majority in one House given twice, the second time after three months’
interval, _plus_ submission on both occasions to the other House.
2. Approval of the people in a majority of States (_i.e._ at present in
four States at least).
3. Approval of a majority of the people voting over the whole
Commonwealth.
The American Federal Constitution requires a two-thirds’ majority in
each House of Congress and a three-fourths’ majority of States, or else
the proposal of a Convention by two-thirds of the States and a
three-fourths’ majority of States approving what the Convention has
settled, conditions extremely difficult to secure. The Swiss system
permits the Constitution to be amended by the same process as is applied
to the passing of laws, _plus_ a popular vote which results in a
majority of Cantons and in a majority of the people voting over the
whole Confederation.
XVIII. RELATIONS OF THE AUSTRALIAN COMMONWEALTH TO THE CROWN.
It has not seemed necessary to set forth the relations of the
Commonwealth to the British Crown, because these relations are
substantially those which have heretofore existed between the Crown and
each of the self-governing colonies now united in the Federal
Commonwealth. The chief difference is that the Commonwealth Parliament
receives certain powers (as to extra-territorial fisheries and relations
with the islands of the Pacific) which were previously exerciseable only
by the (now extinct) Federal Council of Australasia (mentioned above),
that it has a general power to legislate on ‘external affairs’ (a
somewhat vague term, sect. 51, xxix), and that it may ‘exercise within
the Commonwealth, at the request or with the concurrence of the
Parliaments of all the States directly concerned, any power which can
now be exercised only by the Parliament of the United Kingdom or by the
Federal Council of Australasia’ (sect. 51, xxxviii). Apart from these
provisions, which may give rise to some delicate questions, the
principles and practice which have guided the action of the Home
Government and of the Colonial Governors will apparently be preserved.
Though the Imperial Parliament has an unquestioned right to legislate
for every part of the British dominions so as to override all local
legislation, it does not now exercise this power except for a few
purposes of utility common to all, or many, British possessions, such as
for the regulation of merchant-shipping or copyright, and when it does
so, it secures the assent of the self-governing Colonies. So again,
though the Crown has a legal right to withhold consent from Colonial
Statutes, this right is rarely exerted, and then only in respect of some
general imperial interest which it is supposed that the statute in
question may prejudicially affect, _i.e._ the Crown’s right is not
exerted in the interest of any class of persons in the Colony or in
pursuance of any particular view entertained either by the Governor
there or by the Ministry at home. The new Australian Constitution
provides (sectt. 58-60) that when a measure passed by the Parliament is
presented to the Governor-General, he may either assent to it in the
Queen’s name (but subject to a power to the Queen to disallow the same
within one year) or he may withhold assent; or he may reserve it for the
Queen’s pleasure, in which last case it shall not take effect unless he
announces within two years that the Queen has assented to it. This right
of veto, though it looks on paper larger than that which belongs to the
President of the United States, seeing that the President’s veto can be
overridden by a two-thirds’ majority in each House of Congress, is in
reality far more limited, and will constitute no check (except where
imperial interests may be affected) upon the practically sovereign power
of the Commonwealth Parliament.
XIX. COMPARISON WITH THE CONSTITUTIONS OF THE UNITED STATES AND CANADA.
Before I make some general reflections on the character of this
Australian Constitution, it is worth while to note summarily the
principal points in which it differs from the two other Federal
Constitutions which it most resembles.
The provisions which it has borrowed from the American Constitution have
been already adverted to. It differs from that Constitution in the
following (among other) respects:—
1. It is a longer instrument, going into much fuller detail on many
topics.
2. It leaves less power to the States and gives more power to the
Commonwealth; and it enables the Commonwealth Parliament to legislate
for a State upon the State’s request, a thing which lies quite outside
the functions of Congress.
3. It does not establish a complete system of Federal Courts covering
the whole area of the Commonwealth, but allows State Courts to be
invested with Federal jurisdiction.
4. It makes the Federal High Court a Court of appeal from State Courts,
whereas in the United States each State Supreme Court is final in its
proper sphere.
5. It contains hardly any restrictions, in the nature of a ‘Bill of
Rights,’ upon the power of the Federal Legislature over the individual
citizen.
6. Instead of disjoining Legislature and Executive, it unites them
closely by the system of Responsible or Cabinet Government, and so far
from excluding every official from Congress, it makes a seat in
Parliament a condition of Ministerial office.
7. It vests the choice of the Head of the Executive, not in the people,
but in an external authority, the British Crown. To be sure, this Head
is nominal and not responsible either to the people or to the
legislature.
8. It vests the election of Senators in the people, not in State
Legislatures, gives the Senate no power of amending but only of
suggesting amendments in money bills, makes the Senate dissoluble in
case of a deadlock between it and the House, and contemplates the
possibility that new States may have a smaller representation in the
Senate than original States.
9. It gives to the Executive no such veto on legislation as the
President has in the United States. I have already explained that the
veto of the Governor-General and the Crown is a different thing, and
rarely employed.
10. It makes the amendment of the Constitution a much less tedious and
difficult process.
Thus it may be said that, as compared with the American Constitution, it
vests more power in the National Government as against the State
Governments, and that, as between the various departments of the
National Government itself, it concentrates power more fully in the
hands of the Legislature and imposes fewer restrictions upon its action.
The Constitution of Canada seems at first sight nearer to that of
Australia than does the American. It has a Monarch, represented by a
Governor-General, for the head of its Executive. It contemplates a
number of States small when compared with the forty-five of the American
Union. It has adopted the British system of Cabinet or responsible
Government.
But the differences are really so considerable as to place Australia’s
scheme as far from that of her colonial sister as from the American.
Among them are the following:—
1. The Canadian Constitution prescribes the Constitutions of the several
Provinces, though it permits the Provincial legislatures to alter them
(subject to a Federal veto). The Australian assumes its State
Constitutions as existing, and makes no change in them, except so far as
the Federation controls or supersedes them. Hence the antecedent power
of changing them remains, so far as they are not affected by the Federal
Constitution.
2. Australia leaves to the States all residuary powers (_i.e._ powers
not expressly granted). Canada withholds them from the Provinces and
vests them in the Dominion.
3. Australia leaves the State Governors to be appointed, as now, by the
Home Government, apart from Federal interference. Canada gives the
appointment of them to the Federal Ministry. And whereas in Canada a
Provincial Governor cannot communicate directly with home but only with
the Governor-General, in Australia the State Governor and his Ministers
are in direct touch with the British Government in London.
4. Australia gives to the Federal Government no right whatever to
interfere with State Statutes. Canada invests the Dominion Government
with a veto on Provincial legislation by placing the Governor-General as
regards such legislation in the place which the Queen holds as regards
Dominion legislation.
5. Australia distinguishes Federal from State jurisdiction, taking power
to establish Federal Courts other than her High Court, and to invest
State Courts with Federal jurisdiction. Canada has no special Federal
Courts other than the Supreme Court of the Dominion.
6. Australia makes her Senate an elective assembly. In Canada the Senate
is nominated by the Dominion Government, and is therefore a weak body,
quite unfit to try conclusions with the House which has the people
behind it.
7. Australia provides a method whereby the Commonwealth may amend its
Constitution. Canada has no such method, and thereby leaves amendment to
the Imperial Parliament of the United Kingdom.
This comparison shows that the Australian scheme of Federal Government
stands intermediate between that of the United States and that of
Canada. In the United States, the Federal Government has less power as
against the States than in Australia. In Canada, the Federal Government
has more power, or at least a wider range of action. In other words, the
Australian system approaches nearer, in point of form, to a Unitary
Government than does the United States, but not so near as does Canada.
I am speaking merely of form, that is, of the institutions as they stand
on paper, for it does not necessarily follow that the spirit in which
institutions are worked will precisely correspond to their form. The old
Romano-Germanic Empire, for instance (1638-1806), was less unitary in
practice than would have been collected from its form; the new German
Empire (since 1871) is more unitary in spirit and working than its form
would necessarily convey.
XX. GENERAL OBSERVATIONS ON THE CONSTITUTION.
Technically regarded, the Constitution is an excellent piece of work.
Its arrangement is logical. Its language is for the most part clear and
precise. The occasional, and perhaps regrettable, vagueness of some
expressions appears due, not to any carelessness of the draftsmen, but
to the nature of the subject-matter. The cumbrousness of the provisions
regarding customs, duties, and the control of railways is the almost
inevitable result of an effort to meet the claims and appease the
apprehensions of neighbouring communities with interests that have been
deemed opposed. Although it is much longer, as well as less terse, than
the Constitution of the United States, going into fuller detail, and
with more of the flavour of an English statute about it, it
nevertheless, like that Constitution, leaves much to be subsequently
filled up by the action of the legislature. A very large field of
legislation remains common to the States and the Commonwealth
Parliament; and though statutes passed by the latter will of course
override or supersede those which may have been passed by the former, it
may be many years before the higher Parliament finds leisure to
cultivate all the ground which lies open before it. A further range of
activity for that Parliament may disclose itself if the State
legislatures should exert the power they possess of asking the
Commonwealth to take over part of their work. And apart from both these
lines of legislative action, the Parliament will find a very large
number of matters which the Constitution has expressly directed it to
settle by statutes. Till such statutes have been enacted, many points
material to the working of the system will remain undetermined.
In two points the experience of the United States has been, consciously
or unconsciously, turned to account. The complaint has often been made
in America that the Constitution contains no recognition of the Supreme
Being. The Australians have introduced such a recognition in the
preamble of the Imperial Act establishing the Constitution, which runs
as follows: ‘Whereas the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, humbly relying on the blessing of
Almighty God, have agreed to unite in one indissoluble Federal
Commonwealth under the Crown of the United Kingdom,’ &c. And they have
also solemnly enounced in the same preamble that indissolubility of
their union which the Americans did not enounce in 1788, and the absence
of which from the instrument gave rise to endless argumentation on the
part of those who maintained the right of a State to retire from the
Federation.
The perfection of any Federal system may be tested by the degree of
thoroughness with which the Federal principle is worked out in its
application, not only to the legislative, but also to the executive and
judicial branches of government. In this respect the Australian scheme
is less perfect than the American; for the Commonwealth has received
power to legislate, no doubt at the request of the State, on purely
State matters, to return to the States part of the revenue it collects,
and to assume the pecuniary liabilities of the States. There is also, as
already noted, no such effort as in America to secure that questions of
State law shall be determined solely by State Courts, for such cases may
be appealed from State Courts to the Federal High Court. Thus the Nation
looms large over the whole instrument, overshadowing the States. There
are indeed many provisions for safeguarding the interests of the States,
yet these are not so much recognitions of States’ rights as stipulations
made to secure material advantages, industrial or commercial or
financial. An explanation of this remarkable feature of the scheme may
be found in the phenomena of Australian as compared with those of
American history. The thirteen States which united in 1788-9 had each of
them a long history. The two oldest dated back to the beginning of the
seventeenth century. The youngest had nearly sixty years of political
life behind it. All were animated by a strong sentiment of local
independence, and by a passion for liberty which had become associated
with local independence. Their notions of a Unitary Government were
formed from England, whose monarch they had latterly learned to hate as
their oppressor. Hence their love for their States was largely
sentimental. Their minds were filled, not by the mere sense of what they
gained from their States as business men, but by the loyalty they bore
to their States as protectors of their civic rights and embodiments of
their historical traditions.
Very different were the feelings of the Australians. The oldest colony
dated back scarcely more than a hundred years, and had enjoyed
responsible government for less than fifty. Proud as each colony was of
its progress, there had not been time for those political traditions to
be formed in which the love of local independence roots itself. Neither
were there between the several colonies such differences of origin or of
usages and ways of life as separated the New Englanders from the men of
Virginia and the Carolinas, for the Australians had emigrated so
recently from Britain that no local types had yet been formed. Still
less was there that aversion to a Unitary system of government which the
strife with England had evoked among the Americans. The only political
model which the Australians knew at first hand was the government of
Britain by its Parliament, a government which had ceased in 1832 to be
oligarchic, and had since 1867 begun to be democratic. Accordingly,
among the Australians, State feeling had a thoroughly practical and
business character. It took in each man the form of a resolve to secure
the agricultural and trading interests of his own part of the country.
It was in fact the wish to make a good bargain for his community and
himself. Sentiment there was and is. But the sentiment gathered round
the Commonwealth of the future rather than the Colony of the past. The
same kind of feeling which attached the sons of the Cavaliers to
Virginia and the Puritans of Massachusetts to the old ‘Bay State’ made
the Australians desire to found a great nation which should be the
mistress of the Southern seas. Hence the absence of any jealousy of the
central power beyond that which is suggested by the fear that local
industrial or commercial interests might be unfairly dealt with.
This attitude of Australian feeling will therefore (if the view here
presented be correct) work towards the development of those centralizing
tendencies in the Constitution for which its terms give ample scope. In
all forms of polity the influences which draw the members of a composite
political community together and those which thrust them asunder are
partly material, partly sentimental[231]. How the influences of material
interest will work in Australia I will not attempt to predict. Some of
them may prove centrifugal; others, such as those of trade, are clearly
centripetal. The Constitution frankly recognizes that economic
conditions prescribe a federal rather than a unitary government. But it
is a significant fact that the influences of sentiment were arrayed on
the side of the Nation rather than on that of the States. One can read
this between the lines of the Constitution; and it explains why the
Frame of Government is less consistently Federal than is that of the
United States.
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Footnote 231:
See Essay IV.
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XXI. MODERN AND DEMOCRATIC CHARACTER OF
THE AUSTRALIAN CONSTITUTION.
The Australian instrument is the true child of its era, the latest birth
of Time. Compared with it, the American Constitution seems
old-fashioned, and parts of the Swiss Constitution positively archaic.
Cabinet Government, whose fully developed form is scarcely a century
old, is taken for its basis. Ideas and enterprises, problems and
proposals, so new that they are only just beginning to be seriously
discussed, figure in it. As slavery, an institution almost coeval with
the human race, but essentially barbarous, survived to be mentioned
(under a transparent euphemism) in the Constitution of the United
States, so a new industrial question—viz. the struggle between white
labour and free coloured labour—makes its appearance in this Australian
document. Here too are the new products and new methods of science,
telegraphs and telephones and the keeping of meteorological
observations; here is the extension of the suffrage to women; here are
the new troubles which spring from contests between employers and
workmen; here the new proposals for throwing on the State the function
of providing for its members in sickness and old age; here an express
recognition of the right of a State to control the traffic in
intoxicating liquors. And above all these one perceives through the
whole instrument that dominant factor of our age, the ever-present and
all-pervading influence of economic forces, of industrial production, of
commerce, of finance. The increased and increasing importance of these
influences in the life of the modern world, stimulated as they have been
by the amazing progress of scientific discovery, finds a fuller
expression in this Constitution than in any other yet framed.
As in these points this Constitution is at least abreast of European and
American theory, and ahead of European or American practice, so also it
represents the high-water mark of popular government. It is penetrated
by the spirit of democracy. The actual everyday working of government in
the Australian Colonies is more democratic than in Britain, because
Britain has retained certain oligarchical habits, political as well as
social. It is more democratic than in the United States, because there
both the States and the Union are fettered by many constitutional
restrictions, and because wealth has there (as indeed in Britain also)
been able to exert a control none the less potent because
half-concealed. But the Constitution of this Federal Commonwealth is
more democratic than are the Constitutions of the several Australian
colonies, in some of which property qualifications and nominated second
chambers have survived till now. It prescribes no qualification for a
Senator or Representative beyond his having attained the age of
twenty-one and being himself qualified to become an elector. He need not
even be a resident in the State where he seeks election. The Senate as
well as the House is elective; both are chosen directly by the people,
and on the basis of the suffrage which each State prescribes for the
election of its more popular House. The duration of the House is only
three years. The direct popular vote, an institution specially
characteristic of advanced democracy, which has been developed
independently in the United States and in Switzerland (where it has
taken the double form of a Referendum to the people and an Initiative
proceeding from the people), is here applied to the enactment of
amendments to the Constitution, and, in the form of a general election
of both Houses simultaneously, to the settlement of deadlocks between
the Houses. There is no veto on the acts of the Legislature, for that
vested in the Governor-General and in the Crown is not intended to be
used except in the rare cases where imperial interests may be touched.
In fact all those checks and balances in the English and American
Constitutions by which the censors of democracy used to set such store,
have here dwindled down to one only, viz. the existence of two Chambers.
These two will be elected on the same franchise and composed of similar
men, but the tendency to dissension so natural to rival bodies may
sometimes interpose delays and ought certainly to make the criticism of
proposals more searching. If the principle of popular sovereignty is
expressed with equal clearness in the Constitutions of America and
Switzerland, it assumes in this Australian Constitution a more direct
and effective form, because many of the restrictions which the two
former constitutions (and especially that of America) impose on the
legislature in the supposed interests of the people are absent from the
Australian instrument. In Australia the people, through their
legislature with its short term, are not only supreme, but can, by the
legislature’s control of the Executive, give effect to their wishes with
incomparable promptitude. For this purpose, the expression ‘people’
practically means the leader who for the time being commands the popular
majority. Holding in his hand both the Executive power of the Cabinet
and the legislative power of Parliament, he has opportunities of
effecting more than any one man can effect under the constitutions
either of America or of Switzerland.
The solitary restraint which Australia provides is the co-ordinate
authority of the Senate, a hostile majority in which may check or at
least delay his legislative projects. Yet if his party in the country be
well organized and his programme alluring to the masses he may control
the Senate as well as the House, for it does not follow that because the
smaller States have prudently placed their interests under the
protection of the Senate, they will on the great issues of politics be
usually found opposed to their larger neighbours[232].
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Footnote 232:
In the first election of members of the two Houses, which took place
while these pages were passing through the press, every State was
divided upon the issue of Free Trade _versus_ Protection, though the
Protectionist (or high-tariff) party secured more seats, in
proportion, in the House than it did in the Senate.
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