to one
or two specifically mentioned restrictions. That these restrictions are
comparatively few may be partly ascribed to that aversion which the
English everywhere show to this kind of safeguard against the misuse of
legislature power. The omnipotence of the British Parliament seems to
have fostered the notion that all Parliaments ought to be free to do
wrong as well as to do right. The only things from which a State is
disabled are the keeping of a naval or military force (except with the
consent of the Commonwealth Parliament), coining money, and making
anything but gold and silver coin legal tender[220]. A State is not, as
are the American States, forbidden to grant titles of nobility, or to
pass any _ex post facto_ law or law ‘impairing the obligation of
contracts.’ That no such prohibitions exist in Canada may be ascribed to
the fact that in Canada the National or Dominion Government has the
right of vetoing laws passed by provincial legislatures, so that
improper legislation can be in this way checked. The power is not often
exercised in Canada, but when exercised has sometimes led to friction.
This plan, however, is neither so respectful to the Provinces nor so
conformable to general principles as is the American plan, which leaves
the States subject only to the restrictions imposed by the Constitution,
restrictions which _ipso iure_ annul a law attempting to transgress
them. And the Australians have wisely followed the American rather than
the Canadian precedent. The Australians have, to be sure, in reserve a
power to which nothing similar exists in America, viz. the right of the
British Crown at home to veto legislation. Rarely as this right is put
in force, it might conceivably be used at the instance of the National
Government to avert an undesirable conflict between State statutes and
National statutes. Note further that each Australian State is left as
free to amend its own constitution as it was before, subject of course
to the veto of the British Crown, but to no interference by the
Commonwealth, whereas in Canada acts of the Provincial legislatures
amending their constitutions are subject to the veto of the Dominion
Government as representing the Crown.
-----
Footnote 220:
See sections 114 and 115 of Constitution, and compare Art. I. sect. 10
of Constitution of U.S.A.
-----
The omission of any provision similar to the famous and much litigated
clause which debars an American State legislature from passing any law
impairing the obligation of contracts is especially noteworthy. That
clause, introduced by the Philadelphia Convention in order to check the
tendency of some reckless States to get rid of their debts, produced in
course of time unexpectedly far-reaching results, from some of which
American legislatures and courts have made ingenious attempts to escape.
It has indeed been thought that several subsequent decisions of the
Supreme Court are not easily reconcileable with the famous judgement in
the Dartmouth College Case (A.D. 1818), in which the full effect of this
clause was for the first time displayed. That effect has been to fetter
legislation in ways which are found so inconvenient in practice that
they are acquiesced in only because many State legislatures are in the
United States objects of popular distrust. No corresponding distrust
seems to be felt in the British colonies, and therefore the Australians
have not deemed any such prohibition needful, following the example of
the British House of Commons, which in 1893 rejected a similar clause
when moved as an amendment to the Irish Home Rule Bill of that year.
In another point the Australian States have been treated with respect.
In each of them the nominal executive head has hitherto been a Governor
appointed by the British Crown. This was the case in Canada prior to
1867: but when the Canadian Federation was formed, the appointment of
the Governors of the several provinces was entrusted to the
Governor-General of the Dominion, that is to say, to the Dominion
Cabinet by whose advice the Governor-General, being a sort of
constitutional monarch, is guided. In practice, therefore, these
governorships have become rewards bestowed upon leading party
politicians. The Australians wisely (as most Englishmen will think)
avoided this plan. Neither did they adopt the American method of letting
the people of each State elect the Governor, a method unsuited to
government on the Cabinet system, because, as the State Governor is
under that system only a nominal head of the Executive (the Cabinet
being the real Executive), there was no good reason for setting the
people to choose him, and good reasons against doing so, inasmuch as
popular elections are invariably fought on party lines. Accordingly the
Australians have preferred to let him continue to be appointed by the
Home Government, and to allow him to communicate directly with the
Colonial Office in London. His Ministers are indeed described in the
Constitution (sect. 44) as being ‘the Queen’s Ministers.’
VIII. DIFFERENCES FROM THE UNITED STATES AND CANADIAN FEDERATIONS.
Four other remarkable divergences, from both the American and the
Canadian Federal systems, remain to be mentioned.
One relates to the judiciary. In the United States there is a complete
system of Federal Courts ramifying all over the Union and exercising
exclusive jurisdiction in all cases arising under Federal statutes, as
well as in a number of other matters specified in Art. III. sect. 2 of
the Constitution. But the State Courts remain quite independent in all
State matters, and determine the interpretation of the State
Constitutions and of all State statutes, nor does any appeal lie from
them to the Federal Courts. In Canada this was not thought necessary, so
there the same set of Courts deals with questions arising under Federal
statutes and with those arising under Provincial Statutes, and the
Supreme Court of Canada receives appeals from all other Courts. This is
less conformable to theory than the United States plan, but does not
seem to have worked ill. The danger that Courts sitting in the Provinces
would, under the influence of local feeling, pervert Federal law was not
serious in Canada (though a similar danger was feared in the United
States in 1787), and indeed all the Canadian judges are appointed by the
Dominion Government, a further illustration of the preponderance which
the Nation has over the Provinces. The Australians have taken a middle
course. They have established a Federal Supreme Court, to be called ‘The
High Court of Australia,’ and have taken power for their Parliament to
create other Federal Courts. So far, they follow the United States
precedent. But they have given power to the Commonwealth Parliament to
invest State Courts with federal jurisdiction, thereby allowing those
Courts to be, as in Canada, both State and Federal. And they have also
allowed an appeal from all State Courts to the Federal High Court. By
this plan the States are more directly connected with and subordinate to
the National Government than they are in the United States. The
Australian scheme has one great incidental advantage. In the United
States the law of different States may and does differ, not only in
respect of the difference between the statutes of one and the statutes
of another, but also in respect of questions of common law untouched by
statutes. The Supreme Court of Massachusetts may, for instance, take a
different view of what constitutes fraud at common law from that taken
by the Supreme Court of Pennsylvania, and there is no Court of Appeal
above both these Courts to bring their views into accord. This has not
happened to any great extent in Australia, because the British Privy
Council has entertained appeals from all its Courts, and it will happen
still less in future, because the Federal High Court will be close at
hand to settle questions on which the Courts of different States may
have been in disaccord.
A second point shows how much less powerful the sentiment of State
sovereignty has been in Australia than it was in the United States. By
an amendment (xi) to the American Constitution made in 1798 it is
expressly declared that no State can be sued by a private plaintiff. But
Australia expressly grants jurisdiction in such cases to its Federal
High Court (sect. 75).
A third point is the curious and novel power given to a State of
referring matters to the Commonwealth Parliament, and to that Parliament
of thereupon legislating on such matters (sect. 51 (xxxvii)). Under this
provision (which is not to be found in the Canadian Constitution[221])
there is no department of State law wherewith the National legislature
may not be rendered competent to deal. It may be usefully employed to
secure uniformity of legislation over all Australia on a number of
subjects not within the specifically allotted field of the Commonwealth
Parliament.
-----
Footnote 221:
But see section 94 of the Canadian Constitution.
-----
Finally, the Commonwealth Parliament may grant financial assistance to
any State, and may take over the whole or a part of its debts as
existing at the establishment of the Commonwealth[222]. Provisions such
as these imply, or will involve if put in practice, a relation between
the National Government and the States closer than that which exists in
America.
-----
Footnote 222:
Sect. 105.
-----
To complete this account of the relation of the Nation to the States,
let it be noted that a State may surrender any part of its territory to
the Commonwealth, and that the Commonwealth is bound to protect each
State against invasion or, on the application of the Executive of the
State, against domestic violence[223]. This latter provision is drawn
from the United States constitution[224], though in America it is from
the State legislature, if then in session, that the application for
protection ought to come. Australia is right in her variation, because
in her States the Legislature acts through the Executive. Neither
provision occurs in the Constitution of Canada, which assigns military
and naval defence exclusively to the Dominion Government, and makes
itself responsible for the maintenance of order everywhere. In
Switzerland the management of the army, in which all citizens are bound
to serve, is divided between Cantons and Confederation, the supreme
control remaining with the latter (Artt. 18-22). The Confederation is
bound to protect a Canton against invasion and disorders, and may even
itself intervene if the Executive of the Canton cannot ask it on its own
motion (Artt. 16 and 17). Australia, as we have seen, allows the States
to maintain a force with the consent of the Commonwealth; and this is
permitted by the American Constitution also.
-----
Footnote 223:
Sect. 119.
Footnote 224:
Art. II. sect. 3, and Art. IV. sect. 4.
-----
IX. THE CONSTITUTION AS A FRAME OF NATIONAL
GOVERNMENT.
We may now pass on to consider the National Government, the construction
whereof occupies by far the greater part of the Constitution, which,
while it left the States pretty much as they were, had here to build up
a new system from the ground.
The first point to be examined relates to the limitations imposed on the
National Government as against the citizens generally, since I have
already dealt with the limitations on its powers as against the States.
Here a remarkable divergence from the American Constitution is
disclosed. When that instrument was enacted, the keenest suspicion and
jealousy was felt of the action of the Government to be established
under it. It was feared that Congress might become an illiberal
oligarchy and the President a new George the Third. Accordingly great
pains were taken to debar Congress from doing anything which could
infringe the primordial human rights of the citizen. Some restrictions
are contained in the original Constitution: others fill the first nine
amendments which were passed two or three years later, as a part of the
arrangements by which the acceptance of the Constitution was secured.
And down till our own time every State Constitution in America has
continued to contain a similar ‘Bill of Rights’ for the protection of
the citizens against abuse of legislative power. The English, however,
have completely forgotten these old suspicions, which, when they did
exist, attached to the Crown and not to the Legislature. So when
Englishmen in Canada or Australia enact new Constitutions, they take no
heed of such matters, and make their legislature as like the omnipotent
Parliament of Britain as they can. The Canadian Constitution leaves the
Dominion Parliament unfettered save by the direction (sect. 54) that
money shall not be appropriated to any purpose that has not been
recommended to the House of Commons by the Executive, a direction
embodying English practice, and now adopted by Australia also. And the
Australian Constitution contains but one provision which recalls the
old-fashioned Bill of Rights, viz. that which forbids the Commonwealth
to ‘make any law for establishing any religion or for imposing any
religious observance or for prohibiting the free exercise of any
religion.’ The Swiss Constitution, influenced by French and American
models, is in this respect more archaic, for it imposes a series of
disabilities on its Legislature in the interest of individual freedom
(sectt. 39, 49, 54-59). This diversity of attitude between the English
on the one hand and both the Americans and the Swiss on the other is a
curious instance of the way in which usage and tradition mould a
nation’s mind. Parliament was for so long a time the protector of
Englishmen against an arbitrary Executive that they did not form the
habit of taking precautions against the abuse of the powers of the
Legislature; and their struggles for a fuller freedom took the form of
making Parliament a more truly popular and representative body, not that
of restricting its authority.
The point just examined is one which arises in all Rigid Constitutions,
whether Federal or Unitary. But the next point is one with which only
Federations are concerned; and it is one in which all the great
Federations agree. All have adopted the same method of providing both
for the predominance of the majority of the people considered as one
Nation, and for the maintenance of the rights of the States considered
as distinct communities. The Americans invented this method: the Swiss,
the Canadians, the Germans, and now the Australians, have imitated them.
This method is to divide the Legislature into two Houses, using one to
represent the whole people on the basis of numbers, and using the other
to represent the several States on the basis (except in Germany) of
their equality as autonomous communities. It was this device that made
Federation possible in the United States, for the smaller States would
not have foregone their independence in reliance upon any weaker
guarantee.
X. THE LEGISLATURE.
The Australian scheme provides (sectt. 7-23) for an Upper House or
Senate of thirty-six members, six from each State, and a House of
Representatives (sectt. 24-40) of seventy-five members, elected on a
basis of population, so that forty-nine members will come from the two
large States, New South Wales and Victoria, and twenty-six from the four
small States. No Original State is ever to have less than five.
The equal representation of the six Original States is always to be
maintained, but the number of Senators may be increased, and when new
States come to be formed, the Parliament may allot to them such number
of Senators as it thinks fit. Senators sit for six years, and do not all
retire at the same time. These features are taken from the Constitution
of the United States, which, as already observed, has been a model for
subsequent Federal Upper Houses. But there are remarkable variations in
the Australian scheme.
1. In the United States each newly-created State receives as a matter of
right its two Senators. In Australia the Commonwealth may allot such
number as it thinks fit.
In the United States one-third of the Senate retires every two years. In
Australia one-half retires every three years.
3. In the United States the President of the Senate is the
Vice-President of the United States, chosen by the people[225]. In
Australia, the Senate is to choose its own President.
-----
Footnote 225:
_i.e._ practically by the people, though formally by a body of
electors elected for that purpose.
-----
4. In the United States the quorum is one more than a half of the total
number; in Australia one-third of the total number.
5. In the United States the Legislatures of the several States elect the
Senators. In Australia the Senators are elected by the people of the
State.
This last point is one of great interest. Tocqueville, writing in
1832, attributed (erroneously, as the sequel has shown) the excellence
of the American Senate to the method of election by the State
Legislatures[226]. Since his days the American Senate has declined;
and so far from this mode of election having tended to sustain its
character, the general, though not unanimous, opinion of the wise in
America deems the Senate to be injured by it, and desires a change to
the method of election by direct popular vote. It was partly because
the Australian Convention had become aware of this tendency of
American opinion that they rejected the existing American plan; nor is
it impossible that the Americans themselves may alter their system,
which gives greater opportunities for intrigue and the use of money
than popular election would be likely to afford. In Australia, the
Senators are in the first instance to be elected by the people, each
State voting as one electorate, but this may be altered (_e.g._ to a
system of district elections) by the Parliament of the Commonwealth,
or failing its action, by the Parliament of a State. It will be
interesting to see what experiments are tried and how they work.
District voting may give different results from a general State vote,
and a party for the moment dominant may choose the plan that best
suits it.
-----
Footnote 226:
See as to this, Essay VI, pp. 401, 421.
-----
6. In the United States the Senate is an undying body, perpetually
renewed by fresh elections, never losing more than one-third of its
members at any one time. In Australia the Senate may be dissolved in
case a deadlock should arise between it and the House of
Representatives.
The Senate is the sheet-anchor of the four small States. Commanding a
majority in it, they have consented to acquiesce in the great
preponderance which their two larger neighbours possess in the House of
Representatives. The numbers of the latter House are to be always as
nearly as practicable double those of the Senate, a point whose
importance will presently appear.
The House is to continue for three years (subject of course to
dissolution), a term intermediate, though inclining in the democratic
direction, between the two years of the American Congress and the seven
(practically (six) years of the British House of Commons. The Canadian
term is five years. Until the Commonwealth Parliament otherwise
provides, the electoral suffrage is to be (as in the United States) the
suffrage prescribed by State law for the election of members of the more
numerous State House, and it is expressly provided, doubtless with a
view to the fact that women’s suffrage already exists in two colonies,
that no law shall prevent a State voter from voting at Commonwealth
elections. So far from securing, as does the United States Constitution,
that no person shall be excluded on the ground of race from the
suffrage[227], Australia has expressly provided that persons belonging
to a particular race may be excluded, for she declares (sect. 25) that
in such case the excluded race is not to be reckoned among the
population of the State for the purposes of an allotment of
representatives. Plural voting is forbidden. The quorum of members is a
mean between the inconveniently large quorum (one-half) of the American,
and the very small one (forty) of the British House. The seat of any
Senator or member of the House becomes _ipso facto_ vacant if he fails
(without permission) to attend any session for two continuous months. No
person having any pecuniary interest in any agreement with the public
service (except as member of an incorporated company of at least
twenty-five persons), or holding any office of profit under the Crown,
can sit in either House, unless he be a Minister either of the
Commonwealth or of a State. The exception is noteworthy, not only
because it is framed with a view to the establishment of Cabinet
Government, but also because it implies that a man may, contrary to
American and Canadian usage, be at the same time both an executive
official of a State and also a member of the Federal Legislature. It
would appear that women are eligible to membership of either House.
Every Senator and Representative is to receive a salary, fixed for the
present at £400 ($2,000) a year.
-----
Footnote 227:
See Amendment XV to the Constitution.
-----
XI. THE EXECUTIVE.
The Executive is to consist of the Governor-General and the Ministers.
To the great convenience of the Australian people, the head of the
Executive does not need to be elected either by popular vote (as in the
United States) or by the Chambers, as in France and Switzerland. He is
nominated by the British Crown, and holds office so long as the Crown
pleases, receiving a salary fixed, for the present, at £10,000 ($50,000)
a year (exactly the salary of the American President). He has an
Executive Council, modelled on the British Privy Council (though the
name Privy Council is not used as it is in the Canadian Constitution),
and from it he chooses a number of Ministers (fixed for the present at
seven) who are to administer the several departments of the public
service. They must be members of one or other House of Parliament—a
remarkable provision, for though this is the British practice, that
practice has never been embodied in any positive rule. As the
Governor-General is only a constitutional figure-head, these Ministers
will in fact constitute the ruling executive of the Commonwealth.
XII. THE JUDICIARY.
The Judiciary is to consist in the first instance of a Federal High
Court (containing a Chief Justice and at least two other judges) capable
of exercising both original jurisdiction in certain sets of cases, and
also appellate jurisdiction not only from single Federal Judges and
inferior Federal Courts, but also from the Supreme Courts of the States.
Power is taken both to establish lower Federal Courts and to invest
State Courts with federal jurisdiction. But besides this Judiciary
proper, there is created a second Court for dealing with cases relating
to trade and commerce, under the name of the Inter-State Commission
(sect. 101). This remarkable and very important institution has
doubtless been suggested by the United States Inter-State Commerce
Commission created by Congress some eighteen years ago in order to deal
with railway and water traffic between the States. Its functions will be
half-administrative, half-judicial, and in questions of pure law an
appeal will lie from it to the High Court, while a guarantee for its
independence is found in the clause which declares that its members
shall not be removed during their seven years’ term of office. All
Federal Judges are to be appointed by the Governor-General, that is to
say, by the Executive Ministry. All trials (on indictment) for any
offence against the laws of the Commonwealth shall be by jury, and held
in the State where the alleged offence was committed. The judicial
establishments of the States remain unaffected, and the judges thereof
will continue to be appointed by the State Executives.