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§ 27. “In a Federal Commonwealth.”

The word “federal” occurs fifteen times in the Act, exclusive of references to the Federal Council of Australasia Act, 1885:—

  • (1.) Federal Commonwealth, Preamble and Clause 3.
  • (2.) Federal Parliament, sec. 1.
  • (3.) Federal Executive Council, secs. 62, 63, 64.
  • (4.) Federal Supreme Court, sec. 71.
  • (5.) Federal Courts, sec. 71.
  • (6.) Federal Court, secs. 73—ii.; 77—i. and ii.
  • (7.) Federal Jurisdiction, secs. 71, 73—ii., 77—iii., and 79.

The Federal idea, therefore, pervades and largely dominates the structure of the newly-created community, its parliamentary executive and judiciary departments.


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“Federal” generally means “having the attributes of a Federation.” By usage, however, the term Federal has acquired several distinct and separate meanings, and is capable of as many different applications. In this Act, for example, the term Federal is used first in the preamble, and next in clause 3, as qualitative of the Commonwealth, considered as a political community or state; in various sections of the Constitution it is employed as descriptive of the organs of the central government. This use, in an Act of Parliament, of one term in reference to two conceptions so entirely different as state and government, is illustrative of the evolution of ideas associated with Federalism. In the history of Federation the word seems to have passed through several distinct stages or phases, each characterized by a peculiar use and meaning. At the present time the several shades of thought which the word, according to usage and authority, is capable of connoting are often blended and confused. These meanings may be here roughly generalized as a preliminary to a separate analysis:—

  • (1.) As descriptive of a union of States, linked together in one political system.
  • (2.) As descriptive of the new State formed by such a union.
  • (3.) As descriptive of a dual system of government, central and provincial.
  • (4.) As descriptive of the central governing organs in such a dual system of government.

The first, and oldest, of these meanings directs attention emphatically to the preservation of the identity of the States; the second implies a division of sovereignty— a State composed of States; the third asserts that the duality is a matter of government, not of sovereignty; whilst the fourth asserts nothing, but is merely a convenient form of nomenclature.

(1.) A UNION OF STATES.—The primary and fundamental meaning of a federation (from the Latin fœdus, a league, a treaty, a compact; akin to fides, faith) is its capacity and intention to link together a number of co-equal societies or States, so as to form one common political system and to regulate and co-ordinate their relations to one another; in other words a Federation is a union of States, subject to the preservation of state entity and state individuality within defined limits. Such a union as that of the United States called into existence a central government to deal with the general affairs of the union, but there was some discussion and doubt among publicists whether, as its resultant, it established a new State. The phrase “federal union,” or the abstract noun “Federation,” described the bond of union between the “United States,” but was silent as to whether the States so united formed a single composite State. It was contended that the union fell short of the attributes of a perfect State; that the original sovereignty of the component States remained unimpaired except to the extent of the power transferred to the union—a doctrine which was the battle ground of parties in America for many years before the Civil War. This was the sense in which the word “federal” is used in the Federalist, and in the early constitutional history of the United States.

(2.) A FEDERAL STATE.—In a secondary sense, the word “federal” is applied to the composite state, or political community, formed by a federal union of States. It thus describes, not the bond of union between the federating States, but the new State resulting from that bond. It implies that the union has created a new State, without destroying the old States; that the duality is in the essence of the State itself that there is a divided sovereignty, and a double citizenship. This is the sense in which Freeman, Dicey, and Bryce speak of a “Federal State;” and it is the sense in which the phrase “a Federal Commonwealth” is used in this section and in the preamble. The word “Federation,” which was primarily synonymous with the abstract “federal union,” is now frequently used as synonym for the concrete “Federal State.”

(3.) A DUAL SYSTEM OF GOVERNMENT.—In recent years it has been argued that the word “federal” is inappropriately and inexactly used when applied to a State or


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community; that there is no such thing as a federal State; that if there is a State at all it must be a national State; that any political union short of the principal attribute of statehood and nationhood, viz: sovereignty, is a mere Confederacy; and that “federal” can only be legitimately used as descriptive of the partition and distribution of powers which is peculiar to a federal system. Federal, it is said, is properly applied to denote a dual but co-ordinate system of government, under one Constitution and subject to a common sovereignty, in which one State employs two separate and largely independent governmental organizations in the work of government; the whole governing system, central and general, as well as provincial and local, constituting the federal government; the central and general government being one branch, and the provincial and local governments forming the other branch of the governing organization. (Burgess, Political Sci., I., p. 79; II., p. 18.) Hence, according to this view, the expression “Federal Government” means not the central and general government alone, not the provincial and local governments alone, but the governing system, central and general, as well as provincial and local, as parts of one whole government under one Constitution.

(4.) CENTRAL GOVERNMENT OF A DUAL SYSTEM.—The term “federal” is often used as descriptive of the organs of the central and general government, such as the Federal Parliament, the Federal Executive, and the Federal Supreme Court. In this sense the word is in common use in the United States as synonymous with national. This use of the word has no important bearing on federal history or theory.

FEDERAL AND CONFEDERATE.—But in whichever of the above meanings the adjective “federal” is used, in modern usage it is distinguishable from the adjective “confederate.” “Federal” is used of a type of union, or government, or State, in which the general and local governments are co-ordinate within their respective spheres, and both act directly on the citizens. “Confederate” is applied to a type of union, or government, known as a confederacy, in which the central government is incomplete— usually having only legislative powers—and its laws and ordinances are directed to the States, not to the citizens. Such a union is little more than a league or treaty between independent States, and does not create a new State, nor even, in the complete sense of the word, a new government; but merely provides a representative organization for the purpose of promulgating decrees and making requisitions upon the members of the league. It has no power to enforce its decrees or requisitions. This was the fundamental infirmity of the Confederacy of the United States which existed before the adoption of the Federal Constitution.

FEDERAL AND NATIONAL.—The word “national” is frequently used in contrast with the word “federal;” but the distinction between the two varies greatly according to the meaning in which the word “federal” is used. A discussion of the two words may be best introduced by a reference to American usage.

United States.—In the Convention which framed the Constitution of the United States. the resolutions adopted after full discussion showed that it was intended to prepare a national plan of union and a national plan of government. In order, however, to conciliate opposition and to avoid arousing the prejudices and fears of small States, the use of the word “national” was eschewed. The word “federal” occurs in several of the constitutional resolutions adopted by the Convention, and such expressions as “perfect union,” “within this union,” “laws of the union,” “United States,” are to be found in the Constitution; yet strange to say the word “federal” does not appear in any part of the document, although it is generally recognized that that Constitution is the model of all modern federal governments.

From its adoption until the great Civil War, judicial, political and academical writers usually abstained from employing the word “national” and substituted for it “federal.” (Foster's Commentaries, vol. I., p. 91.) Since the Civil War the expression “National Government” has come into general use in the United States. “We still ordinarily speak of federal practice in the federal courts. But as appears by the congressional


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resolution quoted at the beginning of this section, as well as in the debates in the Convention, the phrase ‘federal’ is not inconsistent with ‘national.’ ” (Id., p. 92.)

Canada.—In the Preamble to the British North America Act, 1867, it is recited that the provinces have expressed their desire to be “federally united in one Dominion under the Crown.” This is the only passage in that Constitution in which there is any express allusion to the Federal idea.

DIFFERENT MEANINGS.—The words “federal” and “national,” therefore, may be used either as mutually exclusive, or as partially overlapping. The first meaning of “federal,” given above, either excludes or at least ignores any national element in federalism; it was the sense in which the word was used by the authors of the Federalist and by early American writers before the truly national character of the American Union was fully recognized and avowed. In that sense, therefore, “federal” denotes the organic relation of the States to the Union; whilst a community is described as national in so far as its tendency is to unite individuals in one political State, and as its government exercises direct power over individuals.

On the other hand, the second and third meanings recognize a national element in federalism itself; they affirm a duality, either of sovereign power or of government, and recognize that national organization in matters of national concern is as much a part of federalism as provincial organization in matters of provincial concern. This is the more modern scope of the word, and accords not only with later English and American usage, but with current usage in Australia. In this sense, the word national, when used in contrast with federal, refers only to the extension of the national element into the provincial area. In order to make clear these distinct conceptions of the scope of federalism, we proceed to analyse the federal and national elements in the Constitution, according to both definitions; first adopting the primary meaning of federal as describing a linking together of States, and then adopting the newer meaning as describing a dual system of government.

(1.) FEDERAL AND NATIONAL ELEMENTS: PRIMARY SENSE.—Using “federal” in its primary sense, the general difference between the federal and national elements of the Constitution of the Commonwealth may be thus defined. Those provisions are federal which recognize the States as distinct but co-equal societies, uniting them as parts of, but not completely consolidated and absorbed in, the Commonwealth; which regard the people as inhabitants of States, separate and independent, within their respective spheres; which guarantee the preservation of State territory and State autonomy within defined limits; which undertake to protect every State against foreign invasion and domestic violence; which secure certain specific political rights to the States; which impose certain obligations and prohibitions on the States; and which require the assent of the States, considered as separate entities, to all the legislation of the Commonwealth. Those provisions are national which unite the people of the Commonwealth as individual units and constitute them members of a common political group, without reference to the State in which they reside; which secure to the residents of all the States equality of rights without disability or discrimination throughout the Commonwealth—or what in America is called a “common citizenship;” which regard the people as the principal source of supreme authority within the Commonwealth requiring their representation in a special legislative chamber charged with certain dominant powers; and above all which provide that the laws of the Commonwealth shall operate directly upon, and demand personal obedience from, the people in their personal and private capacities, and which provide special tribunals maintained by the Commonwealth for the interpretation and enforcement of its laws.

The combined operation of the federal and national principles of the Constitution is illustrated in the manner in which it was prepared, viz., by a Convention in which the people of each colony were equally represented; and in the method by which it was afterwards submitted to the people of each colony for ratification or rejection. The


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Federal Convention was not a body composed of delegates elected by the people of Australia, as individuals, forming one entire community. The people of four colonies, voting as provincial citizens, elected their representatives to the Convention to take part in the framing of the Constitution. The people of six colonies, voting as provincial citizens, subsequently ratified the Constitution. On the other hand, there is, in part, a recognition of the national principle, by the Constitution being founded on the will of the people, and not on the mandate of the provincial legislatures. The manner in which the Constitution was submitted to the authority of the people is strongly suggestive of a consolidating and nationalizing tendency. (Wilson in the Pennsylvania Convention; Elliot's Debates, 2nd ed., vol. II., p. 461.) It is obvious that the colonial legislatures were not constitutionally entitled to surrender to the proposed Commonwealth part of the legislative powers vested in them by Imperial Acts, and that not even the Imperial Parliament would be disposed to revolutionize the Constitution of the Australian colonies, without being assured by the strongest possible evidence and the best available demonstration, that the people of those colonies had freely and voluntarily agreed to the reform and readjustment of the system under which they had lived so long.

There is, at the same time, a conspicuous recognition of the federal principle in the fact that the people of each colony voted for or against the Constitution as provincial voters, a majority being required in each colony to carry the Constitution in that colony. As, in the ratification of the Constitution of the United States, each State convention acted and claimed to act only for and in the name of the people of that State (Foster's Commentaries, vol. I., p. 95); so, in the ratification of the Constitution of the Commonwealth, there was an independent referendum in each colony, in order to ascertain and give legal voice to the will of the people of that colony, without regard to the will of the people of the other colonies. The Constitution was, therefore, not adopted by the people of the Commonwealth, that was to be, voting en masse or at large or in their aggregate capacity, but by the people of the future States voting in each State as inhabitants thereof. The Constitution was framed by a combined power exercised by the people of each colony; in the first instance through their representatives in the Convention, limited in their sanctions, and in the last resort by the people of each colony voting at the referendum held in each colony. Had the Constitution emanated from the people, regardless of their provincial distribution, and had the colonies been referred to and used merely as convenient electoral districts by which the public expression could be ascertained, the popular vote throughout the union would have been the only rule for its adoption. (Madison, in The Federalist, No. xxxix., pp. 237 and 238; Foster's Commentaries, vol. I., p. 106.) If a general vote had been accepted as the test, the Constitution would have been triumphantly adopted on 3rd June, 1898, when the voting was—

     
YES ... ... ...  216,332 
NOES ... ... ...  107,497 
Majority ... ...  108,835 

The vote of the people, however, was limited to the respective States in which they resided, and in some cases artificial statutory majorities were required, so that there was an expression of popular suffrage and State sanction united in the method in which the adoption of the Constitution was secured. (See the judgment of Mr. Justice McLean in Worcester v. Georgia, 6 Peters, 515–569; see also Ware v. Hylton, 3 Dallas, 199, Chisholm v. Georgia, 2 Dallas, 419.)

Federal Structure of the Commonwealth.—The Commonwealth as a political society has been created by the union of the States and the people thereof. That the States are united is proved by the words in clause 6, which provide that the States are “parts of the Commonwealth;” that they are welded into the very structure and essence of the Commonwealth; that they are inseparable from it and as enduring and indestructible as the Commonwealth itself; forming the buttress and support of the entire constitutional


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fabric. This is a federal feature which peculiarly illustrates the original and primary meaning of the term, as importing a corporate union. The Commonwealth, however, is not constituted merely by a union of States; it is something more than that; it is also a union of people.

Federal Structure of the Parliament.—As the Commonwealth itself is partly federal and partly national in its structure, so also is its central legislative organ the Parliament. Each original State is equally represented in the Senate; the right of State representation is embedded in the Constitution and does not depend on inference or implication. The Senate derives its power from the States, as political and coordinate societies, represented according to the rule of equality. (Madison, in The Federalist, No. xxxix., pp. 237–8.) In this manner the States become interwoven and inwrought into the very essence and substance of the Commonwealth, constituting the corporate units of the partnership as distinguished from its personal units, the people. Thus the Commonwealth is buttressed by the States and vitalized by the people.

National Structure of the Parliament.—The House of Representatives is the national branch of the Federal Parliament, in which the people of the Commonwealth are represented in proportion to their numbers. This great Chamber will give direct expression and force to the national principle. As such, its operation and tendency will be in the direction of unification and consolidation of the people into one integrated whole, irrespective of State boundaries, State rights, or State interests. If there were only two chambers in which the people were represented in proportion to their numbers, this would undoubtedly have tended towards the establishment of a unified form of government, in which the States, as political entities, would have been absolutely unrecognized, and would have been liable, in the course of time, to effacement. The Convention was entrusted with no such duty; under the Enabling Acts, by which it was called into existence, its mandate was to draft a Constitution in which the federal, as well as the national elements, were recognized.

State Rights—Federal.—The sections which guarantee equal representation in the Senate and a minimum representation in the House of Representatives; which enable the Governors of States to issue writs for the election of Senators and to certify their election to the Governor-General; which require the Governor of a State concerned to be notified of vacancies in the Senate; which continue State Constitutions except so far as they are inconsistent with the Constitution of the Commonwealth and its laws; which continue the power of State Parliaments except to the extent to which it has been withdrawn from them or vested in the Commonwealth; which continue State laws in force until provisions inconsistent therewith are legally made by the Federal Parliament; which preserve to each State the right to have direct communication with the Queen on all State questions; are examples of State rights secured by provisions of a Federal character.

State Inhibitions—Federal.—Of a similarly Federal character, although imposing disabilities, instead of conferring rights, are various sections forbidding the States from granting bonuses and bounties for trade purposes after a certain time; from making railway rates which operate as preferences and discriminations; from raising or maintaining naval and military forces; and from coining money.

Nationalism in the Executive.—The Executive government created by the Swiss Constitution is a peculiar blend of the federal and national elements. In its mode of election by the Federal Assembly, composed of the National Council and Council of States, sitting and voting together in joint session, the Swiss executive is the choice of a blended body in which the majority of the nation is likely to predominate; but the restriction that not more than one member of the executive can be chosen from the same canton renders the executive largely federal in its composition and spirit. The executive of the United States is likewise partly federal and partly national in its


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formation. The immediate election of the President is vested in the people; but the people do not vote en masse, but in groups as States; votes are allotted to them in a compound ratio which considers them partly as distinct and co-equal societies, and partly as unequal members of the same society. In a certain event the election is made by that branch of the legislature which consists of the National representatives; but in so choosing the President the votes are taken by States, the representation from each State having one vote; in this way they again act as so many distinct and co-equal bodies politic. It thus appears that the executive government of the United States is of a mixed character, presenting at least as many federal as national features. (Madison, in The Federalist, No. xxxix., pp. 237–8; Foster's Comm., I., p. 106.)

The Executive of the Commonwealth is, in the Constitution, styled a “Federal Executive.” There is reason to believe that the word federal is there used in a sense approximating to “National,” already explained as one of the several meanings of the term. In the appointment and composition of the executive of the Commonwealth no hard and fast rules are laid down. Nominally the ministers of the Commonwealth will be chosen and appointed by the Governor-General; but his choice will be, in practice, confined to those statesmen who are able to command the confidence and secure the support of the House of Representatives, and who at the same time will be able to maintain the harmony and co-operation of the two Houses in the work of carrying on the business of the country.

Nationalism in the Judicial System.—The Constitution is National so far as it makes the laws of the Commonwealth binding on the people, Courts and Judges of every State; so far as the High Court has jurisdiction (sec. 73—ii.) to hear and determine appeals from State courts on questions of State laws; so far as the High Court has original jurisdiction (sec. 75) in certain classes of matters; so far as the Parliament has power to make laws (sec. 76) conferring original jurisdiction on the High Court in certain other classes of matters; so far as the Federal Parliament has power (sec. 77 iii.) to nationalize State courts by investing them with Federal jurisdiction.

Federalism in the Judicial System.—The Constitution is federal so far as it preserves the operation of State laws, not inconsistent with Commonwealth laws; so far as the State courts have exclusively original and primary jurisdiction to entertain matters in which State laws are involved; so far as it provides that the trial, on indictment, of an offence against any law of the Commonwealth shall be held in the State where the offence was committed (sec. 80).

Amendment—Federal and National.—“If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the Convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by States, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character.” (Madison, in The Federalist, No. xxxix., p. 237–8; Foster's Comm., I., p. 106.)

Composite Character of the Constitution.—In the primary sense of the word “federal,” therefore, the Constitution of the Commonwealth is a remarkable compound of the federal and national elements. It is not wholly National, it is not wholly Federal, but a compound of both. In the sources from which the ordinary powers of government are drawn, people and States, it is partly federal and partly national; in


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the operation of its laws on individuals it is national and not federal; in the appointment and tenure of its Executive it is national and not federal; in the wide jurisdiction of its judiciary it is more national than federal; in its guarantee of State rights it is federal; in its imposition of disabilities on States it is federal; and finally in the authoritative mode of carrying amendments by requiring a majority of all votes, as well as majorities of the people voting in the majority of States, it is partly federal and partly national. (Madison, in The Federalist, No. xxxix.; Lodge's ed., p. 239.)

(2.) FEDERAL AND NATIONAL: NEWER SENSE.—We may now analyse the federal and national elements of the Constitution in the more modern sense; describing as federal those features in which the structure of the central organs of government, and the distribution of powers between the central and local governments, recognize the duality of national and provincial interests; and describing as national those features in which this duality of interest is not recognized.

Structure of the Federal Parliament.—The structure of the two Houses of Parliament is completely federal—the House of Representatives embodying the national aspect, and the Senate the provincial aspect, of the federal duality. But in the exclusive powers of the House of Representatives with regard to the initiation and amendment of money bills there is a predominating national element; and this is still further emphasized in the “deadlock clause” (sec. 57), which is designed to ensure that a decisive and determined majority in the national chamber shall be able to overcome the resistance of a majority in the provincial chamber.

Structure of the Federal Executive and Judiciary.—The other two departments show, in their composition, no sign of the federal duality. It has indeed been argued that the political necessity of securing the assent of both Houses to government legislation will place the Executive practically under a double control; but even if this were so, it would affect legislative policy rather than the execution of the laws. In fact, so far as the structure of the organs of government goes, the federal element has its stronghold in the legislative organ. In the making of laws, even within the sphere entrusted to the national legislature, it was felt that provincial interests should be represented; but the execution and interpretation of those laws, when made, was recognized to be a national matter alone.

Powers of the Federal Parliament.—It is in the distribution of legislative powers between the Federal Parliament and the State Parliaments that the fundamentally federal basis of the Constitution is most apparent; yet even here there is a distinct predominance of the national element. Looking down the sub-sections of sec. 51, we find that in many of them the principle of duality is expressly recognized, and the exclusive domestic jurisdiction of the States expressly reserved. For instance, the trade and commerce power is confined to inter-State and foreign trade and commerce, and it is hedged in (Chap. IV.) with a number of minute restrictions to prevent injustice or discrimination as between States. The federal power of imposing taxation and granting bounties is similiarly hedged about with conditions for the protection of the States. In sub-sec. x., the power over fisheries is confined to waters beyond territorial limits—the territorial rights of the States being thus reserved. In sub-secs. xiii. and xiv., the powers as to Banking and Insurance also contain a reservation of State rights. In sub-sec. xxxv., power to deal with conciliation and arbitration is only given in the case of inter-State industrial disputes, and so on. In all these cases, the duality of interest is recognized in the very gift of the power to the Federal Parliament, and the distribution of power is thus essentially federal. But in most of the sub-sections this nice analysis is not found. The advantages of uniform legislation, especially in matters relating to commerce, have prevailed over the sentiment of local independence; and we find that if a subject has, on the whole, a national aspect, it is handed over unconditionally to the national legislature. Thus posts and telegraphs, defences, quarantine, currency, weights and measures, bills of exchange and promissory notes, bankruptcy and insolvency, copyrights, patents, and trade-marks, naturalization and aliens, trading


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and financial corporations, marriage and divorce, and other subjects, are made unconditionally national. No State reserves any rights with respect to its internal posts and telegraphs, or of marriages between its own citizens; on all these subjects the distinction between internal and inter-State jurisdiction is abolished. These subjects are not federalized. but nationalized—or at least, the power to nationalize them is given to the Federal Parliament.

Powers of the Federal Executive.—The executive power is of course co-extensive with the legislative power. It extends to the execution of the laws made by the Parliament. Consequently it combines federal and national features in exactly the same way.

Powers of the Federal Judiciary.—The original jurisdiction of the federal courts is based entirely on the dual principal of distribution of powers. It embraces at the outset five classes of matters, of a specially federal character, and can only be extended by the Parliament to four other classes of matters of a federal character. In all other matters the original jurisdiction of the State courts is exclusive.

The appellate jurisdiction of the High Court, on the other hand, is completely national—and is in fact the most national element in the whole Constitution. It extends —subject only to partial limitation by the Federal Parliament—to cases of every description decided by the Supreme Courts of the States, whether of federal concern or not. The High Court is, in fact, not a federal court of appeal, but a national court of appeal.

The Amending Power.—Lastly, with regard to the power of amendment, the Constitution is federal. In the initiation of amendments the dual principle is recognized in the power given to either House—the House representing the Nation, or the House representing the States—to submit a proposal to the Referendum. And at the Referendum, the dual principle is further recognized by the power of veto given both to a majority of the people and to a majority of the States.

Composite Character of the Constitution.—It thus appears that even according to the more modern meaning of the word “federal”—which recognizes the national as well as the provincial elements of federalism—the Constitution may be described as partly federal and partly national. That is to say, it contains not only those national elements which appertain to a pure Federation, but also some further national elements which appertain rather to a Unification. This is especially the case with regard to the wide extent of some of its legislative powers, and with regard to the unlimited appellate jurisdiction of the High Court.

THE EVOLUTION Of NATIONALISM.—Whilst the life of the Commonwealth will begin with a clear differentiation of function and status, as between it and its corporate units, the States, it does not follow that the outlines and objects of that differentiation will be distinctly and permanently preserved. There will be, at the outset, a clear demarcation of spheres, a clear delimitation of powers separating the Central Government from the State Governments; but the initial law must not be regarded as expressing a relationship as unchanging as the laws of the Medes and Persians. The Constitution will be capable of change and evolution, arising from the altered conditions of the people whom it is designed to govern. It will be a living organism, animated and dominated by the pulsations of vital forces inherent in every community. It must not be considered as expressing finality in form or principle. If it attempted to restrict the potentialities of future growth and expansion, it would stand self-condemned, as antagonistic to reason, and blind to the lessons and experience of the past. It does not do so. For some years the national principles may be weak or dormant—the occasion may not arise to call them into marked activity. Nations are made only by great occasions, not by paper constitutions. But the energy will be there, and in the fulness of time, when the opportunity comes, the nation will arise like a bridegroom coming forth from his chamber, like a strong man to run a race. This change will not


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necessarily imply any conflict with the States, because the people of the States, who are also the people of the nation, will throb with the new life, and will be disposed to yield to the irresistible pressure of nationhood. In the adaptability of the Constitution, and (should need arise) in the power of amending the Constitution—the facilities for which are far greater than in the United States—there is ample room for the growth and development of such tendencies as may assert themselves in the present or the distant future of the Commonwealth. The Constitution will come into operation under the fair and well-distributed influence of two forces. One of those forces will be the centralizing attraction of the Commonwealth, and its tendency to detract from the power and dignity of its corporate units the States. The other will be the centrifuga disposition of the States. They will desire to retain their constitutional status unimpaired—to assert State rights and State interests in the Senate—to subordinate Commonwealth policy, and restrict encroachment and invasion by the Central Government on the provincial spheres. In this struggle and competition for supremacy it would, without the aid and enlightenment of experience in other countries, be difficult to conjecture whether in the end the State or the national principle would conquer. Securely entrenched in the Senate behind the ramparts of equal representation, it might be argued that the States would in the end “boss” the Federal legislative machine, and either clog it altogether, or mould its decrees to suit the views of a majority of States, regardless of the interests of the people of the Commonwealth as a whole.

That, however, has not been the experience of the Federal Republic of the United States of America, from which we have copied the principle of equal State representation and the recognition of the States as integral parts of the Federal Union. Mr. Bryce says that—except during the slavery struggle, when the Senate happened to be under the control of the slave-holders, and when it asserted State rights and State sovereignty —the Senate has never been the stronghold of small States, for American politics have never turned on the antagonism between two sets of Commonwealths, but rather on the conflicts of parties. The national spirit which was growing as a silent force, after a long battle with the doctrine of State sovereignty, eventually emerged safely and soared victoriously over all opposition. The latent ambiguity in that Constitution as to whether the United States formed a compact dissoluble at will, or whether it was an indestructible union of indestructible States, was for ever swept away by the Civil War; it was that ambiguity alone which gave rise to the doctrine of secession and nullification which caused the war. After the war there yet remained the question whether the national element would, as a silent force, acting without any express amendment, prove more potent and assertive than the State element.

A few years before 1889, when Mr. Bryce published his book, the American Protestant-Episcopal Church, at its annual Convention, introduced, among the short sentence prayers, one suggested by an eminent New England divine, in these words:— “O Lord, bless our nation.” Next day the prayer was brought up for re-consideration, when so many objections were raised by the laity to the word nation as importing a recognition of national unity that it was dropped, and instead there were adopted the words, “O Lord, bless the United States.” (Amer. Comm., I., p. 12.)

THE TRUE IDEAL Of FEDERALISM.—The drift of the development of the American Constitution is indicated in the following extracts from an essay entitled “The Ideal American Commonwealth,” written by Dr. Burgess and published in the “Political Science Quarterly Review,” vol. 10:—

“I do not think that it need be feared that the doctrine of the sovereignty of the several states will again seriously threaten this development. The Civil War fixed the principle of our polity, that the nation alone is the sovereign, that the nation alone is the real state. We do still hear, indeed, the phrase ‘sovereignty of the states within their respective spheres:’ but this only signifies that we have not yet invented the new forms of expression to fit the new order of things. All that we can now mean by the old phrase is: that realm of autonomy reserved to the states by the sovereignty of the nation declared through the constitution” (pp. 408, 410).




  ― 342 ―

“The language of the constitution of 1787 may be construed, and I think should be construed, as changing a confederacy of sovereignties into a national state with federal government, that is with a system of government in which the powers are distributed by the national constitution, either expressly or impliedly, specifically or generally, between two sets of government organs, largely independent of each other. Yet, on the other hand, it may be construed with much show of logic as having simply substituted the people of the several states for their legislatures, that is for the organic bodies in the confederate constitution of 1781. … But I think this theory is now wholly erroneous. It will not fit facts of our history since 1860. Those facts can be explained only upon the theory that federalism with us now means a national state, with two sets of governmental organs, largely independent of each other, but each deriving its powers and authorities ultimately from a common source, namely, the sovereignty of the nation. And this conception of a governmental system I claim to be purely an American product. It is, however, the true ideal of federalism, and all other nations must, I believe, ultimately come to it. It reconciles the imperialism of the Romans, the local autonomy of the Greeks, and the individual liberty of the Teutons, and preserves what is genuine and enduring in each.” (Id. 416.)

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