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

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

was

YES
NOES

Majority

216,332
107,497

108,835

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

"parts

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

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

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

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

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

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

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

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

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

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

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

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

Foster's Comm., I., p. 106.)

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

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

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

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

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

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

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

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

way.

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

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

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

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

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