"When a proposed law is submitted to the electors, the vote shall be taken n such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent.

"No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of electors voting in that State approve the proposed law.”.

Mr. Burgess ["Political Science" I., p. 57] gives the following analysis of the ultimate governing power under the Australian Constitution :"The Commonwealth, as a political entity and a political partnership, is outside of, and supreme over the Constitution; it is outside of, and supreme over the Government provided by that Constitution, The Government of the Commonwealth, consisting of two sets of legislative, executive and judicial departments, central and provincial [i.e., those of the Central Government and those of the States] does not constitute the community. At the back of the Government lies the amending power-the quasi sovereign organisation of the Commonwealth within the Constitution; at the back of the Commonwealth and the Constitution is the British Parliament, its creator and guardian, whose legal relationship to it requires that the Commonwealth should be described, not as an absolutely foreign organisation, but by some term indicating a degree of subordination to that body." What is really meant by such expressions as 'Federal State' or 'Federal Commonwealth,' technically inaccurate, is a National State with a Federal Government-a dual system of government under a common sovereignty. Such a State comprehends a population previously divided into a group of independent States. Certain causes have contributed to a union of this group of States into a single State, and the new State has constructed a government for the general affairs of the whole State, and has left to the old bodies, whose sovereignty it has destroyed, certain residuary powers of government, to be exercised by them so long as the new State makes no other disposition. The old States become part of the Government in the new State and nothing more."

"

Whilst the power of amendment of the Australian Constitution thus lies in the people of the Commonwealth, who can exercise it in a certain defined manner, subject to the sanction of the Imperial Parliament, it is also subject to certain constitutional restrictions, which are thus summarised by Messrs. Quick and Garran *:

"No amendment :

"(1) Diminishing the proportionate representation of any State in either House of the Parliament. [Secs. 7.24.];

"(2) Diminishing the minimum number of representatives of a State in the House of Representatives. [Sec. 24.]

"

(3) Increasing, diminishing, or otherwise altering the limits of a State. [Sec. 123];

"(4) Affecting the provisions of the Constitution in relation to the foregoing matters;

may be carried unless a majority of the electors voting in the State interested approve of the proposed law."

* "Annotated Const. Australian Comm.," p. 991.

Messrs. Quick and Garran also supply the following note upon the limits of the amending power in the Australian Constitution :

"There are no specific limitations upon the scope of the amending power. No part of the Constitution is excluded from the possibility of amendment; though amendments of a certain kind require 'a species of unanimity' which makes such amendments very difficult. The power of amendment, therefore, extends to every part of the Constitution-even to Sec. 128 itself, which defines the mode of amendment.

"If, therefore, the Commonwealth were a sovereign and independent State, no amendment duly passed in the prescribed form, would be beyond its powers; the amending power would have no limits. But the Commonwealth is only quasi-sovereign, and the amending power, though above the State Governments and above the Federal Government, is below the Imperial Government."

In Germany [under Art. 78, Secs. 1 and 2] amendments of the Germany. Constitution are to be made by legislative enactment. If fourteen votes are cast against a proposed amendment in the Federal Council it is considered as rejected; and "the provisions of the constitution of the Empire by which certain rights are secured to particular States of the Union in their relation to the whole, shall only be modified with the consent of the States affected."

In Switzerland, the following provisions are made as to the Switzerland. amendment of the Constitution. Certain alterations were made in the clauses of the Constitution of 1874 dealing with amendments by an amendment passed in 1891. These alterations are printed below in brackets and italics :

"

The Federal Constitution may at any time be [wholly or partially] amended. Art. 118.

A [total] revision is secured through the forms required for passing Federal laws. Art. 119.

'When either House of the Federal Assembly passes a resolution for the [total] revision of the Federal Constitution and the other House does not agree; or when 50,000 Swiss voters demand a [total] revision, the question whether the Constitution ought to be amended is, in either case, submitted to the Swiss people, who vote yes or no. If in either case a majority of the Swiss citizens who vote pronounce in the affirmative, there shall be a new election of both Houses for the purpose of undertaking the revision. Art. 120.

"

[A partial revision may take place by means of the popular initiative, or through the forms prescribed for ordinary Federal Legislation. The popular initiative consists in a demand by 50,000 Swiss voters for the addition of a new Article of the Constitution, or the repeal or modification of certain Constitutional Articles already in force] Art. 121.

"The revised Federal Constitution [or the revised part thereof] shall take effect when it has been adopted by the majority of Swiss citizens who take part in the vote thereon, and by a majority of the States. Art. 123."*

* Vide Appendix E "The Referendum in Switzerland."

United States.

" States" and

CHAPTER XVII.

ADMISSION OF NEW STATES.

The Constitution of the United States [Article IV., Section III.] provides that:

(1) New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.

(2) "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or of any particular State."

in considering the effect of this section, it is important to bear "Territories." in mind the distinction between a "Territory" and a

New States.

"New

State." Territory-not included in any State of the Union at the time when the Constitution was ratified-but belonging at that time to the United States, is regulated, as far as its government is concerned, by the second sub-section. To this has been added other territory, acquired by the United States as a result either of treaty or conquest, which has then become subject to the provisions of the second sub-section. Out of this territory-either held by the United States at the time of the Union, or subsequently acquired-new States have from time to time been formed and admitted to the Union under the power given to Congress by the first sub-section.

The working of the United States Constitution in this respect may thus be considered under two heads :

(i.) Admission of New States.

In the first place, Congress may admit a part, or the whole, of any territory as a new State under certain specified conditions. Thus "when Missouri applied for admission as a State in the American Union, she was received on the condition that the Constitution should never be construed to authorise the passage of an Act by which any of the citizens of other States should be excluded from the enjoyment of any of the privileges and immunities to which they were entitled under the Constitution of the United States [Benton's Thirty Years' View, ch. 2]. The State of Michigan was admitted to the Union on the condition that she should surrender to the State of Ohio certain territory which had been the

subject of dispute between them, and her consent was required to be given by a convention of delegates chosen by the people for the purpose [Campbell's Hist. Mich., ch. 14]. The State of Arkansas was admitted on the condition that its Constitution should never deprive any citizen or class of citizens of the right to vote who were entitled to vote by the Constitution at the time that instrument was presented for the approval of Congress [Cooley's Const. Law, pp. 192-194]."*

As to the general principles on which the United States Congress has acted as to the admission of New States, "Congress [says Dr. Burgess, Political Science, II., 163] ought not to pass its enabling Act until it is clear that such a population is fully prepared to exercise the powers of local self-government and to participate in the general government. When this moment has arrived, Congress ought not to withhold its enabling Act. This is a matter, however of political ethics, not of Constitutional law; and the Congress alone must judge when the proper requirements shall have been fulfilled to warrant the change from centralised to Federal government in any part of the territory of the United States. I think, however, we may say that the Congress is constitutionally bound not to clothe with commercial powers any population which is unrepublican in its character-nor, perhaps, any population which is unnational in character. But of this character, again, the Congress must be the judge. The conclusion is that the Constitution recognises no natural right to State powers in any population, but views those powers as a grant from the Sovereign, which latter employs the Congress to determine the moment from which the grant shall take effect."

As to the effect of the admission of territory as a new State, it has been decided in a number of casest that prior laws of Congress in relation to the territories and their government have no force in the new State after its admission and the adoption of a Constitution, unless they are adopted by that Constitution. [Baker: Annotated Const. of U.S., p. 164.]

(ii) The Government of Territories.

"The power of Congress over territories is general and plenary, Territories. arising under the powers granted in this section [III.], as well as being derived from the power to acquire territory, which latter right arises from the power to declare war and make treaties of peace." [Mormon Church vs. United States, 136 U.S., 1.] “All territory within the jurisdiction of the United States not included in any State must, necessarily, be governed by or under authority of Congress. The territories bear much the same relation to the general government that counties do to the States, and Congress may legislate for them as States do for their respective municipal

• Annot. Const. Australian Comm., p. 970.

Permoli vs. First Municipality, 3 How., 589; Strader vs. Graham, 10 How., 94; Scott vs. Sandford, 19 How., 491; Woodburn vs. Kilburn Manufact. Co., S.C. 1 Biss., 546.

sub-divisions." [National Bank vs. County of Yanktown, 101 U.S. 129.] "The Constitutional powers of Congress to enact laws for the government of the territories has passed beyond the stage of controversy to final judgment. The people of the United States, as sovereign owners of the national territories, have supreme power over them and their inhabitants." [Murray vs. Ramsey, 114 U.S., 15-44.]*

Mr. Bryce [American Commonwealth, Vol. II., pp. 208-219] analyses the method of government which has been devised for the territories by Congress. He points out that the Territory not included in the thirty-eight States of the Union amounts to 1,460,624 square miles, divided as follows:

Eight organised territories, viz., Dakota, Wyoming,
Montana, Idaho, Washington, Utah, Arizona, New
Mexico

Two unorganised territories, viz.:

Alaska

Indian Terr. W. of Arkansas

The Federal Dist. of Columbia

859,325 sq. miles.

Of these the eight organised territories are far the most important. Their government rests on Federal Statutes, which take the place of State Constitutions. They each have a local Legislature with powers which are limited by Federal Statutes; a Governor, and a Judiciary. They are not represented in the United States Senate, but the House of Representatives admits a delegate from each of them to sit and speak, but not to vote. The Governor can veto Acts of the Legislature, and Congress has full power of disallowance over Acts so passed. In this respect the government of the territories resembles that of British Colonies. "Self-government is practically enjoyed by the territories, despite the supreme authority of Congress, just as it is enjoyed by Canada and the Australian Colonies of Great Britain despite the legal right of the British Parliament to legislate for every part of the Queen's Dominions. The want of a voice in Congress and Presidential elections, and the fact that the Governor is set over them by external power, are not felt to be practical grievances, partly of course because these young communities are too small and too much absorbed in the work of developing the country to be keenly interested in national politics."

Australia.

The Federal Constitution of Australia offers a much closer analogy to that of the United States, as far as the admission of new States is concerned, than does that of Canada. It will be convenient, therefore, to consider it here. The relevant sections are :

121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

These cases are cited by Baker: Annot. Const. U.S., pp. 165, 166.