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I. Australian Federation.




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1. The Three Courses.

THERE are three courses before any group of provinces or of neighbouring states. These are—(1) unification; (2) separate existence; while between these two extremes lies the via media of (3) federation. Great Britain, and France, and Spain, and Italy developed from collections of states into unification, while Germany, Switzerland, and the great British-American communities have become federations.

Unification is the first policy on the list, but it can be set aside as impossible for Australia. The smallest consideration shows that it would be hopeless to think of creating the one unified Australian state, with a simple drop from the central Government to the municipal council. Every colonist is very well aware that if Queensland and New South Wales and South Australia were to undertake to arrange the local affairs of Victoria, there would soon be dissatisfaction of an intense and determined character. The people would insist upon constructing the particular public works they wanted. They


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would demand as large a number of policemen and as many stipendiary magistrates as they chose to pay for. They would claim to deal in their own way with their public estate, and also the right to create what municipal institutions they pleased, and to regulate and to provide for education also at pleasure. If Victoria had to take orders from some outside centre on those subjects, there would soon be an incipient revolt; and so it would be with each colony in turn. The whole past of Australia is eloquent on this point. In the beginning we had unification here but colony after colony broke off from the original state in order to obtain the local expenditure of the local revenue, the local management of local affairs. This lesson, it may be said, has not been learned in vain. Probably not a province nor a politician but is sufficiently wise to know that the one state cannot understand nor deal with the domestic affairs of its neighbour so well as that neighbour can itself, and consequently there is no call anywhere in Australia for an impossible unification.

Unification is unattainable, and, on the other hand, every patriot, in proportion as his patriotism is intelligent and fervent, will unhesitatingly condemn the policy of isolation. That is a path easy to tread, but it is the downward path, and, happily, it becomes less difficult day by day to establish this much to a community which desires to take the upward way. There is a general feeling that Australia must be


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substantially reserved for the occupation of the European race—that the inferior members of the human family should be here only to fill up interstices in the community. Perhaps no sentiment is more widespread and is stronger in effect than this; but it is clear that if we are to guarantee purity of race and constancy of possession there must be a general Government, inasmuch as otherwise some northern colony, tempted by the desire to turn its estates to immediate account, might let in Mongol or Malay wholesale, with complications that are too obvious to need explanation. So with defence. Although no one likes to dwell upon such a contingency, it is possible that the mother country might lose the command of the sea for a period, and at such a moment a foreign power, considering the advisability of seizing some one part of Australia, would be necessarily greatly influenced by the consideration whether the other colonies would say, “Oh, Brisbane has gone to the foe, and half Queensland, but what is Queensland to us;” or whether they would say, “To seize a hamlet anywhere is to invade Australian territory, and the resistance must be of all Australia to the last shilling and the shelter of the final scrub.” And then, again, every colonial who thinks realises the supreme importance of the creation of some national authority to which all will bow, and which shall render innocuous all provincial strife. The fate and the fortunes of the petty American States are


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a significant warning to us here. The wars which have raged between Great Britain and the United States are over, it is to be hoped, for ever, and it is difficult to suppose that English-speaking peoples would ever condescend to the petty struggles of Chili and Peru, and of Guatemala, Ecuador, Costa Rica, and Honduras. But what is not only possible, but is almost certain, is that if the Australian colonies live apart a provincialism will flourish of the rankest growth, jealousies will be bitter, and instead of good work being done for the common whole, each part will consider that it has secured a benefit when it has injured a neighbour. The river question affords a familiar illustration. The Government of New South Wales can divert one at least of the Gippsland streams into the Murray. It can impound the upper Murray and use its waters in Riverina, and it has been advised to adopt both schemes; and if in anger or in careless indifference to outside opinion it entered upon such a policy, no one can measure the indignation which could be worked up in Victoria, nor could guess its mode of expression. Such issues confront us in every part of Australia. Every Australian must realise it to be a scandal and a shame that the products of one part of the land cannot be freely transported for sale or exchange to any other part of Australia, and yet each new impost goes to strengthen the provincial policy of hostile Custom-houses on imaginary border lines in the


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interior such as exist in no other part of the world. It would seem as if, separated, we might gradually descend to some terrible depth of mean and injurious reprisals, while union opens up a path to the highest pinnacle of national greatness.

Thus we are driven by the exclusion of the other plans to the third and last course of federation. English constitutional writers have scarcely given the federal scheme the attention it deserves. The most of the authors who have essayed the subject have reasons of their own for disliking federation, and for preferring unification, and the consequence is a nonsympathetic treatment of the issue. It may be said that federation becomes desirable where, on the one hand, the country is too enormous in extent and too diverse in conditions for its internal affairs to be satisfactorily managed by one central Government, while, on the other hand, the communities have certain common interests best served by their coming together, or are confronted by common dangers if they keep apart. There is no reason in the nature of things why England, Scotland, and Wales should be federal. In area they do not constitute one small Australian colony. The people are practically of the same race, language and religion, and unification is the natural condition of such a territory. But if the same race occupied Sweden, and Norway, and Denmark, and Germany, and France, and Spain, and Portugal, and Austria, and Italy, and Greece, and


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Turkey, the administration of all affairs from a common centre would be found practically impossible. The existence of a free people would also render a Russian despotism impossible. The choice would be between disintegration and federation. And this is the Australian position.

Happily there is little need to labour the argument in favour of some measure of Australian unity. A feeling is abroad of loyalty to Australia and of attachment to the “land we live in,” and it is a feeling that must daily gather strength. And it is self-evident that to give effect to this kindling patriotism we must consolidate and not disintegrate the communities which nature has so plainly marked out for the one nation. Self-respect would seem to force on this policy of union. In the outside world the mere colonist of Victoria, South Australia, or New South Wales is comparatively a nobody, while as an Australian he ranks at once as a “citizen of no mean state.”

It is conceded by the thoughtful that the British Empire itself can only avoid the disruption of its present parts by passing gradually into a federation. The present relation between the colonies and the mother country, excellent as it is for the time, is obviously not one which can endure. As the years roll on Australia must rival America in population and in wealth, and the United States of to-day could not exist as a dependency without a voice in such ultimate issues as those of peace and war. The


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noblest and the most far-seeing of England's sons frankly recognise that the empire must federate if it is to hold together, and they also see that prior to the union of the whole there must be the federation of the parts. Hence the men whose end is Imperial Federation accept Colonial Federation as their means. There is no more powerful advocate of Imperial Federation than Principal Grant, and a statement which he has recently made upon the subject may be read with advantage. Delivering an address at Winnipeg, Dr. Grant said:— “Even Australasia—in my opinion—is not yet ripe for Imperial Federation, because it has not yet taken the step of Australian Federation. It is making tentative efforts in that direction. So far as I could discern during a brief visit there, the only opposition that has any vitality in it to Imperial Federation comes from men who regard it as a red herring drawn across the trail of Australian unity; and only when Australian unity has been consummated will the noblest minds—the minds that in the long run determine the thinking and action of a great people—be in a position to invite themselves and others to a far higher point of view.”

A party exists no doubt in Australia, with organs in the Sydney and Queensland press, which has separation for its aim, and this party also does not quarrel with Colonial Federation. It believes that a union of the colonies is necessary for independence, as much as the other people believe that union is


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necessary in order to establish cohesion of the empire. So far the two antagonistic sections travel together; their break will not necessarily occur until after the event of the organisation of Australia. They both recognise that whatever the destiny of the colonies may be it is a primary duty to bring Australia together as a nation. The one real opponent of federation is the provincialist, who wants each party to have its own laws and its own markets, and who sees nothing improper in the existence of a group of bickering states. Better that, the provincialist says, than have some petty passing interest of his own interfered with. The provincialist has always existed in all federal communities, and his strength lies in the fostering of jealousies, creation of obstacles, and in the exaggeration of difficulties.

2. A Distinctive Australian Feature.

The labourers in the cause of federation in Australia have an immense advantage over the English speaking communities who have hitherto essayed the task. The Convention presided over by George Washington at Philadelphia had no experience to guide it. Its members could only fall back upon the Achaian and Lycian Leagues for precedents, while they took Blackstone as their guide for the principles


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of the British Constitution, and Blackstone was already obsolete, and they are known to have been powerfully swayed by Montesquieu and his work Esprit des Lois, and Montesquieu was a theorist. We, however, can refer to great and successful countries for methods which they framed with doubt, but which we can adopt without the loss of time that hesitation brings with it. But for the federal procedure which lies ready made to hand—which has been tried and which has stood the test—the Sydney Convention could scarcely have hoped to complete its task in the limits of time available for its labours.

On the other hand it is certain that the federation we shall achieve here will not be American, nor Canadian, nor German, nor Swiss, but will be distinctly Australian, and this, owing to circumstances over which no individual or group of individuals has control. In the first place, each of the Australian states is likely to be an empire or a kingdom in its territorial dimensions, and in the next place these states will be possessed of great powers, not exercised by the central or national Government elsewhere, and for the most part incapable of being so exercised—powers which are taken not from the Crown nor from the central executive nor from the Legislature, but are in the instances of other countries left with the municipal bodies or with the people.

It is important to elucidate this point, because the Federal constitution will be framed by members of


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the local Parliaments, and will require to be ratified by those Parliaments; and as everyone acquainted with those Parliaments is aware—as the discussion about the Federal Council disclosed—there is a great fear among among hon. members that, under a federal régime, the Australian colonies will sink to the level of an American state, and the position of a Legislature in an American state is not so high as that of the Parliament of an Australian colony. Hence it is common to hear statements in political circles to the effect that it will not be wise to go so far as America and Canada have done. There is a coolness towards a system which may lessen the prestige of the local institution while benefiting Australia. There is a disposition to starve the Federal power. This is the first “lion in the path.” But if the situation is fairly faced this prejudice ought to disappear. It will be found that the example of the American state, the German duchy, the Canadian province, and the Swiss canton is to some extent misleading, and that each Australian territory will be possessed of powers that will secure it a prestige and a position of its own.

The powers in question are the very life blood of our social organisation in Australia. The construction and the management of the railways comes first upon the list. In Great Britain no statesman of the first class has ventured to propose that the Government should undertake this task of railway building and railway management,


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and in America the man who bruited the idea would be regarded as a mere dreamer. There are many reasons why the 160,000 miles of railway in the States are incapable of being concentrated in any single organisation. So with public works. These in Great Britain and in America are sedulously left to the individual or the municipality. Irrigation works in particular are never touched by the State, and it is not the Central Government nor the State Government that erects courthouses, gaols, and lunatic asylums, but the municipality. The police in both the old world and the new is under municipal control. So also is education. The power which makes and manages the railways, which takes charge of public works, which manages the police, and which is responsible for education, must always be a great power—probably the great power—in the realm, and that power must be here, the province, state, or colony, and not the Federal Government. This is self-evident. For though there are critics who contend that we should decentralise in these matters, and should transfer authority to local bodies and to the people, there are none to say that we should centralise still more, and should hand over quasi-local and quasi-trading functions to a body far more remote from the scene of operations than the Government of the province.

So little do the states of the American Union embark in public works that in many instances the


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state constitution puts a veto on borrowing. The constitution of the State of Arkansas contains a section—“Neither the state nor any city county town or other municipality in this state shall ever loan its credit for any purpose whatever.” Other states are equally stringent in their regulations. In other instances the amount of the loans which may be floated is strictly limited. In America the state is not expected, and is often not allowed, to develop the resources of the country. The residents must do that work themselves, but in Australia the development of the resources of the country is regarded as the principal task of the Government of the colony, and the enormous difference thus made in the status of the two communities is evident at a glance.

The total debt of the various States of the Union is under £40,000,000, which is an average of £750,000 per state. But New South Wales has herself a public debt of over £40,000,000, and so has Victoria. Or the difference may be brought out by comparing the average of state debts per head in America and in Australia. The figures are:—

     
State Debts per head. 
America ...  ...  ... £0 13s. 0d. 
Australia ...  ...  ... £40 5s. 0d. 

This calculation excludes the national debt of the American Union, which is a war debt, which is being as rapidly paid off as the dates of the securities will allow, and which has no corresponding obligation here.


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The American States are decreasing their liabilities under pressure from the electors; the Australian colonies are steadily increasing their public investment. These facts alone show that the position of the two bodies is not comparable.

The element of size has also to be taken into account. When we look at the States of America, and even the provinces of Canada, they shrink into insignificance in comparison with the size of the Australian territories, and the size of the state in itself dignifies the duties cast upon it. Our provinces will, as a mere matter of fact, be provinces upon a scale without a parallel in the world, and what this means as regards their own individual importance is apparent to all. We cannot imagine Australia divided into more than a dozen states. Victoria and New South Wales are likely to remain as they are. Queensland may be cut up into three portions, but scarcely more. Western Australia may divide into three or four at the utmost, South Australia may possibly be parcelled into three, and Tasmania completes the dozen. But this will be about all. The twelve Australian States will average each an area of 250,000 square miles, Tasmania being the smallest unit of the group, and Victoria the next. To give an idea of the real size of these areas, it may be borne in mind that the empire of Germany, with its historic kingdoms and its grand duchies, contains 212,000 square miles in all; or, in other words, the


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empire of Germany is, in territorial area, considerably smaller than will be the average Australian province even after subdivision has been pushed to its limits. It can hardly be said that the legislative bodies which will construct and manage the railways and the public works, and will have charge of the education and the public lands, and the internal revenue of domains imperial in their proportions, can do other than loom large in the public imagination.

In the United States the carving of states out of the territories is still going on, and it looks as if there would be 50 or 60 states before the subdivision is concluded, and these states will be constituted in an area of practically the Australian size. The average size of the states already formed is 50,000 square miles, each, therefore, being one-fifth of the size of the thoroughly subdivided Australia which has been imagined as existing a century hence. The average size of eight of the leading New England States, including New York, Massachusetts, and Vermont, is 11,000 square miles, so that, placing Victoria in the same position, she would be cut up into eight such states. Eastern Gippsland would be a state with Bairnsdale as its chief town. Western Gippsland would centre on Sale. The Western district would be a separate province, with Hamilton as its city. Ballarat, Sandhurst, and Beechworth would be centres of separate states. Geelong would be the capital of the state of Grant, and Melbourne would take the


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remainder of the territory, say from Macedon and Marysville to the sea. A subdivided Gippsland can be imagined as having little weight or importance in a union, but Victoria as a whole—though the smallest of the continental states—will always be a power. The Canadian States promise to be larger than those of the neighbouring republic, but the five primary states of the Dominion might all be put into New South Wales, and the Australian colony would still have territory to spare. Switzerland, with its 22 cantons, has an area of 15,000 square miles, so that it is no larger than the corner of an Australian colony. A dozen of the cantons or more would go into an Australian county.

Six of the smallest American states are picked below to contrast with the six existing Australian colonies. This is the extreme example; but as the American states in question are as much sovereign states as any of their neighbours, the contrast between them and the gigantic provinces of Australia is instructive.

AMERICAN STATES.

               
Square Miles. 
Rhode Island  ...  ...  1,045 
New Jersey ...  ...  ...  7,445 
New Hampshire  ...  ...  9,005 
Massachusetts  ...  ...  8,040 
Vermont ...  ...  ...  9,135 
Maryland ...  ...  ...  9,860 
44,530 




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AUSTRALIAN STATES.

               
Square Miles. 
Western Australia  ...  ...  1,060,000 
South Australia  ...  ...  903,425 
Queensland ...  ...  ...  668,497 
New South Wales  ...  ...  310,700 
Victoria ...  ...  ...  87,884 
Tasmania ...  ...  ...  26,215 
3,056,721 

The American, the German, the Swiss, and, in a measure, the Canadian confederations, are all composed of states which are pigmies in size, and consequently in possibilities, when compared with the enormous provinces of Australia. Australia will present the one spectacle of a few great national provinces allied together for federal purposes. And these provinces will not only have the dignity and the prestige which comes from vast size, but they will exercise important powers not possessed by other countries. Under these circumstances it is plain that there is no need for the colonies of Australia to grudge the Federal Government any of the functions which are bestowed upon federal governments elsewhere. On the contrary, all these and other functions can be freely bestowed, and the provinces can still retain a position which states and territories elsewhere can never hope to secure. The provincial jealousy, which has been so powerful a factor elsewhere, has no occasion to assert itself here as against national


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functions. We can afford to endow the Federal or Australian Government liberally with power and still be safe. We can certainly give all that is conceded in other countries—and there can be no need to delegate more—without any risk of endangering the individuality of states possessed of inherent powers so large and important.

According to a calculation made by Mr. McMillan, the Treasurer of New South Wales, the Federal outlay at the present time would be about £2,200,000 per annum, while the gross revenues of the seven colonies in 1889 amounted to £28,738,000. Under a federal system, therefore, the present revenues would be:—

   
Federal revenue  ...  £2,200,000 
States revenue  ...  26,538,000 

Such a return as this may well quiet local fears by showing that the provinces are not to be snuffed out. The two powers have different spheres. To the states belong everyday matters, while the Federal Government provides for defence without, and for tranquillity within, regulates commerce, takes charge of the marriage and other general laws, is the final dealer of justice, and represents the people before the world. The state is always with us, but to the nation belongs the higher life.

The possibility of delegating largely to Australia, while retaining great power and prestige for the provinces, is the dominant feature of the Australian situation.




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3. The Federal Powers.

The importance of the powers which attach to the Australian colony or state has been dwelt upon in order to show that under no federal system can these colonies or states lapse into insignificance, but that in the nature of things they must retain a higher position than either the American state or the Canadian province. It is now necessary to mention the powers which the provinces must surrender in order to create a Dominion or a Federal Government. Taking the United States of America first as an example of great interest, it will be found that Congress is empowered to—

1. Impose taxes, duties, and imposts to provide for the common defence and general welfare of the states; all duties, imposts, or excise to be uniform throughout the states.

2. To borrow money.

3. To regulate commerce.

4. To legislate on naturalisation and bankruptcies.

5. To coin money.

6. To establish postal services.

7. To pass patent laws.

8. To constitute federal law courts.

9. To punish offences on the high seas.

10. To declare war.




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11. To raise and support armies and a navy.

12. To provide for a militia in conjunction with the states, and to erect forts, arsenals, etc., where required.

And Congress is forbidden—

1. To suspend habeas corpus, except the public safety so demand.

2. To pass ex post facto laws or bills of attainder.

3. To levy taxes or duties on any article exported from any state.

4. To give preference to any port.

5. To grant titles of nobility.

The above list is a complete summary of all the powers conferred upon Congress by the constitution. The Federal Legislature here could not have the power to declare war. That right, it is clear, must be vested in the Crown for the benefit of the empire as a whole until it is transferred to an Imperial Federal Council. But the other provisions, simple as they look, have enabled the American Government to create a nation and to exercise a national power which is felt and acknowledged as a national power both in America and the whole world over, and anyone who reads the list will see that it is perfectly practicable for us to transfer the same powers to an Australian Parliament to-morrow if we are so disposed. Constantly we hear demands made for Australian


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commercial legislation, for an Australian law of insolvency, for Australian patent laws, for an Australian postal service, and for rendering our land and sea forces Australian in character. If we federate on the American lines we do no more than provide for these boons plus the formation of a Customs union. The federal structure is composed of the simplest materials, but they are strong. Federation on these principles is like the lattice girder, apparently fragile and inadequate for its purpose, but yet equal to the strain of bridging a torrent, or the stress of sustaining some storm-defying tower.

In one important matter Australia would probably add to the American list. Everyone here would willingly agree that marriage and divorce should be remitted to the Federal Legislature, and, indeed, both for moral and political reasons, this arrangement would probably be insisted upon. The circumstance that there are forty marriage laws in the States is one of the scandals of the Union, and there would be a sensitive desire to raise the status of the Australian marriage bond.

A Federal Government with these few powers occupies a great position, because it is the Government which represents the provinces of which it is composed to the world. The several members of the Union are unknown to other powers whose representations are all made to the federal Parliament. It makes treaties, appoints and receives ambassadors,


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and it is to strangers the national Executive. This ensures its position, yet in home affairs the state or province will in a federation always be likely to be the more practically important to the citizen.

The Canadian reference appears at first to go somewhat further than that of the United States. The subjects specifically remitted to the Dominion Parliament are—

1. The public debt and property.

2. The regulation of trade and commerce.

3. The raising of money by any mode or system of taxation.

4. The borrowing of money on the public credit.

5. Postal service.

6. The census and statistics.

7. Militia, military, and naval service, and defence.

8. The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada.

9. Beacons, buoys, lighthouses, and Sable Island.

10. Navigation and shipping.

11. Quarantine and the establishment and maintenance of marine hospitals.

12. Sea coast and inland fisheries.

13. Ferries between a province and any British or foreign country or between two provinces.

14. Currency and coinage.




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15. Banking, incorporation of banks, and the issue of paper money.

16. Savings banks.

17. Weights and measures.

18. Bills of exchange and promissory notes.

19. Interest.

20. Legal tender.

21. Bankruptcy and insolvency.

22. Patents of inventions and discovery.

23. Copyrights.

24. Indians, and lands reserved for the Indians.

25. Naturalisation and aliens.

26. Marriage and divorce.

27. The criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.

28. The establishment, maintenance, and management of penitentiaries.

To a large extent, however, the difference in the subjects mentioned in the two references is one of words. The public debt is named, but the public debt of Canada is not the local investment debt of Australia. Marriage and divorce is added to the Canadian list, but, unfortunately, a concurrent jurisdiction was given to the provinces. Criminal law is also transferred to the federal body. Switzerland gives less power to its federation than does Canada and the United States, and Germany gives no more.




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4. The Tariff Question.

The more the reader studies the two lists the more he will be disposed to coincide with the opinion that— conceding one main point—it is not only possible, but that it is easy, for the Australian states or colonies, without suffering any material loss of authority themselves, to transfer the powers necessary for creating a Federal Dominion. The point to be conceded is this —that the colony shall forego the right of levying Customs dues, and shall vest that right in the General Government. Thus much granted, and the course is comparatively clear. The big jump has been negotiated.

This concession, it must be stated, is indispensable. There have been Customs unions without federation, but there are no federations without a Customs compact. The German Empire of to-day was founded not by Bismarck—who completed the task—but by the Zollverein, which was a Customs union pure and simple. The delegates met to arrange for a tariff which should be common to the various states in the bond, and to provide for the division of the proceeds pro rata. The Customs union had a small beginning, but one state joined after another, and, as it grew, so the desire for German unity increased, and so what was a dream at first became more and more possible. The Zollverein left some few incongruities and some


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outstanding ports, and the empire swept these remaining anomalies away. The Swiss Federal Government levies all import and export duties, so that there is free intercourse between the cantons. So it is in Canada; so in the United States. In one and all the examples we have before us federation implies the free intercourse of the affected states. The kingdoms, duchies, cantons, colonies, or provinces come together for the purpose of mutual aid and support, and to talk at the same time of hostile tariffs, of restricted intercourse, of endeavours to injure each other commercially, and also of federation, is to indulge in a contradiction in terms.

It is a mistake to suppose that the United States Federation was formed by the war with England, or that the Canadian Dominion was established to give home rule to the French Catholics of Quebec, or to present a bold front to a threatened invasion from the United States. These considerations were factors in the sum, but that is all. It is too frequently overlooked that the American Confederation, which was formed to resist Great Britain, broke down badly when it had accomplished its task. The Confederate Government of the day had no hold upon the people, and little control over the states, and its edicts were jeered at. And but for the necessity for a commercial union there is every reason to suppose that there would have been no subsequent federal pact, the colonies instead forming so many independent pigmy


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communities. Bryce quotes from the memorial oration of the celebration of the 100th anniversary of the constitution, delivered by Mr. Justice Miller, as follows (vol. I, page 26, American Commonwealth): —“It is not a little remarkable that the suggestion which finally led to the relief, without which as a nation we must soon have perished, supports the philosophical maxim of modern times, that of all the agencies of civilisation and progress commerce is the most efficient. What our deranged finances, our discreditable failure to pay our debts, could not force the several states to attempt was brought about by a desire to be released from the evils of an unregulated and burdensome commercial intercourse.” In The United States: Its History and Constitution, by Alexander Johnstone (page 79), the statement is made that one of the main influences at work in forcing on federation was that “state selfishness began to show itself in the regulation of the duties on imports.” Dr. Hart also declares (Federal Government: Monograph, page 56) that commercial interests led to the calling of the Philadelphia Convention, and were the “cement of the union.” The same principle was at work in Canada. Up to 1865 a reciprocity treaty existed between the United States and Canada for the free admission of each other's products, and on the termination of that treaty Canada felt the importance of securing the one large home market in order that her industries might be put upon a broad basis


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and have natural proportions. Her statesmen saw that if the provinces turned their energies to internecine warfare the end would be disastrous to all, and they worked resolutely to avert the danger. In every federal instance the keystone which keeps the arch from collapse is the uniform tariff, with its accompaniment of free internal intercourse, and it does not appear how Australia is to be any exception to this rule.

On this issue the battle is sure to be fought. The provincialists will rally their forces to show that it is an unfair thing that Victoria should be flooded with cheap produce from the sister states, and in Sydney and in Brisbane the tale will be that Victorian produce and Victorian manufactures must both be excluded. In the south the phrase will pass from mouth to mouth, “We must tax Queensland cattle,” and in the north will be said, “We must keep out Victorian wheat, Victorian potatoes, and Victorian butter.” And the cry against Victorian manufactures will be raised all down the line. On the other hand, here the alarm has been already sounded that when New South Wales comes under a protective tariff her coal supply will enable her to pass Victoria— though incidentally it may be remarked that so little does a few pence in the price of coal affect manufactures in comparison with other factors that the price of gas in Melbourne is lower than the price in Sydney. The Canadian debates show that


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the changes were rung there in the same manner. Quebec was to be ruined by the competition of Ontario, and Ontario was to be crippled by the competition of Quebec, and both were to crush Nova Scotia, while Nova Scotia was to be crushed by them. The event has confounded the critics, and both in Canada and in the United States, as in Germany, the enormous advantages of large free home markets is now conceded. No protectionist would disturb the existing arrangement.

The provincialists have urged, also, that as land is worth, say, IOs. per acre in Queensland back blocks, and is worth, say, £20 or £30 per acre in river flats in Victoria, an interchange of products would destroy land values here. If they will look to the United States and to the Dominion they will find that there is cheap land and dear land there although interchange exists, the fact of course being that land values are fixed by the two co-considerations of inherent fertility and of access to market. The keenest-eyed critic cannot, in fact, find aught in our fiscal circumstances to distinguish us from those great British communities which have federated with success.

It may be said that given a uniform tariff, a common commercial law, and the federation of a people is practically complete, inasmuch as the communities have daily reasons in their ordinary business for recognising that they are a unit. All


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other products are taxed, or are liable to be taxed. Theirs go free. Germany is open to every German producer. The States are open to Californian, and Texan, and New Yorker. Canada is open to every Canadian. And if there is an Australian Federation, the Australian who breeds a horse, or paints a picture, or grows a sack of corn, or makes a pair of boots will necessarily have the right to sell the produce of his labour in any market in Australia. This privilege once enjoyed comes to be regarded as a birthright. But there were Scotchmen who fought against the commercial union with Great Britain; there were Particularists who contended strongly in Germany for disintegration; there were provincialists who claimed that the Canadian colonies had a right to prey upon each other, and timid interests will take alarm in each colony in Australia. This is inevitable. And because alarmed interests always fight with desperation, we have here the crucial test. At the same time it is for the Australian party to clearly understand that the first condition of national existence is freedom of intercourse within the national bounds—that unless all internal barriers are thrown down there is no real, but only a make-believe, federation.

5. Disposal of the Customs Revenue.

Supposing that the principle is conceded that the one nation must have the one tariff—that federation


  ― 39 ―
implies a Customs union—the Sydney convention will then be face to face with a practical issue of some moment. What is the Dominion Legislature to do with the Customs revenue? How are the provinces to do without the Customs money?

The Australian colonies largely rely upon their Customs to keep them going. From the receipts at Customs they not only pay for all the services which are to be remitted to the Federal Dominion, but also for a large number of other services more costly than these, and perhaps more dear to them.

The amount raised by Customs dues in the Australian colonies in 1888 was as follows. The figures for Victoria, it is to be noted, are exceptionally heavy, as there was a “boom period”:—

                 
—  Amount.  Proportion to Total Taxation. 
£  Per Cent. 
Victoria ... ... ...  2,825,000  75 
New South Wales ...  1,885,000  70 
Queensland ... ...  1,350,000  85 
South Australia ...  535,000  72 
Tasmania ... ...  295,000  73 
Western Australia ...  160,000  88 
Total ... ...  7,050,000 

The average receipts from Customs are £2 7s. per head for the whole population of Australia. The Victorian receipts during “boom period” were £2 9s.


  ― 40 ―
per head, thus showing how close the average is between one colony and another. On the one hand it is to be observed that the Federal Government could not spend this money if it is to be confined to ordinary federal powers, and on the other hand the provinces could scarcely do without it.

A return laid before the National Convention gives a total Customs revenue for the colonies, with the addition of New Zealand, as £8,659,000 for the year 1889, or an average of £2 6s. 5d. per head. See APPENDIX.

Transfer the Customs to the Federal Government, and the Dominion has far too much money, while the provinces have far too little. The powers remitted to the Federal Government, such as the patent, the marriage, the banking, the currency, the naturalisation, and the insolvency laws involve a minimum of outlay, and the maximum expenditure occurs in connection with the provincial subjects of public works, police, and education. Hence the situation in the United States, where the Federal Government has far too much money for its limited demands, and where the authorities have been puzzled what to do with their surplus. The United States Customs produce the not very magnificent sum of 17s. per head, and this amount, as is well known, fills the United States Treasury to repletion. The war debt has been reduced wholesale, and now no less a sum than £22,000,000 per annum is paid away in war and


  ― 41 ―
other pensions as a means of keeping down the national balance. The taxes are maintained by the protectionists, but the McKinley tariff was designed to cut down the revenue receipts, first by increasing the duty on goods which can be made in America, so that any importations should be stopped; and next by sweeping away non-protective duties—those taxes which merely brought in money. A really successful protectionist tariff would, of course, bring in no revenue at all. It would stop importations, and leave the Customs nothing to collect, and the McKinley party is endeavouring to partly realise this ideal in order to get rid of the embarrassment of too much money. If America were raising £2 7s. per head from her Customs, as Australia, some radical change in the fiscal arrangements between the Federal and the States Governments would be imperative.

In America the state or province relies upon direct taxation, and seeks to render that taxation as light as possible by throwing the onus of all works and duties upon the counties, the cities, or townships, and upon private enterprise. Connecticut is a small state of 650,000 inhabitants, but it is quoted by Professor Bryce as illustrative of the other states, and it is a proof how very different are the circumstances here. The Connecticut contributions to revenue during the year 1884 may be roughly stated as follows:—

     
Federal Revenue (Customs and Excise)  ...  £800,000 
Municipal Taxes (Direct Taxes)  ...  1,400,000 
State Revenue (Direct Taxes) ...  ...  350,000 




  ― 42 ―

The state revenue is generally raised by a tax on all property, real or personal, and it is struck in conjunction with the municipal rates.

The practical politician will realise at once that the American system is not possible here. We cannot so largely endow the Federal Government, and we cannot so starve the state. Our guide will have to be Canada, where, as Dr. Bourinot says (Federal Government in Canada, page 73), this question was one which gave the delegates at Quebec the greatest difficulty. In all the Canadian provinces the sources of revenue were—as here—chiefly customs and excise duties. Some of the delegates from Ontario, where there had been for many years an admirable system of municipal government in existence, covering both local works and education, saw many advantages in direct taxation, but the representatives of the other provinces could not consent to such a proposition. In Nova Scotia, New Brunswick, and Prince Edward Island there were either no municipal bodies or those bodies—as in Victoria—largely relied upon annual subsidies from the state to enable them to meet their local necessities. All the delegates, adds Bourinot, felt that to force the provinces to resort to direct taxation in order to carry on their Governments would be fatal to the success of the Federal scheme.

This dictum may be applied to ourselves. The Federal Government will not largely relieve the burden of the Provincial Governments, and Victoria,


  ― 43 ―
for one colony, could not be asked to give away its Customs receipts of £2,500,000 and to raise an equivalent sum by direct taxation. It was finally decided in Canada to grant annual subsidies to the provinces based on population, the relative debts, the financial position, and such other facts as could be fairly brought into the consideration of the case, and it is from these subsidies that the provinces derive the greater part of their revenue.

This substantially will, it may be assumed, be the Australian arrangement. Apart altogether from issues of free trade and protection, it is certain that here, as in other countries, the bulk of the state revenue must come from indirect taxation, that is to say, from the Customs, and as the provinces will undertake the most of the public works they must receive the most of the Customs dues.

6. The Public Debt and The Public Estate.

The question whether the public debts and the public estate of the various colonies shall be transferred to the Australian Government is one of the big subjects which have to be dealt with, but though the subject is large it is easily disposed of. It is true that to some extent precedents can be quoted from other countries, but these precedents are partial, and occur under circumstances different from our own.




  ― 44 ―

Those who argue that the states in the American Union and the provinces in Canada have no large public debts forget that railways, roads, public works, and irrigation schemes are left there to individuals and to companies. If the obligation of constructing such works could be transferred to private enterprise here, the contention that the public debt of the colonies should be an amalgamated public debt would be a feasible contention, but as this cannot be the argument fails.

Let us imagine for a moment that the provincial debts of the past and the public work obligations of the future have been transferred to the Dominion Parliament, and reflect what would happen. Victoria might some day arrive at the conclusion that the time was ripe for a bold borrowing policy to place her in front of the sister states. Her resolution might be that a loss in interest for a few years would be repaid by the advantages of the present expenditure of capital, and by the future development of local resources, and her citizens would be eager for the effort. But the Dominion Parliament would to a certainty look coldly on this scheme, and would assuredly not sanction the pledging of the credit of Australia for the special advantage of Victoria. The Dominion Parliament must ever keep before its eyes the principle of share and share alike. Again, if Queensland made proposals for what we call here a “spirited policy of public works” on its own account,


  ― 45 ―
we may be sure that Victoria would join in sitting on Queensland, and so it would be with each colony in turn. One can imagine members from Brisbane, Sydney, and Adelaide coldly rejecting proposals to spend four or five millions on suburban railways for the accommodation of Melbourne, but one cannot suppose that Melbourne would be content to have her progress barred in this manner. To transfer local works from the provinces is, in short, to revive local jealousies, and to imperil the union.

A statement of the public debt of each colony shows how different are the ideas that prevail as to the proper rule of borrowing. An exact estimate is difficult to obtain, as the figures—especially the population returns—are always varying, but in round numbers the obligations are:—

               
Debt per Head. 
Queensland ...  ...  ... £66 
New Zealand ...  ...  ... 62 
South Australia ...  ...  ... 60 
New South Wales  ...  ... 40 
Victoria ... ...  ...  ... 31 
Tasmania ... ...  ...  ... 30 
Western Australia  ...  ... 30 

What such a list makes evident is that circumstances may warrant a different rate of borrowing in each district. We could not divide the loans fairly to-day. Still less could we, acting as a whole, arrange the proper individual rate of investment in the future. Even if the general decision were wise—which it


  ― 46 ―
might not be—it would none the less provoke local discontent.

With regard to the public estate much the same principle obtains. You cannot deal with all the lands of the Australian continent upon the same basis. The Victorian members sent to a federal Legislature would not be the proper judges of how to dispose of the areas of Northern Queensland nor of Western Australia. Those who have parted with the bulk of our estate have no right to expect to go shares with their neighbours. The land question in some of the states may yet give rise to bitter struggles, and as one great aim is to keep the Australian Government free from local friction and from provincial complications, it must be wise for the Federal Government to stand aloof, and to let experiments be tried on local reponsibility. The success of a settlement plan in one state will inform the others, and a failure in one part of Australia will be a warning to the other provinces. Local knowledge is required in dealing with the land problem in each colony, and where local knowledge is the indispensable condition the interference of the Dominion Parliament is out of place.

Colonists must be well aware that any attempt to deprive the provinces of the right to push on public works with such vigour as they please must end in disaster. To use a metaphor, it may be said that it is impossible to reduce the speed of such a convoy as the Australian colonies to that of the slowest sailer.




  ― 47 ―

7. The Dual Governments.

When introducing a new form of Government it is but natural that doubt should prevail with regard to its powers and its operation. Australians have lived under a municipal, a provincial, and an Imperial Government, and the greatest of these to them has been the provincial authority; practically, it has been all in all. It is natural to ask how, if a Federal Government is introduced between the provincial authority and the Crown, will that affect the situation. To whom will the citizen look for the making of laws, the development of resources, and for attention to the thousand and one wants of daily life? To-day the colonist lives under the one Government, for he knows only his own colonial Ministry—Victorian, South Australian, or Queensland, as the case may be. The Queen, with her authority, is remote. But as a member of a federation, he will live under a dual Government. He will be the citizen of an Australian State, and he will be also a member of the Australian nation, and he may reasonably desire to know which of the two colonial Governments will be the one making daily calls upon his attention. Argument is of little use here, nor yet the expression of individual opinion. The best way of “spreading light” is to give authoritative statements from men who have made the ten English-speaking federations their special study.




  ― 48 ―

With regard to the United States, Bryce writes: —“An American may, through a long life, never be reminded of the Federal Government except when he votes at Presidential and Congressional elections, lodges a complaint against the post office, and opens his trunks for a custom-house officer on the pier at New York when he returns from a tour in Europe. His direct taxes are paid to officials acting under state laws. The state, or a local authority constituted by state statutes, registers his birth, appoints his guardian, pays for his schooling, gives him a share in the estate of his father deceased, licenses him when he enters a trade (if it be one needing a license), marries him, divorces him, entertains civil actions against him, declares him a bankrupt, hangs him for murder. The police that guard his house, the local boards which look after the poor, control highways, impose water rates, manage schools—all these derive their legal powers from his state alone. Looking at this immense compass of state functions Jefferson would seem to have been not far wrong when he said that the Federal Government was nothing more than the American department of foreign affairs. But although the National Government touches the direct interests of the citizen less than does the State Government, it touches his sentiment more. Hence the strength of his attachment to the former, and his interest in it must not be measured by the frequency of his dealings with it. In the partitionment of governmental


  ― 49 ―
functions between nation and state the state gets the most but the nation the highest, so the balance between the two is preserved.”

With regard to Canada, Bourinot says:—“The province in many respects touches more nearly the civil and the political side of the people within its limits than the central authority with its more general or national attributes of power. The exaction of indirect taxation does not come home immediately to all classes in everyday life like the tax collector who presents himself under the municipal system in vogue in the provinces. Comfort and convenience, liberty and life, civil rights and property, endless matters that daily affect a community are directly within the jurisdiction of the provincial organisms. If the Dominion should cease to-morrow to exercise its constitutional powers, the province would still remain —for it existed before the union—and its local organisation could very soon be extended to embrace those powers which now belong to the central authority.” …. “If we take up any volume of the Statutes of a province, of Ontario for instance, we shall see the truth of the observation I made in the course of the third lecture, that provincial legislation in every way more nearly affects our daily life and interests as citizens of a community than even the legislation of the Dominion Parliament. In the Statutes for 1888 we find laws relative to probate and letters of administration, executions, mortgages, sales


  ― 50 ―
of chattels, solemnisation of marriage, married women's real estate, benevolent, provident, and other societies, liquor licenses, frauds, closing of shops and hours of labour, prevention of accidents by fires in hotels and other places and public buildings, protection of game and fur-bearing animals, protection and reformation of neglected children, agricultural exhibitions, besides a large number of private and local Acts for the incorporation of insurance and other companies, for the incorporation of towns, for the issue of debentures for certain local purposes, and the multiform objects which the constitution places under provincial control. Then every session there is the distribution of the public moneys, which, as in the Dominion Parliament, are voted in the committee of supply, and included in an Appropriation Act.”

A similar picture comes to us from Switzerland. Sir F. O. Adams writes (The Swiss Confederation, page 26):— “Upon public occasions when all the cantons are represented, such as the Federal Rifle Meeting, or the Gala Day of an Exhibition, a stranger witnessing the unanimity of feeling, the cordial greetings, the affectionate manner in which each orator addresses his “Dear friends” and his “Dear confederate,” would be led to believe that no more united country than Switzerland could exist in the world. When, however, such festive gatherings are over, and when the Confederates have returned home, each to his canton, the interests of the particular canton


  ― 51 ―
become once more predominant and the national sentiment is no longer apparent. .… It may be affirmed that the (cantonal) feeling induces additional life and vigor into the component parts and encourages a healthy emulation and rivalry amongst them, so that Switzerland is materially stronger as a Confederation of cantons than if she were a centralised state.” One phrase with regard to the relative position of the cantons and the Confederation has become historic. “I love my shirt,” said a local patriot, “better than my coat, because it is nearer my back.”

The situation in the United States and the situation in Canada must be the position here—with the provincial tie necessarily stronger, however, in Australia than it is abroad—for reasons already given. It will be noted that the writers who have been quoted agree that the provincial Government is really little affected in power by the federal institution, but that it remains the authority most in touch with the people. The Federal Government flourishes to a large extent not by virtue of what it takes away from the local Parliament but by means of new powers acquired for the people. The federation is a Customs union plus foreign relations and plus intercolonial business.

Another practical test of what the Federal Government takes away from the provincial Government is to note what of the business transacted in an actual session would be removed to a Federal


  ― 52 ―
Legislature. In the year 1890 the Victorian Parliament dealt with forty-three measures, and the division would have been as follows:—

Australian (or Federal).

1. Census Bill.

2. Customs Act Amendment Bill.

3. Marriage Act Amendment Bill.

4. Trade Marks Bill.

Victorian (or Provincial).

1. Railway Loan Act 1889 Amendment Bill.

2. Consolidating Bills.

3. Presbyterian Trusts Bill.

4. Kew Church of England Lands Bill.

5. Law of Evidence Amendment Bill.

6. Electoral Rolls Validating Bill.

7. Shire Boundaries Bill.

8. Real Property Act 1890 Amendment Bill.

9. Portland Shire Hall Bill.

10. Melbourne Hydraulic Power Company's Amendment Bill.

11. Consolidated Revenue Bill (No. 1).

12. Land Act 1890 Amendment Bill.

13. Consolidating Acts Revision Bill.

14. Railways Standing Committee Bill.

15. Municipal Overdrafts Indemnity Bill.

16. Consolidated Revenue Bill (No. 2).

17. Declarations Commissioners Bill.




  ― 53 ―

18. Partition Laws Amendment Bill.

19. Melbourne Tramways Trust (Borrowing Powers) Bill.

20. Mining on Private Property Act 1884 Amendment Bill.

21. Melbourne and Metropolitan Board of Works Bill.

22. Suburban Tramways Bill.

23. Melbourne Harbor Trust Act 1890 Amendment Bill.

24. Consolidating Acts Further Revision Bill.

25. North Melbourne Railway Lands Exchange Bill.

26. Mines Act 1890 Amendment Bill.

27. Irrigation and Water Supply Loans Bill.

28. Agricultural Showyards Sale Bill.

29. Appropriation Bill.

30. Cape Patterson and Kilcunda Junction Railway Bill.

31. Treasury Bonds Bill.

32. Railway Loan Application Bill.

33. Victorian Stock Bill.

34. Fire Brigades Bill.

35. Infant Life Protection Bill.

36. Evidence Law Amendment Bill.

37. Waterworks Construction Encouragement Act 1886 Amendment Bill.

38. Mines Bill.

39. Supreme Court Rules Bill.




  ― 54 ―

The session of Parliament just taken is the last session, and it is no exception to the general rule. In other sessions, as in it, not above one measure in eight is federal, and, as a rule, this eighth measure is one which is of only secondary interest. In Victoria the recent important discussions have been with regard to the Treasury book-keeping and to railway construction, and to the rate of borrowing, and these issues will remain with us after federation is established. So an American publicist writing on the subject has observed that nearly all the “burning questions” of Great Britain since the Reform Act of 1832 was passed would never have come before Congress, but would have been settled by the States. It is a misconception to suppose that federation necessarily sweeps away provincial rights and liberties.

To colonists born under British institutions the idea of a dual Government may at first appear strange. People who have been accustomed to highly centralised government might in the same manner think that municipal self-government would involve difficulties. But experience shows that in neither case is there any real awkwardness. We do not rob the provinces when we leave them their full, varied, and all-important provincial powers, and when we create a Federal Government to control those issues which are common to all, and which cannot be dealt with satisfactorily by the colonies apart, we merely


  ― 55 ―
complete our organisation. And we can only refuse to develop as nature indicates at our own cost and peril.

8. The Form of Government.

The Lower House.

The federal constitution naturally lends itself to the bi-cameral system, inasmuch as the quasi-sovereign states can be represented as states in the Upper Chamber, while the people of the nation as a whole can be represented in the Lower.

The formation of the Lower House should not give the trouble which the working out of the Senate may involve. All the federal states of the world, from Germany to America, elect their lower houses on the same basis, namely, direct election by the people at large; and the setting aside of these precedents is out of the question. The Australian House of Representatives will need to be as “broad-based” as the others. Given manhood suffrage and equal electoral districts—or rather electoral districts approximately equal—it must be said that the issues to be decided in connection with the House of Representatives are only machinery matters.

The three possible modes of electing the House are represented by the examples of Switzerland, Canada, and lastly Germany, and the United States. The Swiss system is simple. Each group of 20,000


  ― 56 ―
citizens is entitled to a member. A decennial census is taken, and seats are allotted accordingly. Canada is more complex. Her Lower House contains 215 members, or about one to each 20,000 persons, but the numerical unit is not recognised. The province of Quebec is allotted the fixed number of 65 members, and each of the other provinces obtains the number of members that will give it the same representation in proportion to its population that Quebec enjoys. If 65 members is a member for each 20,000 people in Quebec, then the other provinces obtain a member for each group of 20,000. If the 65 represent a member for each 30,000 persons in Quebec, then 30,000 becomes the electoral unit for the remainder of the provinces. In Germany the basis of the Reichstag is manhood suffrage and the ballot. The term of service is three years, and its 397 members represent one member for every 118,000 inhabitants. In the United States the constitution provides that “representatives shall be apportioned among the several states according to their respective numbers.” The original arrangement was that there should be one member for each and every 30,000 persons, but this standard would give the United States to-day a House of 2,000 members, and it was long ago abandoned as impracticable. At present the number of members is fixed at 325, and Congress allots so many members to each state in proportion to its population at the last decennial census. The Swiss


  ― 57 ―
system might be adopted as a convenient stopgap, but it would soon become impossible in a country where population is increasing so rapidly as in Australia, and the permanent choice will be between the Canadian and the United States plan. The Canadian arrangement was adopted to avoid wounding the amour propre of Quebec, which would not like to see its delegation reduced by the growth of the sister states, though it cannot object to having their representation increased. Possibly Victoria, which is likely to be passed in numbers by its larger trans-Murray neighbour, might wish to take this Quebec position, but otherwise the United States arrangement goes straight to its end.

As to the term of election, the various federal Houses have the following duration:—

         
Years. 
House of Commons (Canada) ... 
National Council (Swiss) ... ... 
Reichstag (Germany) ... ... 
House of Representatives (United States) 

If the life of the Canadian House is too long, the tenure of the United States House is too short, and either three or four years would seem to be the happy medium. One consideration is that with a short existence of two years dissolutions for taking the opinion of the country at any particular crisis become practically impossible, and they are eliminated accordingly from the American Constitution.




  ― 58 ―

The Senate.

All Federal Governments have their Senates or Councils of the States, and in all of them the Senate is based upon the principle that in a federation the states must be represented as well as the people. The principle, if not as old as the hills, goes as far back as the Achæan league, where each city, independent of its size, had one vote. And the reason why the principle is universal is not far to seek. It is probable that no small states would care to link their fortunes with large states if they were liable to be out-voted and ignored by virtue of the superior population of their greater brethren. Certainly the American states would never have set aside their loose confederation, unworkable as it was, if it had not been for this method of alleviating their fears and of extinguishing their jealousies. In their Senate each state, the great and the pigmy, is equal. We shall undoubtedly to a large extent have to recognise this principle here.

There are three leading questions to be decided in connection with the creation of a Senate:—1. Is the body to be elective or nominee? 2. Are its powers to be co-equal with those of the Lower House? 3. Are the provinces to be equally represented irrespective of their population?

The existing Senates of to-day are for the most part elective. In Germany the Bundesrath, or Federal


  ― 59 ―
Council, is composed of members selected by the Governments of the various states each session, so that the Council directly represents those states. In the United States, the States Legislatures return each two members. So it is in Switzerland, though there the cantons can vary their mode of choice. The only federal country which departs from the elective arrangement is the Dominion of Canada, where the principle of representatives for provinces is recognised, each province being entitled to be represented by so many senators, but where members are nominated for life by the Crown, and not by either people or Legislature or Government. As a consequence the power allotted to the Senates in other countries is greatly reduced in Canada.

There are many special reasons why the nominee principle should not obtain in the Federal constitution. One is that it is necessary to interest the people in the Federal Legislature, and if the members of the Upper House are nominated for life by the Crown we shut out interest in its composition. Vacancies are irregular, and, when they occur, they lead not to a public appeal but to intrigue behind the scenes. In America the Presidential contest with all its drawbacks—and they are many and great—has the advantage that it deeply interests man, woman, and child in the government of the country. Each individual is for the moment warmly interested in the person of the federal officer, and thus the federal


  ― 60 ―
nationality is brought home to one and all. Next in America to the interest taken in the election of the President comes the interest in the election of the senators for the province, for though the election is made by the Legislature, yet not only is the choice of the two Houses the great subject of the day in the state, but state elections will often turn on the senatorial issue, and on occasions the candidates will appeal directly to the people to influence the Houses. Thus the famous struggle between Mr. Lincoln and Mr. Douglas in 1858 for the Illinois senatorship—a struggle which largely influenced the fate of the Union—was conducted in a stump campaign. When this occurs we may be sure that public feeling is running high on some federal question, and that it is advisable that it should have a safety valve, and the interest taken in the election goes greatly to popularise the Senate.

Then, again, the elective House is entitled to much greater power than is the purely nominee Chamber. In Switzerland and in the United States the Senates have practically equal rights as regards the Budget and financial expenditure in general. In Switzerland the two Houses stand on the same footing. In the United States the only difference is that “All bills for raising revenue shall originate in the House of Representatives,” but the Senate may propose or concur with amendments the same as on other bills. No class of bills is more freely amended


  ― 61 ―
by the Senate than money bills, and the idea that the Upper House should be excluded from this right would be regarded as absurd by the American people. With a nominee Upper House it is natural that privileges should be curtailed; but when the one Chamber represents the people as much as does the other, then the reason for restriction does not obtain.

A reproduction of the House of Lords is, of course, impossible. Nor is the House of Lords a federal institution. Such a body could only exist in a unified country. The Australian choice will be between the Senate of Canada and that of the United States, the latter being practically similar to the Bundesrath of Germany and the Council of States of Switzerland.

Each of these Senates of the North American continent has been painted recently by dispassionate observers. The Canadian Senate, according to Dr. Bourinot, has failed to take a high position. The object of its founders was to follow the model of the House of Lords as far as circumstances would allow, but it shares the legislative and executive weakness of the Lords, while it obtains none of the prestige attaching to an ancient body of hereditary legislators. As a group of individuals the Canadian Senate is said to compare favourably with any House elsewhere. It has within its ranks men of fine ability, and large experience in commerce, finance, and law, and if it is


  ― 62 ―
weak—as it is admitted to be—the fault must be inherent in the nature of its constitution. The system of nomination by the Government of the day tends to fill the Senate with men drawn from one political party whenever a particular Ministry has long been in office. “Life Peers,” as the senators may be called, soon lose touch with the community, and soon cease to be regarded as representative men. On the whole Canada would seem to tolerate its Upper House, and not to believe in it, nor to admire it nor regard it as a powerful factor in the sum.

On the other hand, Professor Bryce admits that there is much force in the contention that the Senate is the success of the American constitution. The mode of election by the state Legislatures is simple and natural, and produces a body which is both strong in itself and different in its collective character from the Lower House, while ultimately resting upon the same popular basis. It also constitutes, as its authors expected, a link between the state Governments and the Federal National Government. It is a part of the latter, and yet each member is in direct touch with the former, which has elected him.

The aims with which the Senate was created are set forth in the Federalist, as follows:—

To conciliate the spirit of independence in the several states by giving each equal representation with regard to size.




  ― 63 ―

To restrain the impetuosity and fickleness of the Lower House, and so guard against the effects of gusts of passion or sudden changes of opinion in the people.

To do so by establishing such a body as will divide with the House of Representatives the affections and support of the centre body of the people themselves.

To provide a body of men whose greater experience, longer term of membership, and comparative independence of popular election will enable them to preserve a continuity of foreign policy.

The objects, it is admitted by all critics, have been substantially obtained. “The Americans,” says Bryce, “consider the Senate the success of their constitution, a worthy monument of the wisdom and foresight of its founders. It has now the respect, if not the affection, of the people, by its sustained intellectual power.”

Bryce adds—“It is only to-day that the philosophers of England are awakening to perceive that the fault of their House of Lords is not that it is too strong, but that it is too weak, and that no Assembly can now be strong unless it be representative. Now, the Senate, albeit not chosen by direct popular election, does represent the people; and what it may lose through not standing in immediate contact with the masses, it gains in representing such ancient and


  ― 64 ―
powerful commonwealths as the states. A Senator from New York or Pennsylvania speaks for and is responsible to millions of men. No wonder he has an authority beyond that of the long-descended nobles of Prussia or the Peers of England, whose possessions stretch over whole counties.”

The one weighty argument against the American Senate is that it is said to be incompatible with party or responsible government as known in the colonies and in Great Britain. A House so powerful, would, it is urged, have a voice in the making or unmaking of Ministries, and a Government cannot serve two Houses. It is not sure, however, that the Australian Federal Government will be a party catch-vote Government, such as obtains in the present provincial Houses. The system may admit of modification to be considered in connection with the Executive. But even if the so-called responsible system is retained in its entirety, and if the Ministry of the day is practically a committee of the Lower House, it by no means follows that legislation should not be reviewed by a Second Chamber directly representing the states by election through the States Legislatures. As the American Senate is at once the most respected and the most conservative body in the land, we appear to have in it an example that cannot be lightly passed over.




  ― 65 ―

Second Election.

A great deal of the success of the Washington Senate is attributed to the mode of election. The members of a provincial Legislature are in a position to make a better choice than are the people at large, if only because they know the candidates so much the better. The owner of strong lungs, and of a glib tongue, may achieve a success on the platform among people to whom he is practically a stranger, but in daily intercourse he may show himself to be shifty and shallow, and his own party will set him aside for some one on whose judgment and whose integrity they can more rely. When demagogues find their way into a Legislature they are apt to discount the arts by which they have risen themselves. Although not good representatives themselves, they are excellent judges of what a representative should be. De Tocqueville, in his classic work on Democracy in America, expresses a strong opinion on this point. “Why,” he asks, “are the most able citizens to be found in the one Assembly more than another. Both of them emanate from the people; both of them are chosen by universal suffrage, and no one has been able to assert that the Senate is hostile to the interests of the people. From what cause then does so startling a difference arise? The only reason that appears to me to adequately account for it is that the House of Representatives is elected by the populace directly, and the Senate is


  ― 66 ―
elected by elected bodies.” It would be a misfortune if the experience of double elections were not further tested.

The American Senator sits for six years. One-third of the House retires every two years, so that it continually receives accessions of new blood. In Germany, on the other hand, the Governments of the “principalities and powers” nominate their delegates annually. In Switzerland the canton elects its member how it pleases and for so long as it pleases. So long as the canton sends its two representatives the constitution is satisfied. The American practice appears by far the most satisfactory, though, of course, it is susceptible of modification. The representation per colony would be larger here than it is in the States. If six were the unit of representation, then one member might retire annually from each province, so that the freshening process might be more systematic and continuous. The smallness of the American states does not allow of this provision.

Of the three questions at issue the most arguable will be whether the representation of the colonies in the Senate should be equal. In America this equal representation is a part of the federal bond. The union would not have been effected if the concession had not been made, and had not been rendered irrevocable. But state jealousies and fears which were natural then should be less now after the experience of a century of federation. In Canada some attention


  ― 67 ―
has been paid to proportion, and so Ontario has twenty-four members, Nova Scotia has twelve. In Germany also, Prussia sends seventeen members to the Bundesrath, while Bavaria sends six, and Lippe and Waldeck each send one. That is to say, the smaller states are highly favoured, but population and area are not totally disregarded. In the United States to-day the arrangement which allows Nevada, with 40,000 people, an equal power with New York, with its 2,500,000 people, seems open to criticism. Supposing there are six colonies in the Australian federation, it would be absurd for Western Australia with 40,000 inhabitants, to send ten senators, and for Victoria, with 1,200,000 people, only to send ten. Such limits as not less than five senators for any colony, and not more than twenty, would seem to commend themselves to common sense, while still retaining the principle that the province is the unit rather than area or population. But all down the line the composition of the Senate will draw largely upon the intelligence, the knowledge, and the good feeling of the community.

It has to be borne in mind that in a federal Government a Senate is a necessity, and that it occupies an entirely different position from the second Chambers—the Upper House, or the House of Lords —of unified nations, because it exists to represent the states, and to give them a position of equality in one of the branches of the Legislature.




  ― 68 ―

The Executive.

The successful working of any federal constitution which Australia may agree upon will largely depend upon the Chamber of the Executive which may be created. The making of the laws is often regarded as the most important part of the duties of a Government, but as a rule the administration of affairs occupies the prime place in the fortunes of a country. Bad laws have often existed in conjunction with the successful government of a nation, but it will be much more difficult to find instances of success, under weak, corrupt, or incapable administrators. It may be said of a united Australia that from the first she will have need of wise Ministers, and Ministers in whom the Australian people will have confidence.

We have three types of Executives from which to choose. The first and simplest is that of Germany, Russia, and the United States, where the Sovereign selects the Ministers and maintains them in office. It would be idle to say that the system has not much to recommend it, inasmuch as experience shows that it enables strong and patriotic men to be brought to the front. The Prussian Parliament sought from the first to destroy Bismarck, and it is questionable whether Gortschakoff or any of the great chancellors who have built up Russia would have proved flexible Parliamentarians, just as it is problematical whether powerful American secretaries of state such as Seward


  ― 69 ―
or Blaine would have commanded Parliamentary majorities in the States. However, the German-American type, whatever its advantages or disadvantages, may be described as impossible for us, and this for the simple reason that there is no one deputed by the people—no father of the country—to select the men. The Governor, who is the nearest approach we have to hereditary Emperor or elected President, is usually an impartial, and is frequently an able man, but nevertheless he is very often the public man who knows least of all the choice that would be grateful to the community, and it will be felt that it would be ridiculous to delegate a task so vital and so delicate to other than Australian hands. In other words, our choice is between the English and the Swiss systems, under which Parliament directly appoints Ministers. It goes without saying that with our traditions, our training, our knowledge, we shall adopt the British Executive as Canada has done before us, though it may be with modifications at the start, to be developed as time rolls on. To do more than glance at the English system would be a waste of time. Under it the Executive is supposed to be a party Executive. It is selected from the party which is in a majority in Parliament, and it retains office so long as its party retains that majority, and so long as Ministers themselves retain the confidence of that majority. This system has done good service


  ― 70 ―
in its day. It creates vigilant critics, and it prompts Ministers to be “up and doing.” But the medal has its reverse. When a great principle is at stake a division into parties is inevitable, but in ordinary times and in ordinary countries there will be no such great principles to persistently fight about; and then party government is liable to degenerate into the struggle of factions. The Opposition will resort to unworthy practices to bring their party into power, and the Ministry will be tempted to resort to countermining in order to retain possession. When matters are at their very worst, the one party will bitterly vilify the other so as to expose it to public opprobrium, and the worse the faction the lower it is in intelligence, and the less lofty it is in principle and aim, the more readily will it use such weapons and the greater for the moment its chance of success with the multitude. The cure comes later on, but not until mistakes have been made and excesses committed. The frequent formation of coalition Governments in the Australian colonies is evidence in itself that the party system is by no means an unqualified success here, and of itself suggests that a new arrangement is desirable—one that will enable the state as a rule to command the services of its best men and its ablest administrators, irrespective of short-lived cries or factious imputations. In Victoria there have been a succession of coalition Governments since 1881. Mr Service and Sir Graham Berry were at the two


  ― 71 ―
ends of the pole in this colony, but in deference to the necessities of the state they came together. So did Sir Henry Parkes and Sir John Robertson in New South Wales, so it was with Sir Robert Stout and Sir Julius Vogel in New Zealand, and so it is with Sir Samuel Griffith and Sir Thomas McIlwraith in Queensland. In Tasmania the experience has been the same. A coalition Ministry means the suspension of party government, and the frequency of coalition Governments in the Australian colonies is evidence that we have not here the two well-marked irreconcilable divisions—which may be defined as caste and anti-caste—existing elsewhere. All of us are what would be called in Switzerland progressionists. All are liberals in the sense that they desire a fair field, and no favour to every man and woman in the community. All are conservatives in the sense that they wish to preserve honour and honesty and domestic institutions. Under such circumstances the natural course of events is for new combinations to be formed to deal with new problems as they arise, and this condition of affairs tells against purely party Executives. In a Federal Legislature—an Australian Parliament—it should be possible to more frankly recognise than has hitherto been done this new principle of an Executive of the whole.

There are points in the Swiss system which are highly suggestive of possibilities in the future. In brief, it may be said that the first duty of a new


  ― 72 ―
Parliament in Switzerland is to appoint the Ministry, which will hold office during the term of that Parliament. There are seven Ministers, and no two must sit for the same canton, the object being of course to give the Executive a national rather than a local character. It is also understood that all the great parties in the state are to be represented in the Ministry. The Ministry is formed to represent the Parliament as a whole, and therefore the country as a whole, and consequently “Nationalists,” “Progressionists,” “Radicals,” and other local divisions are always included. The idea that the Ministry should be the agents or tools of any section of Parliament or of the people is not entertained. All legislation must emanate from the Ministry. But if the bill is distasteful to the House, neither the Minister nor his colleagues resign; while, on the other hand, the Parliament may direct that a measure to effect certain objects shall be brought in, and Ministers in due course will submit the draft of a measure. In these colonies the standing committees of the two Houses, and especially the joint committees, are constituted so as to represent Parliament as a whole. It would be felt that a gross wrong had been done if these committees had a party caste, and the joint standing committee is the nearest approach we have here to the Swiss Ministry.

There are many reasons why the Swiss system could not be transplanted here. It will be sufficient


  ― 73 ―
to mention one, namely, that the country is not prepared for so great a change. Our politicians who have lived, so to speak, with the one machine, could not be expected to work the other. We are bound to proceed on British lines, and yet it may be submitted that not even from the first should the party system be pushed to any extreme, but, on the contrary, a real or genuine effort should be made to give the Federal Executive an Australian rather than a sectional character. Is it desirable to create party issues here; is it advisable to split the newly-founded Australia—or try to split it—into two camps, each party or each camp raging against the other and endeavouring to make it appear that the hostile faction would subvert Australia? Such questions have only to be put to obtain the one answer. Supposing that an issue free trade or protection springs up, then we do not want an Executive which will throw its interest or its influence into the scale the one way or the other; or suppose that the burning question of the day is the selection of the federal capital, there would be a danger if either a New South Wales or a Victorian Cabinet were in power. Given a party Cabinet indeed, and nothing is more possible than that one party in the House would be led by Victoria, and another by New South Wales. And thus a division which we hoped to abolish would be perpetuated to the no small peril of the union. Reflection shows that there


  ― 74 ―
is every reason why we should endeavour to diminish the party character of the Australian Executive; and, certainly, a great opportunity would be missed if the effort were not made. It was natural for Great Britain to drift into the party system. Our forefathers had little choice, inasmuch as to summon all parties to the Cabinet in the early days of the House of Hanover was to entrust the avowed foes of the dynasty with secrets and with power, but no such situation occurs here. We can afford to lessen the party strain, with the view of offering all Australians an opportunity of serving their common country.

There is no need to embody any provisions about the Cabinet in the federal pact. The Cabinet in Great Britain is a body with an unwritten constitution, and so it may well be here in order that we may develop gradually the institution most fitted to Australian wants. In the first place it is probable that there will be a consensus of opinion that the seven colonies (for with the separation of Queensland there will probably be seven in the union) should each furnish one Minister. There will be a reluctance to leave any colony out of the Cabinet in the first instance, and this arrangement will powerfully tend to give the Executive a national rather than a party character, and it will follow, also, almost as a matter of course, that such a Ministry will not have to stake its existence upon points in law, acts, or incidental proposals, but will retain office as long as it enjoys


  ― 75 ―
the confidence of Parliament as a whole. Again, if a particular member is a failure as a Minister, there can be no harm in such a Minister being replaced. In Victoria it looked, a few years back, as though the Government would be re-arranged at the commencement of each Parliament, weak men being weeded out and strong men taken in. Had this been done, a great stride would have been taken towards the Swiss principle of a Cabinet composed of the best men in the House. And the influences which were almost successful here—the influences which have told, and which are setting against a purely party Executive— will be far stronger in the Federal Legislature than they are in the local Parliaments. English lines will be substantially followed, but Australia will probably render the Empire yet another service by continuous and ultimately successful efforts to establish a National Executive.

The Governor.

The position of the Governors of the colonies is liable to be changed by the federation of Australia. Hitherto the Governor of a colony has had no superior in Australia, but with a Governor-General there will be a higher official position. Not only that, but the great Imperial interests which the Governor is supposed to protect will be relegated to the Dominion, so that all important correspondence


  ― 76 ―
with Downing Street will be conducted by the Governor-General. The foreign policy of Australia will be controlled by the Dominion, and the home policy will belong to the provinces, and consequently Imperial interest in provincial policy must ever be small. It is certain that the Governor-General of Australia will be one of the high positions of the Empire. On the other hand, there will be a fear that the Governor of the colony may not possess the status which he now enjoys.

In Canada there is now but the one Imperial officer, namely, the Governor-General, the Governors of the colonies being nominated by the Dominion Government in the same way as the Imperial Government appoints its representative. The Governor so appointed exercises the same authority as he would were he nominated by Downing Street; but in the event of misconduct or failure he is liable to be reprimanded or dismissed by the Dominion Ministry, and this power has been exercised. Under this arrangement it is clear that the Governor can be either a public servant or a politician, or a citizen of wealth and influence and abilities, but such a Governor is essentially a local officer. In his case the Queen's commission and the Queen's instructions do not exist.

So far as the Imperial Government is concerned, its interests are amply protected by the Canadian arrangement, as the Governor-General is there to


  ― 77 ―
represent it. And all issues connected with the Empire come under his observation. Wherever the Empire is concerned he can delay a decision until the Imperial authorities have been consulted, and this is all that the British Government can desire. There is, indeed, every reason to suppose that the Colonial Office would prefer to have one Governor in Australia, and not many Imperial agents, for the Colonial Office does not like to be perplexed with either local troubles or conflicting claims. The difference of opinion as to the right policy to be pursued, whether to make the governorship of the colony a local or an Imperial appointment, will occur, not in England, but in Australia itself. A number of people will no doubt support the local scheme, because it affords opportunities for men who have made their mark in the colonies to earn further social and political distinction. It will be argued that the more prizes are offered the more it is probable that men of character and of position will be tempted to enter public life, to the great benefit of the individual and of the community. And this is a point which admits of being strongly pressed. On the other hand, there is a strong belief that the colonies will not part with their respective “Government-houses,” and with all that Government-house means to many without great reluctance. The Governor is also an object of interest to tens of thousands who know nothing of Government-house, partly because he comes from another sphere, and


  ― 78 ―
largely because he is the direct tie with the old world and the direct representative of what, to them, are home institutions.

The hands of this party will be powerfully strengthened by the consideration, which has been pointed out in these papers, that the Australian states will be unique in size, power, and wealth. They will exceed the empires of Europe in area, and they will discharge duties which few European empires would care to face. After making allowance for federal transfers it is probable that the revenue the Government of Victoria will have to deal with five years hence will be not less than £10,000,000 per annum, and such an outlay is far in excess of the second-rate kingdoms of the old world, such as Denmark, Portugal, Greece, etc. So it will be with New South Wales and Queensland, and South Australia will in due course attain the same proportions, and the elder states will be growing rapidly. The Governor of such provinces takes part in large and interesting social experiments; he may exercise an influence in big and novel issues; he may teach much and may learn much. The position of such provinces is entirely different from that of the states of the American Union and of the Canadian Dominion. They can offer a place and an opportunity for good work and a stipend, which may reasonably be attractive to men of standing who have any desire to serve the Empire abroad.




  ― 79 ―

A precedent is to be found in India, where the Governor-General is directly appointed by the Crown, but so also are the Governors of Madras and Bombay, and these posts have from time to time been filled by men of high talent and repute. The status of the Governors of Bombay and of Madras is by no means below that of the ordinary Australian Governor. And there is every reason to suppose that the Imperial Government would willingly fall in with any proposal to continue the Imperial Governors in Australia, and so strengthen the Imperial tie.

The possibility of a collision between the Governor-General and the provincial Governor, if both are appointed by the Crown, may seem an obstacle at first to the dual arrangement. But unless with regard to such trivial matters as precedence and etiquette, which would soon settle themselves, disputes are less likely to occur under this system than the other. The Governor in the United States is never in collision with the President, because his duties are separate and are well marked, the Governor being as independent in his own sphere in his own state, as the President is in the Union. Otherwise, with nearly forty Governors, including men of all characters, and many of them bitterly hostile in practical politics to the natural chief, bickerings must be incessant. And we should have this absolute mutual independence here, if the provincial Governors were Imperial appointments.




  ― 80 ―

Under the Canadian policy a serious collision between a provincial Governor and the Dominion Government has already occurred. Dr. Bourinot gives the particulars as follows:—

“M. Letellier de St. Just was appointed Lieutenant-Governor of Quebec by a Liberal Administration at Ottawa, and thought proper to dismiss his Executive Council, though it had a large majority in the Legislature. The constitutionality of his action was at once sharply attacked in the Dominion Parliament by the Conservative party, which was politically identified with the dismissed Ministers, but it was only in the Senate where it had a majority that a resolution was passed censuring him for an act emphatically declared to be at variance with the principles of responsible government. The Conservatives soon afterwards came into power, and a similar resolution was again proposed and passed by a very large majority. The Government, who had not up to that time thought it incumbent on them to assume any responsibility under section 59 of B.N.A. Act, which gave them the power of dismissal, then recommended to Lord Lorne that the Lieutenant-Governor be dismissed; but the Governor-General, as stated in the text, hesitated to accept the advice, and preferred to ask instructions from the Imperial authorities. In consequence of their answer, he had no other alternative than to consent to the removal of M. Letellier, on the ground, as set forth in the Order in Council, that


  ― 81 ―
his usefulness was gone. … The consequences of this affair were serious, not only in creating a violent agitation for a long while, but in the effect upon the unfortunate principal actor, who felt his position most keenly, and soon afterwards died.”

In this instance a party majority in the Dominion Legislature appointed a party man. The party agent was guilty as Governor of a serious party act, and thus brought upon himself what the one side considered punishment and the other a policy of revenge. The whole case is most instructive. The Governor of the colony, if he is appointed by the Dominion Government, will be responsible ultimately to that Government for his good behaviour, and he may be dismissed by the Federal Government as was M. Letellier de St. Just. But if he is appointed by the Crown he will be responsible only to the Crown, and not to the Dominion Legislature, nor to the head of the Dominion Executive, namely, the Governor-General. And if he is to be dismissed it must be by the Crown, as Sir Charles Darling was.

A third course is that the Governor should be elected by the people directly. He is so elected in all the states of America. But this is to transform the Governor into a powerful executive officer. A man so elected becomes the most powerful personality in the state; he overshadows the Parliament, and the British system of government by a Premier and by a Cabinet is practically set aside. The chances


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given to demagogism by this arrangement need not be dwelt upon.

It may be said that there is nothing in the circumstances of the case to prevent the people of Australia exercising a perfectly free choice, and of obtaining either an Imperial Governor-General, with colonial Governors of provinces (as in Canada), or an Imperial Governor-General, with Governors of provinces also appointed by and responsible directly to the Crown.

The Judiciary.

In connection with the federal judiciary an unusually large number of interesting issues and of moot points will occur, few, if any, of which have been debated.

Perhaps the best way of stating the problems is to mention the arrangements in Canada and in the United States, both of which deserve to be closely studied, inasmuch as both have worked successfully, while they differ materially the one from the other. In the United States a double system of courts obtains. The federal Government creates federal courts to administer federal law throughout the land, and leaves the individual state to provide its own courts for the administration of state laws. The federal courts consist of a Supreme Court of nine judges, sitting at Washington, as a court of appeal,


  ― 83 ―
and as the ultimate legal tribunal of the country. The Supreme Court judges are not highly paid, their salaries being only £2,000 per annum; but great lawyers are found to accept the position because of its honour and dignity. In some respects the tribunal is described as the greatest in the world, inasmuch as it pronounces on the validity of the Acts of the Legislature, and because it decides as between sovereign states. The Privy Council could not pronounce any Act passed by the Imperial Parliament as ultra vires; but the Supreme Court in America can, and has, overruled Congress and the President when Congress and the President have gone beyond their powers. It is not sufficient that a law is enacted either in Congress or in the states. That law must also in the opinion of the Supreme Court be constitutional. Thus, the other day, the execution of a murderer was long delayed because the law permitting the use of electricity was protested against as a contravention of the constitution, which prohibits “cruel and unusual punishments,” and the issue went before the federal courts accordingly. The law was upheld, but neither in Great Britain nor the colonies could the right of Parliament to pass such a law have been questioned. Judges placed in this high position of arbiters between Parliament and people, and state and state, require to be independent; and hence the federal judges hold office by an exceptional tenure. They are appointed by the President with the consent


  ― 84 ―
of the Senate, and once appointed they are not removable except by impeachment, for alleged crime or incapacity. The British practice of appointing the judges during good behaviour, but liable to be removed upon addresses presented by both Houses, was not considered a sufficient guarantee, inasmuch as such addresses might be procured in cases where the court and the Legislature are in political conflict. Alexander Hamilton—to whom the United States owe so much—was strenuous in his insistence upon this provision. In a monarchy, he said, “the danger is the despotism of the Prince, and in a republic it is the encroachments and oppression of the Legislative body.” Only once has impeachment been resorted to as against a Supreme Court judge in America, and then the prosecution failed.

The common impression about the imperfect tenure of the American judge is founded on the position of the judges in the individual states, where these officers are usually elected either by the people direct or by the Legislature, and for short terms only, with the frequent result of a terrible degradation. The federal courts of America show the advantages that result from rendering the judiciary absolutely independent. The state courts—with their judges occasionally in league with Boss Tweeds—exhibit the frightful mischief that may ensue when the judge has to supplicate for his place or drive bargains in order to obtain it.




  ― 85 ―

The federal courts in America take cognisance of the following cases:—

  • 1. Cases in law and equity arising under the constitution, laws, and treaties of the United States.
  • 2. Controversies between two or more states, and between citizens of different states.

In the Cootamundra railway accident, when the Sydney express was wrecked, the Victorian citizens who were injured brought the action in the law courts of New South Wales. In the United States such an action would have gone to the federal court.

Each of the American States has its own Supreme Court or Court of Appeal, and its own minor courts, and so far as offences or matters covered by state legislation are concerned there is no appeal beyond the final local tribunal of the state. As a rule, the Supreme Court at Washington does not administer state but only federal law. A citizen who bases his case on federal law goes to the federal court. If a case is taken in the state court, and the defendant claims that the federal law governs the issue, he is entitled to have the case removed.

To us this system of co-ordinate jurisdiction seems to threaten terrible complications, and though long use has reconciled the American people to it, yet it is probable that the much simpler system of Canada will suffice here. There, all cases go to the


  ― 86 ―
provincial courts, these bodies administering provincial and federal law, but there is an appeal to a Supreme Court of Canada. This court consists of a chief justice and five puisne judges, and it is competent to hear appeals from the highest court in any province. But the judges of the provincial court are appointed and are paid by the federal Government, and not by the provincial Governments, and are consequently federal officers. The Quebec judges must, however, be taken from the Quebec law, and the judges for the other provinces must be taken from the respective provinces' bars until their local laws are assimilated, a contingency which is probably as remote as the millennium. No difficulty arises in Canada from the administration of state law and federal law by the same tribunals any more than a difficulty is occasioned here by municipal laws and colonial laws and Imperial laws being administered by one and the same set of courts, and hence the American system may be pronounced unnecessary.

The most important issues that will have to be settled here will be as follows:—

1. The tenure of the federal judges. Does the circumstance that the judges will have to review Statutes, and may be in conflict with the Legislature render it undesirable to depart from the Imperial precedent of removal by joint addresses from the two Houses in favour of the tenure of the federal judges of the U.S.?




  ― 87 ―

2. Shall there be federal and provincial courts in each province, or shall both provincial and federal law be administered by the same tribunal?

3. Shall the federal Government or the provincial Government appoint the local judges?

4. Should a federal Supreme Court be constituted?

5. Should there be an appeal from this federal court to the Privy Council?

This last is a burning question. By many the appeal to the Privy Council is looked upon as the birth-right of the British born, and as the link connecting the various parts of the Empire. Yet there is a feeling that the Privy Council appeal is a delay of justice, and that federal laws will be best interpreted by a high court that is in touch with their intention and meaning. One point may be taken for granted, namely, that the suitor who solicits the federal Supreme Court as a court of appeal will not be allowed to drag his adversary to yet another tribunal.

The Federal Veto.

A considerable difference of opinion may well prevail upon a question which greatly exercised in turn the constitution makers both in the United States and in Canada. In the States one conclusion was arrived at, and in Canada another. In the


  ― 88 ―
Republic the various states are supposed to delegate power to the Federal Government, and to retain all such powers as are not delegated; in the Dominion the Federal Government is supposed to delegate to the provinces and to exercise all powers not included in the reference. And one practical result from the adoption by Canada of this principle is, that the Constitution gives the Dominion Government the power of vetoing the acts of the provincial Legislature. The subject of the veto was fully discussed in the Federalist, and is noticed in all the histories and text-books relating to the Philadelphia convention, and these references of themselves show that the importance of the issue was fully recognised when the American Constitution was framed. The decision was that there could be no federal veto, inasmuch as the power would tend to provoke ill-feeling and contests between the state and the federal authorities. When the state is legally competent to deal with a subject, then it was held that its decision is entitled to be final, and when its actions or its laws are ultra vires, the courts will repair the error. The principle that a province has a right to please itself in provincial matters was freely conceded, and it is, indeed, the rock on which the American union is built. The state, it is conceded, may go wrong. It may, for instance, tax capital and frighten it away, as California was near doing in the Kearney days; but such a state will, it is urged, be taught by experience,


  ― 89 ―
and in the meantime it will serve as an object-lesson to others, warning them off the dangerous track. The cities of a state that has gone wrong may be ill-governed under bad charters, but that is its own concern. It may neglect schools, with the result that it will become an object of scorn in the union, and other states will be strengthened in the resolution to act differently. It may maladminister right and left the powers entrusted to it, but it must be allowed to work out its own destiny and effect its own cure. The general sanity of the people will, it is urged, in the long run restore any erratic community to its corporate health. On the other hand, the province may try some local experiment, unpopular at the time in the general realm and distrusted, but which may prove to be a brilliant success. And the principle once granted that the sovereign state is entitled to its sovereign pleasure within state limits, the veto was condemned. It was urged that the Federal Government ought to have the power of saying that the local legislation was legal, and this power, it may be noted, is to-day conferred upon and is exercised by the Federal Government of Switzerland. But this contention, says Bryce, “was effectively demolished in the convention by Roger Sherman, who acutely remarked that a veto would seem to recognise as valid the state Statute objected to, whereas, if in consistent with the constitution, it was really invalid already, and needed no veto.”




  ― 90 ―

The non-existence of a federal veto has probably saved the States from serious strife. On the other hand, its existence in Canada has already been a source of danger and of ill-feeling. There has been anger because the veto was not exercised, and there has been threatened rebellion because it was. The Jesuits' Endowment Act of the Quebec Legislature is fruitful in lessons which cannot be too closely studied (Bourinot, Federal Government in Canada, page 518, et. seq.). In the year 1800 the British Government took possession of the Jesuit estates (the order having been suppressed by the Pope), and applied the revenues to the purposes of public instruction. But the Quebec Government recently assented to the proposition that the estates ought to have been given to the Roman Catholic churches, and it voted $400,000 as compensation for the wrong alleged to have been done by Great Britain nearly a century back, the money to be spent with the assent of the Pope. As can readily be understood, the Protestant feeling on the subject was keen. The Protestant minority in Quebec protested with a vehement Protestant indignation, and appealed to the Federal Government to exercise its powers of veto, and the Protestant majority in the other provinces shared the feeling that the grant was highly improper and was an outrage upon feelings and principles which to them were sacred. The Cabinet as a whole shared these views, but it was placed in the difficulty that if it fell in with the views of the


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Dominion majority it would rouse feeling in Quebec to a fever heat. It was to obtain local independence that the Dominion was formed, and rather than run the risk of serious provincial trouble the Government gave way and assented to an Act of which it profoundly disapproved. Again, after vetoing certain railway Acts passed by Manitoba, and almost precipitating a revolt, the Canadian Government had to ignominiously give way. In both instances it is plain that it was an error to drag the General Government into the local struggle. To give power to states with one hand and to take that power away with the other is not proving a successful experiment.

The Federal Capital.

Although no principle is involved in the issue, yet probably the one question which will be found most difficult of settlement of all, when federation is grappled with, is the selection of the federal capital. We may be right well sure that each of the great seaboard cities will be jealous of the other, and will not willingly let the prestige and the material advantages of the Australian metropolis attach to its rival. So it has always been in federations. Germany, it may be said, is the only one in which the great city of the country is also the capital of the federation, and this exception arises from the preponderating and, indeed, overwhelming influence of Prussia in the


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empire. The German Confederation is not a union of equal states, but is the grouping of a number of minor powers about one whose greatness overshadows all the others. The first step taken by Prussia towards the German union was the exclusion of Austria, but if that rival state had remained thus there would have been the usual jealousy between Vienna and Berlin, and it may be that some inferior town would have been the capital. In America, as we know, New York, Boston, and Philadelphia were set aside, and an artificial metropolis was created. So it was in Canada, where Quebec, Montreal, and Toronto were passed over in favour of Ottawa. In Switzerland, the two centres of population, Geneva and Basel, gave way to Berne. In New Zealand, the two large commercial centres, Auckland and Dunedin, have neutralised each other, and the minor city of Wellington has been made the capital.

We must anticipate that the same influences will be at work in Australia—our New York and Philadelphia, our Geneva and Basel, our Quebec and Montreal, our Dunedin and Auckland, being Melbourne and Sydney. There are pessimists who declare that the selection of either of these great cities for the position of Australian metropolis would break any newly-formed federal bonds, or rather would prevent their creation. Without going so far as this, it may be admitted that the difficulty is real and great. The orator who rose in the Melbourne Parliament to move


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the ratification of the choice of Sydney would by no means have a friendly audience; and a speaker who rose in Sydney to announce the choice of Melbourne would occupy a most unenviable position. The importance of unity to Australia is far and away above and beyond the value of this dispute between the cities. The loyal feeling for the grandeur of the whole should altogether outweigh this jealousy of the parts, but there is a difference between what should be and what is, and no one can affect to overlook or to despise this rivalry of the seaboard capitals. The easy mode of escape would, no doubt, seem to be that which has been adopted elsewhere, and to select some city or to create one which is not in competition with the commercial centres. Adelaide, Brisbane, and Hobart, it must be remembered, have to be consulted, and the probability is that those cities, as they nourish hopes of their own, would rather consent to the installation of the Federal Government at some new place than they would see the premier position allotted to any one of the flourishing cities of to-day. It will be argued here, as elsewhere, that if you create a political capital you avoid favouring any one of the commercial or social rivals; but, on the contrary, you allow a fair field to each, and thus encourage various centres of population to grow up. If, it is contended, you give the leading commercial city the social and political advantages of the capital, you cause it to dwarf all its rivals. Better, it is urged, half a dozen


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great towns, as in America, than England with London and France with Paris.

There is a plausibility in this argument, but yet there are numerous and weighty considerations against creating an artificial capital in Australia—against taking some bush township and converting it into a metropolis. In the first place it would be a great trial to a Governor-General and to all officials and members and officers to be banished for the best part of the year to some out-of-the-way and probably arid spot. It seems absurd to obtain Governor-Generals, as we expect to do, of the highest social and political standing, and then banish them so that they can with difficulty come into contact with the Australian society which they will be supposed to lead. In Australia, it must be remembered, it is either in the capitals on the seaboard that the higher conveniences of life such as we associate with a metropolis are found or nowhere. Thus the selection of a bush town would tell greatly against the federal experiment at the outset, by making the arrangement of affairs unattractive. Again, many and costly buildings are required for the federal capital, such as a residence for the Governor-General, a parliament-house, court of justice, public offices, institutions, etc., and it does not seem advisable to invest millions in some spot which might twenty years hence, in consequence of the shift of population, be condemned as non-central and inconvenient.




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If we choose some place remote from the large cities and the great centres of population, it must be somewhat doubtful whether Australia can send her best men there. Captain Russell remarked at the recent conference that one great obstacle in the way of New Zealand joining the federation was that the place of meeting would be too far off, and that men could not spare the necessary time from their occupations. The same difficulty must be felt in some degree if we make the federal capital in the wilderness. Adelaide men can visit Melbourne easily, and Queensland men can visit Sydney, and as to Melbourne and Sydney themselves it is becoming difficult with many men to say whether they are to be found more in the one place than the other, but if we depart from the capitals, then, instead of reducing inconveniences to a minimum, we increase them to a maximum. There is another less tangible, but not less important, consideration. To order Parliament to assemble in some far-off provincial town is to remove it to a considerable extent from a daily and healthy contact with public opinion. The debates cannot be—and are not in America—reported at the length they would be were the proceedings conducted in the place where the principal papers are published; and indeed in the States reporting has been superseded in New York, Chicago, and Boston by gossiping political letters, which cannot fully and properly inform the public, and which are in many instances untrustworthy, and in some detestable.




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We may have to fall back upon the American system of choosing provincial centres in order to set aside the jealousies of the great cities, but the arrangement should be regarded as a last resort. It is not one of mutual convenience, but one of mutual inconvenience.

Some thought may reasonably be given to the consideration whether it is necessary to permanently fix upon any one place as the federal capital at the present stage of our affairs. The suggestion that we should divide the institutions and the privileges of a metropolis between two or three of the great cities should not be set aside without much deliberation. As regards the institutions no great difficulty presents itself, inasmuch as railways, the telegraph, and the telephone are ever at work destroying distances and lessening the need for centralisation. If the federal fleet has its depôt at Sydney, the federal army might have its headquarters at Melbourne, and, indeed, as shown by the establishment of a cartridge factory here, while the naval department remains in Port Jackson, we seem to be dropping naturally into a division of that character. If the Patents office were in one place, the Postal department could be in the other. The Law Courts need not be in the same city as the Parliamentary buildings.

Again, the rotatory principle is not to be summarily rejected as at all events a temporary expedient. The


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English Parliament did not always meet in London. The Swiss Legislature needed to move about until quite modern days. In India the seat of Government is sometimes at Simla and sometimes at Calcutta. It may be that no such arrangement would be permanent, but time alone could decide that point. With the development of Australia, we should learn where the real centre of the continent is; and as our territory becomes populated and opened up, it is possible that some one place would establish a claim that could not but be recognised. The south-eastern corner of the continent may not retain its present preponderance. The ultimate centre may be Brisbane, or it may be Adelaide, or it may be Perth, or, as some enthusiasts say, it may be the Upper Barcoo. Thus, in New Zealand, Auckland was at one time the capital, but the superior convenience of Wellington now commends itself to all. But no such claim can be successfully put forward now; and, as we are not in a position to build a federal capital on the outskirts, it may be submitted that it is worth while making an effort to tide over present difficulties by some arrangement which may be temporary, but which will reserve all rights.

The first question to be decided is whether the site of the national capital is to be fixed, or whether the rotatory principle is to be temporarily adopted. If the former course is favoured, then it will be wise to defer the actual selection until after the federation


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has been proclaimed, and to leave the decision to judicial and unbiassed arbitration.

Dr. Arnold has a noble passage, in which he declares that the greatest triumph of Demosthenes was the reconciling of Athens and Thebes, so that the men of these two jealous cities stood side by side for the good of Greece. A good deal of power would be evinced by the statesman who could bring Sydney and Melbourne together in this matter, and he would deserve a full meed of praise.

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