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§ 5. “Have Agreed.”

These words make distinct and emphatic reference to the consensus of the people, arrived at through the procedure, in its various successive stages, prescribed by the substantially similar Enabling Acts adopted by the Legislatures of the concurring colonies. In four of the colonies Acts were passed enabling the people to take part in the framing and acceptance or rejection of a Federal Constitution for Australia. Through those Acts the people agreed, first, to send representatives to a Federal Convention charged with the duty of framing for Australia a Federal Constitution under the Crown in the form of a Bill for enactment by the Imperial Parliament; and, secondly, they agreed to pronounce their judgment upon the Constitution at a referendum, which in each colony was arranged to follow the Convention. In all the colonies the Constitution was eventually referred to the people. At this referendum each voter was enabled to vote by ballot “Yes” or “No” on the question asked in the ballot paper, “Are you in favour of the proposed Federal Constitution?” In this manner there was in four colonies a popular initiative and finally in all the colonies a popular ratification of the Constitution, which is thus legally the work, as it will be for all time the heritage, of the Australian people. This democratic method of establishing a new form of government may be contrasted with the circumstances and conditions under which other Federal Constitutions became law.

UNITED STATES.—“It was well said by John Quincy Adams that the Constitution was ‘extorted from the grinding necessity of a reluctant nation.’ It was accepted by a


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small majority as the only alternative to disruption and anarchy. Its ratification was the success of the men who were interested in the security of property, the maintenance of order, and the enforcement of obligations against those who desired communism, lawlessness, and repudiation. It was a conflict between the cities and backwoods, between the mountains and plains. And the opposition was led by those cliques and families who had learned to control for their private interests the State patronage of which the new Government must necessarily deprive them… Two States refused to agree until after it had gone into successful operation, and the rest threatened severe retaliation in order to compel their coalition. Five of the other nine ratified with expressions of disapproval of its terms and a demand for subsequent amendments. In but three was it adopted without a struggle. In several, success was only obtained by the application of force, threats, or stratagem. In Connecticut, they silenced with tar and feathers an anti-federalist delegate who tried to talk out the Convention. A majority of the New Hampshire delegates were determined or instructed to vote against ratification, and at the first session the federalists considered a vote for an adjournment of three months as a victory. At the second, while some of its opponents were ‘detained’ at dinner, the Constitution was ratified by a snap vote taken at sharp one o'clock. The Legislature of Pennsylvania obtained a quorum to call the State Convention by the unwilling presence of two members dragged to the meeting by a mob who prevented their leaving the house. In the State of New York, a majority of the Convention was anti-federal, and victory was won by the threat of Hamilton, that in case of defeat New York, Kings, and Westchester would ratify the Constitution as an independent State, and leave the northern counties alone unprotected from foreign enemies without any outlet for their commerce to the sea. The charge was believed, if not proved, that the federalists prevented the circulation of the newspapers of the opposition with the mails. And in Pennsylvania and Maryland they suppressed, by purchase and boycott, the reports of the debates in the State Conventions.” (Foster's Comment. on the Constit. I. p. 5.)

CANADA.—“Delegates, comprising the leading men of both parties, were appointed by the Governors of Canada, Nova Scotia, New Brunswick, and Prince Edward Island at the instance of the several Legislatures. They met and drew up a scheme which, having been submitted to the Legislatures, was afterwards carried to London; there finally settled with the Colonial Office, and embodied by the Imperial Parliament in the British North America Act, which forms the instrument of confederation. The consent of the Canadian Legislature was freely and fairly given by a large majority. That of the Legislature of New Brunswick was only obtained by heavy pressure, the Colonial Office assisting, and after strong resistance, an election having taken place at which every one of the delegates had been rejected by the people. That of the Legislature of Nova Scotia was drawn from it, in defiance of the declared wishes of the people and its breach of recent pledges by vigorous use of personal influence with the members. Mr. Howe, the patriot leader of the Province, still held out and went to England, threatening recourse to violence if his people were not set free from the bondage into which, by the perfidy of their representatives, they had been betrayed. But he was gained over by the promise of office, and those who in England had listened to his patriot thunders, and had moved in response to his appeal, heard with surprise that the orator had taken his seat in a Federationist Administration. Prince Edward Island bolted outright, though high terms were offered her by the delegates, and at the time could not be brought back, though she came in some years afterwards, mollified by the boon of a local railway, for the construction of which the Dominion paid. In effect Confederation was carried by the Canadian Parliament, led by the politicians of British and French Canada, whose first object was to escape from their deadlock, with the help of the Home Government, and of the Colonial Governors acting under its direction. The debate in the Canadian Parliament fills a volume of one thousand and thirty-two pages. A good deal of it is mere assertion and counter assertion as to the probable effects of the measure, political. military, and commercial. One speaker gives a long essay on the history of federation, but without much historical discrimination. Almost the only speech which has interest for a student of political science is that of Mr. Dunkin, who, while he is an extreme and one-sided opponent of the measure, tries at all events to forecast the workings of the projected Constitution, and thus takes us to the heart of the question, whether his forecast is right or wrong. Those who will be at the trouble of toiling through the volume, however, will, it is believed, see plainly enough that whoever may lay claim to the parentage of confederation—and upon this momentous question there has been much controversy—its real parent was Deadlock. Legally of course Confederation was the act of the Imperial Parliament, which had full power to legislate for dependencies. But there was nothing morally to prevent the submission of the plan to the people any more than there was to prevent a vote of the Colonial Legislatures on the project. The framers can hardly have failed to see how much the Constitution would gain in sacredness by being the act of the whole community. They must have known what was the source of the veneration with which the American


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Constitution is regarded by the people of the United States. The natural inference is that the politicians were not sure that they had the people with them. They were sure that in some of the provinces they had it not.” (Canada and the Canadian Question, by Goldwin Smith, pp. 141–3.)

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