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WHATEVER be the ultimate future of the British Empire as a whole, we may safely affirm that, with the accomplishment of South African union, the great oversea dominions have, so far as the main principles of their Constitutions are concerned, reached their final stage of development. It is possible, though past experience forbids us to prophesy, that Newfoundland may throw in its lot with the Dominion of Canada. It is possible, though extremely improbable, that at some future date New Zealand may become part of an Australasian Commonwealth. It is practically certain that before very long Rhodesia will be part and parcel of the South African Union. But such changes, important as they would be, would not greatly modify the general lines of Canadian, Australian, and South African constitutional development.
The moment then seems convenient to put together in a handy volume the three Statutes which explain the working of the federal and unifying principle within portions of the British Empire. A few other documents have been added containing attempts at federation made at an earlier date by Colonial and English statesmen, and some notes have been appended to illustrate the text. When is remembered, however, that Mr. Wheeler's elaborate commentary on the Confederation Law of Canada contains over eleven hundred pages, and that the Annotated Constitution of the Australian Commonwealth by Quick and Garran contains over a thousand, the need for compression will become at once apparent.
Before approaching the Acts themselves, it is necessary to know a little of the historical background of which they were the logical outcome. Why is Canada organized under one form of federation, and Australia under another? And why has South Africa preferred a union to a federation ? The zinswer to these questions lies in their past history, so that some kind of historical introduction is indispensable; although it will no doubt seem elementary enough to those familiar with the facts.
Before, however, entering upon the history it is necessary to define what is meant by a Federation. A federal form of government is found where communities, which possess for certain purposes a distinct political existence, join together to form a common whole, without losing their separate organization. The component parts of a federal system must, in the words of Professor Dicey, desire union but must not desire unity. A federal government need not be contained in a written constitution; but, inasmuch as it is in the nature of a treaty between different parties, the inconvenience of its not being under writing is obvious. The most perfect form of federation is when the executive, the legislative, and the judicial powers find expression in both the central and the local governments; but federations are often based on less systematic lines.
NEW ENGLAND CONFEDERATION OF 1643.
The only example of a kind of federation under the old Colonial system, with the exception of the short-lived federal union of the Leeward Islands in the West Indies, is that of the United Colonies of New England, set on foot in 1643. Although the principle of town self-government played a leading part in the foundation of New England, the General Court of Massachusetts as a whole was able to maintain effective control over the various settlements. The authority of the general government had been recognized at Salem, and when Boston, Rochester, Watertown and the rest were founded, their inhabitants had no intention of setting up independent communities.
When, however, settlements were made in Connecticut and at New Haven, outside the Massachusetts jurisdiction, it was impossible to keep these within the bounds of that Colony. Rhode Island and Providence Plantation could be dismissed from the mind, as being contumacious, heretical communities, not having that union of thought regarding Church questions which was the strongest, indeed the one, civic bond in New England corporate life. The settlements in New Hampshire and Maine were at too embryonic a stage to become members of a confederation. But with regard to the other New England Colonies, Plymouth, the first Puritan settlement in America, the eminently respectable home of the Pilgrim Fathers, and Massachusetts, with its orthodox offshoots Connecticut and New Haven, might not some form of federation be formed to supply common needs ?
Connecticut, taught wisdom during its struggle with the Pequot Indians, made application to Massachusetts as early as 1637; but, though the proposal was more than once put forward, it got entangled in disputes over boundary questions, so that nothing effective was done till in 1643 the form of federation here set out was agreed upon. The kind of confederation was of a feeble character, there being no means by which the decisions of the federal authority could be enforced upon recalcitrant individuals. If, in the words of John Quincy Adams, 'the New England Confederacy of 1643 was the model and prototype of the North American Confederacy of 1774,' all that can be said is that it was no wonder that the latter proved so inefficient in accomplishing the ends of government. Moreover, the circumstances of the component parts were so different as to make the equality established between them obviously unfair. Massachusetts had only two Commissioners assigned to it out of a total of eight; whilst, inasmuch as the ratio of contribution was by population, and Massachusetts had some fifteen thousand out of a total population of some twenty-three thousand, it would be liable to contribute much more than was contributed by the other three members combined. In 1648 Massachusetts demanded an additional Commissioner and complained of assessment by mere population, on the ground that she had an undue proportion of poor labourers and artificers. With this sense of injustice rankling, it was natural that Massachusetts, from the first, treated with little respect the decisions of the Commissioners. When they decided against her in 1647, in a contest between her and Connecticut, regarding the legality of duties imposed by the Connecticut General Court at Saybrook on the Connecticut River, she only yielded to the authority of the Commissioners with extreme reluctance. Just before the Confederation was established its need was shown by the action of the Boston authorities in encouraging the private expedition by the Frenchman De la Tour against his rival D'Aulnay, the French Governor of Acadia. With the establishment of the Confederation, the question of a treaty of commerce between the French and Massachusetts was referred to the Commissioners for their decision. They were in favour of such a treaty; but when it appeared later (in 1651) that the French expected as a quid pro quo an alliance, offensive and defensive, against the Mohawk Indians, they wisely refused to embark in a controversy the justice of which they had no means of understanding. A different decision might have completely altered the whole course of the future history. On one important question of foreign policy the Commissioners were clearly in the wrong and Massachusetts in the right; though the manner in which the latter enforced its opinion strained to the breaking-point a federal tie already weak. There had been constant disputes as to boundaries between Connecticut and New Netherland, partly settled by arbitration n 1650; and when war broke out in Europe between