/ 
 
 LIBRARY 
 
 UNIVERSITY OF 
 CALlfOKNIA 
 
 SAN DIEGO
 
 OP'SiOO 
 
 3 1822 01314 3003 
 
 /^m ST/Q 

 
 EEDERATIOI^S AND UNIONS 
 
 WITHIN THE BRITISH EMPIRE 
 
 BY 
 
 HUGH EDWARD EGERTON 
 
 BEIT PROFESSOR OF COLONIAL HISTORY 
 FELLOW OF ALL SOULS COLLEGE, OXFORD 
 
 OXFORD 
 
 AT THE CLARENDON PRESS 
 
 1911
 
 HENRY FROWDE, M.A. 
 
 rUBLISHER TO THE UNIVERSITY OF OXFORD 
 
 LONDON, EDINBURGH, NEW YORK 
 
 TORONTO .AND JIELBOURNE 
 
 PRINTED m EtlGLAflD.
 
 PREFACE 
 
 The time was, we are told, when a knowledge of 
 the laws of his country was a part of the liberal 
 education of an English gentleman. The great 
 mass and confusion of the Statutes at large have 
 long made this impossible ; and a commission in 
 the Guards is often the modern substitute for attend- 
 ance at one of the Inns of Court, in the case of a 
 future country magistrate. But an exception to the 
 rule that confines the knowledge of Acts of Parlia- 
 ment to the trained lawyer may well be made, when 
 the Statutes are in question, which embody (to a 
 great extent at least) the political Constitutions 
 which have been evolved by the needs of the 
 peoples of Canada, Australia and South Africa. At 
 a time when our own unwritten Constitution is in 
 the melting-pot, it is surely a matter of importance 
 that we should know the exact significance of the 
 precedents which, with a light heart, our self- 
 constituted political guides quote to us from their 
 respective platforms. 
 
 ' So, do I find example, rule of life ; 
 So, square and set in order the new page.' 
 An apology is, then, perhaps scarcely needed for 
 putting together in a handy form these ' fundamental 
 Constitutions ', together with some other documents 
 which may assist in their elucidation, introduced by 
 an historical account of the circumstances in which 
 they rose. To the professed lawyer and historian
 
 4 PREFACE 
 
 a book of this kind may appear a hybrid, possessing 
 the weak points of either of its parent stocks : but, 
 on the other hand, it may be hoped that the end 
 justifies the means. 
 
 I have advisedly not inchided the Constitution of 
 New Zealand. The shadowy kind of federation 
 adumbrated by the establishment of the six Pro- 
 vinces can hardly take rank among federal Govern- 
 ments, even during the short period of the existence 
 of these Provinces ; and in other respects the 
 Constitution of New Zealand was similar to the 
 Constitutions of the other Australasian Colonies. 
 
 I have to express my warm thanks for correc- 
 tions and advice to Professor W. L. Grant, of Queen's 
 University, Kingston ; to Mr. A. Berriedale Keith, 
 of the Colonial office, author of llesponsihle Goveni- 
 ment in the Dominions^ and to Mr. E. Barker, Fellow 
 and Tutor of St. John's College, Oxford. Professor 
 Grant found time before leaving England to read 
 the book through in MS. ; Mr. Keith has generously 
 placed at my disposal his probably unrivalled know- 
 ledge, at least in this country, of these Statutes, 
 and Mr. Barker read my Introduction, and made 
 some valuable suggestions with regard to its con- 
 cluding part. 
 
 H. E. EGERTON. 
 
 Oxford 
 Jannari/, I'.Ul.
 
 CONTENTS 
 
 PAGE 
 
 INTRODUCTION 7 
 
 The New England Confederatiox oe 1643 . . 8 
 
 Pekn's Proposal . . . . . . .13 
 
 Franklin's Scheme of Federation . . .14 
 
 The British North America Act . . . .17 
 
 The Australian Commonwealth . . . .40 
 
 The Union of South Africa . . . . .68 
 
 Conclusion . . . . . . . .89 
 
 THE ARTICLES OF CONFEDERATION OF 1643 . 103 
 
 WILLIAM PENN'S PLAN OF UNION . . .112 
 
 BENJAMIN FRANKLIN'S ALBANY PROPOSALS . 114 
 
 THE BRITISH NORTH AMERICA ACT, 1867 . .121 
 
 REPORT OF PRIVY COUNCIL— CONSTITUTION 
 
 FOR THE AUSTRALIAN COLONIES . .169 
 
 THE COMMONWEALTH ACT, 1900 . . . .185 
 
 THE UNION OF SOUTH AFRICA ACT, 1909 . .231 
 
 BIBLIOGRAPHY 292 
 
 INDEX 297
 
 INTRODUCTION 
 
 Whatever be the ultimate future of the British Empire 
 as a whole, we may safely afSrm that, with the accomplish- 
 ment 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 por- 
 tions 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 it 
 is remembered, however, that Mr. Wheeler's elaborate com- 
 mentary on the Confederation Lair of Canada contains 
 over eleven hundred pages, and that the Annotated Con- 
 stitution 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
 
 8 INTRODUCTION 
 
 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 
 w^hy has South Africa preferred a union to a federation ? 
 The answer 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, how^ever, entering upon the history it is necessary 
 to define what is meant by a Federation. A federal form 
 of government is found w^here communities, w^liich possess 
 for certain purposes a distinct political existence, join 
 together to form a common %vhole, without losing their 
 separate organization. The component parts of a federal 
 system must, in the w^ords 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. 
 
 Nf-w 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 conti'ol over the various settle- 
 ments. The authority of the general government hatl been 
 recognized at Salem, and when Boston, Rochester, Water-
 
 NEW ENGLAND CONFEDERATION OF 1643 9 
 
 town 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 w^ithin the bounds of that 
 Colony. Rhode Island and Providence Plantation could be 
 dismissed from the mind, as being contumacious, lieretical 
 communities, not having that union of thought regard- 
 ing Church ([uestions 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 connnon 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 ques- 
 tions, 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 J ohn Quincy Adams, ' the New England Con- 
 federacy 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
 
 10 INTRODUCTION 
 
 of contribution was bj^ population, and Massachusetts had 
 some fifteen thousand out of a total population of some 
 twenty-three thousand, it would be liable to contriliute much 
 more than was contributed by the other three members 
 combined. In 1648 Massachusetts demanded an additional 
 Commissioner and complained of assessment by mere popu- 
 lation, 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 Com- 
 missioners. 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 j'ielded to 
 the authorit}" of the Commissioners with extreme reluc- 
 tance. 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 (juestion 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 the}' had no means of 
 understanding. A different decision might have completely 
 altered the whole course of the future history. On one 
 important (juestion of foreign policy the Commissioners 
 were clearly in the wixjiig and IMassachusctts 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 Nethei'land, partly settled Ity arbitra- 
 tion in 1650 ; and when war broke out in Europe between
 
 NEW ENGLAND CONFEDERATION OF 1643 11 
 
 England and the United Provinces in 1652, the Federal 
 Commissioners determined to carry it on in America ; but 
 the Massachusetts General Court steadily refused to be 
 bound by the decision of the six Commissioners from the 
 other Colonies, Their action was no doubt right upon the 
 merits ; none the less it was a direct defiance of the federal 
 authority. The contention of Massachusetts was that the 
 Commissioners had not j)Ower to determine the justice of 
 an offensive war, so as to oblige the several Colonies to act 
 accordinglj'- ; and, whatever be thought of their interpreta- 
 tion of the actual languacce, the fact that the Commissioners 
 could not execute their own orders or provide the necessary 
 revenue made the consent of Massachusetts a practical 
 necessity. Although Massachusetts succeeded in her object, 
 she afterwards admitted that her interpretation of the 
 article could not be sustained. In 1667, however, a new 
 clause was introduced providing that the power of deter- 
 mining the question of an offensive war should rest with 
 the several General Courts, and not with the Commissioners, 
 without special instructions from their respective General 
 Courts. A more serious blow, however, and one from 
 which it never reall}' recovered, was given to the Con- 
 federation when, in cynical disregard of the express 
 terms of one of its articles, Connecticut obtained the 
 inclusion of New Haven in its charter signed in 1662, 
 New Haven resented bitterlj- the action of Connecticut ; 
 and only yielded in 1664, when the prospect of a still 
 worse fate, that of becoming absorbed in the new province 
 of the Duke of York, loomed on the horizon. In any 
 case, with the fate of New Haven present before men's 
 eyes, the year of New England federation had lost, if it 
 ever possessed, its spring, A feeble protest was made by 
 the Commissioners in September, 1663 ; but they were 
 powerless against accomplished facts. It was no wonder 
 that in 1665 Plj-mouth proposed the dissolution of the 
 confederacy.
 
 U INTRODUCTION 
 
 Annual sessions, which had hitherto been held regularly, 
 ceased after 1664. The disappearance of New Haven was 
 followed by an order declaring that the Commissioners 
 would only meet trienniall}^ ; and, in 1670, certain altera- 
 tions were proposed in the articles, which were ratified in 
 1672. In the articles as proposed in 1670, the quotas to 
 be furnished by Massachusetts, Plymouth, and Connecticut 
 were respectively 100, 45, and 90. As finally settled, they 
 were 100, 30, and 60. After the outbreak of Philip's War 
 in 1675, several meetings were held and forces raised by 
 the Commissioners, but after the Indians had been 
 finally subdued their period of activity came to an end; 
 and, with the revocation of the Massachusetts charter in 
 1684, the NcAV England Confederation became a thing of 
 the past. 
 
 But, though the Confederation of the United Colonies 
 never played a conspicuous part in the political field, owing 
 partl}^ to its inherent weakness, partly to the overwhelming 
 superiority of Massachusetts and the general prevalence of 
 particularist tendencies, still in more modest waj^s it 
 accomplished good work. The Commissioners busied 
 themselves on behalf of education and of missionary enter- 
 prise. It was owing to their action that special efibrts 
 were made on behalf of Harvard College, ' that school of 
 the prophets,' by the Massachusetts and Connecticut General 
 Courts ; and the Commissioners seem to have been generally 
 regarded as the natural pillars of New England orthodoxy. 
 When, in 1649, the Society for the Propagation of the Gospel 
 was set on foot in England, the Commissioners of the United 
 Colonies were made the conduit pipe by which the funds 
 should be administered. It is noteworthy that although, 
 «o far as the English Government was concei'ned, the estab- 
 lishment of the Confederation had been a wholly un- 
 authorized proceeding, yet after the Stuart restoration no 
 cliauge was made in tliis respect. The joint efi"orts of the 
 S(jciety in England and o\' the Commissioners in New
 
 PENN'S PROPOSAL 13 
 
 England in the work of converting and civilizing the 
 Indians continued, until they were brought to a sudden 
 end by the catastrophe of Philip's War. 
 
 Penn's Proposal.^ 
 
 We have seen that the New England Confederation was 
 a purely American affair, resolved upon and carried through 
 without any consultation of the Home Government. But, 
 as the English authorities, upon the whole, strengthene<l 
 their hold upon the Colonies, and as the danger of French 
 aggression in America grew year by year greater, it became 
 the role of the Home Government to urge some form of 
 union, and that of the jealous and short-sighted Colonies, 
 each developing in its own way a separate provincial life, 
 to brush aside such advice with suspicion and distrust. 
 The way out of the difficulty attempted by James II need 
 not detain us. To add government to government, and 
 lump the whole under a single autocrat, was one method 
 of union ; but it was a method deeply repugnant to all that 
 was best in the temper of Englishmen, whether at home or 
 abroad, and one not at all suited to American soil. None 
 the less the mischief against which James's brutal states- 
 manship was directed was a real one, and it is interesting 
 to observe that two of the ablest men who were connected 
 with the American Colonies put forward plans for meeting 
 the mischief. That of Penn, inasmuch as it remained 
 without any consequences, need not detain us. It was, 
 from his own point of view, no doubt a purely opportunist 
 proposal. The system attempted by the Board of Trade 
 of settling the quotas of men to be furnished for purposes 
 of defence by the various Colonies had broken down in 
 
 ^ A scheme very similar to Perm's was suggested in the Introduction to 
 Daniel Goxe' a Description of Carolana, 1722. Coxe was an indefatigable but 
 unlucky empire builder, on paper, whose claims bulk large in the State 
 Papers of the end of the seventeenth and beginning of the eighteenth 
 centuries.
 
 14 INTRODUCTION 
 
 practice ; and a shrewd courtier Quaker, like Penn, might 
 well recognize that the stolid resistance of the colonists to 
 any kind of mutual assistance might in the end lead to 
 some invasion of colonial liberties. As proprietor of his 
 thriving province, he was in a continual dilemma, between 
 the Scylla of the colonists' aversion to the payment of their 
 just dues and the Charylidis of the distrust of him felt at the 
 Court of William III. His plan of a federal union is a rudi- 
 mentary scheme enough, lacking an}^ explanation of the 
 means by which the decisions of the deputies at the General 
 Assembly were to be enforced. Still it is of interest as a 
 recognition of the evil : the final outcome of which was to be 
 George Grenville's Stamp Act and the American Revolution. 
 
 Franklin's Scheme of Federation. 
 
 As time went on, the mischief against which miion was 
 necessary grew in size and gravity, whilst the Colonies 
 became more selfishly absorbed, each in its own private 
 concerns, and less and less inclined to follow the leading 
 of the English governors. Especially in dealings with the 
 Indians did the evils of a division of governments and of 
 policies come to the fore. A meeting of Commissioners from 
 the various Colonies was held in Jul}', 1754, according to 
 the instructions of the Board of Trade. The idea of union 
 was in the air, and Franklin took advantage of this 
 meeting to put forward the proposals for a more general 
 union of the Colonies which are here set out. The 
 scheme was adopted by the Connnissioners ; but it was in 
 fact far ahead of the public opinion of tlie time, and 
 was met with a chorus of disapproval by the various 
 Assemblies. Upon the other hand, the Home Government 
 might naturally be suspicious of Franklin's plan, as in- 
 volving too great an invasion of the prerogative. The 
 Board of Trade itself, in the same year, suggested 
 a more limited kind of unif)n confined to the subject of 
 military defence. In submitting its plan tlie Board
 
 FRANKLIN'S SCHEME OF FEDERATION 15 
 
 pointed out that, in case one or more of the Colonies 
 refused to enter into the union, either by failing to send 
 representatives or by refusing to raise the required money, 
 no other method of persuasion would be possible, except ' an 
 application for the interposition of the authority of Parlia- 
 ment '. It is thus cleai' that the contemptuous rejection 
 of the Albany plan of union by the colonial Assemblies 
 cleared the way for the imposition of Parliamentary 
 taxation. But it is possible that, had the Home Govern- 
 ment ignored the opposition of the Assemblies, and legis- 
 lated in the direction of the Albany plan, the Colonies 
 might at the time have acquiesced in their decision. Still, 
 it is unfair to suggest, as was suggested by Franklin, that 
 part of the blame for the rejection of his plan rested on 
 the shoulders of the Home Government. The Board of 
 Trade contented itself with pointing out that whilst the 
 Commissioners had considered the questions of the manage- 
 ment and direction of Indian affairs, the strengthening 
 of the frontiers, and the providing for these services by 
 a general plan of union, they had refrained from making 
 suggestions with regard to the two first, before the estab- 
 lishment of the union. With respect to the plan itself 
 the Board of Trade dryly reported : ' The Commissioners 
 having agreed upon a plan of union, which, as far as their 
 sense and opinion of it goes, is complete in itself, we shall 
 not presume to make any observations upon it, but transmit 
 it simply for your Majesty's consideration.' In fact, the 
 general situation in America soon became far too serious 
 to admit of leisure for the elaboration of new Constitutions. 
 Meanwhile, it should be noted that Franklin's plan 
 was a great improvement over previous proposals, because 
 his Grand Council would have power to make laws and 
 levy general duties and taxes. It would thus have come 
 into direct contact with the individual taxpayer and have 
 possessed power as well as authority. The difficulty of 
 reconciling the rival principles of provincial e([uality and
 
 16 INTRODUCTION 
 
 of additional power to be given to wealth and population 
 was met by enacting that in no case should the number 
 of representatives exceed seven or be less than two ; but, 
 subject to this rule, that the number of members to be 
 chosen for each Colony should depend upon the amount 
 of its contribution to the general treasury. It is not very 
 clear from a perusal of the plan what would have been the 
 exact functions of the President-General and of the 
 members of the Grand Council in the working out of 
 the Constitution. But it must be remembered that colonial 
 government, at any rate in New England, was, more and 
 more, taking the form of government b}' means of Com- 
 mittees of the Assemblies, intruding upon the province of 
 the Executive ; so that a decorous reticence was necessary 
 if the scheme was to have any chance of approval in 
 E ngland. Upon the whole, Franklin had good reason for 
 h is pride in his bantling. ' The different and contrary 
 reasons of dislike to my plan ', he wrote years afterwards, 
 ' make me suspect that it was reall}' the true medium ; 
 and I am still of opinion that it would have been happy 
 for both sides if it had been adopted. The Colonies so 
 united would have been sufficiently strong to have defended 
 themselves. There would then have been no need of troops 
 from England. Of course, the consecjuent pretext for 
 taxing America and the bloody contest it occasioned would 
 have been avoided. But such mistakes are not new ; 
 history is full of the errors of states and princes. Those 
 who govern, having much l)usiness on their hands, do not 
 generally like to take the trouble of considering and 
 carrying into execution new projects. The best public 
 measures are therefore seldom adopted from previous 
 wisdom Ijut forced by the occasion.' 
 
 Be this as it may, the old English colonial system, whicli 
 received its deathblow by the loss of the American 
 Colonies, never learnt to read the riddle of the Sphinx of 
 federation. It remained to see wliether the new empire,
 
 FRANKLIN'S SCHEME OF FEDERATION 17 
 
 which arose on the ruins of the old, would have more luck 
 or more wisdom. At first, indeed, it seemed as though the 
 lesson which the British Government had learnt from the 
 loss of the American Colonies was a kindly rendering of 
 the maxim, divide et iinpera. The Colonies were to be 
 treated indulgently like favoured children ; but anything 
 in the nature of independent political life was to be, as far 
 as possible, discouraged. Here and there voices were raised 
 in favour of some kind of union of the British North 
 American Provinces. Thus, at the time of the Constitutional 
 Act of 1791, Chief- Justice Smith, a loyalist from New York, 
 whose father had been a leading member of the Albany 
 Congress, put forward an interesting scheme of federal union, 
 which is not inserted in this volume, because it has been 
 already printed in Canadian Constitutional Development, 
 by Egerton and Grant, pp, 104-10, as well as in Shortt 
 and Doughty, Const It lUional Documents, 1759-91, p. 687. 
 But, as will appear from the following summary of the 
 history of British North America, the general tendency was in 
 favour of the creation of separate and divided governments. 
 
 The British North America Act. 
 
 The Dominion of Canada, including all British North 
 
 America with the exception of Newfoundland,^ was formed 
 
 out of several separate Colonies, differing altogether in their 
 
 origin and character. When, as in the case of Lower and 
 
 Upper Canada, union had been in name effected, it had 
 
 been of so questionable and superficial a character as to 
 
 perpetuate fundamental distinctions. It may be said that 
 
 to accomplish a real federal union between the two Canadas 
 
 w^as a task of more difficulty than to weld into a single 
 
 union the English communities in the east and in the west. 
 
 The eldest of the British American Colonies was Nova 
 
 Scotia. Under a shadowy claim, resting on paper charters, 
 
 ^ If the Bermudas do not belong to tlie West Indies they still less form 
 a part of British North America. 
 
 1265 B
 
 18 INTRODUCTION 
 
 New Scotland dated from Stuart times : but, at any rate, 
 from the Peace of Utrecht, in 1713, Nova Scotia was 
 a recognized British possession, though even then the 
 question, what was meant by Nova Scotia, was not finally 
 settled, and the French put forward the pretension that it 
 only included the peninsula, or a part of the peninsula, of 
 what is now Nova Scotia, and that the future Province 
 of New Brunswick was not included within its area. But, 
 whatever were its nominal boundaries, the actual hold of 
 Great Britain on Nova Scotia was slight indeed. The 
 mother country looked to Massachusetts to organize effective 
 occupation, and INIassachusetts, at bay with the French and 
 Indian perils, was unable to respond to the call, so that 
 the new possession remained for the most part a waste 
 country, and the French Acadian inhabitants were left to 
 find their own answer to the puzzle : When is a British 
 subject not a subject? Great Britain standing idly by, till, 
 by the deportation of the people in 1755, it sought in 
 a panic to make up for past neglect. The birth of Nova 
 Scotia as a living British Colony dates from the foundation 
 of Halifax in 1749, one of the rare occasions on which 
 Great Britain has organized systematic colonization for 
 imperial purposes. So carelessly and loosely was Nova 
 Scotia governed that it was suddenly discovered in 1755 
 that the practice of enacting laws by its Governor and 
 Council without the institution of an Assembly, was illegal, 
 and therefore, in 1758, a representative Assembly was set 
 on foot. After the Peace of Paris of 1763, Cape Breton 
 Island was annexed to Nova Scotia ; Imt, in accordance 
 with the general policy of the time, it was constituted 
 a .separate government in 1784. In 18.'2(), however, it was 
 again reannexed to Nova Scotia. 
 
 New Brun.swick owed its existence as a separate colony 
 to the same cause which lnought iiitcj being Upper Canada. 
 Great numbers of American loyalists sought a new liome in 
 this portion of Nova Scotia, which was therefore constituted
 
 THE BRITISH NORTH AMERICA ACT 19 
 
 a new province in 1784, under the name of New Brunswick. 
 The last of the Maritime Provinces, Prince Edward Island, 
 originally named St. John's, was till 1770 a part of Nova 
 Scotia, when, according to the prevailing policy of division, 
 it was formed into a separate government. It was 
 a significant commentary on the wisdom of this action that 
 separatist influences proved so strong in this little island 
 that, but for tinancial considerations, it would probably 
 have remained for some time beyond 1873 outside the 
 Confederation. 
 
 Still, whatever artificial distinctions may have been en- 
 gendered, themselves largely the outcome of mistaken 
 policy in England, the Maritime Provinces were a homo- 
 geneous community, destined in the long run to the enjoy- 
 ment of a common life. Identity of race, of interests, and 
 of policy, must in the end have brought about union, even 
 though the negotiations at Charlottetown in 1864 had, 
 for the time, proved abortive. 
 
 But the same causes which pointed to a union of the 
 Maritime Provinces, were directly hostile to a greater 
 union. Nova Scotia, with its face to the Eastern sea, saw 
 little to attract in the vision of union with the interior 
 Colony, of whose politics it had little understanding, and 
 with whose population, so far as it was French, it had not 
 a little racial antagonism. Lord Durham had gone out to 
 effect a federation of British North America ; but, if there 
 were no other difficulties in the way, the indifference and 
 isolation of the Maritime Provinces must in any case have 
 wrecked the scheme. Nova Scotia was largely under the 
 domination of Halifax, and Halifax as a commercial and 
 social centre was jealous of anything that might diminish 
 its comparative importance. Many retired officers of the 
 British army and navy had found a home in Halifax, and 
 these men, with those related to them by marriage or social 
 connexions, formed a Conservative stronghold which 
 distrusted absorption in a greater Canada. At the other 
 
 B 2
 
 20 INTRODUCTION 
 
 extreme the Radicals, with the great Nova Scotian orator, 
 Joseph Howe, at their head, were in 1865 equally op- 
 posed to Confederation. Imperilled business interests 
 barbed the opposition to Confederation, and Howe, apart 
 from personal motives, saw in it the deathblow to his 
 splendid ideal of an imperial federation. In this state of 
 things the wonder is, not that complete union was not 
 achieved, but that even a federation was at length accom- 
 plished. On the other hand, it may be argued that a reso- 
 lution in favour of the Confederation of British North 
 America was passed by the Nova Scotian Assembly as 
 early as 1854; but the subsequent history showed that 
 this hardly reflected the settled opinion of the Colony. 
 
 In Canada, which, from her position and population, 
 possessed the controlling voice in any scheme of closer union, 
 the cause of Confederation was mainly won by two motives, 
 themselves wholly separate, working in the same direction. 
 In the first place there was the melancholy fact that party 
 government in Canada had resulted in deadlock. In order 
 to understand this state of things, it is necessary to review 
 very briefly the constitutional history. The prolongation 
 of the French system of paternal government, as recog- 
 nized by the Quebec Act of 1774, came to an end in 1791, 
 when the coming of loyal Americans into Upper Canada 
 brought about the division of the province and the grant- 
 ing to both Upper and Lower Canada of a representative 
 Assembly. Shrewd critics have doubted the wisdom of 
 thus formally sanctioning the continuance of French 
 separatism ; but, if the French nationality and language 
 were to continue — and there is no evidence that at that date, 
 any more than at a later one, the province could have been 
 successfully anglicized — it was surely wise for the British 
 Government to yield with a good grace what might have 
 been successfully extorted ; especially as thereby the 
 powerful weight of the Catholic Church was thrown into 
 the scale on the side of the English predominance. The
 
 THE BRITISH NORTH AMERICA ACT 21 
 
 position of the Catholic Church had been secured by the 
 Quebec Act of 1774, and any attempt to anglicize the 
 province would have been resisted, as making for the 
 triumph of heresy. But although the division of Canada 
 and some of its consequences may have been inevitable, 
 none the less the political situation in both provinces be- 
 came difficult and wellnigh impossible. The French- 
 Canadians were without apprenticeship in local self- 
 government and were for the most part wholly uneducated, 
 so that they became as wax in the hands of their popular 
 leaders. For many years an eloquent and genial dema- 
 gogue, Louis Papineau, was the uncrowned king of the 
 French-Canadian democracy ; whilst there were mar- 
 shalled in reserve on the side of law and order the forces 
 of the Catholic Church. In the long quarrel between the 
 English Executive and the French-Canadian Assembly 
 there were faults on both sides. Not till nearly the close 
 of the controvei'sy did the French leaders begin to realize 
 that responsible government would give the solution of 
 their difficulties ; and, in their demand for an elected 
 Legislative Council, they were opposed by the full strength 
 of the British minority, who knew enough of the doings of 
 the French majority in the Assembly to fear their com- 
 plete dominance in an elected legislature. When Lord 
 Gosford's Commission found themselves compelled to reject 
 the proposal which was the sheet-anchor of the French- 
 Canadian demands, it became clear that some wholly new 
 solution must be found if neither a policy of coercion nor 
 of renunciation was to be adopted. 
 
 Meanwhile in Upper Canada causes, in appearance the 
 same though in their essence altogether different, had 
 brought about a political situation hardly more satisfactory. 
 Here the grievance of an irresponsible Executive, confronted 
 with an Assembly genuinely representative, was aggravated 
 by the treatment of the clergy reserves question, which 
 secured for the Church of a small minority of the popula-
 
 22 INTRODUCTION 
 
 tion the favoured position of the Church establishment at 
 home. Archdeacon Strachan, a stalwart champion of his 
 Church in its most militant mood, supplied political opposi- 
 tion with a weapon which it soon learnt how to wield. 
 As in Lower Canada so in Upper, a single leading dema- 
 gogue was able to put a match to the fire : though in the 
 case of Upper Canada William Lyon Mackenzie's efforts 
 would probably have been unavailing had they not been 
 abetted by the eccentric and egotistical proceedings of the 
 British Lieutenant-Governor, Sir Francis Bond Head. The 
 conclusion was that in both Provinces there was an abortive 
 insurrection, from a military point of view trifling enough ; 
 but most menacing, so far as it seemed to mark the break- 
 down of British colonial government. The next act in the 
 drama is sufficiently familiar. Lord Durham's mission of 
 1838 was soon followed by his repudiation in the matter 
 of the political prisoners banished to Bermuda, and his 
 consequent resignation. In the following year the publica- 
 tion of his memorable Report marked an epoch in the 
 history of colonial self-government, forcing as it did the 
 hands of the Home Government, and involving a new state 
 of things which as late as 1837 had seemed to the liberal 
 mind of Lord John Russell incompatible witli the continued 
 existence of the colonial connexion. Lord Durham (as I 
 have already mentioned) entered on his task with the idea 
 that the solution of difficulties was to be sought in the 
 application of the federal principle; but he found (m his 
 arrival that, wliile what had to be done must be done 
 quickly, the French-Canadians were in no mood to become 
 friendly partners in a federal British America. (There was 
 the further difficulty, which I have already noted, that 
 neither were the Maritime Provinces prepared at this time 
 for such a solution.) But if federation was impossible, the 
 only alternative seemed a complete union of the two 
 Canadas. Such a union liad liccii inl('H(l(Ml in IH.'i.'i, when 
 the (b'llifultics with i-egard to the share of the Upper Pro-
 
 THE BRITISH NORTH AMERICA ACT 23 
 
 vinee in the customs duties received at Quebec and Mont- 
 real threatened an imjyasse. The measure had been then with- 
 drawn in the face of the opposition of the French and of 
 many of the EngHsh colonists ; but the French-Canadians 
 were now brooding in sullen despair, so that union could 
 hardly add to their ills ; whilst the outbreak in Upper 
 Canada had sufficiently shown that the system of ' family 
 compact ' government could not ignore the writing on the 
 wall. Moreover, Lord Durham believed that his other 
 remedy for the existing evils, viz. the granting of complete 
 responsible government, would finally appease all popular 
 disappointment. It is worth noting that even Durham's 
 conception of responsible government did not include the 
 management by the colonial authorities of questions of 
 trade, the Crown lands, or military defence. He recognized 
 that, as things were for the moment, it would be impossible 
 to give complete self-government to the French Province. 
 As an Imperialist, he had no intention to diminish the 
 British Empire; but the first act of a French- Canadian 
 Executive, irresponsible except to its own Legislature, might 
 have been to announce a peaceful secession. Responsible 
 government was the goal ; but responsible government 
 postulated that the majority of the people in question were 
 loyal subjects of the British Empire. Had Lower Canada 
 stood alone, there might have been no answer to the 
 dilemma; but happily the presence of Upper Canada 
 pointed to the solution. Durham at once recognized, and 
 it is to his credit that he so recognized, that, in spite of 
 family compact government and William Lyon Mackenzie 
 and his tragi-comedy of a rebellion, there was no real 
 doubt as to the loyalty of Upper Canada to the British 
 Crown. Could, then, a fusion be made of the two Provinces, 
 the Upper Canadian electors might be trusted to secure 
 the permanence of the British connexion. It was true 
 that the population of the Lower Province was still greatly 
 superior in numbers, but Durham was willing to trust to
 
 24 INTRODUCTION 
 
 time, along with the presence of the British minority in the 
 Lower Province, to secure the predominance of British 
 institutions. In his insular self-confidence he believed that 
 the superiority of Anglo-Saxon ways and methods was so 
 self-evident that it needed but due opportunity for its 
 trumpet-call, and the walls of French Nationalism and 
 language would come crumbling down from their sheer 
 insufficiency. The new creed of Nationalism was soon to 
 give forth a gospel very different from the imaginations of 
 Liberals of the type and temper of Lord Durham. 
 
 What would have been the result of a real union, such as 
 that advocated by Lord Durham, it is impossible to say, 
 because such a union was never attempted. In its stead 
 the two divisions of the Province were treated as separate 
 entities, each having under the Act of Union of 1840 an 
 equal number of members. At first the grievance was on 
 the side of the French ; but, as the population of Upper 
 Canada grew by leaps and bounds, the burden was shifted 
 on the other shoulder ; till at the time of the British North 
 America Act a majority of some 400,000 Canadians in the 
 upper division had only the same representation as the 
 population of the lower division. In other ways the Union 
 only served to emphasize racial distinctions. The French- 
 Canadians believed, and a perusal of Lord Durham's Report 
 might justify them in that belief, that the Act of Union was 
 intended as a blow to their separate nationality, and there- 
 fore sought by all possible means to prevent the blow 
 taking effect. It must be remembered that in Lower 
 Canada union was not the deliberate choice of a free 
 people, Imt was superimposed on the people by a special 
 council nominated by an autocracy. The French-Canadians 
 had therefore no affection or respect for the system intro- 
 duced. At the same time tlie majority were wise enougli 
 to see that their interests lay not in standing aloof from 
 the new system, as the extremists advised, but in moulding 
 that system to tlicir interests. If the intention was to
 
 THE BRITISH NORTH AMERICA ACT 25 
 
 swamp the French nationality in an Anglo-Saxon Province, 
 the more necessary it was to maintain a separate French- 
 Canadian organization for the attainment of French- 
 Canadian ideals. During the time of Lord Sydenham's 
 Government the French remained suspect, the memories of 
 the rebellion being still fresh in the minds of men, and 
 Sydenham was not prepared to accept the full consequences 
 of responsible government, so far as it meant party govern- 
 ment by a parliamentary majority. He aimed at being 
 liis own first minister and to rule through the best men 
 chosen by himself on other than party grounds. Syden- 
 ham's attitude was well adapted for a period of transition, 
 but it postulated a very strong Governor and a very simple 
 Colonial Assembly. Meanwhile the French-Canadians had 
 joined forces, for the purposes of opposition, with the Re- 
 formers from Upper Canada, and Sydenham's successor, 
 Sir Charles Bagot, recognized that it was impossible to 
 refuse as ministers those who represented the will of the 
 majority. The next Governor, Metcalfe, in his heart dis- 
 trusted the system of responsible government ; and it was 
 not till the government of Lord Elgin in 1848 that it can 
 be said to have triumphed permanently. But simultane- 
 ously with that triumph, the internal difficulties in the way 
 raised their head. Responsible government means party 
 government, and party government means the ascendancy, 
 at least, of two distinct parties. But in the Canadian 
 Assembly there were four, if not five, distinct parties. 
 There were the Upper Canadian Reformers, who held 
 Radical opinions, the Conservatives from that Province, and 
 the small faction which maintained the ' family compact ' 
 tradition. The French-Canadians were, at first, for the 
 most part unanimovis on the side of opposition, but when 
 once they had been admitted within the portals of the 
 Government, it was inevitable that their natural tendency 
 to Conservative opinions should find expression ; so that 
 in time there developed a French-Canadian Conservative
 
 26 INTRODUCTION 
 
 party and a French-Canadian Radical party known as the 
 'rouges'. It was that astute parliamentary hand, John 
 A. Macdonald, who first bridged the artificial gulf existing 
 between the French-Canadians and the Conservatives. 
 But, it must be remembered, Liberals and Conservatives 
 from different portions of Canada, though sharing the 
 same name, did not really hold the same views and opinions. 
 Thus every ministry was a coalition, possessing the 
 inevitable weakness of a coalition. How was it possible 
 that strong Protestants from Upper Canada should see eye 
 to eye with their Roman Catholic colleagues on such ques- 
 tions as education ; or that the Upper Canadian grievance 
 of the clergy reserves should interest much the French- 
 Canadians ? The dual nature of the Government was in 
 every way emphasized. There were two first ministers, 
 one English and one French. The Union Legislature started 
 with a pre-eminence given to the English language, but this 
 pre-eminence had soon to be taken away. To such lengths 
 did mutual suspicion and distrust go that it came to be 
 a kind of convention that a ministry must possess a dual 
 majority ; that is, a majority from l)oth L^pper and Lower 
 Canada, The system was extremely expensive, as, if public 
 money was spent on one portion of Canada, an equal sum 
 had to be provided for the other. Thus, when the abolition 
 of the seigniorial tenures in Lower Canada involved large 
 payments from the public purse, an equal sum had to 1>e 
 given to Upper Canada. There was no real life in the 
 party controversies, and the drear}'- struggle between the 
 ins and outs never ended in a real victory. In three years 
 four ministries were defeated, and two general elections only 
 gave uncertain results. Meaiiwliilc in Upper Canada the 
 demand for representation by population was gntlicriug 
 strc^ngth ; and Conservatives, as well as Liberals, from the 
 upper division of the Province, wore beginning to \irge 
 its necessity, lint such a s()luti(»n \v(»ul<I liav(! seemed to 
 tlie French-Canadians a diicct bic-u-li ol' a solcnni engage-
 
 THE BRITISH NORTH AMERICA ACT '^7 
 
 inent, and would assuredly not have made for general 
 harmony. 
 
 In this state of things, when the Union as framed by the 
 Act of 1840 had been tried and found wanting, it was 
 natural that men's minds should turn to the other solution 
 of the difficulty which had .in the past been more than once 
 proposed and which had been the first choice of Lord 
 Durham. In 1858 the Canadian Government advocated 
 a Federal Union of British North America, Mr. Alex- 
 ander Gait, the finance minister, having made the adop- 
 tion of this polic}^ a condition precedent to his joining 
 the ministry. At the time but little encouragement was 
 got in England ; but the advocacy of federation by an 
 opportunist ministry showed which way the wind was 
 blowing. Equally significant was the attempt in the next 
 year to rally the opposition in favour of a programme 
 which proposed the formation of two or more local govern- 
 ments for the control of all matters of a local or sectional 
 character, and some joint authority charged with such 
 matters as were necessarily common to both sections of the 
 Province. The attempt was not very successful, but at least 
 it showed that practical politicians were feeling their way 
 to some other solution of the problem than representation 
 by population in a single Parliament. 
 
 Mr. George Brown, who first in 1864 pointed the way to 
 a compromise, was the same statesman who, in his constant 
 advocacy of representation by population and his profound 
 distrust and dislike of French-Canadian Roman Catholicism 
 and its fruits, had done much to bring about the break- 
 down of constitutional government. 
 
 If, then, we confine our gaze to Canadian party controversy 
 there is ample ground for the assertion that the adoption 
 of federation was a mere counsel of despair, occasioned by 
 the bankruptcy of party government. No doubt economic 
 motives were also at work. Fears at the coming termina- 
 tion of the Reciprocity Treaty of 1854 with the United
 
 28 INTRODUCTION 
 
 States marked the dangers of isolation. The restrictions 
 on intercolonial trade were more and more felt irksome, 
 and the powerful interest of the Grand Trunk Railway 
 Company worked, though silently, in the same direction. 
 
 Beyond and above all this there was besides, in the back- 
 ground, and for a time hardly consciously, a nobler motive 
 at work. The idea of a greater Canada had for years 
 been in the minds of thinking men. The conviction that 
 one day or other the East and the West would be linked by 
 the unifying force of a transcontinental railway had been 
 expressed by Joseph Howe in 1851, and again by Chief- 
 Justice Draper before the House of Commons Committee of 
 1857, which considered the rights of the Hudson Bay Com- 
 pany. The matter was complicated by Canadian claims to 
 the company's territories which the Home Government 
 could hardly recognize. Mr. G. Brown had advocated for 
 some twenty years the annexation to Canada of the Northern 
 and North-West territories ; but as his advocacy had been 
 part of a crusade against a ' grasping monopoly ', it did not 
 advance the movement much with cautious men. More- 
 over, owing to the sectional jealousies which prevailed, 
 Lower Canada was opposed to the opening of the West, lest 
 it should add to the importance of the Upper Division. 
 The half-breeds in the Red River Settlement were mostly 
 French-Indian Roman Catholics, and the development of 
 the country might mean their submergence under a wave of 
 Anglo-Saxon immigration. John A. Macdonald had not at 
 first been in much sympathy with a movement which was 
 mainly advocated by his Radical rivals ; but as time went on 
 he realized the danger lest Americans should occupy the 
 hinterlands of Canada and intercept the road to the Pacific. 
 What might have happened if the American Civil War had 
 not given the peopl(! of llic Uiiii('(l States ample field for 
 their energies in otlit-i- diicctions, it is iiiipossi])lc to say ; 
 but it is very dou1)tful how far Americans would liave 
 recognized rights resting on ehaitci's, unenforced l>y occupa-
 
 THE BRITISH NORTH AMERICA ACT 29 
 
 tion. Fortunately for the British empire, by the time that 
 American pioneers were ready to advance into the Canadian 
 West, the country had already become part of the Dominion. 
 It is impossible to bring out the argument here, but it is 
 certain that the recoe^nition of the need of a greater Canada 
 to secure an outlet for future population, and fear and 
 suspicion of Canada's mighty neighbour to the south, were 
 main contributing causes to the speedy success of the 
 federation movement. 
 
 In this state of things, when the ultimate destinies of 
 British North America and the immediate necessities of 
 Canadian politics alike pointed to the need of a new 
 departure, the visit of the Canadian delegates to the 
 Charlottetown Conference of 1864 gave the directing touch 
 to the course of the future history. It was decided to 
 adjourn the Conference to Quebec, so as to consider the 
 wider and broader Union which had been proposed. The 
 Quebec Conference met on October 10th, and between that 
 date and the 29th the seventy-two resolutions were passed 
 which with a few variations represented the substance of 
 the British North America Act. Canada, Nova Scotia, New 
 Brunswick, Prince Edward Island, and Newfoundland were 
 represented ; each Colony voting as one, except that Canada 
 had two votes. Upper and Lower Canada being treated 
 as separate Provinces. Among the builders of the new 
 Dominion were the veteran French-Canadian Prime Minister 
 Sir E. P. Tache, who did not live to see the consummation 
 of his labours ; George Etienne Cartier, the French-Canadian 
 Conservative, who did more than any one to make federa- 
 tion possible by reconciling to it his French fellow-country- 
 men ; George Brown, the stalwart champion of Upper 
 Canadian interests ; John A. Macdonald, most versed in the 
 arts of party management, but, through all his party 
 finessing, a fervent Imperialist ; and Alexander Gait, who 
 mapped out the financial arrangements of the new Consti- 
 tution. From the Maritime Provinces came, with others.
 
 30 INTRODUCTION 
 
 Mr. Charles Tupper, who was to grow grey in honourable 
 service to the Dominion, and Mr. Samuel Tilley, the leading 
 figure in New Brunswick politics. At the second meeting 
 a general motion in favour of a Federal Union was passed 
 unanimously, and on the following day it was explained to 
 mean aGeneral Government charged with matters of common 
 interest to the whole country, and Local Governments for 
 each of the Canadas and for the Maritime Provinces, 
 charged with the control of local matters in their respective 
 sections ; provision being made for the admission into the 
 Union on equitable terms of the North- West Territory, 
 British Columbia, and Vancouver. The proceedings of the 
 Conference were not reported, so that our main know- 
 ledge of them is derived from the scanty notes published in 
 Mr. Pope's Confederation Documents. There was complete 
 unanimity as to the form which the federation should take, 
 the American Civil War being an object lesson in the 
 dangers of the system under whicli any kind of sovereignty 
 could be claimed by the separate component parts. There 
 was some division of opinion with regard to provincial 
 representation in the Legislative Council, but there was no 
 opposition to the proposal that members should be nominated 
 by the Crown and hold office for life. Population was 
 accepted as the basis of representation for the House of 
 Commons by all the Colonies, with the exception of Prince 
 Edward Island, which demanded more members tlian the 
 five allotted to it under the scheme. 
 
 Although George Brown spoke in a private letter of the 
 Conference being nearly broken up on the question of the 
 distribution of members in the Upper Chamber, the most 
 serious difficulty seems to have been over the financial 
 provisions. The matter was complicated by the fact that 
 in the Maritime Provinces there was no system of levying 
 local rates for local needs. The Colonial Government had 
 been the nursing mother of all provincial undertakings. 
 In framing the new financial system it was necessary to
 
 THE BRITISH NORTH AMERICA ACT 31 
 
 take this state ot" things into consideration, though the 
 proposal to subsidize the Maritime Provinces was unpopular 
 in Canada. At last, however, largely by the tact and ability 
 of Mr. Alexander Gait, a 'inodas vivendl was arrived at. 
 After the passing of the Quebec Resolutions, George Brown 
 proceeded to London, where he found that the scheme had 
 given ' prodigious satisfaction '. The Home Government 
 indeed only criticized two decisions of the Quebec Conference. 
 They objected to the pardoning power, which was the pre- 
 rogative of the Crown, being vested in the Provincial 
 Lieutenant-Governors, and they considered that the mem- 
 bers of the Legislative Council being fixed at seventy-two 
 might lead to a parliamentary deadlock. The Quebec 
 Resolutions were brought before the Canadian Parliament 
 at the beginning of February, 1865. They were treated as 
 the terms of a treaty between independent Powers, which 
 could not be amended, but must be accepted or rejected 
 en Hoc. In spite of extremely able speeches against the 
 Union from Mr. Antoine Dorion and Mr. Christopher 
 Dunkin, the resolutions passed the House of Assembly 
 by a majority of 58 in a house of 124 voting, and the 
 Legislative Council by a still greater majority. But the 
 ship of Confederation had not yet sailed into smooth waters. 
 A general election in New Brunswick resulted in the rout 
 of its advocates. The coalition Canadian Government, 
 which had been formed for the one purpose of settling 
 the future Constitution, saw its work indefinitely postponed ; 
 whilst the position was made more difficult by the death of 
 the Prime Minister, and the inability of George Brown and 
 John Alexander Macdonald to act in friendly partnership. 
 Brown's resignation in the winter of 1865 was precipitated 
 by differences with his colleagues as to the line to be taken 
 in view of the termination in 1866 of the Reciprocity Treaty 
 with the United States ; but its real cause was his profound 
 distrust and dislike of his predominant colleague, John A. 
 Macdonald.
 
 32 INTRODUCTION 
 
 Although the deputation of Canadian Ministers which 
 Aasited England in 1865 may not have attempted to induce 
 the Imperial Government to force the Maritime Provinces 
 into confederation, that Government could fairly claim to 
 give advice, as being responsible for Imperial defence, and 
 could make sure that the Lieutenant-Governors were in 
 sympathy with the movement. The influence of the New 
 Brunswick elections had been felt outside its borders. The 
 Prince Edward Island Legislature now openly repudiated its 
 own delegates, and in Nova Scotia the opposition was so 
 powerful that the Government felt compelled to be content 
 for the time being with a scheme of union anions: the 
 Maritime Provinces. By the exercise, however, of patience 
 and tact, Mr. (now Sir Charles) Tupper induced the Nova 
 Scotia Assembly to agree to the appointment of delegates 
 * to arrange with the Imperial Government a scheme of 
 union which will eflfectually insure just provision for the 
 rights and interests of the Province '. Equally fortunate 
 was the cause of confederation in New Brunswick. The 
 Ministry, which was hostile to the movement, fell out 
 with the Governor and resigned. A general election put 
 Mr. Tilley again into power, and the new Assembly passed 
 by a large majority a resolution similar to that passed in 
 Nova Scotia, accompanied by a provision making it a sine 
 qua no a that the Intercolonial Railwaj' should be constructed 
 foithwith. Meanwhile in Canada the Governor, Lord 
 Monck, was urging upon John A. Macdonald the necessity 
 of prompt action. He had felt, when he formed the 
 Coalition Ministry, that his last card in tliat suit had been 
 played, and that, if he did not win, the time would have 
 come when he must give up the attempt to manage the 
 affairs of Canada. L'nless the Canadian portion of the 
 scheme could be passed during the present session, it was 
 his intention to apply for his immediate recall. Macdonald 
 was able to reassure the Governor. On the time and 
 manner of briuofinir forward Canadian ministerial measures
 
 THE BRITISH NORTH AMERICA ACT 33 
 
 he was doubtless the best judge. The resolutions, providing 
 for the Local Governments and the Legislatures of Upper and 
 Lower Canada, were duly passed, and everything seemed 
 ready for the departure for England of the delegates who 
 were to frame, along with the British authorities, the Con- 
 federation Act. A new delay was, however, imposed by 
 a change of Government in England, and it was not till 
 November 1866 that the Canadian delegates, Macdonald, 
 Cartier, Gait, and three others, sailed for England, where the 
 delegates from the Maritime Provinces had been since the 
 summer. At a meeting of the delegates, held on December 4 
 at the Westminster Palace Hotel, the Quebec Resolutions 
 were again adopted with some slight modifications. The 
 paragraph with regard to the building of the Intercolonial 
 Railway was made more explicit, and an undertaking given 
 that the Imperial guarantee for three millions of pounds 
 sterling, pledged for this work, should be applied thereto, 
 so soon as the necessary authority had been obtained from 
 the Imperial Parliament. The resolutions were finally 
 agreed upon by the 24th of December by a unanimous vote. 
 It was decided to avoid giving publicity to them until the 
 Bill embodying them was settled and ready to be laid 
 before Parliament. The proposals would no doubt offend 
 private interests and individuals, and their publication 
 would excite a new and fierce agitation in British North 
 America ; whereas ' the Act, once passed and beyond remedy, 
 the people will soon learn to be reconciled to it.' 
 
 A Bill was framed in accordance with these resolutions 
 and its provisions settled at meetings of the delegates with 
 the Law Officers of the Crown and the Secretary of State, in 
 the January and February of 1867. Drafts of the Bill at 
 various stages^ are printed in Mr. Pope's Confederation 
 Documents, but the differences are in fact very slight. 
 The main alterations suggested by the Home Government 
 were the removal of the pardoning power from the 
 Lieutenant-Governors and the power given to the Governor- 
 
 1265 C
 
 34 INTRODUCTION 
 
 General, under certain circumstances, to summon to the 
 Senate three or six additional senators. The Bill finally 
 became law, under the title of the British North America Act, 
 1867, on the 29th of March, and July 1 was proclaimed the 
 day on which the new Constitution should take effect. A 
 supplementary Act was also passed, authorizing a guarantee 
 of interest on a loan to be raised by Canada towards the 
 construction of a railway connecting Quebec and Halifax. 
 
 Thus was the Dominion born, though as yet, it must be 
 remembered, its dimensions were small compared with 
 what they were to be. Macdonald desired the more 
 imposing title of Kingdom of Canada, and deplored the 
 matter-of-fact attitude of English politicians ; but after all, 
 the future of Canada was in its own hands to make or to 
 mar. No doubt, at the time of the British North America 
 Act, many in England in their hearts approved of it as 
 a half-way house to peaceful independence. There was 
 required the experience of subsequent years before British 
 statesmen could feel the proud confidence in the future 
 which is now felt generally. 
 
 It has already been noticed that among the main 
 motives moving in the direction of confederation was 
 the desire for a greater Canada. It was then natural 
 that, when once the Union was achieved, negotiations 
 should have been entered upon with a view to securing 
 to the Dominion Rupert's Land and the North-West 
 Territory. As Lord Strathcona has pointed out, ' The 
 acquisition and development of the Hudson Bay Territory 
 was impossible prior to the confederation of the Dominion. 
 No less a body than United Canada could have acquired 
 and administered so large a domain, or have undertaken 
 the construction of railways, without which its develop- 
 ment could only have been slow and uncertain.' Resolutions 
 were passed in the Canadian House of Commons in 
 December, 1867, asking the Crown to unite Rupert's Land 
 and the North-West Territory to Canada. Before effect
 
 THE BRITISH NORTH AMERICA ACT 35 
 
 could be given to these resolutions, a private arrange- 
 ment was necessary between Canada and the Hudson 
 Bay Company. With this object, Sir George Cartier and 
 Mr. M^Dougall, the proposer of the resolutions in the Cana- 
 dian Parliament, visited England. Largely owing to the tact 
 and diplomacy of the Secretary of State, Lord Granville, 
 an agreement was arrived at, under which, in consideration 
 of the sum of £300,000 and of certain reserved tracts of 
 land, the Hudson Bay Company surrendered its territorial 
 rights to the Crown, an arrangement to this effect having 
 already received the sanction of the Imperial Legislature. 
 It is unnecessary to recapitulate here the successive blunders 
 which led to the Red River rebellion of 1869, which was 
 suppressed by Colonel Wolseley's expedition of the following 
 year. For present purposes, it is enough to note that by 
 a Canadian Statute of 1870, the new Province of Manitoba 
 was admitted a member of the Dominion. This Act was 
 confirmed by an Imperial Statute of 1871, which declared 
 that the Parliament of Canada might from time to time 
 establish new Provinces in any territories forming part of 
 the Dominion, and provide among other things for their 
 representation in Parliament. Under the provisions of 
 these laws Manitoba was given three senators, as well as 
 representation in the House of Commons according to 
 population. In 1905 the two new Provinces of Saskatchewan 
 and Alberta were carved out of the North- West Territory 
 and even now Western Canada is only in the beginnings 
 of its greatness. 
 
 But even when Canada possessed its valuable hinter- 
 lands stretching to the Rocky Mountains, something was 
 still lacking before British North America could become 
 an organic whole. West of the Rockies was a valuable 
 country, with an outlook to the Pacific Ocean, without 
 which the Dominion would never have reached its full 
 growth. Among the Quebec resolutions was one declaring 
 that ' the communications with the North- Western Terri- 
 
 c 2
 
 36 INTRODUCTION 
 
 tory, and the improvements required for the development 
 of the trade of the great West -with the seaboard, are 
 regarded by this Conference as subjects of the highest 
 importance to the federated Provinces, and shall be 
 prosecuted at the earliest possible period that the state of 
 the finances will permit.' 
 
 Fortunately, British Columbia was anxious to join forces 
 with the Dominion. Vancouver Island had been leased in 
 1843 to the Hudson Bay Company. That compan}^ 
 intent upon the fur trade, saw in settlements a natural 
 enemy. Nevertheless, the advantages of Vancouver Island 
 for the purposes of colonization were too manifest for the 
 reluctance of the company to prevent its development. On 
 the mainland gold was discovered in the bed of the Fraser 
 River in 1856, and from this time there set in a constant 
 stream of immigration. At first, British Columbia, as it 
 was named at the suggestion of Queen Victoria, and 
 Vancouver Island were under the same Governor, Imt the 
 interests of their populations seemed to be different, and, 
 when a form of Constitution was given British Columbia in 
 1858, it was separated from Vancouver Island. The two 
 Colonies were, however, again placed under a common 
 government by an Act of Parliament of 1866. The popu- 
 lation was as yet very small, and, to a great extent, 
 migrator}^, so that the Home Government was unable to 
 introduce responsible or even representative government. 
 British Columbia was quick to recognize the significance of 
 the passing of the British North America Act. In January, 
 1868, an unofficial memorial was presented to the Dominion 
 Government, which suggested terms on which union would 
 be acceptable. Such a union was desirable on many grounds, 
 both financial and political ; but a strong inducement was 
 the expectation of a transcontinental waggon-road from 
 Lake Superior to the point on the Lower Fraser river 
 whence it was navigable, wilhin a jjcrioil of two years 
 after joining the Confederation. 'J'hc acquisition by the
 
 THE BRITISH NORTH AMERICA ACT 37 
 
 Dominion of Rupert's Land and the North- West Territory 
 made easier the way for union with British Columbia. 
 When the proposals of British Columbia were considered 
 by the Dominion Government, they were found to be 
 reasonable, and such as, in the main, might be accepted. 
 A transcontinental railway having now been decided upon, 
 it seemed unnecessary to make another main road. The 
 undertaking; of the Dominion Government was therefore 
 worded : ' The Government of the Dominion undertakes to 
 secure the commencement sinuiltaneously, within two years 
 from the date of the union, of the construction of the rail- 
 way from the Pacific towards the Rocky Mountains, and 
 from such point as may be selected east of the Rocky 
 Mountains towards the Pacitic, to connect the seaboard of 
 British Columbia with the railway system of Canada ; and, 
 further, to secure the completion of such railway within 
 ten years from the date of such union.' 
 
 Under the 146th section of the British North America 
 Act power was given to the Crown, on addresses from the 
 Houses of the Parliament of Canada and from the Legis- 
 lature of British Columbia, to admit that Colony into the 
 Union on such terms and conditions as were expressed in 
 the addresses. British Columbia was therefore admitted 
 into the Union under an Order in Council dated May 16, 
 1871, which embodied the terms accepted by both the 
 Dominion and British Columbian Legislatures. Under 
 these, British Columbia was entitled to be represented in 
 the Senate by three members and by six members in the 
 House of Commons : such representation to be increased 
 with the growth of population according to the provisions 
 of the main Act. 
 
 The difficulties which sul)sequently arose from the delay 
 in beginning the work of the transcontinental railway 
 do not belong to our present subject. It must always be 
 remembered, however, that, if Canada has become or is 
 in the way of becoming a real nation, with national
 
 38 INTRODUCTION 
 
 aspirations and ideals common to it as a whole, it is largely 
 due to the building of the Canadian Pacific Railway. It 
 is this which has covered with flesh and blood the dry 
 bones of the Union brought into being by the provisions of 
 the British North America Act. With the acquisition 
 of British Columbia the Dominion stretched from ocean 
 to ocean ; though in 1873 it secured a new member, by the 
 entrance into it of Prince Edward Island under the terms 
 of the same section of the British North America Act as 
 that which applied to British Columbia. In this case 
 financial exigencies eflTected what had hitherto proved 
 impossible. The representation of Prince Edward Island 
 in the Senate was provided for in the British North 
 America Act, which enacted that on its joining the Union 
 the island should receive four senators, the number of 
 senators for Nova Scotia and New Brunswick being 
 respectively reduced from twelve to ten. Prince Edward 
 Island started with six members in the House of Commons. 
 By an Order in Council, dated July 31, 1880, all British 
 territories and possessions in North America not already 
 included within the Dominion of Canada, and all islands 
 adjacent (with the exception of Newfoundland and its 
 dependencies), were annexed to and formed part of the 
 Dominion of Canada. Lastly, under an Imperial Act of 
 1886, doubt was set at rest with regard to the power of 
 the Dominion Parliament to make provision for the repre- 
 sentation in the Senate and House of Commons of Canada 
 of any territories which, while forming part of the 
 Dominion of Canada, were not included in any of its 
 Provinces. In 1895 Newfoundland, under the stress of 
 financial failures, sought to join the Confederation ; but 
 the Dcjiuinion Ministiy was not (juick to seize tlie prof- 
 fered hand, and the opportunity, once missed, has never 
 recurred. 
 
 Having sketched, however baldly, the history of 
 Canadian federation, we are al)le to arrive at certain
 
 THE BRITISH NORTH AMERICA ACT 39 
 
 obvious conclusions. In the first place, diversity of race 
 and of interests dictated that it should be a federation and 
 not a legislative union. To have proposed such a union 
 would have been to court failure with the French- 
 Canadians, and probably with the people of the Maritime 
 Provinces. Moreover, the distances between the various 
 Provinces were so great as to necessitate a more complete 
 system of local self-government than is necessary in 
 European countries. In the next place, it should be noted 
 that the federation was accomplished in a country where 
 there were no very large towns with a well-organized 
 artisan population, so that a cautious Conservatism char- 
 acterized the founders of the Dominion. In temperament 
 and sympathies men like Cartier, Macdonald, and even 
 Brown, far more resembled the type of the founders of 
 the American Constitution than they resembled the Radical 
 statesmen who framed the Australian Constitution. It is 
 not without significance that whereas that Constitution 
 provides for its alteration by the people of Australia acting 
 under prescribed rules, the British Parliament is still the 
 authority to which resort must be had when the Dominion 
 Constitution requires amendment. 
 
 The British North America Act is further notewortliy 
 as being a federal Constitution to a great extent drafted 
 by men who were in favour of a legislative union. We 
 know from Lord Blachford's Letters how leading a 
 part was played by John A. Macdonald at the meetings 
 in London which finally settled the form of the Act ; but 
 his influence at the Quebec Conference had been at least 
 as powerful. It is to this influence that we may trace 
 some features of the measure. Consider the half-hearted 
 character in which the federal idea is worked out in the 
 provisions with regard to the Senate. Of so little 
 importance has the Senate proved as a bulwark of the 
 federal principle that in the case of the representation in 
 that body of the new Provinces the attempt has hardly
 
 40 INTRODUCTION 
 
 been made to give expression to that principle. On the 
 other hand, the federal idea is strongly expressed in the 
 rule, unknown to the written Constitution, that the 
 Dominion Privy Council must contain a proportional 
 number of representatives from the different Provinces. 
 We see again the vigorous hand of Macdonald in the 
 provisions which, not content with the power of the 
 Courts to pronounce provincial legislation tUtra vires, 
 give the Governor-General-in-Council, in other words the 
 Central Government, the right to dismiss provincial 
 Lieutenant-Governors as well as to disallow provincial 
 measures : though it is fair to admit that the right of dis- 
 missal has been only once used unduly, and that the control 
 of provincial legislation has upon the whole been exercised 
 with great care and caution. In the elaborate division of 
 powers in sections 91 and 92 we see an evident desire to exalt 
 the central at the expense of the provincial governments, 
 a desire which the subtlety of the Law Courts has known 
 how to thwart. Still, while admitting faults in the 
 Canadian measure, we must remember that it came first, 
 and subsequent draftsmen have been able to profit by its 
 failures ; and, when all is said and done, the British North 
 America Act will always be memorable, because, tlirough 
 its provisions and the triumphs of modern science which 
 came in its wake, a new mighty nation sprang into life, 
 of which as yet we know only the beginnings. 
 
 The Australian Commonwealtji. 
 
 We have seen that in ('aii;ula })()litical deadlock and the 
 recognition of the need of westward expansion were the 
 causes of federation. Moreover, the presence of a powerful 
 neigldjoui- to the soutli served to promote British North 
 American iniioii. In the Australian Colonies, on the other 
 hand, there were present no such motives. The macliinery, 
 indeed, of party government worked witli no little creak- 
 ing and iViction ; but, somehow or another, the Queen's
 
 THE AUSTRALIAN COMMONWEALTH 41 
 
 Government was carried on, and there was little desire to 
 plunge into unknown experiments. For years British 
 Australasia seemed mistress in her own southern seas ; and 
 it is noteworthy that it was the threat in 1883 of the 
 Germans in New Guinea which first set Australian public 
 opinion moving in the direction of federation. 
 
 The inconvenience of a system under which neighbour- 
 ing Colonies could foro-e ap-ainst each other hostile tariffs 
 had indeed been long recognized. As early as 1846 Mr. E. 
 Deas-Thomson, the Colonial Secretary of New South 
 Wales, recognized the need of some general control over 
 intercolonial legislation ; and in the following year Lord 
 Grey outlined a scheme which, in fact, proposed a kind 
 of federal constitution. ' There are questions ', he wrote, 
 * which, though local as it respects the British possessions 
 of Australia collectively, are not merely local as it respects 
 any one of those possessions. Considered as members of 
 the same Empire those Colonies have many common in- 
 terests, the regulation of which in some uniform manner 
 and by some single authority may be essential to the wel- 
 fare of them all. Yet in some cases such interests ma}^ be 
 more promptly, effectively, and satisfactorily decided by 
 some authority within Australia itself than by the more 
 remote, the less accessive, and, in truth, the less competent 
 authority of Parliament.' He undertook to devise some 
 method for enabling the various legislatures of the several 
 Australian Colonies to co-operate with each other in the 
 enactment of such laws as might be necessary for the 
 regulation of their common interests, such as the imposition 
 of duties on imports and exports, the conveyance of letters, 
 and roads and railways traversing more than one of the 
 Colonies. 
 
 Other portions of this dispatch aroused warm resentment 
 in New South Wales, for reasons into which it is unneces- 
 sary here to enter ; but the proposal with regard to an 
 intercolonial Congress, though it attracted little notice.
 
 42 INTRODUCTION 
 
 won the approval of the Australian statesman, William 
 Charles Wentworth. In order to be sure of his ground, 
 Lord Grey referred the subject of the future of Australian 
 government to the Committee of the Privy Council on 
 Trade and Plantations, revived for the nonce, whose report, 
 drafted by Sir James Stephen, after recommending the 
 separation of Victoria from New South Wales, urged the 
 necessity of a uniform tariff. Such a tariff should at first 
 be set on foot by the Imperial Parliament ; but any altera- 
 tions it might require would necessitate the assistance of 
 some authority, competent to act for the Australian 
 Colonies jointly. For this purpose there should be a 
 Governor-General of Australia, who should convene a 
 General Assembly of Australia. 
 
 It was suggested that the General Assembly should 
 consist of the Governor- General and of a single House, to 
 be called the House of Delegates. The House of Delegates 
 should be composed of not less than twenty, nor of more 
 than thirty members. They should be elected by the 
 legislatures of the different Australian Colonies. 
 
 Whilst certain subjects, the most important of which 
 were the imposition of a uniform tariff and the establish- 
 ment of a General Supreme Court, were expressly allotted 
 to this Assembly, it was proposed that it should exercise 
 more general j^owers of legislation if so desired by the 
 Legislatures of all the Colonies represented in it. Such 
 revenue as the General Assembly might re(j[uire was to 
 be obtained by the appropriation of such sums as might 
 be necessary, by an equal percentage from the revenue 
 received in all the Australian Colonies by virtue of any 
 enactments of the General Assembly of Australia. 
 
 It is noteworthy as ilkistratiiig tlic temper of the time 
 that among the suljects referred to this General Assen»bly 
 no mention is made of military defence. 
 
 Unfortunately for the dispassionate discussion of such 
 proposals tlie air in Australia was thick witli the smoke of
 
 THE AUSTRALIAN COMMONWEALTH 43 
 
 fierce controversy. New South Wales resented bitterly 
 the prospect of losing- the rich and lucrative district of 
 Port Phillip ; while Port Phillip, anxious to start life upon 
 lines independent of the parent Colony, was in no mood to 
 welcome proposals for a common lcf;islature, even with 
 respect to certain specified subjects. It must be remem- 
 bered also that South Australia had been started on lines 
 directly opposed to those of New South Wales, and in its 
 perhaps somewhat pharisaic purity was not ready to 
 welcome association with those Colonies that were still held 
 to be tarred with the brush of the convict system. West- 
 ern Australia at the time remained in melancholy isolation, 
 and was far from the stage at which it could take part in 
 any kind of corporate life. In fact, it was not included in 
 the Colonies represented in the House of Delegates under 
 the scheme of the Privy Council. 
 
 There was a further objection which stood in the way 
 of such a federation. It is the general experience of 
 history that a federal system cannot work successfully 
 where one of the members of the federation greatly 
 exceeds the others in population and importance, and the 
 peculiar form of the German Empire hardly makes it 
 an exception to this rule. This was the rock upon 
 which the association of the New England Colonies, 
 established in 1643, had foundered. The position of 
 Massachusetts was so preponderant as to make any form 
 of federation either unfair to its interests or a nullity. 
 So, under Sir James Stephen's plan, New South Wales, 
 with a population at the last census of 155,000, would have 
 been represented by twelve members in the federal legis- 
 lature, the other three Colonies,with an aggregate population 
 of 111,000, being represented by thirteen members. Wliilst 
 such a representation was less than that to which New 
 South Wales was entitled by its population, it would still 
 have given it a controlling voice, which the other Colonies 
 would have naturally resented.
 
 44 INTRODUCTION 
 
 A further mistake was made by Lord Grey in at once in 
 1849 introducing a Bill, on the lines of the Privy Council 
 Report, without consulting the Colonies affected. It was 
 proposed that a uniform tariff should, in the first instance, 
 be set on foot by the British Parliament. Under the pro- 
 visions of the Bill it was apparently in the power of any 
 two Colonies to compel the others to take part in a federal 
 legislature. It proved, however, impossible to pass the Bill 
 in the Session of 1849. Although in the Bill of 1850 the 
 proposals of the Government were made more palatable, 
 by dropping the plan of a uniform tarift' to be set on 
 foot by the Imperial Parliament, and by making the 
 use of the General Assembly permissive instead of com- 
 pulsory, they found little favour either in Australia or in 
 England. The school of colonial reformers of the type of 
 Sir William Molesworth were opposed to them on the 
 ground that they were of English manufacture, and not 
 the outcome of Australian public opinion, and for once 
 supported the more timid critics, who saw in them the 
 seed of a future independent and republican Australia. 
 In this state of things, though not a little to the chagrin of 
 Lord Grey, it became necessary to lighten the Bill by the 
 omission of the clauses i-elating to a general legislature ; 
 and the Australian Government Bill of 1850 started the 
 Australian Colonies on the constitutional way with no 
 attempt to direct them into a connuon channel. ' I am 
 not, however,' wrote Lord Grey, ' the less persuaded that 
 the want of some such central authority to regulate 
 matters of common importance to the Australian Colonies 
 will be felt, and pi'obably at an eai'ly period.' l>ut he 
 consoled himself with the reilectioii that, when this want 
 was felt, it would of itself suggest the means by which it 
 might be met. It was true that the separate legislatures 
 would be unable themselves to establish a (General Assembly; 
 but arrangements might be arrived at between different 
 Colonies, whilst applicaticjn was made to the In)perial
 
 THE AUSTRALIAN COMMONWEALTH 45 
 
 Parliament to set on foot the necessary machinery. That 
 Lord Grey was wise in seeking to avert the evils which 
 undoubtedly resulted from a divided Australia, nnist be 
 freely admitte<l. At the same time, in seeking to decide 
 a question which mainly affected the Australian Colonies 
 themselves by the external authority of the British Parlia- 
 ment, he was in fact injuring the cause he had at heart. 
 What was necessary was to create a public opinion in 
 Australia favourable to federation ; but for many years the 
 fact that a proposal originally issued from Downing Street 
 was a reason why it should be regarded with suspicion. 
 
 Lord Grey had failed in his attempt to make possible 
 a federal legislature, but it was still possible to appoint a 
 Governor-General of Australia. The expanding interest?? 
 and increasing relations of the Australian Colonies would 
 necessitate some means of establishing a mutual under- 
 standing and concert between them ; and it seemed fitting 
 that the officer administering the government of the oldest 
 and largest of these Colonies should be provided with a 
 general authority to superintend the initiation and foster 
 the development of such measures as they might deem 
 calculated to promote their common welfare. But to place 
 the Governor of any one of the Australian Colonies in 
 a position of pre-eminence over his colleagues was merely 
 to give occasion for that spirit of jealousy and rivalry 
 which so strongly characterized the relations of the different 
 Colonies; and the institution of a Governor-General was 
 only not productive of mischief ecause it remained a mere 
 title, barren of practical results. In any case, when re- 
 sponsible government was in 1856 set on foot, the role 
 of the Governor-General in the promotion of the federal 
 movement ceased to be of any possible importance ; and, 
 with the retirement in 1861 of Sir William Denison, the 
 title was allowed to lapse. 
 
 After the failure of the federal clauses of the Australian 
 Governments Act of 1850, the Home Ministry became
 
 46 INTRODUCTION 
 
 wary, and though they had some encouragement from 
 both New South Wales and Victoria to insert federal 
 clauses in the Acts of 1855 dealing with the new Consti- 
 tutions of the Australian Colonies, they refused to interfere, 
 believing that the present was not a proper opportunity 
 for such an enactment. The initiative should come from 
 the separate legislatures of the Colonies affected. 
 
 Henceforth the scene was wholly transferred to Australia, 
 British statesmen being content that the Colonies should 
 work out their own salvation in their own way. The 
 question of some kind of federal union was much discussed 
 in the Australian newspapers ; but such discussion was, for 
 the most part, of a somewhat academic character. There 
 might be a community of race, language, religion, and 
 economic and social conditions amongst the people inhabit- 
 ing Australia ; none the less particularist tendencies were 
 growing stronger day by day. It is true that Mr. Deas- 
 Thomson, who again took office in New South Wales under 
 the new system of government, expressed the opinion that 
 the tariff was one of those federal arrangements which 
 ought not to be touched without consulting the neighbour- 
 ing Colonies, and added his conviction that the time was 
 not far distant when all the Colonies would adopt some 
 federal arrangement ; but Mr. Deas-Tliomson received no 
 support from any of his colleagues. It is true, also, that 
 Wentworth, who was at this time in England, urged, 
 as a leading member of the Australian Association (a body 
 of gentlemen interested in Australian (juestions), upon the 
 Colonial Office the necessity of permissive legislation ; but 
 Mr. Labouchere, the Secretary for the Colonies, was very 
 sceptical as to the public opinion behind the federal move- 
 ment. He suggested, in fact, the alternative policy of 
 Intercolonial Conferences and co-operative action, which 
 for many years lield the field. 
 
 Still there were not wanting signs which seemed to 
 presage success to the federal movement. The rapid 
 growth of Victoria in wealth and population owing to the
 
 THE AUSTRALIAN COMMONWEALTH 47 
 
 discovery of gold removed one impediment from the way, 
 by removing the pre-eminent position of New South Wales. 
 A new arrival in Victoria, Mr. Gavan Duffy, threw himself 
 heart and soul into the movement for a federal union. 
 Just as among the founders of the American Republic, men 
 like Alexander Hamilton and James Wilson, who were 
 themselves new comers to the American continent, found 
 it easier to embrace national ideas than men brought up 
 and fostered amongst provincial prejudices, so Gavan 
 Duffy, fresh from struggles on behalf of Irish national 
 aspirations, was at once taken by the idea of an Australian 
 nation. But there was no such compelling necessity as 
 finally vanquished American provincial prejudices ; neither 
 with all his qualities was Gavan Duffy quite of the stuff 
 of the founders of the United States. Still the Report of 
 the Committee of the Victorian Assembly,^ which considered 
 the subject of federation, drafted by Duffy, was one of the 
 ablest documents in favour of the movement which has 
 ever been written. ' Neighbouring States of the second 
 rank ', it was said, and the words were quoted with approval 
 in 1890 by Sir Henry Parkes, 'inevitably become confederates 
 or enemies. By becoming confederates so early in their 
 career the Australian Colonies would, we believe, immensely 
 economize their strength and resources. They would 
 substitute a common material interest for local and 
 conflicting interests, and waste no more time in barren 
 rivalry. They would enhance their material credit and 
 obtain much earlier a power of undertaking works of 
 serious cost and importance. They would not only save 
 time and money, but obtain immense vigour and accuracy 
 by treating larger questions of public policy at one time 
 and place, and in an assembly which it may be presumed 
 would consist of the wisest and most experienced statesmen 
 
 ^ In quotations from the Repoi-ts]of the Victorian and New South Wales 
 Committees I have availed myself of Mr. C. D. AUin's The Early Federation 
 Movement of Australia (Kingston, 1907), a valuable book, which perhaps is 
 not so well known as it deserves to be.
 
 48 INTRODUCTION 
 
 of the colonial legislatures. They would set up a safeguard 
 against violence and disorder, holding it in check by the 
 common sense and the common peace of the federation. 
 They would possess the power of more promptly calling 
 new States into existence throughout their extensive 
 territory, as the spread of population required it, and of 
 enabling each of the existing States to apply itself without 
 conflict or jealousy to the special industry which its position 
 and resources render most profitable.' 
 
 'No single Colony', it was recognized, 'ought to take 
 exclusive possession of a subject of such national importance, 
 or venture to dictate the programme of union to the rest.' 
 The only means of solving difiiculties was to hold 
 a Conference of delegates from the respective Colonies. To 
 such a body would belong the duty of determining whether 
 the plan of union to be submitted to the people should 
 propose merely a Consultative Council, authorized to frame 
 propositions for the sanction of the State Legislatures, or 
 a Federal Executive and Assembly, with supreme powers on 
 national and intercolonial questions, or some compromise 
 between these extremes. The Report closed with an expres- 
 sion of the conviction that a negotiation, demanding so much 
 caution and forbearance, so much foresight and experience, 
 must originate in the mutual action of the Colonies and could 
 not safely be relegated even to the Imperial Legislature. 
 
 In spite of the favourable Report of a Committee of the 
 New South Wales Council, which practically adopted 
 the recommendations of Duffy's Committee, the cause of 
 federation made no advance in the parent Colony. On 
 a change of Ministry the new Prime Minister was actively 
 hostile. Jealousy and distrust of Victoria were unhappily 
 rampant; and few regretted the decision of the Government 
 to turn a cold shoulder on Mr. Duffy's proposals. South 
 Australia, on the other liaiid, was ready and willing to 
 send delegates to the proposed Conference, as also was 
 Tasmania: but, in tlie face of the opposition of New South
 
 THE AUSTRALIAN COMMONWEALTH 49 
 
 Wales, it was recognized that for the time being no progress 
 could be made. In 1860 the moment seemed more 
 opportune, as a Ministry more favourable to federation was 
 in power in New South Wales, but that Ministry soon 
 received its quietus, and the new Colonial Secretary, 
 Mr. J. Robertson, was no friend of Victoria. Meanwhile 
 a new Australian Colony had been carved out of New 
 South Wales. In 1859 Queensland had been made a separate 
 Colony, and had, therefore, now to be separately approached. 
 Jealous of her new position, Queensland was somewhat 
 distrustful of proposals which might, in the words of the 
 Colonial Secretary, Mr. R. Herbert (who was afterwards 
 permanent Under Secretary at the Colonial Office), ' tend to 
 limit the complete independence of the scattered com- 
 munities peopling the continent,' or ' interfere, in however 
 remote a degree, with their present direct and happy 
 relations with the mother country '. Still he recognized 
 that a Conference of the character suggested would be 
 attended with many important results, as enabling the 
 respective legislatures to gather from the reports of their 
 delegates the views and requirements of the other Colonies 
 concerned, with respect to all topics bearing upon their 
 mutual interests, and to determine to what extent a federal 
 union of the whole group would be practicable or expedient. 
 
 Notwithstanding the failure to arrive at definite results, 
 Mr. Gavan Duffy continued actively at work. In 1862 
 another committee reported, urgently advising that the 
 present opportunity should not be lost. ' The condition of 
 the world ', it was said, ' the danger of war, which to be 
 successfully met must be met by united action, the hope of 
 a large immigration, which external circumstances so 
 singularly favour, the desire to develop in each Colony the 
 industry for which nature has fitted it, without wasteful 
 rivalry, and the legitimate ambition to open a wider and 
 nobler field for the labours of public life, combine to make 
 the present a fitting time for reviving this project. It is 
 
 1265 D
 
 50 INTRODUCTION 
 
 the next step in Australian dev^elopment. In the eyes 
 of Europe and America what was a few years ago known 
 to them onl}^ as an obscure penal settlement in some uncer- 
 tain position in the Southern Ocean, begins to be recog- 
 nized as a fraternity of wealthy and important States, 
 capable of immense development; and, if our current his- 
 tory and national character are in many respects misunder- 
 stood, we shall perhaps best set ourselves right with the 
 world by uniting our strength and capacity in a common 
 centre and for common purposes of undoubted public 
 utility.' But New South Wales was not to be converted 
 by Duffy's eloquence ; and when an Intercolonial Conference 
 was held in 1863 upon the question of the tariff, its report 
 baldly affirmed that ' the subject of the federation of the 
 Australian Colonies was not taken into consideration, for 
 although the question has during some years occupied tlie 
 attention of several of the legislatures, the delegates had 
 no instructions in the matter, and it did not seem probable 
 that its discussion at present would be attended with any 
 benefit.' With the failure of Mr. Dufiy's efforts in 1863 
 the question of federation for many years slumbered. The 
 alternative policy of holding Intercolonial Conferences on 
 particular subjects was adopted instead. It was at one of 
 these Conferences, held in 1867, to discuss the question of 
 postal communication with Europe, that Mr. Henry Parkes, 
 who afterwards played so leading a part in the triumph 
 of federation, first exjDressed his belief that the time had 
 come when tlie Australian Colonies should be united by 
 some federal bond of connexion. Questions were coming 
 to the fore tliat could not be satisfactorily dealt with by 
 any one of the individual governments. But meanwhile 
 the lion in the way, to whose coming Lord Grey had looked 
 forward with natural apprehension, was growing to for- 
 midalilc diiucnsions. Without an agreement on the ques- 
 tion of the tariff any form of federal union would have 
 been a mockery and a delusion; but by 1870 both \'ictoria
 
 THE AUSTRALIAN COMMONWEALTH 51 
 
 and New South Wales had so strongly espoused the rival 
 causes of protection and Tree trade as to make any agree- 
 ment upon a uniform tariff" impracticable. The Colonies 
 could indeed agree that the Imperial Government had no 
 right to interfere with their freedom to allow to each other 
 differential terms, hut, beyond this, agreement was im- 
 possible. Some ground seemed to be gained when at a 
 Conference in 1880, at wliicli New South Wales, Victoria, 
 and South Australia were represented, a resolution was 
 passed in favour of a federal Council to deal with inter- 
 colonial matters. A Bill for creating such a Council was 
 drafted and submitted to the adjourned Conference in 
 1881, at which seven Colonies were represented. In the 
 memorandum accompanying the Bill it was affirmed that 
 while the time had not come for the construction of a 
 federal Constitution with a federal Parliament, the time 
 had come when a number of matters of much concern to 
 all the Colonies might be dealt with more effectually by 
 some federal authority than by the Colonies separately. 
 An organization, it was added, which would lead men to 
 think in the direction of federation, and accustom the 
 public mind to federal ideas, would be the best preparation 
 for the foundation of a federal government. But even this 
 modest proposal of a Bill to prepare the way for the future 
 was lost ; Victoria (probably because the proposal emanated 
 from New South Wales), Queensland, and New Zealand 
 voting against it, New South Wales, South Australia, and 
 Tasmania in its favour. The Western Australian delegates 
 refrained from voting. 
 
 But, while apathy and mutual suspicion reigned when 
 purely domestic questions were at issue, with foreign inter- 
 ference threatened the Australian Colonies began to realize 
 that union was in a real sense strength. In 1883 there 
 came the rumour of German annexation of the North of 
 New Guinea. Queensland sought to force the hands of the 
 Home Government by taking possession of the whole island 
 
 D 2
 
 52 INTRODUCTION 
 
 in the name of the Queen ; but Lord Derby disavowed its 
 action. In fairness to the Home Government it should be 
 remembered that in 1876 New Guinea, as well as the New 
 Hebrides, might have been gained for the empire had the 
 Australian Colonies, in Lord Carnarvon's words, lieen ready 
 ' to give trial and eflect to the principle of joint action 
 amongst the different members of the empire in such 
 cases.' 
 
 Be this as it may, with Prince Bismarck directing the 
 helm, there was little opportunity to make up for past 
 errors, and before the Australian Colonies could take com- 
 mon action, German New Guinea was an accomplished fact. 
 
 An Intercolonial Conference had indeed been held in 
 November^ 1883, at which Mr. Service, the Victorian Prime 
 Minister, urged the necessity of binding closer the ties 
 which bond the Colonies to each other by the establishment 
 of a federal union with regard to such matters as the 
 Convention might specifically determine. His intention, 
 apparently, was to bring about a real federal govern- 
 ment ; but the resolutions, which were finally adopted, 
 only recommended the creation of a federal Austra- 
 lasian Council for certain specified purposes; among 
 which the most important was the protection of Austra- 
 lasian interests in the Pacific. A Bill to this ett'ect was 
 drafted, establishing a federal Council, possessing legis- 
 lative but no executive powers, and without the financial 
 means of enforcing its measures. The Bill only applied 
 to the Colonies whose legislatures should pass Acts 
 adopting it; and New South Wales and New Zealand 
 stood aloof from such legislation. Considering the past 
 record of the two Colonies, it was somewhat unfortunate 
 that Mr. Parkes now poured ridicule on a proposal closely 
 reseiidjling his own of a few years back. The federal 
 Council lie now described as a ' rickety body ', likely to 
 ' impede the way for a sure and soHd federation '. No good 
 object coukl be served by creating a body sucli as this
 
 THE AUSTRALIAN COMMONWEALTH 53 
 
 Council. New South Wales should avoid 'joining in making 
 a spectacle before the world, which would cover us with 
 ridicule '. Undeterred by such criticism, the other Colonies 
 decided to persevere and the Australasian Federal Council 
 Act of 1885 was passed through the British Parliament. 
 It may have afforded, in Mr. Bryce's words, ' a very scanty, 
 fragmentary, and imperfect sketch of a federal Constitu- 
 tion ' ; and in truth the legislation which it enacted, though 
 doubtless useful, was not of a very striking character. But 
 at least the establishment of a federal Council marked the 
 first step in advance ; and, %Yhilst its usefulness was no 
 doubt lessened by the absence of New South Wales, its 
 existence in no wise stood in the way of other attempts at 
 federation. In any case the presence of Fiji, though its 
 delegates only attended the first meeting of the Council, 
 was a noteworthy sign of the solidarity of Australasian 
 interests in the Pacific. 
 
 Just as in 1883 the fear of foreign intrusion gave a 
 stimulus to the desire for closer union, so again in 1889 the 
 issue of a report by Sir J. Bevan Edwards on the military 
 defences of the Australian Colonies was made the occasion 
 by Sir Henry Parkes of again bringing the subject to the 
 fore. He urged the necessity of appointing a Convention 
 of leading men from all the Colonies, delegates appointed 
 by the authority of Parliament, who would fully represent 
 the opinions of the different Parliaments. To such a Con- 
 vention it would belong to devise the Constitution which 
 would be necessary for bringing into existence a federal 
 Government, with a federal Parliament for the conduct of 
 national business. Victoria still held that use might be 
 made of the machinery of the Federal Council. However, 
 it was finally agreed that ' an informal meeting of the 
 Colonies ' should be held ' for the purposes of preliminary 
 consultation '. At this preliminary meeting, which was 
 held in February, 1890, in proposing the union of the 
 Australasian Colonies under one legislative and executive
 
 54 INTRODUCTION 
 
 Government J on principles just to the several Colonies, 
 Sir H. Parkes insisted that, whatever might be the decision 
 of the Conference, it would be playing at federation if they 
 attempted to create a federal Government with anything 
 less than the full powers of a federal Government. He was 
 as anxious to preserve the proper rights and privileges of 
 the Colony of New South Wales as any one could be of 
 preserving the proper rights and privileges of the Colony 
 of Victoria. But the federal Government must be a Govern- 
 ment of power. It must be a Government especially armed 
 with plenary power for the defence of the country. It 
 must be a Government armed with plenary power for the 
 performance of other functions pertaining to a national 
 Government, such as the building of ships, the enlistment 
 of soldiers, and the carrying out of many works in the 
 industrial world which might be necessary for the advance- 
 ment of a nation. It might be wise that some of these 
 powers should come into force witli the concurrence of the 
 State or Provincial Legislatures. It might be wise to 
 stipulate for some kind of gradation in approaching the full 
 powers of the federal Government, or before consummating 
 its full power ; but that it should be in design, from the 
 very first, a complete legislative and executive Government, 
 suited to perform the grandest and the highest functions of 
 a nation, could not, he thought, be a matter of doubt. He 
 asked the members of the Conference to keep in mind the 
 fact that they represented the whole population of Aus- 
 tralasia ; that in that population there was a wide, rapidly 
 increasing wave of men Australian born, many of them 
 standing as it were in the early dawn of manhood. In 
 supporting the resolution. Sir Samuel Griffith again insisted 
 that there could be no real federation without a federal 
 executive ; while a federal executive must, in order to give 
 effect to its decrees, liave a federal revenue, which could 
 only be raised li}^ tlie direct repi-esentatives of the people. 
 The aihantages of federation, like evcrytliing else, would
 
 THE AUSTRALIAN COMMONWEALTH 55 
 
 have to be paid for. They could not be got without giving 
 something in return, and every power which might be 
 exercised by the federal Government with greater advan- 
 tage than by the separate Goverinnents would involve a 
 corresponding diminution in the powers of the separate 
 Governments and Legislatures. In spite of the not very 
 friendly attitvide assumed by Mr. Playford, the delegate 
 from South Australia, and by Sir J. Lee Steere, who repre- 
 sented Western Australia, the members of the Conference 
 unanimously agreed to take the necessary steps to induce 
 the legislatures of their respective Colonies to appoint 
 delegates to a National Australasian Convention, empowered 
 to consider and report upon an adequate scheme for a 
 federal Constitution. The New Zealand delegates were 
 unable to hold out hopes that their Colony would for some 
 years be ready to enter the proposed Union ; but they were 
 willing to attend the proposed Convention. 
 
 The meeting of the National Australasian Convention 
 which met at Sydney in March, 1891, was of great impor- 
 tance, because now, for the first time, Australian statesmen 
 wrestled with the details of the subject of federation, no 
 longer confining themselves to general propositions ; and 
 because the Bill that was the outcome of their labours to 
 a very great extent foreshadowed the proposals of the 
 Commonwealth Act of 1900. 
 
 Rightly or wrongly — rightly from the point of view of 
 future edification, perhaps wrongly in the interests of the 
 swift dispatch of business — it was decided that the Conven- 
 tion should sit with open doors, though the actual work of 
 drafting was done informally by sub-committees. The 
 Convention consisted of forty-five delegates from the seven 
 Australasian Colonies. Although, as has been already inti- 
 mated, the temper of the discussions was of a more radical 
 character than that of the discussions at the Quebec Con- 
 ference, there was for the most part the same determination 
 expressed to maintain the British connexion. Mr. Dibbs,
 
 56 INTRODUCTION 
 
 indeed, a New South Wales Protectionist, boasted that they 
 were gradually whittling away the powers of the Crown 
 and creating for the future the Republic of the United 
 States of Australia. ' To cut the last link of connexion 
 with the Crown, and to establish the Republic of Australia, 
 that is what we are coming to, and it is the inevitable 
 destiny of the people of this great country.' But his words 
 found little echo at the Convention ; and were severely 
 handled by Mr. Gillies, who had been the Prime Minister of 
 Victoria, and by Sir Henry Parkes. More interesting was 
 the intervention into the general debate of Sir George 
 Grey, who, in three different Colonies, had done splendid 
 work as the representative of the Crown, and now eagerly 
 demanded that every member of the Government, including 
 the Governor-General, should be elected by the people of the 
 country. Sir George Grey was not greatly interested in 
 the question of a general federation. To him the impor- 
 tant point was that the elected legislatures of every State 
 should have an absolutely free hand to determine what 
 should be their form of government. But Sir George 
 Grey was in closer touch with the future trend of events 
 when he proposed that the Bill constituting the Common- 
 wealth of Australia, before being laid before the British 
 Parliament, should be submitted to and adopted by a 
 majority of a plebiscite of the people of Australia. 
 
 One of the most suggestive speeches in the discussion was 
 that of Sir Samuel Griffith. Recognizing the necessity 
 under a federal system, modelled on that of the United 
 States in leaving to the separate States the residuary 
 powers of government, of a Senate possessing equal 
 powers with those of the Legislative Assembly, he expressed 
 grave doubts as to how far the British system of respon- 
 sible government could be worked under such a Constitu- 
 tion. Another delegate went furtlier, and affirmed tliat 
 'either responsible governnjent M^ould kill federation, or 
 federaticni would kill i-csponsiblc govennnent '.
 
 THE AUSTRALIAN COMMONWEALTH 57 
 
 The Bill as it finally emerged from the Constitutional 
 Committee was mainly the handiwork of Sir S. Griffith ; 
 and was with a few alterations, of which none was of 
 importance, adopted in its entirety. 
 
 The main crux in the way was with regard to finance. 
 All were agreed that, side by side with ' the Commonwealth ', 
 there should be the States, with ecjual representation in the 
 Senate ; but the further question arose, Was the House of 
 Representatives to l)e predominant in questions of finance ; 
 and, if so, would not the Senate be reduced to a position of 
 inferiority? Under the compromise of 1891, laws appro- 
 priating any part of the public revenue or imposing any 
 tax or impost must originate in the House of Represen- 
 tatives (sec. 54). The Senate had equal powers with the 
 House of Representatives in respect of all proposed laws, 
 except laws imposing taxation and law^s appropriating the 
 necessary supplies for the ordinary annual services of the 
 Government, which the Senate might affirm or reject but 
 could not amend. But the Senate might not amend any 
 proposed law in such a manner as to increase any proposed 
 charge or burden on the people. Laws imposing taxation 
 must deal with the imposition of taxation only. 
 
 Li the case of a proposed law which the Senate might 
 not amend, it might at any stage return it to the House of 
 Representatives with a message requesting the omission or 
 amendment of any items or provisions therein ; and the 
 House of Representatives might, if it thought fit, make 
 such omissions or amendments, or any of them, with or 
 without modifications. 
 
 (It should be noted that the Bill of 1891 did not contain 
 the provisions regarding the measures to be taken in the 
 event of a deadlock between the two Houses, which are 
 found in section 57 of the Commonwealth Act of 1900.) 
 
 The mode of electing the Senate presented another 
 difficulty. A nominated Second Chamber, in spite of the 
 Canadian precedent, is perhaps an impossibility in a
 
 58 INTRODUCTION 
 
 genuinely federal Constitution, and in any case it would have 
 been an abomination to these stalwart Radicals. For the 
 present, however, they were content that the members of 
 the Senate should be elected by the State Legislatures. 
 
 With regard to the Executive, there was no direct in- 
 junction, such as is found in the later Act, that the members 
 of the Executive Council must sit in Parliament. The 
 intention, according to Sir S. Griffith, was so to frame the 
 Constitution that responsible government might, not that 
 it nuist, find a place in it. The actual words of the Bill 
 were : * Such officers shall hold office during the pleasure 
 of the Governor- General, and shall be capable of being 
 chosen and sitting as members of either House of Parlia- 
 ment.' It must be remembered, however, that in neither 
 the British Constitution nor in the Colonial Constitutions 
 which imitated it, with the exception of two Australian 
 Constitutions, was there any express enactment that min- 
 isters must be in Parliament ; so that the practical results 
 of the clause as originally drafted would probably have 
 been the same as those of the existing law. 
 
 The provisions of the Bill with regard to a federal judi- 
 cature did not materially differ from those of the Common- 
 wealth Act, except that they left to the Parliament dis- 
 cretion as to the establishment of a Supreme Court. With 
 regard to appeals to the Privy Council, the Bill, after 
 making final the decisions of the Supreme Court, after its 
 establishment, provided that the Queen might in any case 
 in which the public interests of the Commonwealth, or of 
 any States, or of any other part of the Queen's dominions, 
 were concerned, grant leave to appeal to herself in Council 
 against any judgement of the Supreme Court. It would 
 seem that the subjects on which a right of appeal is given, 
 with the exception of the last, are precisely the subjects on 
 which a right of appeal is taken away by section 74 of tlie 
 Commonwealth Act, as it was diafttMl in Australia for 
 introduction into the Imjx'i-ial ParliauH iit.
 
 THE AUSTRALIAN COxMMON WEALTH 59 
 
 Notwithstanding the demand for guarantees in the 
 opposite directions from both Victoria and New South 
 Wales, it was impossible to fetter the freedom of the 
 Commonwealth Parliament in the framing of a tariff; and 
 it was merely declared that trade between the Colonies 
 should be free, on the adoption of a uniform tariff. 
 
 The question which most puzzled the delegates was the 
 (juestion upon what basis of apportionment should the 
 surplus revenue be returned to the different States. Inas- 
 much as the customs revenue would be collected by the 
 Commonwealth, and the revenue of the Australian Colonies 
 had been to a very great extent made up of the proceeds of 
 customs duties, the income of the Commonwealth would 
 be very great ; while, as the States maintained their public 
 debts and expenditure, the demands upon the Common- 
 wealth income would be much less than its returns. Was 
 the revenue to be returned according to population, or 
 according to contribution, or according to a basis depending 
 upon both ? The Bill of 1891 made contribution the sole 
 basis. After the federal expenditure had been pro- 
 vided for, the surplus was to be returned to the several 
 States ' in proportion to the amount of revenue raised 
 therein respectively '. It is unnecessary here to go into the 
 complications connected with this subject. With regard to 
 the amendment of the Constitution, the Bill of 1891 made 
 State Conventions, elected in such manner as the Parliament 
 might decide, the bodies whose ratification was necessary. 
 Any proposed alteration must be approved by Conventions 
 of a majority of the States. 
 
 Although the Bill of 1891 had been the outcome of some 
 five weeks' hard work on the part of the delegates, there 
 was no readiness on the part of any of the Colonial Legisla- 
 tures to accept its conclusions as more than the starting-point 
 of a future measure. In New South Wales the Labour 
 Party, which had now come into prominence, was sceptical 
 as to the benefit to be derived for its own class interests from
 
 60 INTRODUCTION 
 
 federation ; whilst many Free Traders shrank from putting 
 their principle of free trade in the power of the Victorian 
 Protectionists. So threatening was the situation that Sir 
 Henry Parkes despaired of carrying federation through by 
 parliamentary action alone. The only feasible plan was, 
 he wrote, ' for the people themselves, the electors, who sent 
 us into this Assembly, the electors themselves throughout 
 the Colonies, to elect another Convention to revise the 
 draft Constitution of the late Convention, or to frame a new 
 Bill, if in their wisdom they think proper to do so.' In 
 the light of the subsequent history we see the wisdom of 
 Sir Henry Parkes's advice, but at the time it was neglected. 
 The subject was up to a certain point dealt with by the 
 Victorian, the South Australian, and the Tasmanian Legis- 
 latures ; but there was little driving force behind, and 
 when, in 1893, the consideration of the Bill by the New 
 South Wales Parliament was indefinitely postponed, the 
 fate of federation throughout Australia was for the time 
 sealed. Financial depression further played its part in the 
 nineties in occupying men's minds with other thoughts 
 than those of political federation. The Australian Parlia- 
 ments had failed in their attempts to bring about federa- 
 tion ; it remained to create a public opinion amongst the 
 rank and file of the people in favour of the movement. To 
 the Australian Natives Association, a social and political 
 organization, which advocated a federated Australia for an 
 Australian nation, belongs the credit of having aroused 
 public opinion from its long apathy. An Australian Federa- 
 tion League was foi'med, with numerous branches, and in 
 the summer of 1893 a resolution was passed at a numerously 
 attended Conference, which first made possible the sub- 
 sefjuent course of events. It recommended that the legis- 
 lature of each Australian Colony should pass an Act 
 providing f(jr the election of representatives to attend 
 a Statutory Convention or Congress to consider and adopt 
 a Bill to establish a federal Constitution for Australia,
 
 THE AUSTRALIAN COMMONWEALTH 61 
 
 which should afterwards be submitted by some process of 
 referendum to the verdict of each Colony. A Bill was 
 afterwards drafted, which formed the basis of the various 
 enabling Acts passed in all the Colonies. By making the 
 measure to depend upon popular support at both ends, first 
 in the popular election of the delegates, and then by the 
 measure being submitted to the electors for their approval 
 or disapproval, the question was rescued from the grip of 
 parliamentary routine and brought distinctly home to the 
 mind and sympathies of the electors. A Conference of 
 Premiers, held at Hobart in January, 1895, endorsed the 
 proposals of the Australian Natives Association. The draft 
 Bill, embodying them, provided that the Convention, after 
 provisionally framing a Constitution, should then adjourn 
 for sixty days before its final consideration. The Australian 
 Legislatures would thus be able to express their opinions on 
 the measure. In the winter of 1895-6 enabling Acts were 
 passed in New South Wales, Victoria, South Australia, and 
 Tasmania. In Queensland it excited opposition on a side 
 issue, and had to be withdrawn ; and in Western Australia 
 the delegates were to be chosen, not by the people, but by 
 the two Houses of the Legislature sitting together. More- 
 over, in this Colony the Constitution, as framed by the 
 Convention, was only to be submitted to the people if 
 approved by Parliament. 
 
 In March, 1897, the election was held for the members 
 of the Convention in the four Colonies, and the Western 
 Australian Parliament elected its representatives. Each 
 Colony was represented by ten members, so that the Con- 
 vention in the absence of Queensland consisted of fifty 
 members. The first meeting took place on March 23rd, 1897, 
 at Adelaide. Mr. Barton, a New South Wales delegate, 
 who had made a special study of the subject of federation, 
 undertook the duties of ' leader of the Convention '. It 
 was thought necessary to start the discussion de novo 
 with a long debate on general resolutions, which occupies
 
 62 INTRODUCTION 
 
 some four hundred pages of a double-columned volume. 
 But assuredl}^ the time was not wasted. The speeches 
 showed a closer grip of the difficulties to be surmounted and 
 a clearer recognition of the necessity for compromise. 
 
 The speech of Mr. Deakin rose to a level of eloquence 
 not easy to surpass. ' Is it possible ', he said, ' when the 
 Australian people for the first time have emerged as an 
 Australian people, represented in an Australian Assembly 
 to draft an Australian Constitution, that its great promise 
 should disappear unfulfilled ? . . . The Constitution we seek 
 to prepare is worthy of any and every proposed sacrifice, 
 for it is no ordinary measure, and must exercise no short- 
 lived influence, since it preludes the advent of a nation. . . . 
 We are the trustees for posterity, for the unborn millions, 
 unknown and unnumbered, w^hose aspirations we may help 
 them to fulfil, and whose destinies we may assist to deter- 
 mine.' The proceedings at Adelaide lasted a little more 
 than a month, and at the end a Bill had been settled, which, 
 though it did not represent the unanimous voice of the 
 delegates, at least bore witness to a gradual rapprochement 
 among them, which promised well for the future. It was 
 soon apparent that the question of the tariff' was no longer 
 a lion in the way ; the main difficulty being over the ques- 
 tion of the Senate and its relations to money bills, and over 
 the financial provisions. Suggestions were thrown out in 
 committee foreshadowing the arrangement afterwards made 
 to avoid deadlocks, but the Bill at this stage contained no 
 such provision. In spite of the acute airopiai of Sir Richard 
 Baker, it was recognized that the system of responsible 
 government was inevitable, and members of the Executive 
 Council were obliged to become members of Parliament 
 within three months of taking office. The clauses with 
 regard to the distriliution of the surplus revenue from 
 customs duties were still in a form far from satisfactory to 
 the smaller Colonies. 
 
 The reception of the Bill hy the various Australian Parlia-
 
 THE AUSTRALIAN COMMONWEALTH 63 
 
 inents seemed to sliow that the lesson of tlie need of com- 
 promise had hardly yet become sufficiently taken to heart 
 if federation was to become an accomplished fact. How- 
 ever, the delegates entered the adjourned session at Sydney 
 in September, 1897, with good hopes of final success 
 During the sitting at Sydney some progress was made 
 towards the solution of the relations of the two Houses. 
 The necessity of some safety-valve was affirmed, and the 
 principle approved of a joint sitting after a simultaneous 
 dissolution ; but under the amendment which was carried 
 a three-fifths majority at the joint sitting was necessary. 
 
 The Convention again adjourned to Melbourne, where 
 from Januarj^ 20th to March 17th, 1898, the sittings were 
 held from which the Bill emerged in its final shape. The 
 subject of the control of the navigable rivers proved one of 
 great difficulty, South Australia desiring and New South 
 Wales opposing the federal control not only of navigation 
 but of irrigation and of water conservation generally. The 
 difficulty of forbidding railway preferential rates without 
 interfering with legitimate competition, was met by 
 entrusting the decision of such questions to the Interstate 
 Railway Commission established by the Bill. The solution 
 arrived at with regard to deadlocks by the Sydney Conven- 
 tion was, with some slight modifications, again approved. 
 With regard to the financial clauses, the Convention in sub- 
 stance returned to the solution of the Bill of 1891, coupled 
 with what was known as the Braddon Clause, under which 
 not more than one-fourth of the net revenue of the Common- 
 wealth from duties of customs and excise should be applied 
 annually by the Commonwealth towards its expenditure. 
 
 The main points of difference between the Bill of 1898 
 and the Bill of 1891 were that under the latter the senators 
 were to be elected by the legislatures of the States. Under 
 the former, they were to be elected by the people. Under 
 the latter, equal representation in the Senate was given to 
 all States absolutely. Under the former, it was only the
 
 64 INTRODUCTION 
 
 original States that were of necessity to be equally repre- 
 sented in the Senate. In the Bill of 1891, the suffrage for 
 the House of Representatives was left to the decision of the 
 various States. In the Bill of 1898, it might be controlled 
 by a uniform law made by the Parliament. Under the 
 Bill of 1891, the qualification of senators was the attain- 
 ment of the age of thirty years and a five years' residence 
 in the Commonwealth. Under the Bill of 1898, it was the 
 same for both Houses of Parliament, namely the attainment 
 of the age of twenty -one years and a three years' residence. 
 Under the Bill of 1891, the division of electorates for the 
 House of Representatives rested with the States. Under 
 the Bill of 1898, that power was subject to revision by the 
 Parliament of the federation. In the later Bill the power 
 to legislate with regard to insurance, invalid and old age 
 pensions, alien races such as the Chinese, the acquisition or 
 extension of State railways with the consent of the State 
 in question, and lastly, the appointment of Courts of Con- 
 ciliation and of Arbitration in industrial disputes extending 
 beyond the limits of one State, were added to the powers 
 of the Federal Legislature. The provision with regard to 
 deadlocks between the two Houses was also first found in 
 the later Bill. 
 
 In the Bill of 1898, Ministers were compelled to sit in 
 Parliament, a provision which was not contained in the 
 earlier measure. Again, in the later Bill the interpretation 
 of the Constitution by the High Court was made final. 
 It was thought ' right and fit that the highest Court in 
 Australia should be left as the guardian of the expressions 
 of the people, and the sole l)ody to determine finally what 
 the people meant when they used those expressions '. 
 Under the Braddon Clause of the Bill of 1898, one-fourth 
 only of the net revenue of the Conniionwealth was allowed 
 to be expended by the Connnonwealth. While ))oth Bills 
 made the Federal Parliament the autliority to grant bounties, 
 that of 1898 allowed the States to give bounties for pro-
 
 THE AUSTRALIAN COMMONWEALTH 65 
 
 duction and export, with the consent of the two Houses of 
 the Federal Parliament expressed by resolution. Lastly, the 
 later measure substituted a referendum for State Conven- 
 tions as the means by which alterations should be made in 
 the Constitution. 
 
 But though the Bill of 1898 represented the laborious 
 and honest efforts of the ablest of Australian public men, 
 victory was not yet ; and, when the popular vote was taken 
 in New South Wales, Victoria, Tasmania, and South 
 Australia, it proved that in New South Wales the Bill had 
 not obtained in its favour the statutory number of eighty 
 thousand votes. In Victoria, Tasmania, and South Australia 
 the cause of federation was successful ; but it was impossible 
 to go further without New South Wales. 
 
 At a meeting of Premiers held at Melbourne in January, 
 1899, which was attended by the Queensland Prime 
 Minister, a unanimous decision was arrived at on the points 
 in dispute. The requirement of a three-fifths majority at 
 the joint sittings of the Senate and House of Representa- 
 tives was struck out. The Braddon Clause was only to 
 take effect for a period of ten years after the establishment 
 of the Commonwealth, and thereafter until the Parliament 
 otherwise provided ; and a new clause was added empower- 
 ing the Parliament, during the same period, to grant 
 financial assistance to any State (sec. 96). It was also 
 decided that the federal capital should be in New South 
 Wales, but not within a hundred miles of Sydney. Until 
 the new capital was decided upon, Melbourne was to be the 
 seat of Government. The wishes of the individual States 
 were further safeguarded with regard to the alteration of 
 boundaries. 
 
 A new clause was also added, which had the support of 
 the Labour Party, enabling the Constitution to be amended 
 after a referendum, at which such alteration was approved 
 by a majority of all the electors voting, and by a majority 
 of the electors voting in a majority of the States. 
 
 1265 K
 
 66 INTRODUCTION 
 
 Agreement having been at last attained, a new enabling 
 Bill, by which a mere majority was required, was passed by 
 the New South Wales Legislature, and federation was now 
 approved by substantial majorities in five Colonies, Queens- 
 land at last having fallen into line. It was not till the Bill 
 was passing through the British Parliament that Western 
 Australia, in return for the right of imposing for five years 
 intercolonial customs duties, threw in its lot with the rest 
 of Australia, and the vote of the referendum adopting the 
 Constitution was not made till after the passage of the Act 
 through the British Parliament. 
 
 A deputation of Australian Ministers brought the Bill to 
 England. On nearly every point Mr. Chamberlain, the 
 Secretary of State for the Colonies, was ready and willing 
 to adopt the measure of the Australian people ; but a vigorous 
 attempt was made to resist the provisions of the clause 
 which abolished the right of appeal to the Privy Council in 
 cases affecting the rights inter se of the Commonwealth and 
 the States. The final compromise, under which such an 
 appeal could be made if so ordered by the High Court, may 
 be thought a surrender, because the High Court was hardly 
 likely to question its own competence to give a final deci- 
 sion ; ^ l)ut the attitude taken up by the Australian Premiers 
 and by the Ministers in London, that the Bill represented the 
 exact arrangement upon which the Australian people had 
 given their verdict, and that any alteration would throw 
 the whole subject into the melting-pot, made it necessary 
 that the Home Government should walk warily. Whatever 
 our own inclinations toward an Imperial Court of Appeal 
 as a link of Empire, we must recognize that it becomes 
 valueless if not depending upon popular approval. ' Bonds 
 which chafe ', whatever their merits in other ways, can 
 
 ' Note the emphatic langu.igo of Cliiof-Justico Griffith in Baxter v. the 
 Collector (>f Customs of New South Wales (4 C. L. R., Part 2, 1103), claiming the 
 competence of the High Court to bo final judge in matters relating to 
 the Commonwealth.
 
 THE AUSTRALIAN COMMONWEALTH 67 
 
 liardly be ' bonds whicli attach ' ; and from an Imperial 
 standpoint the gain of a strong united Australia was worth 
 many times the loss of some power for the Judicial Com- 
 mittee of the Privy Council. 
 
 The Bill passed through Parliament on July 3rd, 1900, 
 and on January 1st, 1901, the Commonwealth of Australia 
 entered into life. 
 
 What will be the ultimate character of the Constitution 
 it is impossible to say. In spite of the vigorous assertion 
 of State interests and the natural desire of State Ministers 
 to magnify their own offices, it is possible that a genera- 
 tion brought up under new influences may recognize the 
 accidental character of State divisions and attach little 
 importance to what now seems sacrosanct. The provisions 
 of the Act giving concurrent jurisdiction to the Common- 
 wealth Parliament on a variety of subjects which at first 
 belonged to the State Legislatures, and the free use which 
 is being made of the power to amend the Constitution, 
 afford an easy way by which the powers of the Common- 
 wealth may wax and those of the States may wane. It is 
 true that the great distances between the various points of 
 Australia seem to necessitate a genuinely federal govern- 
 ment, but science is daily achieving new wonders in the 
 bridging of space, and British South Africa, in spite of its 
 size, has ventured on a unitary government. These things 
 are for Australia to settle in its own way. For us here it 
 is enough to note that the Commonwealth Act of 1900, in 
 the laborious care with which its every syllable was drafted, 
 in the anxious attempts of its framers to secure unanimity, 
 and the jealous provision made throughout its stages for its 
 popular sanction, represents a high-water mark in demo- 
 cratic constitution-making of which every member of the 
 Anglo-Saxon race, who, with whatever searching of heart 
 and anxiety, recognizes that democracy is the inevitable 
 goal, may well be legitimately proud. 
 
 E 2
 
 68 INTRODUCTION 
 
 The Union of South Africa. 
 
 We have seen how reluctantly in Canada and Australia 
 centrifugal influences yielded before the advance of the 
 federal principle. In South Africa a more surprising thing 
 has happened, and men, who a few j^ears before were 
 opposing each other in deadly war, have succeeded in 
 friendly co-operation in establishing the political union of 
 British South Africa. 
 
 Here, again, it is only by some knowledge of the past 
 history that we can understand the situation. The key- 
 note, then, of the subsequent history will be found in the 
 opposing methods of dealing with the natives adopted by 
 the Dutch Colonists and by the Britisli Government. 
 The difference was not between opposing races. When 
 British Colonists came out to Cape Colony, their ways of 
 dealing with the natives did not substantially differ from 
 those of the Dutch ; and even the British Governors were 
 found often sympathizing with Colonial methods rather than 
 with those imposed on them from Downing Street. We have 
 here nothing to do with the rights or the wrongs of the con- 
 troversy : probably, as in most disputes, the path of wisdom 
 lay between the two extremes. For us the only point to 
 notice is that, because of their distrust of British methods, 
 the more bitter of the Dutch farmers shook off the dust 
 of British sovereignty from their feet, and sought a new 
 home in the unknown north. The British Government, 
 which still regarded Cape Colony of importance merel}^ as 
 a half-way house on the road to India, naturally shrunk 
 from pursuing the Boers in their 'trek'. Whatever 
 might be true in law, in the court of common sense it 
 followed that allegiance could not be claimed where pro- 
 tection was no longer afforded. 
 
 Meanwhile, though the general trend of British policy 
 was against extending ^responsibilities, strong men on the
 
 THE UNION OF SOUTH AFRICA 09 
 
 spot, who already recognized that expansion was the in- 
 evitable goal, were able to force the hands of the Home 
 Government and thus to give it an appearance of incon- 
 sistency which added to the confusion and disgust of the 
 ' voortrekkers '. In spite, however, of the lamentable course 
 of events which served to widen differences which need not 
 have been great, the advantage of co-operative union 
 among the South African Provinces was so manifest that 
 had the matter been left to the decision of the people of 
 South Africa some form of union would probably have 
 been evolved. 
 
 In support of this contention may be cited the action of 
 the people of the Orange River Colony after its annexation 
 by Great Britain in 1848. Although that annexation was 
 resisted by many of the Dutch, it seems clear that, after 
 the more extreme had tied from British rule into the Trans- 
 vaal, the great majority of the inhabitants quickly recon- 
 ciled themselves to British rule ; and, when the Home 
 Government decided to renounce the sovereignty, its de- 
 cision was regretted by the Dutch no less than by the 
 English colonists. The fatal step having been taken of 
 allowing the creation of independent States, the only road 
 of safety lay in establishing some system of federation 
 which would bind together the various portions of South 
 Africa, at least in matters of general concern. To Sir 
 George Grey belongs the credit of initiating this policy. 
 Writing to the Home Government towards the close of 
 1856, he advocated ' a federal union amongst all these 
 territories, in which great individual freedom of action 
 should be left to each Province, whilst they would all 
 be united under British rule '. He urged emphatically the 
 necessity of a 'United South Africa under the British flag'. 
 The Home Government unfortunately was in no mood to 
 change the policy which had been deliberately adopted ' of 
 recognizing by treaty the formation of independent States 
 on the frontiers of British possessions by emigrant British
 
 70 INTRODUCTION 
 
 subjects, and thus raising an effectual barrier to the system 
 of continual and indefinite expansion of the frontiers to- 
 wards the interior ' ; and the words of wisdom of Sir 
 George Grey fell on deaf ears. The ease for some kind of 
 federation was on its merits strong enough. The revenues 
 derived from duties levied at Cape Town and the other 
 Cape Colony ports were taken by Cape Colony for its sole 
 exclusive use ; while the inland States paid the additional 
 cost on their goods, occasioned by these duties. Again, 
 only by a federal union could the South African Colonies 
 become so strong and so united in policy and action as to 
 make impossible the danger of a native rising. Not only 
 would the power and prestige of the white races be so 
 increased by a federal union as to make the native more 
 chary in venturing on war ; but also the individual Colonies 
 or States would become more cautious in entering upon 
 proceedings which might result in war, when such war 
 would need the sanction of a federal authority. 
 
 Under the policy of separation South Africa had become 
 a land of small States, wherein petty and parochial issues 
 filled men's minds ; but federation would open out a wider 
 horizon, along which would appear wider questions and 
 more general interests. If Great Britain should grow 
 weary of her burden in South Africa, federation afforded 
 the only means by which a strong government could be 
 erected, able to succeed to her responsibilities and to avert 
 from the rival Provinces confusion and anarchy. By 
 federation great individual freedom might l)c left to each 
 component part, whilst for certain purposes they were 
 united under British rule. 
 
 It is obvious that if such a federation could have been 
 established in 1857 the whole future of South Africa would 
 have run a different course. ]\Ir. F. W. Eeitz, the Trans- 
 vaal Secretary of State at the time of the war, wrote to 
 Sir George Grey in 1893 : ' Had British IVIinisters in time 
 past been wise enough t(j follow your a<lvice, there would
 
 THE UNION OF SOUTH AFRICA 71 
 
 undoubtedly be to-day a British dominion extending From 
 Table Bay to Zambesi.' 
 
 It was part of the general ill-luck which for many years 
 dogged the footsteps of Great Britain in South Africa that 
 the question whether Sir George Grey was right in his 
 policy of federation became confused with the wholly 
 different question whether, as a Government official, he 
 was justified in disregarding the direct instructions of the 
 Secretary of State. Because of this disobedience he was 
 recalled, and though, on the occasion of a change of 
 Government in England, he was, through the intervention 
 of the Queen, continued in office, it was on the express 
 condition that nothing more should be said about South 
 African federation. 
 
 Years passed in inevitable reaping of the seeds sown of 
 disunion and distrust, yet the case for federation was so 
 strong that the question was bound again to come to the 
 fore. Sir Henry Barkly, the Governor of Cape Colony in 
 1871, expressed himself in favour of federation ; and the 
 Home Government, through Lord Kimberley, was now in 
 cordial accord. At this time there was reason to believe 
 that the Orange River Free State was willing to enter into 
 such a federation. In opening the Cape Parliament in 
 1872 Sir H. Barkly described the difficulties in the way 
 as not insuperable. He enlarged upon the benefits to be 
 expected from federation in the way of uniformity of 
 legislation, improvement of postal and railway facilities, 
 and the promotion of a wdser and more consistent policy 
 regarding the natives. Responsible government was now 
 being introduced in Cape Colony, and its grant, Barkly 
 believed, would pave the way for a redistribution of repre- 
 sentation among the difierent districts, for an extension of 
 the powers of self-government, and for eventually establish- 
 ing a system of federal union, in which, sooner or later, all 
 the Provinces of South Africa might be embraced. 
 
 In this state of things, Lord Carnarvon, who had been
 
 72 INTRODUCTION 
 
 Secretary of State at the time of the introduction of the 
 British North America Act, may be forgiven if he thought 
 the time ripe for pressing on the federation of South 
 Africa. But he failed to remember that in Canada con- 
 federation had been a purely Canadian question, concern- 
 ing which the role of the Imperial Government was mainly 
 to give formal sanction to decisions arrived at by colonial 
 statesmen. There was nothing in the experiences of 1865 
 and 1867 to point to the conclusion that federation could 
 successfully be imposed from without on people suspicious 
 and determined to manage in their own way their own 
 affairs. Nevertheless, Lord Carnarvon, in appointing Sir 
 Bartle Frere to the Governorshij? of Cape Colony, informed 
 him that he had been selected ' to carry my scheme of 
 confederation into effect '. It is true that Lord Carnarvon 
 was careful to explain that he had no desire to dictate, 
 and that the ' action of all parties, whether in the British 
 Colonies or the Dutch States, must be spontaneous and 
 uncontrolled ' ; but the seeds of distrust were ali'eady im- 
 planted in a congenial soil. The Cape Colony Govern- 
 ment carried opposition so far as virtually to deny to the 
 Imperial authorities any voice on the question of South 
 African federation ; and the Orange River Colony was 
 now hostile to the measure for fear that thereby its 
 political independence might be endangered. In this state 
 of feeling the moment was hardly opportune for a Con- 
 ference on the subject in London. The Cape Premier, who 
 happened to be in England, was precluded from attending 
 by a vote of the Assembl3\ P)"esident Brand, who was 
 also in London, attended the Conference to discuss the 
 native (luestion, Init was unable to take into consideration 
 the subject of federation. Lord Carnarvon, however, was 
 still hopeful that ])y friendly discns.si(m misunderstandings 
 might be removed, and a draft Bill for establishing a South 
 African federation was forwarded to South Afiica, so that 
 suggestions might be made for its improvement. Some
 
 THE UNION OF SOUTH AFRICA 73 
 
 alterations were in consequence made, and the Bill as 
 amended was passed by the Imperial Parliament in 1877. 
 The Act, which was merely an enabling one, followed in 
 its main lines the provisions of the British North America 
 Act, except that, doul)tless in the interests of the natives, 
 it gave more extensive powers to the Home Government to 
 disallow provincial statutes. The Act was never put in 
 force, and in 1882 ceased to have effect by efflux of time, so 
 that its importance in the history of the subject is slight. 
 
 Meanwhile another question was coming into prominence 
 which was to put back the clock of union for more than 
 thirty years. At first it seemed as if the war between the 
 Transvaal Republic and the natives was moving things in 
 the direction of the union of South Africa ; but it proved 
 in the long run that racial jealousies between Europeans 
 were stronger than the sense of a common peril from the 
 natives. The annexation of the Transvaal may or may 
 not have been at the time a necessity ; it may or may not 
 have been an act of political wisdom ; but arousing as it 
 did, at least after the first, and when the Zulu power had 
 been put down by British arms, a fierce spirit of Dutch 
 Afrikander patriotism, it shut the door for many years to 
 any proposals for closer union. It is obvious that the 
 circumstances under which the Transvaal regained its 
 independence, and the fact that the outcome of that inde- 
 pendence was the emergence of a powerful Republic 
 intensely hostile to Great Britain, and ready to enter into 
 the lists with her for the hegemony of South Africa, 
 seemed to put off" all chances of closer union to the Greek 
 Kalends. The discovery of gold in the Rand gave to the 
 Transvaal the sinews of war ; but while reaping the full 
 benefit of the gold mines, the Boer Republic was not willing 
 to give to the alien population of the Rand the full rights 
 of citizenship. Great Britain, as the paramount power, 
 claimed to have a voice on behalf of the outlanders' claims ; 
 and thouirh the fiasco of the Jameson raid for some time
 
 74 INTRODUCTION 
 
 made British statesmen slow to interfere, they at last, 
 though reluctantl}' and with great misgivings, came to the 
 conclusion that the position of Great Britain in South 
 Africa was not compatible with the pretensions of the 
 Boer Republic. After a war which lasted three years, and 
 at first threatened to exhaust British resources, Great 
 Britain found herself in undisputed possession. The old 
 enemies, who had fought so gallantly, accepted with equal 
 frankness the decision of the sword ; and the strange 
 spectacle was seen of the general of a hostile Republic 
 becoming within a few 3'ears the Prime Minister under 
 responsible government of a loyal self-governing Colony. 
 In the Orange River Colony, as well as in the Transvaal, 
 the Ministers under responsible government were, to a great 
 extent, the leaders in the war against Great Britain. 
 
 With the full triumph of the principle of responsible 
 government the fact once more became manifest that in 
 South Africa more perhaps than in any portion of the 
 world there are common questions of general interest 
 which can only be decided with safety by a general 
 authority expressing the considered judgement of a United 
 South Africa. Such union as existed prior to the Act of 
 last year was due to the special interference of the High 
 Commissioner, who acted as the mediator between the differ- 
 ent Colonies in endeavouring to facilitate arrangements and 
 accommodations among them ; but such interference was 
 unsatisfactory from the point of view of colonial self- 
 government, and could hardly have been exerted witli 
 success under the now S3'stem. 
 
 Tlie three cjuestions on which a common policy was 
 most urgently necessary were the native ([ucstion, the 
 (|uestioii of railway rates, and that of the tariff. The 
 presence of a vast native population, which does not tend 
 to disappear before the European advance, as the native 
 population bus disappeared in North America and Aus- 
 tralia, makes the prol)k'm of its future one of extreme
 
 THE UNION OF SOUTH AFRICA 75 
 
 difRculty. Different ways may be proposed for dealing 
 with the native question ; but one thing is clear, that no 
 way can be so bad as that of dealing with them differently 
 in the different Colonies for no other reason except that 
 politicians are of a different mind in the various States. 
 As Lord Selborne wrote in the impressive Memorandum 
 issued in 1907, which has been compared with Lord 
 Durham's Report : ' Different policies applied at the same 
 time in different parts of the country to the same races, 
 the members of whom are in constant communication with 
 one another, must together defeat the object at which each 
 severally aims. The general result is sure to be something 
 utterly unlike what any one of them was intended to 
 produce; and proceeding from policies which are incon- 
 sistent and causes which are uncontrolled, will be accidental 
 if not disastrous in its effects.' 
 
 But while the native question pointed to the necessity 
 of some kind of union, it also put a serious obstacle in its 
 way. In Cape Colony the policy had been adopted of 
 giving natives who fulfilled certain qualifications the right 
 to vote for members of Parliament. In the Transvaal 
 and the Orange River Colony there was the strongest 
 reluctance to adopt any such course. Some friends of the 
 natives in Cape Colony preferred indefinitely to postpone 
 federation rather than to sacrifice the forward policy of their 
 Colony with regard to the natives ; while in the Transvaal 
 the great majority of the people were equally determined 
 that the natives should not be allowed to vote. Considering 
 this cleavage of opinion, the compromise was no doubt wise 
 which maintained, for the present, the variety of systems 
 prevailing in the different Provinces. The decision was 
 severely criticized in England in the interests of the 
 aborigines ; but responsible statesmen of both parties have 
 now come to recognize that with the people of South 
 Africa must rest the settlement of such questions, and 
 that it is idle to expect that the British Parliament, or
 
 76 INTRODUCTION 
 
 even British public opinion at home, should have the con- 
 trolling voice. 
 
 Closely interwoven with the native question was the 
 labour question. The prosperity of mining, and even of 
 agriculture, mainly depends upon the native labour which 
 is forthcoming. A scarcity of labour which affects the 
 mines inevitably reacts on the agricultural interest, and 
 yet so long as British South Africa was divided into 
 separate Colonies the labour question, which really affected 
 South Africa as a wdiole, was dealt with piecemeal by 
 separate administrations, none of which had either the 
 opportunity or the power to deal with the question as 
 a whole. Thus Natal had embarked upon a policy with 
 regard to indentured Indian labour, in direct opposition to 
 that of the other Colonies and States. The Chinese coolies 
 for the gold-mines, about whom so much was heard, were 
 at least limited in number : they had to be repatriated at 
 the end of their period of indenture, and were not allowed 
 to be engaged for any kind of labour which demanded 
 special skill. In Natal, on the other hand, Indian coolies 
 had been introduced without any provision for their com- 
 pulsory repatriation ; so that thousands remain in the 
 Colony and have become incorporated in the social system 
 of South Africa. At the end of their period of indenture 
 they are free to compete in occupations of all kinds. 
 Whereas the industry with which the Chinese were con- 
 cerned is in the nature of things temporary, the richest 
 mine becoming some time exhausted ; in Natal the most 
 permanent and fundamental industry, that of agriculture, 
 has been established on the basis of Asiatic labour. It 
 would of course be out of tlie <iuestion suddenly to over- 
 thi'ow a system that has taken such I'oot ; nevortlieless 
 the example of the Indian Coolie (juestion in Natal served 
 to show the necessity of dealing with such questions from 
 the point of view of South Africa as a whole. 'If all 
 South AlVica were united umler one Parliament ', Lord
 
 THE UNION OF SOUTH AFRICA 71 
 
 Selborne wrote, ' it is clear that when no principle of 
 Imperial law or policy was involved, questions affecting 
 the whole country would be settled ... as they are settled 
 in Canada and Australia. Such a Parliament would beget, 
 what cannot exist without it, an informed public opinion 
 on South African affairs. It would bring into existence 
 a class of men throughout the country accustomed to 
 reflect on questions as they affected it in every part.' 
 Assuredly the solution of the question, What are to be the 
 future relations between the Europeans and the natives 
 of South Africa ? is one which requires the whole mind and 
 care of a United South Africa. ' The situation is startling, 
 because it is without precedent. No reasoning man can 
 live in South Africa and doubt that the existence theve 
 of a white community must, from first to last, depend upon 
 their success or failure in finding a right solution of the 
 coloured and native questions, or, in other words, upon the 
 wisdom they can show in determining the relative places 
 which the white, coloured, and native populations are 
 to fill.' 
 
 But if the Native question, from its intrinsic importance, 
 afforded the strongest argument in favour of South African 
 union, the more immediate questions of the tariff and 
 railway rates had more to do with its final triumph. 
 The questions of the tarift' and of railway rates are closely 
 bound up together. For many years the inland States 
 were at the mercy of the Colonies possessing seaports 
 with regard to the duties on goods imported by sea. 
 From 1884 onwards the Cape Colony, and from 1886 Natal, 
 recognized the system of rebates of duties on goods entering 
 the Orange Free State and the Transvaal. In 1889 a 
 Customs Union was established between Cape Colony and 
 the Orange Free State. Basutoland entered this union in 
 1891 and the Bechuanaland Protectorate in 1893. In 1899 
 a new Convention was made, to which Natal became a 
 party ; Southern Rhodesia also entering into an agreement
 
 78 INTRODUCTION 
 
 with Cape Colony which was of the nature of a Customs 
 Union. Meanwhile goods to the Transvaal were allowed to 
 pass through the territories of the coast Colonies subject 
 to a transit rate. 
 
 After the termination of the South African War a new 
 Customs Union, to which the Transvaal and Southern 
 Rhodesia were parties, was set on foot. In 1905, owing to 
 severe depression, it became necessary to secure a larger 
 revenue from Customs, and a Conference was held in the 
 spring of 1906 to consider the question. ' For three weeks ', 
 we are told, ' many of the busiest and most responsible 
 persons in the country laboured incessantly, not to harmo- 
 nize the programmes of the different States, for that was 
 impossible, but to arrive at such a mixture of the various 
 ingredients of the conflicting programmes as each and all 
 would consent to swallow. The proceedings of the Con- 
 ference were private, and when it was closed the strictest 
 secrecy as to the nature of the results produced had still 
 to be observed by some forty persons for several months. 
 The new Convention had then to be carried through by 
 different Legislatures, and each of these public Assemblies 
 was told that it might discuss the details, but that it could 
 not be allowed to alter one of them. The Convention was 
 cut and dried, and they must, each and all, take or leave it 
 as a whole.' A customs tariff' framed as a treaty between 
 independent States was of necessity a compromise, and, 
 moreover, a compromise very probably distasteful to many 
 who signed it ; while, when a delegate was convinced by 
 some new argument, he could not go outside the four 
 corners of his original instructions, because the secrecy 
 of the proceedings prevented his explaining to his fellow- 
 countrymen the detailed history of the negotiations. The 
 sole support of customs arrangements being faith in the 
 diplomacy of individual delegates and not the considered 
 judgement of a representative Assembly, there was the 
 ever-present risk of a tariff' war ; the effect of which.
 
 THE UNION OF SOI^TH AFRICA 79 
 
 accompanied by a war of railway rates, would be to reduce 
 business to a mere gamble, and perhaps to bring States as 
 well as individuals to the verge of bankruptcy. If British 
 South Africa was to enjoy financial equilibrium, it was clear 
 that there must be commercial union between its various 
 portions ; but without political union commercial union 
 must always rest on insecure foundations. On the other 
 hand, could political union or federation be accomplished, 
 the examples of the United States, Germany, Canada, and 
 Australia were there to show that a corner-stone of the new 
 building would be the security of absolute freedom of trade 
 between the different parts. Had union not been effected, 
 it would almost certainly have proved impossible to main- 
 tain the artificial barrier of the Customs Union. We know 
 on good authority that General Botha, the strong Prime 
 Minister of a people the instinct of which it is to follow its 
 leaders, during 1908 had no little difficulty in stemming 
 the demand of the Boer farmers for protection against 
 competition from Cape Colony. Had the union not come 
 about, sooner or later it is certain that there would have 
 been a breach in the wall, and South Africa would have 
 been exposed to the floods of a tariff war, between Colonies 
 nominally united under a common Crown. 
 
 The question of railway rates was still more menacing, 
 because yet more difficult. The key-note to the economic 
 situation was that the nearest seaport to the Transvaal 
 gold-mines was situated in Portuguese, and not British, 
 territory. Delagoa Bay, which, under the award of Marshal 
 MacMahon in 1875, was allotted to Portugal and not Great 
 Britain, was some forty miles nearer to Johannesburg than 
 was Durban, and much nearer than were the Cape Colony 
 ports of East London and Port Elizabeth. But not only 
 was the route shorter by way of Delagoa Bay, but also the 
 financial profits to the Transvaal Government were far 
 greater. Though the whole distance was less, the extent 
 of miles over which rates were payable to the railway
 
 80 INTRODUCTION 
 
 company, in which the Transvaal Government was financially 
 interested, was much greater. When to financial were 
 added political considerations, it is obvious how useful an 
 asset the Delagoa Bay Railway was in the hands of the 
 Boer Republic. Before very long it seemed to have the 
 commercial interests of all South Africa at its mercy. A 
 Conference held in 1895 revealed the weakness of the 
 position of Cape Colony, and an attempt to cut down rates 
 by making use of the drifts for transport, by means of 
 waggons, was met by the closing of the drifts, an act which 
 was on the point of leading to war. Without the knowledge 
 of his followers, who were members of the Afrikander Bond, 
 Mr. Schreiner, the Cape Colony Premier, undertook that 
 the Colony would pay half the cost, if the Imperial Govern- 
 ment would enforce its claims even at the risk of war. 
 The Transvaal, at the time, was not prepared for war, and 
 yielded before the threat of coercion ; but, had the Trans- 
 vaal and the Cape Colony been independent States, with 
 no Imperial power in the background, the issue might 
 have been an armed conflict. 
 
 That the superiority of the Delagoa Bay route by no 
 means depended upon the partiality of Boer statesmen 
 became apparent afterwards, when the natural inclination 
 of British public men would have been to favour British 
 ports. An offer of one-quarter of the traffic of the Trans- 
 vaal was refused by the Cape Colony Government in 1895. 
 In 1905 the share carried by the Cape railways amounted 
 to only 11 per cent, of the whole. 
 
 The matter was further complicated by the dependence 
 of the Transvaal gold-mines upon native labour from the 
 Portuguese possessions. The mining companies were given 
 favourable terms under which they might obtain native 
 labourers in l^ortuguese territory ; and, in consideration of 
 this privilege, the Portuguese authorities exacted that 
 goods should be carried from Delagoa Bay to Johannesburg 
 by I'ail, at rates which preserved the same relation to the
 
 THE UNION OF SOUTH AFRICA 81 
 
 rates charged on goods from the British ports as existed 
 prior to the war. Seeing that some 90 per cent, of the 
 natives employed underground on the Rand come from 
 the Portuguese possessions, it would obviously be a Cad- 
 niean victory to the railways of the coast Provinces if the 
 result of their obtaining a greater share of the traffic were 
 to be that half the stamps on the Rand could no longer be 
 worked. 
 
 During the war the railways of the Transvaal and of the 
 Orange River Colony were in the hands of the military 
 authorities ; and when the two Colonies were under Crown 
 Government, Lord Milner was able to amalgamate them. 
 Unless the railways of the inland Colonies had been united 
 under the Intercolonial Council, they might have found 
 themselves in some such situation as led to the closing of 
 the drifts in 1895. ' So long as ', we are told, ' the railway 
 system of the Transvaal stood alone, its interests were as 
 diametrically opposed to those of the Orange River Colony 
 and Cape Colony as those of the Netherlands Railway had 
 been. This anomalous state of affairs was the direct result 
 of frontiers arbitrarily ruled across the map of South Africa 
 between sections of one community, which corresponded to 
 no real political or physical lines of division. By uniting 
 the railways of the two Inland Colonies Lord Milner wiped 
 out one of those lines of division, so far as transport was 
 concerned, and created a new system, the traffic interests of 
 which were somewhat less difficult to reconcile with those 
 of the Cape Colony and less inseparably bound up with 
 those of the foreign port.' 
 
 But even when the systems of the Transvaal and the 
 Orange River Colony were united, there was still the dif- 
 ficulty arising from the competing systems of the Trans- 
 vaal, the Cape Colony, and Natal. Lord Selborne affirmed 
 in his Memorandum that the railway system of South 
 Africa, although owned by States, and subject to the draw- 
 backs of State management, was subject to many of the 
 
 1265 P
 
 8.2 INTRODUCTION 
 
 defects which arise from internecine competition between 
 competing railway companies. The various sections into 
 which it was split up were owned not by shareholders 
 scattered over the whole world, but by the citizens of local 
 communities, who were kept thereby in a condition of 
 chronic hostility towards each other. From the national 
 point of view the result had been calamitous, for it had 
 developed a port outside British South Africa at the ex- 
 pense of her own ports, and introduced the foreign com- 
 plications of continental Europe into the domestic affairs 
 of British South Africa, as shown by the fact that 
 matters which involved the relation of one South African 
 Colony to another had now to be dealt with by the Foreign 
 Office of the Imperial Government. 
 
 Lord Milner recorded, as a parting word, his conviction 
 of the supreme importance of trying to get over the con- 
 flict of State interests in the matter of railways. He 
 urged the vital importance of settling, once for all, the 
 basis on which all the railways could be worked as one 
 concern, so as to end for ever the continual controvers3^ 
 Nevertheless, the antagonism of interests was such as to 
 make agreement wellnigh impossible. A Conference was 
 summoned at Pretoria in May, 1908, to deal with the 
 question of railway rates and that of the tariff. The 
 members of the Conference, with singular wisdom, re- 
 cognized that the only chance of a satisfactory settlement 
 lay in the adoption of the larger measure of political union. 
 For the time being they agreed to differ in opinion, main- 
 taining the arrangement of 1906, till the attempt had been 
 made to bring about such union. Public opinion in South 
 Africa was ripe for the change. An active campaign had been 
 carried on for some two years in favour of union, in which 
 the ]\Iemorandum issued by Lord Selborne played a lead- 
 ing part. Several of the brilliant young men introduced 
 l)y Lord Milner into South Africa tlirew themselves heart 
 and soul into the movement. Closer Ciiiiju Societies were
 
 THE UNION OF SOUTH AFRICA 83 
 
 set on foot, and an anonymous work, The Government of 
 South Africa, helped to direct vague aspirations into prac- 
 ticable channels. In this state of things the four Colonial 
 Parliaments were willing to send representatives to the 
 memorable Convention which met at Durban in the October 
 of 1908. Mr. Brand, who acted as secretary to the Trans- 
 vaal delegates, has thus described the Convention : ' Its 
 outstanding characteristic was the preponderance of the 
 farming element, which is everywhere supposed to be 
 essentially conservative in its nature. Out of the thirty- 
 three delegates, about one-third were farmers pure and 
 simple ; the interests of several of the remainder, sucii as 
 Dr. Smartt and Sir Percy Fitzpatrick, lie largely in farm- 
 ing ; and still others, such as General Smuts, Mr. Hull, Sir 
 Henry de Villiers, and a few more, though not themselves 
 actually engaged in farming, are directly interested in it. 
 There were, in addition, about ten lawyers, two or three 
 men connected with connnerce and mining, two journalists, 
 and three ex-officials.' ' Botha, Steyn, Smuts, De la Rey, 
 and De Wet, recognized leaders of the Dutch, have, by 
 their conduct in the struggle for independence, fully earned 
 the confidence and trust of their people ; and the qualities 
 that sustained them in war have now been displayed for 
 their country's benefit in the peaceful campaign for union. 
 On the British side, too, the delegates present at the Con- 
 vention were men whose natural capacities had brought 
 them to the front in the struggles of the last ten or fifteen 
 years. As examples it is only necessary to mention the 
 names of Dr. Jameson, Sir George Farrar, and Sir Percy 
 Fitzpatrick. Then there were others, ' elder statesmen ' 
 and men of South African reputation, whose long and bitter 
 political struggles, whether in the Cape Colony or elsewhere, 
 might well have warped their judgements, but upon whom 
 the events of the last three or four years appear to have 
 had a mellowing effect.' 
 
 Unlike the framers of the Australian Constitution the 
 
 ¥ 2
 
 84 INTRODUCTION 
 
 delegates held their meetings in secret, so that it is im- 
 possible to know the successive steps by which the final 
 conclusion was reached. After sitting during the month 
 of October at Durban the Convention adjourned to Cape 
 Town, where it completed its work by the end of the 
 first week of February, 1909. The sittings had not been 
 continuous ; but the five weeks of vacation had been 
 no less busily employed in the business of the new Con- 
 stitution. The Bill as drafted had then to be submitted 
 to the respective Parliaments for their approval. In the 
 Transvaal, which had throughout taken the lead in the 
 movement for union, the leaders on both sides were able 
 to convince their followers of the necessity of adopting 
 as a whole what was a carefully balanced arrangement 
 between conflicting interests. In the other Colonies there 
 was no such unanimity. In Cape Colony, and in the 
 Orange River Colony, the main stone of stumbling was 
 the provision that gave equal rights to the votes cast 
 in urban and country constituencies. The Convention 
 had already to some extent arrived at a compromise on 
 the question. There was to be appointed a Commission 
 for the delimitation of electoral divisions. Electoral 
 divisions were to be made by dividing the total number 
 of voters in the Province by the number of members of 
 the House of Assembly to be returned, in such a man- 
 ner as that each division should contain as nearly as 
 was possible the same nundjer of voters. But, in the 
 carrying out of their duties, the Connnissioners were 
 Ijound to give due consideration to {a) community or 
 diversity of interests ; (h) means of comnmnication ; 
 {<■) physical features; (d) existing electoral boundaries; 
 and (e) sjxirsity or density of population, so as, on tliese 
 grounds, at their discretion to give voters in districts 
 thus affected preferential, or diU'erential, treatment to 
 the extent of fifteen per cent. The Act, as first drafted, 
 further contuine<I a provision setting on foot a system
 
 THE UNION OF SOUTH AFRICA 85 
 
 of proportional representation, which was distasteful to 
 the Dutch farmers. So strong was tlie feeling in the 
 Cape Parliament that the Government delegates were 
 compelled to throw over the settlement to which they 
 had themselves subscribed. In this state of things the 
 decision of the question rested with General Botha and 
 the Transvaal Dutch delegates. Had they fallen into 
 line with their compatriots in the Cape, the cause of union 
 must have been wrecked, inasmuch as the Transvaal 
 Progressives were not prepared to go further in the 
 abandonment of eriual rights. Fortunately, room for 
 compromise lay in the provisions with regard to propor- 
 tional representation in tlie Assembly. This was jetti- 
 soned; and the Cape and Orange Free State accepted 
 with a wry face the inroads of the Convention Bill upon 
 the peculiar position of the agricultural interest. Pro- 
 portional representation was advocated on the ground 
 that it would tend to level up the deep cleavage between 
 town and country, Englishman and Boer, which is still 
 apparent. Nevertheless its abandonment was for the 
 time inevitable. 
 
 A further stone of stumbling lay in the provisions with 
 regard to the native vote. Upon this sul)ject something 
 has been already said. Certain it is that any attempt to 
 establish a uniform franchise throughout the Union would 
 have wrecked the chances of settlement. On this question 
 Cape Colony stood alone, and though it might well be proud 
 of its enlightened attitude, the provision that makes a two- 
 thirds majority of the total number of the two Houses of 
 Parliament necessary, at a joint sitting, before any altera- 
 tion can be made in the rules now in force in Cape 
 Colony with regard to native voters, seems amply to 
 safeguard its own policy ; while it was idle to suppose that 
 a system wholly distasteful to them could be imposed 
 upon the three other Colonies, to meet expectations in Cape 
 Colony or in Great Britain. As Mr. Brand points out, the
 
 86 INTRODUCTION 
 
 violent criticism Avith which the compromise reached has 
 been assailed by the extremists from both sides, sufficiently 
 shows that South Africa is not yet ripe for a settlement 
 of this question, and that a premature attempt must have 
 ended in disaster. 
 
 The position of Natal with regard to the proposed union 
 was wholly different from that of the other Colonies. 
 Here the quarrel was not so much with details as with 
 the general policy of union. The little Colony, wedged 
 between the Drakensberg Mountains and the sea, was 
 proud of its peculiarly British character, and feared 
 absorption in a preponderantly Dutch South Africa. There 
 was, therefore, considerable suspicion of union, and 
 a federation would seem to have been more popular. 
 Still when the question was submitted to the people by 
 means of a referendum the opposition proved much less 
 strong than had been expected. In the other Colonies the 
 decision of the question was left to the Parliaments. The 
 Bill, as finally submitted to them and to tlie electors in 
 Natal, embodied the alterations which had been made at 
 the final sitting of the Convention at Bloemfontcin which 
 considered the various amendments proposed by tlic 
 several Parliaments. By June, 1909, the new Constitution 
 had been accepted by all the four Colonies. 
 
 The time was not ripe for the admission of Rhodesia as 
 a member of the Union. The Chartered Company can 
 S'till, it is probable, watch over its development with greater 
 success than could the Union Parliament or Executive. It 
 is, however, provided, with regard to the future, that the 
 king, with the advice of the Privy Council, may, on 
 addresses from the Houses of Parliament of the Union, admit 
 into the Union the territoi'ies administered by the British 
 South Africa Company, on such terms and conditions as to 
 representation, j^'c, as are expressed in the addresses and are 
 a])pi"oved liy the king; and an Order in Coinicil on these 
 lines will li.i\c tlu- same efiect as an Act ol' (he Ih'itish
 
 THE UNION OF SOUTH AFRICA 87 
 
 Parliament. No (:loiil)t in dne time Rhodesia will enter the 
 Union on a footing of equality with the other members. 
 
 It remains very briefly to note the character of the new 
 Union. The short historical summary will be enough to 
 show why the unitary was preferred to the federal form of 
 government. In South Africa the distinction in the past 
 has been racial, not territorial. Dutch and English existed 
 side by side in Cape Colony, in the Transvaal, and, though 
 in a less degree, in the Orange River Colony and Natal. The 
 boundaries of Colonies and States have been generally 
 artificial and accidental. The economic questions which 
 gave the propelling force to the movement for concerted 
 action, the question of the tariff' and the cjuestion of railway 
 rates, both pointed to the superiority of the unitary over 
 the federal system of government. It is true that every 
 complete federation is a union, so far as relates to the 
 establishment of a uniform tariflt'; but the vexata quaestio 
 of the Government railways would have presented greater 
 difficulties had there been, as in the Commonwealth, State 
 Parliaments with control of their State railways. Similarly, 
 questions relating to the natives can best be decided by 
 a single central authority. 
 
 In this state of things, with a patriotism resting on race, 
 not on locality, and with economic considerations strongly 
 supporting such a policy, it is no w^onder that in South 
 Africa union gained the day against federation. One im- 
 portant hostage had to be given to local prejudice. Although 
 the Provincial Councils are for the most part relegated to 
 a position of comparative inferiority, the important subjects 
 of elementary and intermediate education remain under 
 their control. The Dutch were unwilling to leave these 
 subjects in the hands of the Union Parliament ; and recent 
 experience in the Orange River Colony would seem to 
 suggest that in this direction, if anywhere, the sparks of 
 racial antagonism may again be fanned into a flame. 
 
 A passage from Mr. Brand has been already quoted
 
 88 INTRODUCTION 
 
 wherein he lays emphasis on the part plaj-ed by the farm- 
 ing interest in the foundation of the South African Union. 
 Assuredly, throughout this Act we seem in a different atmo- 
 sphere from the ultra-democratic atmosphere of the Common- 
 wealth Constitution. Especiall}^ in the chapter dealing with 
 the Provinces we find a note of vagueness and uncertainty 
 which would liave given rise to endless criticisms on the 
 part of the lawyers, who weighed with such care every 
 syllable of the Australian Constitution. AVhat will be the 
 exact relations between the Administration, the Provincial 
 Councils, and the Executive Councils, he would be a bold man 
 who should predict. Our own experience of local govern- 
 ment in England has taught us that it is possible, when 
 issues are fought on party lines, still to carry through the 
 administration by means of the committee system, but the 
 Provincial Executive Committees bear so dangerous a re- 
 semblance to ministries under the sj^stem of responsible 
 government, that their election by the Provincial Councils 
 under proportional representation seems to suggest a medley 
 wherein Swiss and English precedents have neither been 
 sufficiently powerful to strike the key-note. Consider, 
 again, the curious subsection which gives to the Union 
 Ministry the deciding voice as to whether a matter is ' of 
 a purely local or private nature,^ ' so as to come witliin the 
 jurisdiction of the Provincial Councils. The fact that the 
 whole provincial system is at the mercy of the Union Par- 
 liament, except so far as the Provincial Councils are given 
 for five 3^ears the control of education, other than higher, 
 points to the provisional and experimental cliaracter of the 
 whole chapter; but, as Mr. Brand shrewdly remarks, insti- 
 tutions, once set up, have a way of striking root. After all, 
 responsible government, as we understand it, is a peculiarly 
 British system ; and it is possi1»le that the Provincial 
 Councils and Committees, as skc(ch(Ml in the Act, may very 
 
 ' Sec. 85, subsection (xii).
 
 THE UNION OF SOUTH AFRICA 89 
 
 well answer the needs and ideas of the Dutch inhabitants 
 of the South African Union. 
 
 One other point should be mentioned. It is probable 
 that nothinoj did so much to dispel suspicions and to 
 promote the cause of union as the prompt readiness of the 
 English delegates to recognize the complete equality of the 
 Dutch language in all official proceedings. Section 137 of the 
 Act runs : ' Both the English and Dutch languages shall he 
 official languages of the Union, and sliall be treated on a 
 footing of equality, and possess and enjoy equal freedom, 
 rights, and privileges. All records, journals, and proceedings 
 of Parliament shall be kept in both languages, and all Bills, 
 Acts, and notices of general public importance or interest 
 issued by the Government of the 'Union shall be in both 
 languages.' It is a matter for sober congratulation that 
 this provision was not extorted gi'udgingly or in return for 
 something else after that its justice had once become 
 apparent to the English delegates. 
 
 Accordingly, largely owing to the high character and the 
 unswerving loyalty to the main end displayed by both the 
 Dutch and English delegates, the crowning mercy was won ; 
 and British South Africa enters on a new future with 
 happier auspices than have, in the past, surrounded that 
 country which, if it has not always been the grave of 
 reputations, has at least given the recording angel of past 
 policies theme for lamentation. 
 
 COxVCLUSION. 
 
 Having dealt, however inadequately and succinctly, with 
 the circumstances under which these new Constitutions took 
 their rise, and having commented on a few of their leading 
 features, it only remains to compare very briefly the different 
 types of government which have thus come into existence. 
 
 In the first place the three Constitutions resemble each 
 other in this, that they all follow the British precedent in 
 recognizing, though not in express terms, the system of
 
 90 INTRODUCTION 
 
 responsible government. In Canada the system is adopted 
 throughout ; and applies no less to the Provincial than to the 
 Central Governments. In Australia there is some doubt as 
 to the manner of its working, through the prominence given 
 by the federal principle to the Senate ; but, should difficulty 
 arise through the strength of the Second Chamber, the 
 equality of the Senate (except on questions of finance) would 
 probably be sacrificed sooner than that the system of re- 
 sponsible government should be imperilled. In South Africa, 
 as we have seen, it has not been attempted to employ re- 
 sponsible government in the administration of the Provinces ; 
 and generally, owing to the absence of a federal Constitution, 
 and the consequent subordination of the Senate, the system of 
 government more closely approximates to that of Great 
 Britain than does that of either Canada or Australia. 
 
 The Sovith African Act follows the Australian in render- 
 ing compulsory the sitting of Ministers in Parliament, but 
 the unwritten convention, in Canada and in Great Britain, 
 leads to the same result ; so that the former statutes only 
 dot the i's of the prevailing practice. 
 
 Herein a wide gulf separates these Constitutions from 
 that of the United States, In that Constitution the spheres 
 of the executive, the legislative and the judicial authorities 
 are kept strictly separate. The American Constitution was 
 framed on the model of the English Constitution as con- 
 ceived by Montesquieu, ami sought to reproduce the English 
 model, freed from parasitic accretions which were ascribed 
 to the poisoning influence of the Crown. But the dis- 
 tinction between Parliamentary and non-Parliamentary 
 executives is fundamental, and the absence in the United 
 States of the connecting link of the Cabinet between the 
 executive and the legislature causes the American Con- 
 stitution to run in a wholly diU'ercnt channel from the one 
 followccl l)y those Constitutions which accept the English 
 system of government by a parliamentary Cabinet. 
 
 In niiotlicr featui-e tlu' Constitutions of (^lna(la and
 
 CONCLUSION 91 
 
 Australia may be contrasted with the American. The more 
 recent State Constitutions give more direct expression to 
 the distrust, which was apparent from the first in the 
 United States, shown by the people of its own agents and 
 officers as well as of the legislature. No such distrust has 
 been shown by the people of Canada and Australia. Under 
 a federal system there cannot obviously be that complete 
 sovereignty of Parliament which is characteristic of the 
 British system ; and a legislature which is subordinate — 
 however nominal may be that subordination in the case of 
 the self-governing Dominions — cannot claim complete 
 sovereignty. But within these limitations the Constitu- 
 tion of Canada divides powers between the central and 
 the Provincial Parliaments ; and though the Australian 
 Constitution makes freer use of the intervention of the 
 popular vote, the motive at work is the exigencies of a 
 system at once federal and democratic, and not distrust 
 of the Parliament.^ 
 
 The Anglo-Saxon federations stand in striking contrast 
 to European continental federations such as the German 
 and the Swiss. In the former, in all matters which fall 
 within the sphere of the federal courts the central govern- 
 ment executes by means of its oAvn officials its own laws. 
 The opposite system, under which federal laws must depend 
 for their execution upon State or Canton officials, has not 
 commended itself to the Anglo-Saxon mind. 
 
 As is to be expected, the South African Constitution, not 
 being a federal compact, is more easily altered than are the 
 Canadian and the Australian. But the contrast is note- 
 worthy between the blind trust of the Canadians, shown 
 in the sixties, in the wisdom of the British Parliament, 
 and the scrupulous care with which the framers of the 
 Australian Constitution arranged that every proposed 
 
 ^ It may be noted, however, that even in England there is developing 
 a certain distrust of an all-powerful House of Commons which is shown 
 by the dcniaiul for the Referendum.
 
 92 IXTRODUCTION 
 
 change should be the delil^erate choice not only of the 
 majority of the people of the Commonwealth, but also of a 
 majority of the people voting in a majority of the States. 
 
 Something has already been said and more will be found 
 in the notes on the question of the allocation of powers 
 between the central and the local authorities. At the 
 two extremes, Australia and South Africa occupy positions 
 at once intelligible and logical. The price paid for the 
 entrance into a federation of Colonies, jealously proud of 
 their separate local life, was the maintenance of their 
 sepai^te colonial institutions, so far as the}' did not 
 conflict with the exigencies of the United Commonwealth. 
 Hence the paraphernalia of State Governors, appointed 
 still by the Crown, the meetings of State Premiers to 
 discuss common State interests, and the demand, laughed 
 indeed out of court, but none the less put forward, that 
 the State Premiers should have a locus standi at Imperial 
 Conferences. Time alone can show how far such con- 
 siderations will avail should the unreality of local dis- 
 tinctions be once realized ; but so far as outsiders can 
 understand, the triumph of the Labour Party at the 
 general election of 1910 was, to no little degree a triumph 
 of centripetal tendencies over centrifugal. The land and 
 laV.KDur policies advocated b}' the Labour Party involve in- 
 evitably a serious invasion upon the preserves of the State 
 Parliaments. While, then, we clearly recognize why 
 Australia followed the example of the United States and 
 not that of Canada in making the States and not the 
 Commonwealth Parliament the holder of the residuary' 
 powers not specifically allotted to either authority : it 
 seems clear that by the exertion of its concurrent powers, 
 and by the amendment of the Constitution, the Common 
 wealth Parliament will more and more grow in importance 
 at the expense of the States. 
 
 With Canada the case was precisely the opposite. 
 Something has been already said concerning the stixjng
 
 CONCLUSION 93 
 
 sympathies of John A. Macdoiiald in favour of unitary 
 government. But another fact, the full significance of which 
 has perhaps been somewhat neglected, worked in the same 
 direction. However different may have been the cliaracter 
 of French Quebec from that of British Ontario, still the fact 
 remained that, for better or for worse, they had for more 
 than thirty years been governed by a single Parliament. 
 It was thus possible to represent the Confederation measure 
 as really a measure of disunion and disruption ; and when 
 in fact this line was taken by some of the most acute critics 
 of the proposal, the moment was hardly opportune for a yet 
 more vigorous assertion of provincial rights. When it is 
 remembered that only four Colonies entered the original 
 union ; that the two Canadas greatly outweighed the other 
 two in wealth and importance, and that those two were at 
 the time parts of a common whole, in the letter if not in 
 the spirit of the law, the general conclusion reached is 
 not to be wondered at. Moreover, as has already been 
 intimated, the example of the American Civil War was 
 there to point to the dangers of an equivocal union. At 
 the same time, essential distinctions were much deeper 
 rooted in the Dominion than in Australia or in South 
 Africa ; so that it is no cause for surprise that, when once 
 it became apparent that the extreme meticulousness of the 
 framers of the Constitution had overreached itself, provincial 
 patriotism flourished vigorously under the fostering care of 
 judicial decisions. Enough has been already said on the 
 curious power given to the Dominion Executive to disallow 
 Provincial Acts of Parliament, as well as of the theoretical 
 subserviency of the Provincial Lieutenant-Governors to that 
 Executive; but these things, no more than the elaborate 
 subsections of Section 91 of the British North America 
 Act, are not sufficient to prevent provincial feelings from 
 finding, under provincial responsible government, vigorous 
 and adequate expression. 
 
 Mr. Bryce appends to an eloquent eulogy of the work of
 
 94 INTRODUCTION 
 
 Chief-Justice Marshall, in bringing to the light the implied 
 
 powers contained in the American Constitution, a note 
 
 which says : ' Had the Supreme Court been in those days 
 
 possessed by the same spirit of strictness and literality 
 
 which the Judicial Committee of the Privy Council has 
 
 recently apjDlied to the construction of the British North 
 
 America Act, 1867, the United States Constitution would 
 
 never have grown to what it now is.' ^ One hesitates to 
 
 difler from Plato ; but surely the fault, if fault there was, 
 
 lay with the framers of the British North America Act and 
 
 not with its interpreters. The doctrine of implied powers 
 
 was justified by the extreme generality of the language of 
 
 the American Constitution. When, for better or for worse, 
 
 the Canadian statesmen had attempted to deal with every 
 
 possible case in extreme minuteness of detail, no room was 
 
 left for the application of the general doctrine. In the 
 
 language of the judgement in The Lambe Caset< (12 Ap. Cas. 
 
 575), ' It is quite impossible to argue from the one case to 
 
 the other. Their lordships have to construe the express 
 
 words of an Act of Parliament, which makes an elaborate 
 
 distribution of the whole field of legislative authority 
 
 between two legislative bodies, and at the same time 
 
 provides for the federated Provinces a carefully balanced 
 
 Constitution under which no one of the parts can pass laws 
 
 for itself except under the control of the whole, acting 
 
 through the Governor-General. And the question they have 
 
 to answer is, whether the one body or the other has power to 
 
 make a given law. If they find that on the due construction 
 
 of the Act a legislative powder falls within Section 92, it 
 
 would be quite wrong of them to deny its existence because by 
 
 some possibility it may be abused, or may limit the range 
 
 whicli would otherwise be open to the Dominion Parliament.' 
 
 The framers of the Canadian Constitution cannot be 
 
 blamed that, with the example of that of the United States 
 
 before them, they dL'termincd to make the Central Parlia- 
 
 ' The American Const itutiun, IJid od., 18'J5, vul. i, p. 385.
 
 CONCLUSION 95 
 
 nient tlic final depository of power. It was clearly ri<^lit 
 that such subjects as the criminal law and divorce should 
 be controlled by the Dominion Legislature, being matters 
 of national, not local concern. None the less was the 
 manner unfortunate in which the intention was carried 
 into effect. It would have been easy to enumerate certain 
 subjects, such as the fifteen set forth in Section 92, and 
 to say that these, in so far as they referred merely to 
 provincial or local concerns, should be dealt with by the 
 Provincial Legislatures, with the proviso that, if a Dominion 
 Statute subsequently dealt on general lines with a subject 
 already dealt with by a Provincial Statute, in case of 
 conflict the former should prevail. It will be seen that, 
 in the case of the Commonwealth Statute, the difficulty of 
 the rivalry between the Central and the State Ijegislatures 
 was successfully surmounted by conferring concurrent 
 powers, with such predominance on the part of the Common- 
 wealth Parliament in case of conflict. Instead of pursuing 
 this straight course, as easy if the residuum of powers 
 were to be left to the Dominion as if they were to be left 
 to the Provinces, the British North America Act, while 
 containing in its express language the clue that laws for 
 the peace, order, and good government of Canada in relation 
 to all matters not coming within the classes of subjects 
 assigned to the Provincial Legislatures could only be made 
 by the Dominion Parliament, and the further clue that the 
 raiifon d'etre of the fifteen assigned subjects was that they 
 were * matters of a merely local or private nature in the 
 province ', went on to befog the suljject by an elaborate 
 enumeration of twenty-nine separate subjects over which 
 the central authority has exclusive jurisdiction, these 
 subjects in many cases seeming dangerously to overlap the 
 other subjects assigned to the Provincial Legislatures. Take 
 the subject of taxation. It would have been easy to say 
 that, while taxation for national purposes belonged to the 
 Dominion, the Provinces could raise money by taxation
 
 96 INTRODUCTION 
 
 for local purposes, so long as they did not interfere with 
 the general customs duties in force throughout the 
 Dominion. Instead, ' the raising of money by any mode or 
 system of taxation ' is given to the Dominion ; but the 
 Provinces have control over ' direct taxation within the 
 Provinces in order to the raising of a revenue for provincial 
 purposes ' ; and over ' shop, saloon, tavern, auctioneer, and 
 other licences, in order to the raising of a revenue for 
 provincial, local, or municipal purposes '. Consequently, the 
 Courts have found themselves confronted with cases often 
 of extreme complexity and subtlety, regarding the question 
 whether some tax is really direct or indirect. 
 
 The most conspicuous example of the confusion caused 
 by the extreme minuteness of the language employed has 
 perhaps been afforded by the body of cases regarding the 
 temperance laws in Canada. It is clear that the Dominion 
 Parliament has authority to pass a general Temperance Act 
 under its powers ' to make laws for the peace, order, and 
 good government of the Dominion ', notwithstanding that 
 such laws may seem to contiict with the • property and 
 civil rights in the provinces ', reserved to the Provincial 
 Legislatures. But a Provincial Legislature can equally make 
 regulations of a merely local character, such as are calculated 
 to preserve in the municipality peace and public decency, 
 and repress drunkenness and disorderly and riotous conduct. 
 Such laws relate to municipal institutions in the Province 
 and do not interfere with the general ' regulation of trade 
 and commerce ', which belongs to the Dominion Legislature. 
 
 The extreme difficult}^ in the way of knowing the law 
 is illustrated by comparing the cases of Riusell v. the 
 Queeii^ and The Governoi^- General of fJte Dominion v. TJie 
 Four Provlaceii? The former lield that the enactment of 
 a general temperance law by a Dominion Parliament was 
 within its powers ; but the latter shows that such a law 
 
 ' Cartwright. Cases under the British North America Act, vul. ii, pp. V2-2G. 
 ' Ibid, vol. iv, ciloil ill note un jt. '•ii'2.
 
 CONCLUSION 97 
 
 is invalid, il" it is in effect an invasion oi* the municipal 
 institutions assigned exclusively to the Province. 
 
 Again, the language is surely somewhat unfortunate 
 which assigns ' marriage and divorce ' to one authority, and 
 the ' solemnization of marriage in the Province ' to the 
 other. The intention apparently was that all matters 
 relatine: to the status of marriage shouM belong to the 
 Dominion, while the procedure by means of which that 
 status was brought about should be a matter of provincial 
 control ; but the meaning is by no means evident at first 
 sight. Nor can a Statute be praised on the ground of 
 simplicity, in which ' bankruptcy and insolvency ' belong 
 to one authority, and an assignment for the general benefit 
 of creditors to another ; on the ground that the latter sub- 
 ject belongs to ' property and civil rights in the Province '. 
 
 These, however, are rather matters for lawyers, though it 
 is necessary to point out that the objects at which the 
 British North America Act aimed might perhaps have 
 been reached with less demands upon the ingenuity of 
 counsel and of judges; whilst the lucidity and directness of 
 Section 51 of the Commonwealth Act might have been 
 equally manifest if the residuum of powers had rested 
 with the Central and not with the State Parliaments. The 
 unitary character of the South African Constitution makes 
 the assignment of subjects to the Provincial Councils a 
 comparatively easy task ; though even here the exigencies 
 of racial prejudices have brought about that one subject of 
 a specially general character, namely elementary education, 
 is assigned to these humbler bodies. 
 
 Of the character of the three Parliaments, as apart from 
 their functions, it is unnecessary to say much. The three 
 popular assemblies are all democratic bodies, instituted in 
 such a way as to give full expression to the voice of the 
 majority. But here again there is the apparent paradox 
 that, whereas in the federations of Canada and Australia the 
 principle of plurality of votes in the nation as a whole carries 
 
 1265 a
 
 98 INTRODUCTION 
 
 the day, in the unitary system of South Africa deference is 
 paid to the principle of provincial representation by giving to 
 Natal and the Orange Free State Province a somewhat larger 
 proportion of members than they could claim on the ground 
 of their population, although, as the proportion of members 
 allotted to the different parts will be modified according to 
 the results of each census, tlie intention apparently is that 
 this original advantage shall not be continued. 
 
 So much has of late been said and written about the 
 colonial Second Chambers that little need here be added. 
 We have seen that, if the intention was to give effect to the 
 federal idea, the Canadian Senate was a failure ; and that 
 it was no less a failure if the hope was to set on foot a 
 strong independent Second Chamber. We have seen that 
 on paper the Australian Senate appeared to be an admir- 
 able embodiment of the federal principle. In its workings, 
 however, as coming under the influence of the organizations 
 that can best cover the area of a vast constituency, it seems to 
 be a bulwark rather of labour interests than of those of the 
 separate States ; and, whatever its merits in other ways, 
 a Second Chamber can hardly be championed from the 
 standpoint of those who desire it to give expression to 
 sober second thoughts, at an election for \vhich not a single 
 seat of those becoming vacant was won by any candidate 
 not supporting the complete programme of the Labour party. 
 The most conservative of the Australian founders of tlie 
 Commonwealth were many of them the advocates of State 
 rights, and in their zeal for the due representation of such 
 rights were perhaps less careful of the traditional function 
 of a Second Chamber. The South African Senate, stands 
 in a half-way house between the Australian and the 
 Canadian ; being for tlie most part elected, but partly nomi- 
 nated. ]\Torcovcr, its mode of election follows American 
 and not Austi'alian precedents; and, as part of a unitary 
 system, the South African Senate is, as has already been 
 explained, inevitably weak.
 
 CONCLUSION 99 
 
 With regard to methods of preventing a deadlock between 
 the two Houses, the Canadian Statute may be said to 
 belong to a pre-scientific epoch. As originally drafted it 
 entails no provision to this effect at all, and the limited 
 power given by the Act of adding, if necessary, six addi- 
 tional senators, will in the event of a real deadlock be 
 a very Mother Partington's mop. The different methods 
 adopted by the Commonwealth and the South African Act 
 reflect the different character of their Second Chambers. 
 
 The Australian Senate, being based on the idea of at 
 least a partial equality, can force a general election before 
 at a joint sitting it yields to superior numbers. In South 
 Africa, on the other hand, the method of a joint sitting can 
 be employed without the intervention of a popular vote ; 
 while instead of a half, the Senate consists of only one-third 
 of the popular assembly. Similarly, the Australian is the 
 only one of the three Constitutions which directly adopted 
 the principle of the Swiss referendum ; though it should be 
 noted that free use has been made of the principle of the 
 direct popular vote in Canada on the temperance question. 
 
 Both the later Statutes showed more capacity than their 
 predecessor, in establishing as part of the original founda- 
 tion a High Court of Justice for the new systems of govern- 
 ment. We shall see that it was not till 1875 that effect 
 was given to the clause in the British North America Act 
 enabling the Canadian Parliament to establish a Court of 
 Appeal for Canada. As was to be expected, the most demo- 
 cratic of the three Constitutions has gone furthest, at least 
 on questions relating to the Constitution, in the road of 
 independence of the Imperial Privy Council. 
 
 These are a few of the points of difference and similarity 
 between these three Constitutions; nor is it necessary to 
 anticipate conclusions which the student, with the text 
 before him^ should draw for himself. But, behind and 
 beyond these apparent differences and similarities, it must 
 always be remembered there was this fundamental point in 
 
 G 2
 
 100 INTRODUCTION 
 
 common — that, at a certain stage of their political and 
 economic development, each one of these communities 
 found it necessary to give to their growing sense of common 
 nationhood the outward expression of a common Constitu- 
 tion ; that each is a marvellous amalgam of ancient prece- 
 dents and new experiments, so that, were the British Empire 
 to follow the fate of its predecessors, its memory would 
 still, if for nothing else, always survive ; because, although 
 indirectly and mediately, it has, like the wise householder, 
 brought forth things new and old. 
 
 It is natural in turning from these examples of the 
 success of the Anglo-Saxon race in the work of achieving 
 greater union to ask oneself what light or leading these 
 precedents afford to those who believe that only by a more 
 systematic method of cohesion can the separate portions of 
 the British Empire be prevented from, sooner or later, 
 drifting apart. Assuredly the difficulties in the way are 
 great. Though the need of closer union is now more clearly 
 realized than at any previous date, few would now support 
 the simple proposal of converting the present Parliament 
 into a Parliament of the Empire by giving representatives 
 to the oversea Dominions and Colonies. Moreover, the vis 
 inertix which naturally opposes change is still po\verful. 
 It was only the compelling force of necessity, the recognition 
 of the fact that without union existence itself might become 
 impossible, which persuaded the jealous American States to 
 accept the Constitution imposed on them by the genius of 
 Hamilton and the character of Washington. But to the 
 masses in the British Empire, who dictate under democracy 
 the policy of governments, the necessity for closer union 
 is, as yet, far from clear. In Canada the fact that a union, 
 though an uneasy one, already existed between the Fi'cnch 
 and hlnglish (^f Lower Canada, made easier the foundation 
 of llic Dominion. In Austialia and South Africa the 
 Ixjumlaiics between the various Colonics were, for tlie 
 most part, ai-biti-ary and Fortuitous. In broad contrast
 
 CONCLUSION 101 
 
 with the United States after the War of Independence, and 
 with the Dominion, tlie Commonwealth, and the Union of 
 British South Africa, the British Empire has ah-eady 
 reached a sta^ije of development at which its component 
 parts consist of communities with most of the attributes 
 of distinct nations. Tiie most keen-sighted of imperialists 
 now recognize that what is necessary is a federation of 
 nations, not of provinces. In this state of things past 
 precedents count for very little ; and a new form of 
 Constitution must needs be evolved to meet a condition of 
 affairs wholly new. A consensus of opinion seems to regard 
 the Imperial Conference as the point of departure, from 
 which njay be evolved a more systematic organization of 
 the Empire. But the British Empire of which Lord 
 Salisbury spoke has not yet risen from the sea, and the 
 consideration of its probable form still belongs to the field 
 of speculation and theory. Meanwhile all that we can say 
 with regard to the precedents of the past is that if they 
 teach no practical lesson, at least they are of excellent omen 
 as showing the spirit and the temper in which the problem 
 should be approached.
 
 ARTICLES OF CONFCEDERATION 
 
 BETWIXT THE PLANTATIONS UNDER THE GOVERNMENT 
 OF THE MASSACUSETTS, THE PLANTATIONS UNDER 
 THE GOVERNMENT OF NEW PLYMOUTH, THE PLANTA- 
 TIONS UNDER THE GOVERNMENT OF CONECTICUTT, 
 AND THE GOVERNMENT OF NEWHAVEN, WITH THE 
 PLANTATIONS IN COMBINATION WITH ITT.^ 
 
 [The text is as given in Neiv Haven Colonial Records, 1638-1649. Edited by 
 C. J. Hoadby. Hartford, 1857; pp. 98-104.] 
 
 Whereas we all came into these parts of America with 
 one and the same end and ayme, namely, to advance the 
 kingdome of our Lord Jesus Christ, and to enjoy the 
 libertyes of the Gospell, in purity with peace ; ^ and whereas 
 in our settling (by a wise providence of God) we are further 
 dispersed upon the sea-coasts and rivers then was at first 
 intended,^ so thatt wee cannott (according to our desire) with 
 conveniencie communicate in one government and juris- 
 diction; and whereas we live incompassed with people of 
 several} nations and strange languages which hereafter may 
 prove injurious to us and our posterity : "* and forasmuch 
 as the natives have formerly comitted sundry insolencies 
 and outrages upon severall plantations of the English and 
 have of late combined against us^ and seeing, by reason 
 of the sad distractions in England, which they have heard 
 of, and by which they know we are hindered both from 
 thatt humble way of seeking advice, and reaping those 
 
 ^ No stress is to be laid upon the fact that the agreement was in forjn 
 between the Phmtations of the Governments and not the Governments 
 themselves. 
 
 * The aim of the New English settlers was not so much idem velle dt re 
 puhlica as idum velle de rebus sacris. 
 
 ^ These words allude to the separate foundation of Plymouth and 
 Massachusetts, and to the further dislocation caused by the foundation of 
 Connecticut and New Haven. 
 
 * The French and the Dutch. 
 
 ^ After the destruction of the Pequot Indians there was at this time no 
 serious risk of an Indian combination against the English.
 
 104 THE ARTICLES OF 
 
 comfortable frutes of protection, which att other times we 
 might well expect/ We therefore doe conceive itt our 
 bounden dutye without delay to enter into a present con- 
 sociation amongst ourselves for mutuall help and strength 
 in all our future concernments, thatt, as in nation and 
 religion, so, in other respects, we bee and continue one, 
 according to the tennure and true meaning of the ensueing 
 articles. 
 
 I. Wherefore itt is fully agreed and concluded I)}" and 
 betweene the partyes, or jurisdictions above named, and 
 they jojmtly and severally doe by these presents agree 
 and conclude thatt they all be, and henceforth be called by 
 the name of The United Collonyes of New England. 
 
 II. The said United Colonyes for themselves and their 
 posterity es doe joyntly and severally hereby enter into 
 a firme and perpetuall leage of frendship and amytj^ for 
 offence and defence, mutuall advice and succour, upon all 
 just occasions, both for preserving and propageating the 
 truth and libertyes of the Gospell, and for their owne 
 mutuall safety and wellfare. 
 
 III. Itt is further agreed thatt the plantations, which att 
 present are or hereafter shall be settled within the lymitts of 
 the Massacusetts shall be forever under the government 
 of the Massacliusetts ; and shall have peculiar jurisdiction 
 amongst themselves in all cases as a entire body ; and thatt 
 Plymouth, Conectecut, and Newhaven shall, each of them, in 
 all respects have the like peculiar jurisdiction and govern- 
 ment within their linnnitts ; and in referrence to the planta- 
 tions which all ready are settled or shall hereafter be erected, 
 and shall settle, within any of their lymmits respectively, 
 provided, thatt no other jurisdiction shall hereafter be taken 
 in as a distinct head or member of this confcrderation, nor 
 shall any other, either plantation or jurisdiction in present 
 
 ' It is iinpossible to say li"\v Ihr those words were writtni in earnest; 
 tlif^ people of New Eiiglaiul assuredly never showid any desiie tliat England 
 sliiiiild iiiterferi' witli their local concerns.
 
 CONFEDERATION OF 1643 105 
 
 being and nott already in combination or under the juris- 
 diction of any of these confoederatcs, be received by any of 
 them, nor shall any two of these confcBderates joyne in one 
 jurisdiction without consent of the rest/ which consent to 
 be interpreted as in the sixt ensuing article is expressed. 
 
 IV. Itt is allso l)y these confciederates agreed thatt tlie 
 charge of all just warres, whether offensive or defensive, 
 upon whatt part or member of this contu'deration soever 
 they fall, shall both in men, provisions, and all other disburs- 
 ments, be borne by all the parts of this confoederation in 
 different proportions according to their different abilityes 
 in manner following, Thatt the commissioners for each 
 jurisdiction from time to time as there shalbe occasion 
 bring a true accovint and number of all the males in each 
 plantation or any way belonging to or under their several 1 
 jurisdictions, of whatt quality or condition soever they be, 
 from sixteene yeares olde to three score, being inhabitants 
 there, and thatt according to the different numbers, which 
 from time to time shall be found in each jurisdiction, upon 
 a true and just account, ye service of men and all charges of 
 the warre be borne by the pole : each Plantation or Jurisdic- 
 tion being left to their owne just course and custome of rate- 
 ing themselves, and people, according to their different 
 estates, with due respect to their quallityes and exemptions 
 among themselves, though the confcederation take no notice 
 of any such priviledg. And thatt according to the different 
 charge of each jurisdiction and plantation, the whole advan- 
 tage of the warre (if it please God so to blesse their en- 
 deavours), whether itt be in lands, goods or persons, shall be 
 proportionably divided among the said confoederatcs. 
 
 V. Itt is further agreed thatt if any of these jurisdictions, 
 or any plantation under or in combination with them be 
 invaded by any enemy whomsoever, upon notice and request 
 of any three magistrates of thatt jurisdiction so invaded, 
 the rest of the confoederatcs without any further meeting 
 
 * See Introduction for cynical disregard of this Article by Connecticut.
 
 106 THE ARTICLES OF 
 
 or expostulation shall forthwith send ayde to the confederate 
 in danger, but in different proportions, namely the Massa- 
 cussets one hundred men sufficiently armed and provided 
 for such a service and journay, and each of the rest fort}^- 
 five men, so armed and provided, or any lesse number, if 
 lesse be required, according to this proportion. Butt if such 
 a confoederate in danger may be supplj^ed by their next con- 
 federate, nott exceeding the number hereby agreed, they 
 may crave help there and seeke no further for the present, 
 the charge to be borne as in this article is expressed, and att 
 their retourne to be victualled and supplyed with powder 
 and shott (if there be need) for their journay by tliatt juris- 
 diction which imployed or sent for them, but none of the 
 jurisdictions to exceed these numbers, till by a meeting of 
 the commissioners for this conf federation a greater a3'de 
 appeare necessary. And this proportion to continue till 
 upon knowledge of the numbers in each jurisdiction, (which 
 shall be brought to the next meeting,) some other proportion 
 be ordered, but in any such case of sending men for present 
 ayde, whether before or after such order or alteration, it is 
 agreed thatt att the meeting of the commissioners for this 
 confoederation, the cause of such warre or invasion be duely 
 considered and if itt appeare thatt the fault lay in tlie party 
 so invaded, tliatt then thatt jurisdiction or plantation make 
 just satisfaction both to the invaders, whome they have 
 injured, and beare all the charges of the ware themselves, 
 without requireing any allowance from the rest of the 
 confcederats towards the same. And further ; if any juris- 
 diction see any danger of an invasion approaching, and 
 there be time for a meeting, that in such case three 
 magistrates of thatt jurisdiction may summon a meeting 
 att such convenient place as themselves shall thinke meete, 
 to consider and provide against the throatncd danger. 
 Proviilcd, when they are mett, they may remove to whatt 
 place they please, oncly, while any of these fower con- 
 fcederates have but 3 magistrates in their jurisdiction,
 
 CONFEDERATION OF 1643 107 
 
 a request or .suininons from any two of tliein shall be 
 accounted of equall force with the three mentioned in both 
 the clauses of this article, till there be an increase of 
 magistrates there. 
 
 VI, Itt is allso agreed thatt for the managing and conclud- 
 ing of all afFayres proper to and concerning the whole con- 
 fcf deration two commissioners shall be chosen by and out of 
 these foure jurisdictions, namely two for the Massacusetts, 
 two for Plymouth, two for Conectecutt, and two for New- 
 haven, being all in church fellowship with us, which shall 
 bring full power from their several! Generall Courts respec- 
 tively to heare, examine, weigh and determine all affaires of 
 ware, or peace, leags, aydes^ charges and numbers of men 
 for ware, division of spoyles, or whatsoever is gotten by 
 conquest, receiving of more confoederates, or plantations, 
 into combination with any of these confoederates, and all 
 things of like nature which are the proper concomitants or 
 consequents of such a confnederation, for amyty, offence ^ 
 or deffence, nott intermedling with the government of any 
 of the jurisdictions which by the third article is preserved 
 intirely to themselves. 
 
 But if these eight commissioners, when they meete, shall 
 note all agree, yett it is concluded thatt any six of the 
 eight agreeing shall have power to settle and determine the 
 busines in question. Butt if six doe not agree, thatt then 
 such propositions with their reasons, so farre as they have 
 beene debated, be sent and referred to the fowr Generall 
 Courts, (viz.) the Massacusetts, Plymouth, Conectecutt and 
 New haven. And if at all the said Generall Courts the 
 busines so referred be concluded, then to be prosecuted by 
 the confoederates and all their members. Itt is further 
 agreed thatt these eight commissioners shall meete once 
 every yeare, besides extra.ordinary meetings according to 
 
 ' It seems strange that in the face of this Ai'ticle Massachusetts could, 
 even for a time, maintain that the Commissioners had no authority to 
 undertake an offensive war.
 
 108 THE ARTICLES OF 
 
 the fifth article, to consider, treate, and conchide of all 
 afFayres belonging to this confoederation, which meeting 
 shall ever be the first Thursday in September, and thatt 
 the next meeting after the date of these presents, which 
 shall be accounted the second meeting, shall be att Boston 
 in the Massacusetts, the tliird att Hartforde, the fowerth 
 att New haven, the fifth att Plymouth, the sixt and 
 seaventh att Boston, and then att Hartforde, New haven 
 and Pl3nnouth and so in course successively, if in the meane 
 time some middle place be nott found out and agreed on, 
 which may be comodious for all the jurisdictions. 
 
 VII. Itt is further agreed thatt att each meeting of these 
 eight commissioners, whether ordinary or extraordinary, 
 they all of them, or any six of them agreeing as be- 
 fore, may chuse their president out of themselves, whose 
 office and worke shalbe to direct for order and a comely 
 carrying on of all proceedings in the present meeting, but 
 he shalbe invested with no such power or respect as by 
 which he shall hinder the propounding or.progresse of an}' 
 busines, or any way cast the skales otherwise then in the 
 presedent article is agreed. 
 
 VIII. Itt is allso ao-reed thatt the commissioners for this 
 confoederation hereafter att their meetings, whether ordinary 
 or extraordinary, as they may have commission or opor- 
 tunity, doe endeavour to frame and establish agreements 
 and orders in generall cases of a civill nature wherein all 
 tlie plantations are interessed for preserving peace amongst 
 themselves, and preventing (as much as may be) all occasions 
 of warre, or differences with othei's as al)Out the free and 
 speedy passage of justice in each jurisdiction to all the 
 confederates equally, as to their owne, not receiving those 
 that remove from one plantation to another without due 
 certitficates ; how all the jurisdictions may carry itt towards 
 the Indians thatt they neither grow insolent, nor be injured 
 without due satisfaction, least warrc; l)reake in upon the 
 ccMifo'derates througli such miscaiTyages. Itt is allso agreed
 
 CONFEDERATION OF 1643 109 
 
 tliatt it' any servant run away from his master into any 
 other of these confeederated jurisdictions thatt in such case, 
 upon the certifficate of one magistrate in the jurisdiction, 
 out of which tlie said servant fled, or upon other due proofe, 
 the said servant shall be delivered to his said master, or to 
 any other thatt pursues, and brings such certifficate or proofe, 
 and thatt upon the escape of any prisoner whatsoever or 
 flgitive for any criminall cause, whether breaking prison 
 or getting from the officer, or otherwise escapeing, upon the 
 certifficate of two magistrates of the jurisdiction, out of 
 which the escape is made, thatt he was a prisoner or such an 
 offender att the time of the escape, the magistrates, or some 
 of them, of thatt jurisdiction where for the present the said 
 prisoner or fugitive abideth shall forthwith grant such a 
 warrant as the case will beare, for the apprehending of any 
 such person and the delivery of him into the hand of the 
 officer or other person who pursueth him, and if there be 
 help required for the safe retourning of any such offender, 
 then itt shall be granted unto him thatt craves itt, he paying 
 the charges thereof.^ 
 
 IX. And for thatt the justest warres may be of dangerous 
 consequence especially to the smaller plantations in these 
 united collonyes, itt is agreed thatt neither Massacusetts, 
 Plymouth, Conectecutt, nor New haven, nor any of the 
 members of any of them, shall att any time hereafter begin, 
 undertake or ingage themselves, or this confederation, or 
 any part thereof, in any warre whatsoever (sudden exegents 
 with the necessary consequences thereof excepted, which are 
 
 ' The mischief aimed at by this Article was met by Article IV, Sections 
 2 & 3, of the United States Constitution. A person charged in any State 
 with treason, felonj', or other crime, who shall flee from justice and be 
 found in another State, shall, on demand of the executive authority of the 
 State from which he fled, be delivered up to be removed to the State 
 having jurisdiction of the crime. 
 
 No person held to service or labour in one State, under the laws 
 thereof, escaping into another, shall, in consequence of any law or regula- 
 tion thereof, be discharged from such service or labour, but shall be 
 delivered up on claim of the party to whom such service or labour may 
 be due.
 
 110 THE ARTICLES OF 
 
 allso to be moderated as much as the case \Yill permit) 
 without the consent and agreement of the forenamed eight 
 commissioners, or att least six of them, as in the sixt 
 article is provided, and thatt no charge he required of any 
 of the conftederates in case of a defensive warre, till the 
 said commissioners have mett and approved the justice of 
 the warre and have agreed upon the sums of mony to be 
 leivied ; which sum is then to be payd by the severall con- 
 foederates, in proportion, according to the fowerth article. 
 
 X. Thatt in extraordinary occasions when meetings are 
 summoned by three magistrates of any jurisdiction, or two 
 as in the fift article, if any of the comissioners come not, 
 due warning being given or sent, itt is agreed thatt fower 
 of the commissioners shall have power to direct a warre 
 which cannot be delayed, and to send for due proportions of 
 men out of each jurisdiction, as well as six might doe, if 
 all mett ; but nott less than six shall determine the justice of 
 the warre, or allow the demands or bills or charges, or cause 
 any levies to be made for the same. 
 
 XI. Itt is further agreed thatt if any of the confoederates 
 shall hereafter break e any of these present articles, or be 
 any other way injurious to any one of the other jurisdic- 
 tions, such breach of agreement or injury shall be duely 
 considered, and ordered by the commissioners for the other 
 jurisdictions, that both peace, and this present conf(f dera- 
 tion, may l)e intyrely preserved without violation. 
 
 XII. Lastly. This perpetuall confciederation, and the 
 severall articles and agreements thereof being reade and 
 seriously considered both by the Generall Court for the Mas- 
 sacusetts, and by the commissioners for Plymouth, Conecte- 
 cutt and Now haven were fully allowed and confirmed 
 by tlu'ee of the forenamed conbrderates, namely, the 
 Massacusctts, Conectecut, and Newhaven. Oncly the comis- 
 sioners from Plymouth, liaveing noc comission to conclude, 
 desired respite till tliey might advise with their (Jcnerall 
 Court, Wlicrcupon itt was agrctMJ and conchidiHl l»y the
 
 CONFEDERATION OF 1643 111 
 
 said Court of the Massacusetts, and tlie comissioners for the 
 other two confederates, that, if Plymouth consent, then 
 the whole treaty, as it stands in tliese present articles, is 
 and shall continue firme and stable, without alteration ; 
 Butt, if Plymouth come nott in, yett the other three con- 
 ffiederates doe, by these presents, conclude the whole 
 confoederation and all the articles theof, onely in September 
 next, when the second meeting of the comissioners is to be 
 att Boston, new considerations may be taken of the Sixt 
 article, which concerns number of comissioners for meeting 
 and concluding- the afFayres of this confoederation, to the 
 satisfaction of the court of the Massacusetts, and the 
 comissioners for the other two confcederates, butt the rest 
 to stand unquestioned. In testimony whereof the Generall 
 Court of the Massacusetts by their Secretary and the Com- 
 missioners for Conectecutt and Newhaven have subscribed 
 these present articles this 19th day of the third moneth, 
 comonly called May, 1643.^ 
 
 1 The General Court of Plymouth duly ratified the action of their Com- 
 missioners on August 29, 1643, and these Articles were signed by them on 
 September 7. See Netu Plymouth Records, ed. by N. B. Shurtleff and 
 D. Pulsifer, vol. ix, p 8. Boston, 1859.
 
 MR. PENN'S PLAN FOR A UNION OF THE 
 COLONIES IN AMERICA 
 
 [The text is as given in O'Callaghan's Documents Relating to the Colonial 
 History of New York, vol. iv, pp. 296-7. The plan is summarized in 
 Fortescue's Calendar of State Papers, Colonial Series, America and West Indies, 
 1696-7, No. 694. It was read by Board of Trade Feb. 8, 1696-7.] 
 
 A BEIEFE and plaine scheam how the English Colonies in 
 the North parts of America, viz. Boston, Connecticut, Road 
 Island, New York, New Jerseys, Pensilvania, Maryland, 
 Virginia and Carolina may be made more usefull to the 
 Crowne, and one anothers peace and safty with an uni- 
 versal! concurrence. 
 
 1. That the severall colonies before mentioned do meet 
 once a year, and oftener if need be during the war, and at 
 least once in two years in times of peace hy their stated 
 and appointed deputies, to debate and resolve of such 
 measures as are most adviseable for their better under- 
 standing and the public tranquility and safety. 
 
 2. That in order to it two persons well qualified for 
 sence, sobriety, and substance be appointed by each 
 Province as their Representatives or Deputies, which in the 
 whole make the Congress to consist of twenty persons. 
 
 3. That the King's Commissioner for that purpose 
 specially appointed shall have the chaire and preside in the 
 said Congresse. 
 
 4. That they shall meet as near as conveniently may be 
 to the most centrall Colony for ease of the Deputies. 
 
 5. Since that may in all probability be New York, because 
 it is now the center of the Colonies, and for that it is a fron- 
 tier and in the King's nomination, the Governor of that 
 Colony may also be the King's High Commissioner during 
 the session after the manner of Scotland. 
 
 6. That their business shall be to hear and adjust all 
 matters of complaint or difference between Pi-ovince and 
 Province. Ah (1st) whcie pcrsones (juit their own Pioviiice
 
 PENN'S PLAN FOR A UNION 113 
 
 and goe to another, that they may avoid their just debts ' 
 though they he able to pay them. (:2.) Where offenders 
 fly Justice,^ or Justice cannot well be had upon such 
 offenders in the Provinces that entertaine them. (3.) To 
 prevent or cure injuries in point of commerce.^ (4.) To 
 consider of ways and means to support the union and 
 safety of these Provinces against the publick enemies. In 
 which Congresse the quotas of men and charges will be 
 much easier and more easily sett,* then it is possible for 
 any establishment made here to do ; for the Provinces 
 knowing their own condition and one anothers can debate 
 that matter with more freedom and satisfaction and better 
 adjust and ballance their affairs in all respects for their 
 common safty. 
 
 7. That in times of war the King's High Commissioner 
 shall be Generall or Chief Commander of the several 
 Quotas upon service against the common enemy as he 
 shall be advised, for the good and benefit of the whole. 
 
 1 In some further heads of things proper for the Plantations, drawn up 
 by Penn in 1700, when he perhaps despaired of his more ambitious 
 scheme being adopted, he proposed : ' For prevention of runaways and 
 rovers and fraudulent debtors, coming from one Province to another for 
 shelter, it shall be recommended to all the Governments to make a law 
 with the same restrictions and penalties as if the whole were but one 
 Government.' (Headlam's Calendar of State Papers, Colonial Series, America 
 and West Indies, 1700, No. 845, xxxii.) 
 
 '-' An extreme case of the mischief against which Penn's proposal was 
 directed, may be found in the North Carolina Statute of 1677, which 
 enacted that none should be sued for five years for any cause of action 
 arising out of the country, and that none should receive a power of attorney 
 to receive debts contracted abroad. {Political Annals of the Present United 
 Colonies, by G. Chalmers, p. 525.) We find Lord Bellomont, the Governor 
 of New York, writing in 1699 that he had prevailed on the Governor of 
 Connecticut to seize and send to New York Thomas Clarke of that city, 
 a companion of Kidd the pirate. Clarke, thinking himself safe from 
 Bellomont's power, wrote a very saucy letter bidding him defiance. 
 (^Documents relating to the Colonial History of New York, vol. iv, p. 595.) 
 
 ^ This was no doubt thrown in to placate the Board of Trade. The 
 English Customs Officer, Quarry, had complained greatly of the breaches 
 of the Navigation Act in Pennsylvania. 
 
 * The various quotas might be more fairly assessed by a Federal Con- 
 gress than by the Board of Trade at home ; but Penn's plan nowhere 
 explains how its decisions could be more effectively enforced. 
 
 1:365 H
 
 FKANKLIN'S PROPOSED UNION 
 
 [The text is as given in Documents relating to the Colonial Hislonj of New 
 York, vol. vi,pp, 889-91.] 
 
 PLAN OF A PKOPOSED UNION OF THE SEVERAL COI,ONIES 
 OF JIASSACHUSETS BAY, NEW HAMPSHIRE, CONNEC- 
 TICUT, RHODE ISLAND, NEW YORK, NEW JERSEYS, 
 PENNSYLVANIA, MARYLAND, VIRGINIA, NORTH CARO- 
 LINA, AND SOUTH CAROLINA, FOR THEIR MUTUAL 
 DEFENCE AND SECURITY, AND FOR EXTENDING THE 
 BRITISH SETTLEMENTS IN NORTH AMERICA. 
 
 [Only the four New England Colonies, New York, and Pennsylvania 
 were represented at the Albany Congress.] 
 
 That humble application be made for an Act of the 
 Parliament of Great Brittain,^ by virtue of which one 
 General Government may be formed in America, including 
 the said Colonies, within and under which Govern- 
 ments each Colony may retain each present Constitution) 
 except in the particulars wherein a change - may be directed 
 by the said Act, as hereafter follows. 
 
 That the said General Government be administered by 
 a President- General, to be appointed and supported by the 
 Crown/ and a Grand Council,^ to be chosen by the 
 
 ' By recognizing the necessity of an Act of Parliament, Franklin 
 acknowledged the sovereignty of the British Parliament over the several 
 Assemblies ; a sovereignty which was at a later date questioned by him 
 as well as by other writers. 
 
 - ' cliarge ' in text. 
 
 •' There had been constant friction and dispute in New York and 
 Massachusetts over the question of securing to tlie Governor a permanent 
 salary, and the Board of Trade had on more than one occasion proposed 
 that the salaries should be paid by the Crown. Hence the wisdom of 
 Franklin's proposal. (See Documents relating to the Colonial History of New York, 
 vol. V, p. 285 ; Egerton, Short History of British Colonial Policy, p. 132 ; and 
 Greene, The Provincial Governor, Harv. Historical Studies, vii, pp. 167-76.) 
 
 • The Grand Council, according to Franklin, was intended to represent 
 all the several Houses of Representatives of the Colonies as a House of 
 Representatives did the several towns or counties of a Colony. Could all 
 the people of a Colony be consulted and unite in public measures a 
 House of Representatives would l)c needless ; and cmild oil the Assemblies
 
 FRANKLIN'S PROPOSED UNION 
 
 115 
 
 representatives of the people of the several Colonies, met ^ 
 in their respective Assemblies. 
 
 That within months after the passing of such Act 
 
 the House of Representatives in the several Assemblies that 
 happen to be sitting within that time or that shall be 
 specially for that purpose convened may and shall chose 
 Members for the Grand Council ^ in the following propor- 
 tions ; that is to say : — 
 
 Massachusets Bay . . 7 
 
 New Hampshire 
 Connecticut . 
 Rhode Island 
 New York 
 New Jerseys 
 Pennsylvania 
 Maryland 
 Virginia 
 North Carolina 
 South Carolina 
 
 48 
 
 who shall meet for the present time at the City of Phila- 
 delphia in Pennsylvania,-* being called by the President 
 General as soon as conveniently may be after his appoint- 
 ment. 
 
 That there shall be a new election of Members for the 
 
 conveniently consult and unite in general measures, the Grand Council 
 would be unnecessary. Franklin therefore stoutly opposed the proposal 
 of the members of the Council of New York to give the Governors and 
 Councils of the several Provinces a share in the choice of the Grand 
 Council as opposed to the theory and practice of the British Constitution. 
 
 1 ' meet ' in text. 
 
 " Witli regard to provincial representation in Grand Council, sec 
 remarks in Introduction. 
 
 3 ' Philadelphia was named as being nearer the centre of the Colonies, 
 where the Commissioners could be well and cheaply accommodated.' 
 One realizes the physical difficulties in the way of a Federal Assembly 
 when one finds Franklin justifying the choice on the ground that the 
 most distant members (those from New Hampshire and South Carolina) 
 need not take more than fifteen or twenty days over the journey thither. 
 
 H 2
 
 116 FRANKLIN'S PROPOSED UNION 
 
 Grand Council every three years,^ and, on the death or 
 resignation of any Member, his place shall be supplyed by 
 a new choice at the next sitting of the Assembly of the 
 Colony he represented. 
 
 That after the first three years, when the proportion 
 of money arising out of each Colony to the General 
 Treasury can be known, the number of Members to be 
 chosen for each Colony shall from time to time in all 
 ensuing elections be regulated b}^ that proportion (yet so 
 as that the number to be chosen by any one Province be 
 not more than seven or less than two). 
 
 That the Grand Council shall meet once in every year,'^ 
 and oftener if occasion require, at such time and place ^ 
 as they shall adjourn to at the last preceding meeting, 
 or as they shall be called to meet at by the President 
 General, on any emergency, he having first obtained in 
 writing the consent of seven of the Members to such call, 
 and sent due and timely notice to the whole. 
 
 That the Grand Council have power to chuse their 
 Speaker,'* and shall neither be dissolv^ed, prorogued, nor 
 continue sitting longer than six weeks at one time, with- 
 out their own consent.^ or the special command of the 
 Crown. 
 
 ^ Triennial Acts were passed by several of the Colonial Assemblies, 
 but were resented by the Home Government as an invasion of the 
 Governor's prerogative to summon, prorogue, and dissolve the Assemblies 
 as he thought fit. (See Greene, op. cit., pp. 155-8) 
 
 - Annual Sessions of the Assembly were necessary under the Pennsyl- 
 vania and Massachusetts Charters. In most Colonies they were necessary 
 to obtain supplies ; but in Virginia, where official salaries were paid out 
 of a permanent fund, periods of three or four years passed without the 
 Assembly meeting. 
 
 '■' The claim of the Governor to adjourn the Assembly to any place he 
 might think fit had been a Colonial grievance. Tlius in 1728 Governor 
 Burnet adjourned the House of Assembly to Salem. (Hutchinson's Histonj 
 of the Province of Massachusetts Bay, vol. ii, p. 351.) 
 
 * As a general rule the Governor's approval to the Assembly's clioice of 
 a Speaker was a mere formality ; but in a few cases the Governor claimed 
 to exercise a rif;ht of veto, and such right was expressly maintained in the 
 amended Charter of Massachusetts of 172.'}. (Hutchinson, f>ii. cil., p. 31'.>.) 
 
 * Oil til is see Greene, op. cii., pp. 151-7.
 
 FRANKLIN'S PROPOSED UNION 117 
 
 That the Members of the Grand Council shall be allowed 
 for their services 10 shillings sterling per diem,^ during 
 their sessions or journey to and from the place of meet- 
 ing; 20 miles to be reckoned a days journey. 
 
 That the assent of the President General be requisite to 
 all Acts of the Grand Council, and that it be his office 
 and duty to cause them to be carried into execution. 
 
 That the President General, with the advice of the 
 Grand Council, hold or direct all Indian treaties in 
 which the general interest or welfare of the Colonys 
 may be concerned ; and make peace or declare war with 
 the Indian Nations.^ That they make such laws as they 
 judge necessary for the regulating all Indian trade. That 
 they make all purchases from Indians for the Crown of 
 lands [now] not within the bounds of particular Colonies, 
 or that shall not be within their bounds when some of 
 them are reduced to more convenient dimensions.^ That 
 they make new settlements^ on such purchases by grant- 
 ing lands [in the King's name] reserving a quit rent to 
 
 ^ The general practice was for the counties and towns to pay their 
 representatives, according to the system formerly in force in England. 
 
 '^ The regulation of Indian affairs was one of the chief reasons for some 
 kind of union. The appointment of Sir William Johnson in 1754 as 
 Imperial Representative in Indian Affairs partly met the mischief. The 
 Proclamation of October, 1763, was, for the most part, due to the urgency 
 of the Indian question. On Indian rehations see Neto York Colonial Docu- 
 ments, iv-vi, imssim. 
 
 3 Franklin explained : ' It is supposed better that there should be one 
 purchaser than many ; and that the Crown should be that purchaser or 
 the Union in the name of the Crown. By this means the bargains may 
 be more easily made, the price not enhanced by numerous bidders, 
 future disputes about private Indian purchases and monopolies of vast 
 tracts to particular persons (which are prejudicial to the settlement and 
 prosperity of the country) prevented ; and the land, being again granted 
 in small tracts to the settlers, the quit-rents reserved may in time become 
 a fund for support of Government, for defence of the country, ease of 
 taxes, &c. 
 
 * ' Strong forts on the Lakes, the Ohio, kc, may at the same time they 
 secure our present frontiers, serve to defend new Colonies settled under 
 their protection ; and such Colonies would also mutually defend and 
 support such forts and better secure the friendship of the Indians. . . . 
 
 A particular Colony has scarce strength enough to extend itself by
 
 118 FRANKLIN'S PROPOSED UNION 
 
 the Crown for the use of the General Treasury. That 
 they make laws for regulating and governing such new 
 settlements, till the Crown shall think fit to form them 
 into particular Governments.^ 
 
 That they raise and pay soldiers, and build forts for 
 the defence of any of the Colonies, and equip vessels of 
 force to guard the coasts and protect the trade on the 
 ocean, lakes, or great rivers ; but they shall not impress 
 men in any Colonies, without the consent of its Legislature. 
 That for these purposes they have power to make laws ^ 
 and lay and levy such general duties, imposts or taxes as 
 to them shall appear most equal and just, considering the 
 ability and other circumstances of the inhabitants in the 
 several Colonies, and such as may be collected with the 
 least inconvenience to the people, rather discouraging 
 luxury, than loading industry with unnecessary burthens. 
 That they might appoint a General Treasurer, and a par- 
 ticular Treasurer in each Government when necessary, 
 and from time to time may order the sums in the Treasuries 
 of each Government into the General Treasury, or draw 
 on them for special payments as they find most convenient; 
 yet no money to issue but by joint orders of the President- 
 General and Grand Council, except where sums have been 
 appropriated to particular purposes, and the President- 
 new settlements, at so great a distance from tlio old ; but the joint power 
 of tlio Union might suddenly establish a new Colony or two in those 
 parts, or extend an old Colony to particular passes, greatly to the security 
 of our present frontiers, increase of trade and people, breaking through 
 the French communication between Canada and Louisiana, and speedy 
 settlement of the inteimediate land.' 
 
 There can be no question as to the wisdom of the above suggestions. 
 
 * Franklin here anticipates the practice of the Federal Constitution in 
 the case of the Territories. 
 
 * These laws would be such only as might be necessary fi>r the govern- 
 ment of the Settlements ; the raising, regulating, and paying soldiers for 
 the general services, the regulating of Indian trade, and laying and col- 
 lecting the general duties and taxes. It was not intended that there 
 should be any interference with the Constitution or the Government of 
 the j)artifular Colonies, which were to bo left to their own laws and to 
 lay, levy, and apply their own taxes as before.
 
 FRANKLIN'S PROPOSED UNION 119 
 
 General is previously impowered by an Act to draw for 
 such sums. 
 
 That the General Accounts shall be yearly settled and 
 reported to the several Assemblies. 
 
 That a quorum of the Grand Council, impowered to act 
 with the President-General, do consist of twenty-live 
 Members, among whom there shall be one or more from a 
 majority of the Colonies. That the laws made by them 
 for the purposes aforesaid shall not be repugnant, but as 
 near as may be agreable, to the laws of England, and shall 
 be transmitted to the King in Council for approbation, as 
 soon as may be after their passing ; and if not disapproved 
 within three years after presentation, to remain in force. 
 
 That in case of the death of the President General, the 
 Speaker of the Grand Council for the time being shall 
 succeed, and be vested with the same powers and authority, 
 to continue until the King's pleasure be known. 
 
 That all Military Commission Officers, whether for land 
 or sea service, to act under this general Constitution, 
 shall be nominated by the President General ; ^ but the 
 approbation of the Grand Council is to be obtained before 
 they receive their Commissions ; and all Civil Officers are 
 to be nominated by the Grand Council,^ and to receive the 
 President General's approbation before they officiate ; but 
 in case of vacancy by death or removal of any Officer, 
 Civil or Military, under this Constitution, the Governor of 
 the Province in which such vacancy happens may appoint 
 till the pleasure of the President General and Grand 
 Council can be known. That the particular Military as well 
 as Civil establishments in each Colony remain in their 
 present state, this General Constitution notwithstanding. 
 
 ' There was constant friction between the Governors and the Colonial 
 Assemblies over the question of appointnaents. The Assemblies claimed 
 the right to appoint all officers who were charged with the collection, 
 custody, and disbursement of the public funds; but in time, at least in 
 Massachusetts, they succeeded in interfering with the appointment and 
 removal of military officers. (See Greene, 02>. ciL, pp. 181-92.)
 
 120 FRANKLIN'S PROPOSED UNION 
 
 And that on sudden emergencies any Colony may defend 
 itself, and lay the account of expence thence arisen before 
 the President General and Grand Council, who may allow 
 and order payment of the same as far as they judge such 
 accounts just and reasonable. 
 
 After debate on the foregoing plan : — 
 
 Resolved : That the Commissioners from the several 
 Governments be desired to lay the same before their 
 respective Constituents for their consideration, and that 
 the Secretary to this Board transmit a copy thereof with 
 their vote thereon to the Governor of each of the Colonies 
 which have not sent their Commissioners to this Congress.
 
 THE BRITISH NORTH AMERICA ACT, 1867 
 30 AND 31 Victoria, Cap. Ill 
 
 An Act for the Union of Canada, Nova Scotia, 
 and New Brunswick, and the Government thereof ; 
 and for purposes connected therewith. 
 
 [29th March, 1867.] 
 
 Whereas the Provinces of Canada, Nova Scotia, and New 
 Brunswick have expressed their desire to be federally united 
 into one Dominion under the Crown of the United Kingdom 
 of Great Britain and Ireland, with a Constitution similar in 
 principle to that of the United Kingdom : ^ 
 
 And whereas such a Union would conduce to the welfare 
 of the Provinces and promote the interests of the British 
 Empire : 
 
 And whereas on the establishment of the Union by 
 authority of Parliament, it is expedient not only that the 
 Constitution of the Legislative Authority in the Dominion 
 be provided for, but also that the nature of the Executive 
 Government therein be declared : 
 
 And whereas it is expedient that provision be made for 
 the eventual admission into the Union of other parts of 
 British North America : 
 
 Be it therefore enacted and declared by the Queen's Most 
 Excellent Majesty, by and with the advice and consent of 
 the Lords Spiritual and Temporal, and Commons in this 
 
 1 This refers to the system of parliamentary cabinet government as 
 opposed to the system of presidential government in the United States. 
 The criticism therefore of Professor Dicey {Introduction to the Study of the 
 Law of the Const itiition, 6th ed., p. 162) seems hardly deserved. The 3rd 
 Resolution of the Quebec Conference ran as follows : ' In framing a 
 constitution for the general government, the Conference, with a view 
 to the perpetuating of our connexion with the mother countrj' and to 
 the promotion of the best interests of the people of these provinces, 
 desires to follow the model of the British Constitution, so far as our 
 circumstances will permit.'
 
 122 THE BRITISH NORTH AMERICA ACT, 1867 
 
 present Parliament assembled, and by the authority of the 
 same as follows : 
 
 I. Preliminary. 
 Short 1. This Act may be cited as Tlie British North America 
 
 '^'"^- Act, 186/.^ 
 
 Provisions 2. The provisions of this Act referring to Her Maiest\' 
 to the " the Queen extend also to the heirs and successors of Her 
 Queen. Majesty, Kings and Queens of the United Kingdom of 
 Great Britain and Ireland. 
 
 II. Union. 
 Deciara- 3. It shall be lawful for the Queen, by and with the 
 Union. advice of Her Majestj-'s Most Honourable Privy Council, to 
 declare b}' Proclamation that on and after a day therein 
 appointed, not being more than six months after the passing 
 of this Act, the Provinces of Canada, Nova Scotia and New 
 Brunswick shall form and be one Dominion under the name 
 of Canada ; and on and after that day those three Provinces 
 shall form and be one Dominion under that name accord- 
 ingly. 2 
 Construe- 4. The subsequent provisions of this Act shall, unless 
 subse*^ it is otherwise expressed or implied, commence and have 
 quent pro- effect on and after the Union, that is to say on and after 
 
 visions of ^ •' ^ 
 
 Act. the day appointed for the Union taking effect in the 
 
 Queen's Proclamation ; and in the same provisions, unless 
 it is otherwise expressed or implied, the name Canada 
 shall be taken to mean Canada as constituted under this Act. 
 
 F..ur Pro- 5. Canada shall be divided into four Provinces, named 
 Ontario, Quebec, Nova Scotia, and New Brunswick. 
 
 ' The British North America Act has been amended by 34 & iio Vict, 
 cli. 28, An Act respecting tlie Establishment of Provinces in tlie Dominion 
 of Canada, 1871 ; by 38 & 39 Vict. ch. 38, An Act to remove certain 
 doubts witli respect to the powers of the Parliament of Canada under 
 section 18 of the Britisli North America Act 1807, 1875 ; by 4«> & 50 Vict, 
 ch. 35, An Act resi)C(ting the ivprescntation in tlie Parliament "f Canada 
 of Territories which for the time being form part of tlie Dominion of 
 Canada, but are not included in any Province, and by 7 Edward VII ch. 11, 
 which rearranged the annual subsidies to be i)aid to tlic Provincial 
 (iovernment. 
 
 '^ The new Constitution came into force on July 1, 1867. 
 
 VlllfO'
 
 THE BRITISH NORTH AMERICA ACT, 1867 123 
 
 6. The parts of the Province oi" Canada (as it exists at Provinces 
 the passing of this Act) which formerly constituted g^jj 
 respectively the Provinces of Upper Canada and Lower Quebec ; 
 Canada, shall be deemed to be severed, and shall form two 
 separate Provinces. The part which formerly constituted 
 
 the Province of Upper Canada shall constitute the Province 
 of Ontario ; and the part which formerly constituted the 
 Province of Lower Canada shall constitute the Province of 
 Quebec. 
 
 7. The Provinces of Nova Scotia and New Brunswick Nova 
 shall have the same limits as at the passing of this Act. ^^^y ' 
 
 8. In the general census of the population of Canada, ^.j"^^^" 
 which is hereby required to be taken in the year One Decennial 
 thousand eight hundred and seventy-one, and in every ®"^"^- 
 tenth year thereafter, the respective populations of the 
 
 four Provinces shall be distinguished. 
 
 III. Executive Poweb. 
 
 9. The Executive Government and authority of and Executive 
 
 , Power in 
 
 over Canada is hereby declared to continue and be vested the Queen, 
 in the Queen. 
 
 10. The provisions of this Act referring to the Cover- Provisions 
 nor-General extend and apply to the Governor-General for H ®^''"^S 
 the time beinp- of Canada, or other the Chief Executive Governor- 
 
 *=> Genera]. 
 
 Officer or Administrator for the time being carrying on the 
 Government of Canada, on behalf and in the name of the 
 Queen, by whatever title he is designated. 
 
 11. There shall be a Council to aid and advise in the Constitu- 
 Government of Canada, to be styled the Queen s Privy p,.ivy 
 Council for Canada ; and the persons who are to be ^^^'^"^ 
 Members of that Council shall Ije, from time to time, chosen Canada, 
 and summoned by the Governor-General and sworn in as 
 Privy Councillors, and Members thereof may be, from time 
 
 to time, removed by the Governor-General.^ 
 
 • It should be noted that the i^rovisions of the Act imply, though they 
 do not express, the unwritten conventions of British parliamentary pi-ac-
 
 124 THE BRITISH NORTH AMERICA ACT. 1867 
 
 All powers 12. All Powei's, Authorities, and Functions which under 
 Acts to be any Act of the Parliament of Great Britain, or of the 
 
 exercised Parliament of the United Kincrdom of Great Britain and 
 by ° 
 
 Governor- Ireland, or of the Legislature of Upper Canada, Lower 
 
 GGiiGriil 
 
 with Canada, Canada, Nova Scotia, or New Brunswick, are at 
 
 pliv*^^ '^ the Union vested in or exercisable by the respective 
 Council Governors or Lieutenant-Governors of those Provinces, 
 
 or alone. . . i • i l* i 
 
 with the advice, or with the advice and consent, oi the 
 respective Executive Councils thereof, or in conjunction 
 with those Councils or with any number of Members 
 thereof, or by those Governors or Lieutenant-Governors 
 individually, shall, as far as the same continue in existence 
 and capable of being exercised after the Union in relation 
 to the Government of Canada, be vested in and exercisable 
 by the Governor -General with the advice, or with the 
 advice and consent of, or in conjunction with the Queen's 
 Privy Council for Canada or any Members thereof, or by 
 the Governor-General individually, as the case requires,* 
 subject nevertheless (except with respect to such as exist 
 under Acts of the Parliament of Great Britain or of the 
 Parliament of the L^nited Kingdom of Great Britain and 
 Ireland) to be abolished or altered by the Parliament of 
 Canada. 
 
 tice. It was reserved for the Australian Commonwealth Act expressly to 
 state that a Minister must become a member of the legislature within 
 a prescribed time. The niunber of the Privy Council has been altered 
 from time to time as new departments have required representation. At 
 present the Privy Council consists of 
 
 Premier and President of Council. Minister of Agriculture. 
 Minister of Trade and Commerce. ,, „ Public Works, 
 
 Secretary of State (who is also the ,, ,, Finance. 
 
 head of new Department of ex- ,, ,, Railways and Canals, 
 
 ternal affairs). ,, ,, Interior. 
 
 Minister of Justice. ,, ,, Customs. 
 
 ,, „ Marine and Fislierles. ,, ,, Inland Revenue. 
 
 ,, „ Militia and Defence. ,, ,, Labour. 
 
 Postmaster General. 
 It should be noted, and the point is i>f imi)ortance in ni.iintaining the 
 federal principle, that the federal character of the (Jovernment is always 
 expressed in the Constitution of tin- Privy C<»uncil. There are generally 
 additional Ministers without jjortfolios.
 
 THE BRITISH NORTH AMERICA ACT, 1867 125 
 
 13. The provisions of this Act referring to the Governor- Provisious 
 
 rofGrririE 
 
 General- in-Council shall be construed as referring to the to 
 Governor-General acting by and ' with the advice of the ^encrar 
 Queen's Privy Council for Canada.^ \^} 
 
 • (. T T • Council. 
 
 14. It shall be lawful for the Queen, if Her Majesty Powcr to 
 thinks fit, to authorize the Governor-General from time to ^^^^^.^ 
 time to appoint any person or any persons jointly or t'> autho- 
 severally to be his deputy or deputies within any part or Governor- 
 parts of Canada, and in that capacity to exercise, during to^appoint 
 the pleasure of the Governor-General such of the powers, deputies, 
 authorities, and functions of the Governor-General as the 
 Governor-General deems it necessary or expedient to assign 
 
 to him or them, subject to any limitations or directions ex- 
 pressed or given by the Queen ; but the appointment of such 
 a deputy or deputies shall not affect the exercise by the Gover- 
 nor-General himself of any power, authority or function. 
 
 15. The Command-in-Chief of the Land and Naval Militia, Command 
 and of all Naval and Military Forces of and in Canada, is Forces.^ 
 hereby declared to continue and be vested in the Queen. ^ 
 
 ' The position of the Governor-General has been somewhat altered by 
 the amended instructions given to Lord Loi'ne in 1878. Before this time 
 certain classes of Bills had to be reserved by him for imperial considera- 
 tion ; this practice has been discontinued, but a suspending clause is now 
 inserted in Acts which otherwise would require reservation. Some doubt 
 having arisen as to the position of the Governor-General in the exercise 
 of the pardoning power, after the visit to England of Mr. Blake, the 
 Canadian Minister for Justice visited England to confer with the Imperial 
 Government. In accordance with the arrangement arrived at, the in- 
 structions of 1878 prescribe that the Governor-General shall not pardon 
 an offender without first receiving in cnpital cases the advice of the Privy 
 Council, and in other cases the advice of one at least of his Ministers. 
 In any case in which a pardon or reprieve might directly affect the in- 
 terests of the Empire or of any country or place beyond the jurisdiction 
 of the Government of the Dominion, the Governor-General, before decid- 
 ing, must take those interests specially into his own personal considera- 
 tion in conjunction with such advice of his Ministers. See Can. Sess. Papers, 
 1879, No. 181. The position of the Governor-General with respect to 
 Provincial Governors is dealt with in the note to Sec. 59. 
 
 ^ For many years after Confederation the officer commanding the Cana- 
 dian Militia was an officer of the Imperial army lent to Canada. In 1904 
 there was trouble between Lord Dundonald and the Dominion Govern- 
 ment, and the office of Commander-in-Chief was technically abolished. 
 Lord Dundonald's successor in the command of Canadian Militia was a 
 British officer; but the present holder of the post is a Canadian.
 
 126 THE BRITISH NORTH AMERICA ACT, 1867 
 
 Seat of 
 Govern- 
 ment. 
 
 Constitu- 
 tion of 
 Parlia- 
 ment of 
 Canada. 
 Privi- 
 leges, &c. 
 of Houses, 
 
 First 
 session of 
 the Par- 
 liament. 
 
 16. Until the Queen otherwise directs the Seat of 
 Government of Canada shall be Ottawa.^ 
 
 IV. Legislative Power. 
 
 17. There shall be one Parliament for Canada, consisting 
 of the Queen, an Upper House, styled the Senate,^ and the 
 House of Commons. 
 
 18. The privileges, immunities, and powers to be held, 
 enjoyed, and exercised by the Senate and by the House of 
 Commons, and by the Members thereof respectively, shall 
 be such as are from time to time defined by Act of the Parlia- 
 ment of Canada, but so that the same shall never exceed 
 those at the passing of this Act held, enjoyed, and exercised 
 by the Commons House of Parliament of the United King- 
 dom of Great Britain and Ireland and by the Members 
 thereof.^ 
 
 19. The Parliament of Canada shall be called together 
 not later than six months after the Union.'* 
 
 * There had been considerable controversy in the Canadian Assembly 
 over the choice in 1858 of Ottawa as the capital ; the question having been 
 left to the arbitration of Queen Victoria, It should be noted that the 
 Dominion, unlike the United States and the Commonwealth of Australia, 
 did not establish the seat of government in a distric-t made federal pro- 
 perty. Although Ottawa is the seat of the Dominion Government it 
 remains a portion of Ontario and as such inferior to the provincial capital, 
 Toronto, 
 
 ^ In the Quebec Resolutions and the first draft of the Bill as given in 
 Pope's Confederation Documents, the Upper House was called the Legislative 
 Council. 
 
 » This section was repealed by 38 & 39 Vict. ch. 38, and the following 
 provisions were substituted : — 
 
 'The privileges . . . Canada, but so that any Act of the Parliament of 
 Canada defining such privileges, immunities, and powers shall not confer 
 any privileges, immunities, or powers exceeding those at the passing of 
 such Act held, enjoyed, and exercised by the Commons House of Parlia- 
 ment of the United Kingdom . , , and by the members thereof.' 
 
 A difficulty arose at the time of the Pacific Railway scandal from the 
 inability of Parliamentary Committees to take evidence on oath; the 
 British House of Commons not having possessed this right, except in tlie 
 case of private Bills, until 1871. Under the present law the Canadian 
 Parliament can assimilate its practice to tliat prevailing at the time in 
 the British Parliamtnt. 
 
 ' The first Parliament met on Novembi'r 7, lMCi7,
 
 THE BRITISH NORTH AMERICA ACT, 1867 127 
 
 20. There shall be a session of the Parliament of Canada Yearly 
 once at least in every year, so that twelve months shall not of^'the" 
 intervene between the last sitting of the Parliament in one Parlia- 
 
 .... . ment of 
 
 Session and its first sitting in the next Session. Canada. 
 
 The Senate. 
 
 21. The Senate shall, subject to the provisions of this Number 
 Act, consist of seventy-t\vo ^ Members, who shall be styled senators. 
 Senators. 
 
 22. In relation to the constitution of the Senate, Canada Represen- 
 shall be deemed to consist of three divisions : — Provinces 
 
 (1) Ontario ; *» Senate. 
 
 (2) Quebec ; 
 
 (3) The Maritime Provinces ; Nova Scotia and New 
 Brunswick ; which three divisions shall (subject to the 
 provisions of this Act) be equally represented in the 
 Senate as follows : — Ontario by Twenty-four Senators, 
 Quebec by Twenty-four Senators ; and the Maritime 
 Provinces by Twenty- four Senators, Twelve thereof 
 representing Nova Scotia, and Twelve thereof repre- 
 senting New Brunswick. 
 
 In the case of Quebec, each of the twenty-four 
 Senators representing that Province shall be appointed 
 for one of the twenty-four Electoral Divisions of Lower 
 Canada specified in Schedule A to Chapter I of the 
 Consolidated Statutes of Canada.^ 
 
 23. The qualifications' of a Senator shall be as fol- Qualifica- 
 
 tions of 
 lows : — Senators. 
 
 (1) He shall be of the full age of thirty years ; 
 
 » Under the British North America Act of 1871, 34 & 35 Vict. ch. 
 28, doubts were set at rest as to the power of the Dominion Parlia- 
 ment to establish Provinces out of Territories and to provide for their 
 representation in such Parliament. There are at present 87 members of 
 the Senate : 24 from Ontario, 24 from Quebec, 10 from Nova Scotia, 10 from 
 New Brunswick, 4 from Prince Edward Island, 3 from British Columbia, 
 4 from Manitoba, 4 from Alberta, 4 from Saskatchewan. 
 
 ^ Note subsequent failure to express the federal principle in the allot- 
 ment of new senators to the Western Provinces. 
 
 ^ Contrast democratic provisions of Commonwealth Statute.
 
 128 THE BRITISH NORTH AMERICA ACT, 1867 
 
 (2) He shall be either a natural-born subject of the Queen, 
 or a subject of the Queen naturalized by an Act of the 
 Parliament of Great Britain, or of the Parliament of 
 the United Kingdom of Great Britain and Ireland, or 
 of the Legislature of one of the Provinces of Upper 
 Canada, Lower Canada, Canada, Nova Scotia, or New 
 Brunswick before the Union, or of the Parliament of 
 Canada after the Union : 
 
 (3) He shall be legally or equitably seised as of freehold 
 for his own use and benefit of lands or tenements 
 held in free and common socage, or seised or possessed 
 for his own use and benefit of lands or tenements held 
 in franc-alleu or in roture,^ within the Province for 
 which he is appointed, of the value of four thousand 
 dollars, over and above all rents, dues, debts, charges, 
 mortgages, and incumbrances due or payable out of or 
 charged on or affecting the same : 
 
 (4) His real and personal property shall be together 
 wortli four thousand dollars over and above his debts 
 and liabilities : 
 
 (5) He shall be resident in the Province for which he is 
 appointed : 
 
 (6) In the case of Quebec he shall have his real 
 property qualification in the Electoral Division for 
 which he is appointed, or shall be resident in that 
 division. 
 
 Summons 24. The Governor-General shall from time to time, in 
 the Queen's name, by Instrument under the Great Seal of 
 Canada, summon (qualified persons to the Senate ; ^ and, 
 subject to the provisions of this Act, every person so 
 
 ^ A grant of land en franc aku rotiirkr was roughly analogous to a 
 grant in free and common socage. Such land was sulgect to no dues 
 or payments. See The Seigniorial System in Canada, l)y W. B. Munro, 
 1907, ]>. 53. 
 
 ^ See Pope's Cun/ed. Documents, pp. G1-G5. At the Quebec Conference 
 G. Brown strongly objected leaving to the Executive the choice of 
 Legislative Councillors (senators). 
 
 of senator.
 
 THE BRITISH NORTH AMERICA ACT, 1867 129 
 
 summoned shall become and be a member ot" the Senate 
 and a Senator. 
 
 25. Such persons shall be first summoned to the Senate Summons 
 as the Queen by Warrant under Her Majesty's Royal Sign body of 
 Manual thinks fit to approve, and their names shall be Senators, 
 inserted in the Queen's Proclamation of Union. 
 
 26. If at any time, on the recommendation of the Addition 
 Governor-General, the Queen thinks fit to direct that three tors in 
 or six Members be added to the Senate, the Governor- certain 
 
 ' cases. 
 
 General may by summons to three or six qualified persons 
 
 (as the case may be) representing equally the three divisions 
 
 of Canada, add to the Senate acccordingly.^ 
 
 27. In case of such addition being at any time made. Reduction 
 the Governor-General shall not summon any person to the to normal 
 Senate, except on a further like direction by the Queen on ""™ ^^' 
 the like recommendation, until each of the three divisions 
 
 of Canada is represented by twenty-four Senators and no 
 more. 
 
 28. The number of Senators shall not at any time Number of 
 
 , , • 1 , o Senators. 
 
 exceed seventy-eight."' 
 
 29. A Senator shall, subject to the provisions of this Act, Tenure of 
 hold his place in the Senate for life. 
 
 30. A Senator may by writing under his hand, addressed Resigna- 
 to the Governor-General, resign his place in the Senate, place in 
 and thereupon the same shall be vacant. Senate. 
 
 ' This provision was added at the suggestion of the Home Government 
 to meet the case of a possible deadlock between the two Houses of Parlia- 
 ment. In December, 1873, the Canadian Privy Council advised that an 
 application should be made to the Crown to add six members to the Senate. 
 The recommendation was forwarded to the Secretary for the Colonies by 
 the Governor-General. The request was refused on the ground that ' Her 
 Majesty could not be advised to take the responsibility of interfering with 
 the constitution of the Senate except upon an occasion when it had been 
 made apparent that a difference had arisen between the two Houses of so 
 serious and permanent acharacter that the Government could not be carried 
 on without her intervention, and when it could be shown that the limited 
 creation of senators allowed by the Act would apply an adequate remedy '. 
 Can. Sess. Papers, 1877, No. G8. 
 
 * This section has been in fact repealed by the results of the subsequent 
 law. 
 
 1265 I
 
 130 THE BEITISH NORTH AMERICA ACT, 1867 
 
 Disquali- 31. The place of a Senator shall become vacant in any 
 
 fication of » ., „ ,, 
 
 Senators. 01 the loUowing cases : — 
 
 (1) If for two consecutive Sessions of the Parliament he 
 fails to give his attendance in the Senate ; 
 
 (2) If he takes an oath or makes a declaration or 
 acknowledgment of allegiance, obedience, or ad- 
 herence to a Foreign Power, or does an act whereby 
 he becomes a subject or citizen, or entitled to the 
 rights or privileges of a subject or citizen of a Foreign 
 Power ; 
 
 (3) If he is adjudged bankrupt or insolvent, or applies 
 for the benefit of any law relating to insolvent debtors, 
 or becomes a public defaulter ; 
 
 (4) If he is attainted of treason or convicted of felony 
 or of any infamous crime ; 
 
 (5) If he ceases to be qualified in respect of property or 
 residence ; provided that a Senator shall not be deemed 
 to have ceased to be qualified in respect of residence 
 by reason only of his residing at the Seat of the 
 Government of Canada, while holding an office under 
 that Government requiring his presence there. 
 
 32. AVhen a vacancy happens in the Senate by resigna- 
 tion, death, or otherwise, the Governor-General shall b}^ 
 sunniion.s to a fit and qualified person fill the vacancy. 
 
 33. If any (|uestion arises respecting the (jualification 
 of a Senator or a vacancy in the Senate, the same shall be 
 heard and determined by the Senate. 
 
 34. The Governor-General ma}^ from time to time, b}^ 
 Instrument under the Great Seal of Canada, appoint 
 a Senator to be Speaker of the Senate, and may remove him 
 and appoint another in his stead. 
 
 35. Until the Parliament of Canada otherwise provides, 
 the presence of at least fifteen Senators, including the 
 Speaker, shall be necessary to constitute a meeting of 
 the Senate for the exercise of its powers. 
 
 sl'n'lu- '" ^^' Questions arising in the Senate shall be decided by 
 
 Summons 
 on va- 
 cancy in 
 Senate. 
 
 As to 
 qualifica- 
 tions, &c. 
 
 Appoint- 
 ment of 
 Speakei-. 
 
 Quorum of 
 
 Senate.
 
 THE BRITISH NORTH AMERICA ACT, 1867 131 
 
 a majority of voices, and the Speaker sliall iu all cases 
 have a vote, and wlien the voices are equal the decision 
 shall be deemed to be in the negative. 
 
 Tlie Ilouae of Coiiimoas. 
 
 37. The House of Commons shall, sulyect to the pro- Constitu- 
 visions of this Act, consist of one hundred and eighty-one jj^ygg (,f 
 Members, of whom eighty-two shall be elected for Ontario, Commons, 
 sixty-five for Quebec, nineteen for Nova Scotia, and fifteen 
 
 for New Brunswick.^ 
 
 38. The Governor- General shall from time to time, in Summou- 
 the Queen's name, by Instrument under the Great Seal of jjouse of 
 Canada, summon and call together the House of Commons. Commons. 
 
 39. A Senator shall not be capable of being elected or Senators 
 of sitting or voting as a Member of the House of Commons. "„ House 
 
 40. Until the Parliament of Canada otherwise provides,^ ^^ ^°'"" 
 
 ^ mons. 
 
 Ontario, Quebec, Nova Scotia, and New Brunswick shall, Electoral 
 
 for the purposes of the Election of Members to serve in the J^/! i^e*^*^^ 
 
 House of Commons, be divided into Electoral Districts as ^o"i" Pro- 
 vinces. 
 follows : 
 
 1. Ontario. 
 Ontario shall be divided into the Counties, Ridings of 
 Counties, Cities, parts of Cities, and Towns enumerated in 
 the First Schedule to this Act, each whereof shall be an 
 Electoral District, each such District as numbered in that 
 Schedule being entitled to return one Member.^ 
 
 1 Under the Representation Acts of 1903 and 1904 Ontario consists of 85 
 districts returning 86 members, Ottawa having two members. (It is 
 unnecessary therefore to rejjrint the Schedule of the Act containing the 
 Districts of Ontario at the time of its passing.) Quebec consists of 65 
 districts; Nova Scotia of 17, Halifax having two members ; New Bruns- 
 wick of 12, St. John's city and county having two members ; Prince 
 Edward Island of 3, Queen's district liaving two members ; Manitoba of 
 10; Saskatchewan and Alberta of 10 and 7 (under their Representation 
 Act of 1907) ; and British Columbia of 7 districts. These figures will of 
 course be changed after the decennial redistribution of 1911. 
 
 ■^ At the Quebec Conference several of the Prince Edward Island repre- 
 sentatives disapproved of the principle of representation by population ; 
 but they stood alone in this attitude. (Pope, op. cit., pp. 68-73.) 
 
 ^ See note 1. 
 
 I 2
 
 . 132 THE BRITISH NORTH AMERICA ACT, 1867 
 
 2. Quebec. 
 Quebec shall be divided into sixty-five Electoral Districts, 
 composed of the sixty-five Electoral Divisions into which 
 Lower Canada is at the passing of this Act divided 
 under Chapter two of the Consolidated Statutes of Canada, 
 Chapter seventy-five of the Consolidated Statutes for 
 Lower Canada, and the Act of the Province of Canada of 
 the twenty-third year of the Queen, Chapter one, or any 
 other Act amending the same in force at the Union, so that 
 each such Electoral Division shall be for the purposes of this 
 Act an Electoral District entitled to return one Member. 
 
 3. Nova Scotia. 
 
 Each of the eighteen Counties of Nova Scotia shall be an 
 
 Electoral District. The County of Halifax shall be entitled 
 
 to return two members, and each of the other Counties one 
 
 Member. 
 
 4. New Brunswick. 
 
 Each of the fourteen Counties into which New Bruns- 
 wick is divided, including the City and County of St. John, 
 shall be an Electoral District. The City of St. John shall 
 also be a separate Electoral District. Each of those fifteen 
 Electoral Districts shall be entitled to return one Member. ^ 
 Contiuu- 41. Until the Parliament of Canada otherwise provides, 
 all laws in force in the several Provinces at the Union, 
 relative to the following matters or any of them, namely : - 
 
 otherwise 
 
 existing 
 floction 
 laws un- 
 til Pallia- the qualifications and disqualifications of persons to be 
 
 Canada elected or to sit or vote as Members of the House of 
 
 provider -A-Sscmbly or Legislative Assembly in the several Provinces, 
 
 the Voters at Elections of such Members ; the oaths to be 
 
 taken by Voters ; the Returning Officers, their powers and 
 
 duties, the proceedings at Elections, the periods during 
 
 which Elections may be continued, the trial of controverted 
 
 Elections and proceedings incident thereto, the vacating of 
 
 seats of Members, and the execution of new Writs in cases 
 
 ' On these subsections see preceding note.
 
 THE BRITISH NORTH AMERICA ACT, 1867 133 
 
 of seats vacated otherwise than by clissohition, — shall 
 respectively apply to Elections of Members to serve in the 
 House of Coniinons for the same several Provinces.^ 
 Provided that until the Parliament of Canada otherwise 
 provides, at any Election for a Member of the House 
 of Commons for the District of Algoma, in addition to 
 persons qualified by the law of the Province of Canada to 
 vote, every male British Subject, aged Twenty-one years or 
 upwards, being a householder, shall have a vote. 
 
 42. For the first Election of Members to serve in the Writs for 
 House of Commons, the Governor-General shall cause Writs 1?^ ^• 
 
 ' iilection. 
 
 to be issued by such person, in such form, and addressed to 
 such Returning Officers as he thinks fit. 
 
 The person issuing Writs under this Section shall have 
 the like powers as are possessed at the Union by the 
 Officers charged with the issuing of Writs for the Election of 
 Members to serve in the respective House of Assembly or 
 Legislative Assembly of the Provinces of Canada, Nova 
 Scotia, or New Brunswick ; and the Returning Officers to 
 whom Writs are directed under this Section shall have the 
 like powers as are possessed at the Union by the Officers 
 charged with the Returning of Writs for the Election of 
 Members to serve in the same respective House of Assem- 
 bly or Legislative Assembly. 
 
 * For many years the Dominion Parliament refrained from establishing 
 a uniform franchise for the Dominion ; and the list of voters used in the 
 election of representatives to the Provincial Legislative Assemblies was 
 used at the election of members for the House of Commons. In 1885, 
 however, a Dominion Franchise Bill was passed through Parliament in 
 the face of fierce opposition. The Act was bitterly complained of on the 
 ground of its partisan character, and was repealed in 1898, when the 
 former system was restored. 
 
 With regard to controverted elections the Canadian practice has closely 
 followed British precedent. At the time of confederation, and for several 
 years after, controverted elections were dealt with by a ' General Com- 
 mittee of Elections ', consisting of six members appointed by the Speaker. 
 By Acts passed in 1873 and 1874 the trial of election petitions was trans- 
 ferred to the judges in the several Provinces. An appeal now lies to the 
 Supreme Court. The law with regard to corrupt practices at elections 
 closely resembles the law in force in Great Britain.
 
 134 THE BRITISH NORTH AMERICA ACT, 1867 
 
 As to 43. Ill case a vacancy in the representation in the House 
 
 vacancies. ^^ Commons of any Electoral District happens before the 
 meeting of the Parliament, or after the meeting of the 
 Parliament before provision is made by the Parliament in 
 this behalf, the provisions of the last foregoing Section of 
 this Act shall extend and apply to the issuing and return- 
 ing of a Writ in respect of such vacant District. 
 As to 44. The House of Commons on its first assembling after 
 
 Speaker.*^ a General Election shall proceed with all practicable speed 
 
 to elect one of its members to be Speaker. 
 As to 45. In case of a vacancy happening in the office of 
 
 vacaifc"^ Speaker by death, resignation, or otherwise, the House of 
 in office of Commons shall with all practicable speed proceed to elect 
 
 Speaker. i ^ i 
 
 another of its members to be Speaker. 
 Speaker to 46. The Speaker shall preside at all meetings of the 
 preside, jj^^^^^ ^^ Commons. 
 
 Provision 47. Until the Parliament of Canada otherwise provides, 
 .absence of ^^^ ^^^6 of the absence for any reason of the Speaker from 
 Speaker. ^^^ chair of the House of Commons for a period of forty- 
 eight consecutive hours, the House may elect another of 
 its members to act as Speaker, and the Member so elected 
 shall, during the continuance of such absence of the Speaker, 
 have and execute all the powers, privileges, and duties of 
 Speaker. ^ 
 Quorum of 48. The presence of at least twenty Members of the 
 Commons. House of Commons shall be necessary to constitute a 
 meeting of the House for the exercise of its powers ; 
 and for that purpose the Speaker shall be reckoned as 
 a Member. 
 Voting in 49. Questions arising in the House of Connnons shall l>e 
 Commons, decided by ii majority of voices other than that of the 
 Speaker, and when the voices are e(inal, but not othei'wise, 
 the Spcakci' shall have a vote, 
 rts .hmi- 50. I'^\t'r\- House of" Commons shall continue for five 
 
 tiou. 
 
 ' Im ISHf) tli<' Kiiulisii pia<ti(e was adopted of a|ii)oint inji the Cliairnian 
 of Committees to act as Depnty-Speaktr wlnii necessary.
 
 THE BRITISH NORTH AMERICA ACT, 1867 135 
 
 years ^ from the day of the return of the Writs for choosing 
 the House (subject to be sooner dissolved by the Governor- 
 General) and no longer. 
 
 51. On the completion of the census in the year one Decennial 
 thousand eight hundred and seventy-one, and of each sub- ment'o'f - 
 sequent decennial census, the representation of the four ^eprosen- 
 Provinces shall be readjusted by such authority in such 
 manner, and from such time as the Parliament of Canada 
 from time to time provides, subject and according to the 
 following rules : — 
 
 (1) Quebec shall have the fixed number of sixty-five 
 members : 
 
 (2) There shall be assigned to each of the other Provinces 
 such a number of Members as will bear the same 
 proportion to the number of its population (ascertained 
 at such census) as the number sixty-five bears to the 
 number of the population of Quebec (so ascertained) : 
 
 (3) In the computation of the number of Members for 
 a Province, a fractional part not exceeding one-half of 
 the whole number requisite for entitling the Province 
 to a Member shall be disregarded ; but a fractional 
 part exceeding one-half of that number shall be ecjui- 
 valent to the whole number : 
 
 (4) On any such readjustment the number of Members 
 for a Province shall not be reduced unless the pro- 
 portion which the number of the population of the 
 Province bore to the number of the aggregate popula- 
 tion of Canada ^ at the then last preceding readjustment 
 of the number of Members for the Province is ascer- 
 
 ' The term of five years was cliosen after the example of New Zeahind. 
 John A. Macdonald would have preferred to follow the British precedent. 
 
 * These words mean the whole population of Canada, including that of 
 Provinces which have been admitted to the Confederation since the 
 passing of the British North America Act. The number of six members 
 given to Prince Edward Island is not a fixed minimum ; but is liable to 
 readjustment either way under the provisions of the subsection. See 
 Attorney-General for New Brunswick, and Attorneij-General for Prince Edward 
 Island V. Attorney-Qeneral for Dominion of Canada [1905] A. C. 37.
 
 136 THE BRITISH NORTH AMERICA ACT, 1867 
 
 tained at the then latest census, to be diminished by 
 one-twentieth part or upwards : 
 (5) Such readjustment shall not take effect until the 
 termination of the then existing Parliament.^ 
 Increase 52. The number of Members of the House of Commons 
 of House^ may be from time to time increased by the Parliament of 
 of Com- Canada, provided the proportionate representation of the 
 Provinces prescribed by this Act is not thereby disturbed. 
 
 Money Votes ; Royal Assent. 
 Appropri- 53. Bills for appropriating any part of the Public 
 Ta^x^Bil'ls Revenue, or for imposing any Tax or Impost, shall originate 
 
 in the House of Commons. 
 Recom- 54. It shall not be lawful for the House of Commons to 
 
 tion of adopt or pass any Vote, Resolution, Address, or Bill for the 
 yote=^"^ appropriation of any part of the Public Revenue, or of any 
 Tax or Impost, to any purpose, that has not been first 
 recommended to that House by Message of the Governor- 
 General in the Session in wdiich such Vote, Resolution, 
 Address, or Bill is proposed.^ 
 Royal 55. Where a Bill passed by the Houses of Parliament 
 
 bTus &c. is presented to the Governor-General for the Queen's 
 assent, he shall declare, according to his discretion, but 
 
 * According to Macdonald, it was decided ' to accept the representation 
 of Lower Canada as a fixed standard — as a pivot on which the wliole 
 would turn — since that Province was the best suited for the purpose, on 
 account of the comparatively permanent character of its population and 
 from its having neither the largest nor the least number of inhabitants', 
 {Confederation Debates, p. 38.) 
 
 Under the last census the total number of members is L'21, of whom 
 (Quebec returns 65, Ontario 86, Nova Scotia 18, New Brunswick 13, 
 Prince Kdward Island 4, Manitoba 10, Saskatchewan 10, Alberta 7, 
 liritisli Columbia 7, and Yukon Territory 1. 
 
 '-' This section in substance re-enacts a provision of the Union Act of 1840. 
 Before that titnc the proposals by private members to make grants of 
 public money had become a scandal and nuisance. The remedy was to 
 secure the j>revious recommendation of the Crown. 
 
 The procedure of the Dominion House of Commons on Money l)ills is 
 su))stantially the same as that of tlie British House of Commons. Tlio 
 subject is treated in detail in chapter xvii. of Bourinot's I'lirlidincnfarii 
 rrocediirc a7id Practice in the Dominion of Canada, pp. 530-81.
 
 THE BRITISH NORTH AMERICA ACT, 1867 137 
 
 subject to the provisions of this Act and to Her Majesty's 
 instructions, either that he assents thereto in the Queen's 
 name, or that he withholds the Queen's assent, or that he 
 reserves the Bill for the signification of the Queen's 
 pleasure.^ 
 
 56. Where the Governor-General assents to a Bill in the Disaliow- 
 Queen's name, he shall by the first convenient opportunity order-fn- 
 send an authentic copy of the Act to one of Her Majesty's ^^'i"?' 
 Principal Secretaries of State, and if the Queen in Council assented 
 within two years after receipt thereof by the Secretary of Governor- 
 State thinks fit to disallow the Act, such Disallowance (with ^®"^^^'- 
 a certificate of the Secretary of State of the day on which 
 
 the Act was received by him) being signified by the 
 Governor-General, by Sj)eech or Message to each of the 
 Houses of the Parliament or by Proclamation, shall annul 
 the Act from and after the day of such signification. 
 
 57. A Bill reserved for the signification of the Queen's Significa- 
 pleasure shall not have any force unless and until within Queen's 
 
 ^ Before 1878 the Governor-General was forbidden by his instructions Pleasure 
 to assent to any Bill 
 
 (1) regarding divorce ; 
 
 (2) confen-ing a grant upon liimaelf ; 
 
 (3) making paper money legal tender ; 
 
 (4) imposing differential duties ; 
 
 (5) containing provisions inconsistent with treaty obligations ; 
 
 (6) interfering with the discipline or control of the Crown's forces ; 
 
 (7) interfering with the royal prerogative, or with the rights and pro- 
 
 perty of British subjects outside the Dominion, or prejudicing 
 British trade and shipping ; 
 
 (8) containing provisions to which assent has already been i-efused at 
 
 home ; 
 except in very exceptional circumstances, unless such Bill contained a 
 clause suspending its operation till the pleasure of the Crown could 
 be known. 
 
 Under these instructions no less than twenty-one Bills were reserved 
 by the Governor-General between 1867 and 1877 ; but in the latter year 
 the practice was altered, as explained in note on p. 125, Mr. Blake, the 
 Canadian Minister of Justice, having strongly maintained that it would 
 be 'more conformable to the spirit of the Constitution of Canada, as 
 actually framed, that the legislation should be completed on the advice 
 and responsibility of Her Majesty's Privy Council for Canada; and 
 that as a protection to Imperial interests, the reserved right of dis- 
 allowance of such completed legislation is sufficient for all purposes". 
 {Can. Sess. Papers, 1877, No. 13.)
 
 138 THE BRITISH NORTH AMERICA ACT, 1867 
 
 on Bill two years from the day on which it was presented to the 
 Governor-General for the Queen's Assent, the Governor- 
 General signifies, by Speech or Message to each of the 
 Houses of the Parliament or by Proclamation, that it has 
 received the Assent of the Queen in Council. 
 
 An entry of every such Speech, Message, or Proclamation 
 shall be made in the Journal of each House, and a duplicate 
 thereof duly attested shall be delivered to the proper Officer 
 to be kept among the Records of Canada. 
 
 V. Provincial Constitutions. 
 Executive Poiver. 
 Appoint- 58. For each Province there shall be an Officer, styled the 
 Lieuten- Lieutenant-Governor, appointed by the Governor- General in 
 .tnt-Go- Council by Instrument under the Great Seal of Canada. 
 
 vernors. -^ 
 
 Tenure of 59. A Lieutenant-Governor shall hold office during the 
 office^ of pleasure of the Governor-General;^ but any Lieutenant- 
 
 Jjieuten- i ' "^ 
 
 ant-Go- Governor appointed after the commencement of the first 
 Session of the Parliament of Canada shall not be removable 
 within five years from his appointment, except for cause 
 assigned, which shall be communicated to him in writing 
 within one month after the order for his removal is made, 
 and shall be conmiunicated by Message to the Senate and 
 to the House of Commons within one week thereafter 
 if the Parliament is then sitting, and if not then, within 
 one week after the commencement of the next Session of 
 the Parliament. 
 
 ' The case of Mr. Letollior dc St. Just, who was dismissed in 1879 by the 
 Dominion Government from the Lieutenant-Governorship of Quebec, 
 show.s that the discretion of the Canadian Ministry is practically absolute 
 and that the Governor-General cannot act without the advice of his re- 
 sponsible Ministers. No importance can l}c attached to the omission of 
 the words ' in Council' after Governor-General in Section 59. {Can. Scss. 
 I'lipers, 1880, No. 18. Sec also Todd's Parliamentary Oorernment in British 
 Colonies, 2nd ed., pp. 601-G22.) In 1900 Mr. M^nnes, the Lieutenant- 
 Governor of British fV)lumbia, was also dismissed bj* the Governor (Jencral 
 in Council ; but the justice of such dismissal seems to luivo been generally 
 admitted. See Willison's Hir It'. I.aiiricr and the Lit eral Parli/, vol. i, p. .S59.^ 
 
 vernor.
 
 THE BRITISH NORTH AMERICA ACT, 1867 139 
 
 60. The salaries of the Lieutenant-Governors shall l)e Salaries 
 fixed and provided by the Parliament of Canada. tenant*- 
 
 61. Every Lieutenant-Governor shall, before assuming Govern- 
 
 ors. 
 
 the duties of his office, make and sul)seribe before the Oaths, &o. 
 Governor-General or some person authorized by him, Oaths ^' ^i*^"- 
 
 1 -^ ' tenant- 
 
 of Allegiance and Office similar to those taken by the Governor. 
 Governor-General. 
 
 62. The provisions of this Act referring to the Applica- 
 Lieutenant-Governor extend and apply to the Lieutenant- provisions 
 
 Governor for the time being of each Province or other the l^^^\^'^^s 
 
 ° to Lieu- 
 
 Chief Executive Officer or Administrator for the time tenant- 
 being carrying on the Government of the Province, by 
 whatever title he is designated. ' 
 
 63. The Executive Council of Ontario and of Quebec shall Appoint- 
 be composed of such persons as the Lieutenant-Governor Executive 
 from time to time thinks fit, and in the first instance of ^ffi^ersfor 
 
 Ontario 
 
 the following Officers, namely : the Attorney-General, the and 
 Secretary and Registrar of the Province, the Treasurer of 
 the Province, the Commissioner of Crown Lands, and the 
 Commissioner of Agriculture and Public Works,* with, in 
 Quebec, the Speaker of the Legislative Council and the 
 Solicitor-General.* 
 
 64. The Constitution of the Executive Authority in C4overn- 
 
 each of the Provinces of Nova Scotia and New Brunswick Nova Sco- 
 
 shall, subject to the provisions of this Act, continue as it tl''^ ^^^ 
 
 exists at the Union, until altered under the authority of Bruns- 
 wick, 
 this Act. 
 
 65. All powers, authorities, and functions which under Powers to 
 
 any Act of the Parliament of Great Britain, or of the ^^^^^ j,^' 
 
 Parliament of the United Kingdom of Great Britain and ?^'®"v 
 
 ^ tenant- 
 
 Ireland, or of the Legislature of LTpper Canada, Lower Governor 
 
 * In Ontario, Agricultiiie and Public Works have now separate Ministers, 
 and there is a Minister for Education. There is also a Premier and Presi- 
 dent of the Council. In Quebec, the offices at present are : Prime Minister 
 and Attorney-General ; Lands and Forests ; Provincial Treasurer; Agricul- 
 ture ; Provincial Secretary; Public Works and Labour; Colonization; 
 Mines and Fisheries.
 
 140 THE BRITISH NORTH AMERICA ACT, 1867 
 of Ontario Canada, or Canada, were or are before or at the Union 
 
 or Quebec . • i i i i • /^ 
 
 with vested in or exercisable by the respective Governors or 
 
 alo^nr ^'^ Lieutenant-Governors of those Provinces, with the advice, 
 or with the advice and consent, of the respective Executive 
 Councils thereof, or in conjunction with those Councils or 
 with any number of Members thereof, or by those Governors 
 or Lieutenant-Governors individually, shall, as far as the 
 same are capable of being exercised after the Union in 
 relation to the Government of Ontario and Quebec respect- 
 ively, be vested in and shall or may be exercised by the 
 Lieutenant-Governor of Ontario and Quebec respectively, 
 with the advice, or with the advice and consent of, or in 
 conjunction with the respective Executive Councils or any 
 Members thereof, or by the Lieutenant-Governor indi- 
 vidually, as the case requires, subject nevertheless (except 
 with respect to such as exist under Acts of the Parliament 
 of Great Britain, or of the Parliament of the United 
 Kingdom of Great Britain and Ireland), to be abolished 
 or altered by the respective Legislatures of Ontario and 
 Quebec.^ 
 AstoLieu- 66. The pi-o visions of this Act referring to the Lieutenant- 
 Governor Govcmor in Council shall be construed as referring to the 
 inCouncil. Lieutenant-Governor of the Province acting by and with 
 
 the advice of the Executive Council thereof. 
 As to 67. The Governor-General in Council may from time to 
 
 &c^^of^' ^^"^^ appoint an Administrator to execute the office and 
 Lieu- functions of Lieutenant-Governor during his absence, 
 
 tenant- ... 
 
 Governor, illness, or other inal)ility. 
 
 Seats of 68. Unless and until the Executive Government of any 
 
 ' The general effect of these sections, together with tlic provisions of 
 Section 92, is, in the words of Lord Watson, neitlier to wehl the Provinces 
 into one nor to subordinate Provincial Governments to a central au- 
 thority, but to create a Federal Government . . . each Province retaining 
 its independence and autonomy. . . . The Act places the Constitutions of 
 all Provinces within tlie Division on th*; same level ; and wliat is true 
 with n!sp(!(t to the Legislature of Ontario has equal application to the 
 Legislature of New Brunswick. {Maritime Bank of Canada v. Eccciver-Oeneral 
 of New Brurmvick [18921 App. Cas. 437.)
 
 THE BRITISH NORTH AMERICA ACT, 1867 141 
 
 Province otherwise directs with respect to that Province, Provincial 
 the seats of Government of the Provinces shall be aSmej,tg_* 
 follows, namely, — of Ontario, the City of Toronto ; of 
 Quebec, the City of Quebec ; of Nova Scotia, the City of 
 Halifax ; and of New Brunswick, the City of Fredericton.^ 
 
 Legidatlve Power. 
 
 1. Ontario. 
 
 69. There shall be a Legislature for Ontario, consisting Legisla- 
 of the Lieutenant-Governor and of one House, styled the Ontario. 
 Legislative Assembly of Ontario. 
 
 70. The Legislative Assembly of Ontario shall be com- Electoral 
 posed of Eighty-two Members, to be elected to represent 
 
 the Eightj^-two Electoral Districts set forth in the First 
 Schedule to this Act.^ 
 
 2. Quebec. 
 
 71. There shall be a Legislature for Quebec, consisting Legisla- 
 of the Lieutenant-Governor and of two Houses, styled the Quebec. 
 Legislative Council of Quebec and the Legislative Assembly 
 
 of Quebec. 
 
 72. The Legislative Council of Quebec shall be com- Constit>i- 
 
 posed of Twenty-four Members, to be appointed by the Lgais^. 
 
 Lieutenant-Governor in the Queen's name by Instrument J^^ti^^ 
 
 ^ "^ Council. 
 
 under the Great Seal of Quebec, one being appointed to 
 represent each of the Twenty-four Electoral Divisions of 
 Lower Canada in this Act referred to, and each holding 
 office lor the term of his life, unless the Legislature of 
 Quebec otherwise provides under the provisions of this 
 Act. 
 
 73. The qualifications of the Legislative Councillors of Qualifica- 
 Quebec shall be the same as those of the Senators for _Le"isla- 
 
 Quebec. tiyeCoun- 
 
 ^ cillors. 
 
 1 Of the other Provinces, the capital of Manitoba is Winnipeg ; of 
 Saskatchewan, Regina ; of Alberta, Edmonton ; of British Columbia, 
 Victoria ; and of Prince Edward Island, Charlottetown. 
 
 * The representation has been altered from time to time.
 
 142 THE BRITISH NORTH AMERICA ACT, 1867 
 
 Kesigna- 
 tion, &c. 
 
 Vacancies. 
 
 Questions 
 as to va- 
 cancies, 
 &c. 
 
 Speaker 
 of Legis- 
 lative 
 Council. 
 
 Quorum 
 of Legis- 
 lative 
 Council. 
 
 Voting 
 in Legis- 
 lative 
 Council. 
 
 Constitu- 
 tion of 
 Legis- 
 lative 
 Assembly 
 of Quebec, 
 
 74. The place of a Legislative Councillor of Quebec 
 shall become vacant in the cases, mutatis mutandis, in 
 which the place of Senator becomes vacant. 
 
 75. When a vacancy happens in the Legislative Council 
 of Quebec by resignation, death, or otherwise, the 
 Lieutenant-Governor, in the Queen's name, by Instrument 
 under the Great Seal of Quebec, shall appoint a lit and 
 qualified person to fill the vacancy. 
 
 76. If any question arises respecting the qualification of 
 a Legislative Councillor of Quebec, or a vacancy in the 
 Legislative Council of Quebec, the same shall be heard and 
 determined by the Legislative Council. 
 
 77. The Lieutenant-Governor may, from time to time, 
 by Instrument under the Great Seal of Quebec, appoint 
 a Member of the Legislative Council of Quebec, to be 
 Speaker thereof, and may remove him and appoint another 
 in his stead. 
 
 78. Until the Legislature of Quebec otherwise provides, 
 the presence of at least ten Members of the Legislative 
 Council, including the Speaker, shall be necessary to con- 
 stitute a meeting for the exercise of its powers. 
 
 79. Questions arising in the Legislative Council of 
 Quebec shall be decided by a majority of voices, and the 
 Speaker shall in all cases have a vote, and when the voices 
 are equal, the decision shall be deemed to be in the negative. 
 
 80. 'I'he Legislative Assembly of Quebec shall be com- 
 posed of Sixty-five Members,^ to be elected to represent 
 the Sixty-five Electoral Divisions or Districts of Lower 
 Canada in this Act referred to, subject to alteration thereof 
 by the Legislature of Quebec: Provided that it shall not 
 be lawful to present to the Lieutenant-Governor of Quebec 
 for assent any Bill for altering the limits of any of the 
 Electoral Divisions or Districts mentioned in the Second 
 Schedule to this Act, unless the second and tliird readings 
 of such Bill have been passed in the Legislative Assembly 
 
 * The number has since been increased.
 
 THE BRITISH NORTH AMERICA ACT, 1867 143 
 
 with the concurrence of the majority of the Members 
 representing all those Electoral Divisions or Districts, and 
 the assent shall not be given to such Bill unless an address 
 has been presented by the Legislative Assembly to the 
 Lieutenant-Governor, stating that it has been so passed. 
 
 3. Ontario and Quebec. 
 
 81. The Legislatures of Ontario and Quebec respectively First Ses- 
 shall be called together not later than six months after Legisla- 
 the Union. *"""«"• 
 
 82. The Lieutenant-Governor of Ontario and of Quebec Summon- 
 shall, from time to time, in the Queen's name, bj'' Instru- Legisia- 
 ment under the Great Seal of the Province, summon and *''^'*' 
 
 ' Assem- 
 
 call together the Legislative Assembly of the Province. blies. 
 
 83. Until the Legislature of Ontario or of Quebec other- Restric- 
 wise provides, a person accepting or holding in Ontario or election of 
 in Quebec any office, commission, or employment, per- Jj^^^^®'"*^ ^^ 
 manent or temporary, at the nomination of the Lieutenant- 
 Governor, to which an annual salary, or any fee, allow- 
 ance, emolument, or profit of any kind or amount what- 
 ever from the Province is attached, shall not be eligible as 
 
 a Member of the Legislative Assembly of the respective 
 Province, nor shall he sit or vote as such ; but nothing in 
 this Section shall make ineligible any person being a Mem- 
 ber of the Executive Council of the respective Province, or 
 holding any of the following Offices, that is to say : — the 
 Offices of Attorney-General, Secretary and Registrar of tlie 
 Province, Treasurer of the Province, Commissioner of Crown 
 Lands, and Commissioner of Agriculture and Public Works, 
 and in Quebec Solicitor-General, or shall disqualify him to 
 sit or vote in the House for which he is elected, provided 
 he is elected while holding such Office. 
 
 84. Until the Legislatures of Ontario and Quebec Continu- 
 
 *inc6 of 
 
 respectively otherwise provide,^ all laws which at the existing 
 
 * Laws on these subjects have since been passed by the Legislatures of 
 Ontario and of Quebec.
 
 144 THE BRITISH NORTH AMERICA ACT, 1867 
 
 election 
 laws. 
 
 Duration 
 of Legis- 
 lative As- 
 semblies. 
 
 Yearly 
 Session of 
 Legisla- 
 ture. 
 
 Speakei-, 
 quorum, 
 Ac. 
 
 Union are in force in those Provinces respectively, relative 
 to the following matters or any of them, namely, — the 
 qualifications and disqualifications of persons to be elected 
 or to sit or vote as Members of the Assembly of Canada, 
 the qualifications or disqualifications of voters, the oaths 
 to be taken by voters, the Returning Officers, their powers 
 and duties, the proceedings at Elections, the periods during 
 w^hich such Elections may be continued, and the trial of 
 controverted Elections and the proceedings incident 
 thereto, the vacating of the seats of Members, and the 
 issuing and execution of new Writs in case of seats vacated 
 otherwise than by dissolution, shall respectively apply to 
 Elections of Members to serve in the respective Legislative 
 Assemblies of Ontario and Quebec. 
 
 Provided that until the Legislature of Ontario otherwise 
 provides, at any Election for a Member of the Legislative 
 Assembly of Ontario for the District of Algoma, in addition 
 to persons qualified by the law of the Province of Canada 
 to vote, every male British Subject aged Twenty-one years 
 or upwards, being a householder, shall have a vote. 
 
 85. Every Legislative Assembly of Ontario and every 
 Legislative Assembly of Quebec shall continue for four 
 years from the day of the return of the Writs for choosing 
 the same (subject nevertheless to either the Legislative 
 Assembly of Ontario or the Legislative Assembly of Quebec 
 being sooner dissolved by the Lieutenant-Governor of the 
 Province), and no longer. 
 
 86. There shall be a Session of the Legislature of Ontario 
 and of that of Quebec once at least in every year, so that 
 twelve months shall not intervene between the last sitting 
 of the Legislature in each Province in one Session and its 
 first sitting in the next Session. 
 
 87. The following provisions of this Act respecting the 
 House of Commons of Canada, shall extend and apply to 
 the Legislative Assemblies of Ontario and Quebec, that is 
 to say, — the provisions relating to the Election of a Speaker
 
 THE BRITISH NORTH AMERICA ACT, 1867 145 
 
 originally and on vacancies, the duties of the Speaker, the 
 absence of the Speaker, the quorum, and the mode of 
 voting, as if those provisions were here re-enacted and 
 made applicable in terms to each such Legislative Assembly. 
 
 4. Nova Scotia and New Brunswick, 
 88. The Constitution of the Legislature of each of the Constitu- 
 Provinces of Nova Scotia and New Brunswick shall, subject Legisia- 
 to the provisions of this Act, continue as it exists at the ^J^_^ g^ 
 
 Union until altered under the Authority of this Act ; ^ and t'^ and 
 
 New 
 
 the House of Assembly of New Brunswick existing at the Bruns- 
 passing of this Act shall, unless sooner 
 for the period for which it was elected. 
 
 passing of this Act shall, unless sooner dissolved, continue 
 
 5. Ontario, Quebec, and Nova Scotia. 
 
 89. Each of the Lieutenant-Governors of Ontario, Quebec, First 
 
 ElGctioris 
 
 and Nova Scotia, shall cause Writs to be issued for the first 
 Election of Members of the Legislative Assembly thereof 
 in such form and by such person as he thinks fit, and at 
 such time and addressed to such Returning Officer as the 
 Governor-General directs, and so that the first Election of 
 Member of Assembly for any Electoral District or any sub- 
 division thereof shall be held at the same time and at the 
 same places as the Election for a Member to serve in the 
 House of Commons of Canada for that Electoral District. 
 
 6. The Four Provinces. 
 
 90. The following provisions of this Act respecting the Applica- 
 Parliament of Canada, namely, — the provisions relating to Legisla- 
 
 tures of 
 provisior 
 
 votes, the assent to Bills, the disallowance of Acts,^ and respecting 
 
 appropriation and tax Bills, the recommendation of money 
 
 i^ i^ r ' J provisions 
 
 ' Attempts have from time to time been made to do away with the 
 Nova Scotian Legislative Council ; and on one occasion such a measure was 
 nearly passing into law, but at the last moment the newly appointed 
 members of the Legislative Council refused to pronounce their own 
 doom. The New Brunswick Legislative Council has been abolished. 
 
 * The effect of this section, together with Section 56, is to place the 
 Governor-General in Council in the place of the Crown for the disallow- 
 
 126.5 K
 
 146 THE BRITISH NORTH AMERICA ACT, 1867 
 
 money the signification of pleasure on Bills reserved,^ — shall 
 
 votes, &c. ° 
 
 extend and apply to the Legislatures of the several Pro- 
 vinces as if those provisions were here re-enacted and made 
 
 ance of Provincial Acts. Sir John Macdonald laid down in a Memoran- 
 dum in 1868 the general course that should be pursued with regard to this 
 subject by the Dominion Government. 'In deciding whether any Acts of 
 a Provincial Legislature should be disallowed or sanctioned, the Govern- 
 ment must not only consider whether it affects the interests of the whole 
 Dominion or not ; but also whether it be unconstitutional, whether it 
 exceeds the jurisdiction conferred on Local Legislatures, and, in caseswhere 
 the jurisdiction is concurrent, whether it clashes with the legislation of 
 the General Parliament ; as it is of importance that the course of local 
 legislation should be interfered with as little as possible, and the power 
 of disallowance exercised with great caution. Only in cases where the 
 law and general interests of the Dominion imperatively demand it, the 
 undersigned recommends that the following course be pursued : That, on 
 receipt by your Excellency of the Acts passed by any Province, they be 
 referred to the Minister of Justice for report, and that he with all con- 
 venient sjieed do report as to these Acts, which he considers free from 
 objection of any kind ; and, if such report be opposed by your Excellency 
 in Council, that such approval be forthwith communicated to the Provin- 
 cial Government. 
 
 •That he make a separate report or separate reports on those Acts which 
 he may consider : 
 
 ' 1. As being altogether illegal and unconstitutional. 
 
 '2. As illegal or unconstitutional in part. 
 
 ' 3. In cases of concurrent jurisdiction, as clashing with the legislation 
 of the General Parliament. 
 
 *4. As affecting the interests of the Dominion generally : and that in 
 such report or reports he gives his reasons for his opinions. 
 ' That when a measure is considered only partially defective, or when 
 objectionable, as being prejudicial to the general interests of the Domi- 
 nion, or as clashing with its legislation, communication shall be had 
 with the Provincial Government with respect to such measure, and that 
 in such case the Act should not be disallowed if the general interests 
 permit such a course, until the Local Government has an opportunity of 
 considering and discussing the objection taken, and the Local Legislature 
 lias also an opportunity of remedying the defects found to exist.' (Can. 
 Sess. Pa2)crs, 1870, No. 35. See The Correspondence and Reports of the Minister of 
 Justice and Orders in Council upon the Subject of Dominion and Provincial Legisla- 
 tion, by W.E. Hodgins, 18<)7-1908. Continued by F. II. Gisborne, 1904-6. 
 Monro, Constitution of Canada, p. 260, points out that from 1867 to 1882, 
 out of 6,000 Acts only 31 were disallowed ; 14, however, were disallowed 
 from 1883 to 1887.) 
 
 ' The power of i-eserving Bills was only given with the view of pro- 
 tecting Imperial interests and the maintenance of Imperial policy. Ac- 
 cordingly, 'in any Province the Lieutonant-(tovernor shall only reserve 
 a Bill in his capacity as an officer of the Dominion and under instructions 
 from tlie Governor-General.' (Sir John Macdonald in Can. Seas. Papers, 
 1886.)
 
 THE BRITISH NORTH AMERICA ACT, 1867 147 
 
 applicable in terms to the respective Provinces and the 
 Legislatures thereof, with the substitution of the Lieutenant- 
 Governor of the Province for the Governor-General, of the 
 Governor-General for the Queen and for a Secretary of 
 State, of one year for two years, and of the Province for 
 Canada. 
 
 VI. Distribution of Legislative Powers. 
 Powers of the Parliament. 
 91. It shall be lawful for the Queen, by and with the Legisla- 
 
 tlVG A 11" 
 
 advice and consent of the Senate and House of Commons, thority of 
 to make laws for the peace, order, and good government ^^"^J-^Qf 
 of Canada in relation to all matters not coming within the Canada, 
 classes of subjects by this Act assigned exclusively to the 
 Legislatures of the Provinces ; and for greater certainty, 
 but not so as to restrict the generality of the foregoing 
 terms of this Section, it is hereby declared that (notwith- 
 standing anything in this Act) the exclusive Legislative 
 Authority of the Parliament of Canada extends to all 
 matters coming within the classes of subjects next herein- 
 after enumerated, that is to say : — 
 
 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 : 
 
 ^ Compare language of American Constitution, Article 1, Sec. 8 (sub- 
 see. 3) : ' The Congress shall have power to regulate commerce with foreign 
 nations, and among the several States and with the Indian tribes,' and 
 that of the Commonwealth Constitution, Sec. 51 (subsec. 1), which 
 gives power to Parliament to make ' laws for the peace, order, and good 
 government of the Commonwealth with respect to trade and commerce 
 with other countries and among the States'. 
 
 ^ The Commonwealth Statute adds : ' but so as not to discriminate 
 between States and parts of States.' 
 
 K i
 
 148 THE BRITISH NORTH AMERICA ACT, 1867 
 
 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 : 
 
 15. Banking,^ Incorporation of Banks, and the issue of 
 
 Paper Money : 
 
 16. Savings Banks : 
 
 17. Weio-hts and Measures : 
 
 18. Bills of Exchange and Promissory Notes : 
 
 19. Interest: 
 
 20. Legal Tender : 
 
 21. Bankruptcy and Insolvenc}^ : 
 
 22. Patents of Invention and Discovery : 
 
 23. Copyrights: 
 
 24. Indians and Lands reserved for the Indians : '^ 
 
 25. Naturalization and Aliens : 
 
 26. Marriage and Divorce : 
 
 27. The Criminal Law, except the Constitution of the 
 
 Courts of Criminal Jurisdiction, Imt including the 
 Procedure in Criminal Matters : 
 
 28. The establishment, maintenance, and management of 
 
 Penitentiaries : 
 
 29. Such Classes of Subjects as are expressly excepted in 
 
 the Enumeration of the Classes of Subjects by this 
 Act assigned exclusively to the Legislatures of the 
 Provinces : 
 
 ^ Compare language of the Commonwealth statute: ' Banking, other 
 than State Banking.' 
 
 ' This section only applies while the lands are held in Indian occupa- 
 tion. {SL Catherinc\ Milling and Lvmher Co. v. The Queen, 14 App. Cas. 46.)
 
 THE BRITISH NORTH AMERICA ACT, 1867 149 
 
 And any matter coming within any of the Classes 
 of Subjects enumerated in tliis section shall not be 
 deemed to come within the Class of matters of a 
 local or private nature comprised in the Enumera- 
 tion of the Classes of Subjects by this Act assigned 
 exclusively to the Legislatures of the Provinces.^ 
 
 Exclusive Poicers of Provincial Legislatures. 
 92. In each Province the Legislature may exclusively Subjects 
 make laws in relation to matters coming within the Classes give Pro- 
 of Subjects next hereinafter enumerated ; that is to say : — yincial 
 •^ ' '' Legisla- 
 
 1. The amendment - from time to time, notwithstanding tion. 
 
 anything in this Act, of the Constitution of the 
 Province, except as regards the Office of Lieutenant- 
 Governor : 
 
 2. Direct Taxation within the Province in order to the 
 
 raising of a Revenue for Provincial Purposes : 
 
 3. The borrowing of money on the sole credit of the 
 
 Province : 
 
 4. The establishment and tenure of Provincial Offices, and 
 
 the appointment and payment of Provincial officers : 
 
 5. The management and sale of the Public Lands be- 
 
 lon2:incr to the Province,^ and of the timber and 
 wood thereon : 
 
 6. The establishment, maintenance, and management of 
 
 public and reformatory prisons in and for the 
 Province. 
 
 7. The establishment, maintenance, and management 
 
 of Hospitals, Asylums, Charities, and Eleemosynary 
 Institutions in and for the Provinces, other than 
 Marine Hospitals : 
 
 8. Municipal Institutions in the Province : 
 
 ' On this section generally see note on Sections 91 and 92, 
 
 - Under this provision, Manitoba, New Brunswick, and Priute Edward 
 
 Island have abolished their Legislative Councils. 
 
 * ' Public Lands ' include mines and minerals. {Attorney-General of British 
 
 CohinMa v. Attorney -General of Canada, l-l App. Cas. 295.) Compare Sec. 109.
 
 150 THE BRITISH NORTH AMERICA ACT, 1867 
 
 9. Shop, Saloon, Tavern, Auctioneer, and other Licences, 
 in order to the raising of a Revenue for Provincial, 
 Local, or Municipal Purposes : 
 
 10. Local works and undertakings, other than such as 
 
 are of the following classes : 
 
 (I. Lines of Steam or other Ships, Railways,^ Canals, 
 Telegraphs, and other works and undertakings 
 connecting the Province with any other or others of 
 the Provinces, or extending beyond the limits of 
 the Province : 
 
 h. Lines of Steam Ships between the Province and any 
 British or Foreign Country : 
 
 v. Such works as, although wholly situate within the 
 Province, are before or after their execution declared 
 by the Parliament of Canada to be for the general 
 advantage of Canada or for the advantage of two 
 or more of the Provinces : 
 
 11. The Incorporation of Companies with Provincial 
 
 Objects : 
 
 12. The Solemnization of Marriage in the Province : 
 
 13. Property and civil rights in the Province: 
 
 14. The Administration of Justice in the Province, in- 
 
 cluding the constitution, maintenance, and organi- 
 zation of Provincial Courts, both of Civil and of 
 Criminal Jurisdiction, and including procedure in 
 civil matters in those Courts : 
 
 15. The imposition of punishment by fine, penalty, or 
 
 imprisonment for enforcing any Law of the Province 
 made in relation to any matter coming within any of 
 the classes of subjects enumerated in this Section : 
 If). Generally all matters of a merely local or private 
 nature in the Province." 
 
 ' Compare Sec. 51 (subsections xxxii-xxxiv) of CoininomvoaUh Act. 
 
 2 Tlie respective functions of tlie Dominion Parliament and of tlie Pro- 
 vincial Legislatures under Sees. 91 and 1*2 liave given rise to much con- 
 troversy and litigation. The general intention is to give to the Dominion 
 Parliament authority to mnko laws for the general good government of the
 
 THE BRITISH NORTH AMERICA ACT, 1867 151 
 
 Educatiun. 
 93. Ill and for each Province the Legislature may ex- Legisla- 
 
 tion rG~ 
 
 clusively make laws in relation to Education, subject and specting 
 according to the following provisions : Educa- 
 
 tion. 
 
 (1) Nothing in any such law shall prejudicially affect 
 
 country in all matters not coming within the classes of subjects assigned 
 exclusively to the Provincial Legislatures. Wei-e it possible to isolate and 
 treat on a wholly separate footing the sixteen classes of subjects assigned 
 to the Provincial Legislatures the case would be simple enough ; but in 
 fact some of the classes of subjects so assigned unavoidably run into and 
 are embraced by some of the classes of subjects expressly assigned to the 
 Dominion Parliament, To meet this difficulty in case of such overlapping 
 pre-eminence was given to the Dominion Parliament. Notwithstanding, 
 however, this provision, the Act cannot intend that the powers exclusively 
 assigned to the Provincial Legislatures should be in consequence absorbed 
 in those given to the Dominion Parliament. With regard, then, to certain 
 classes of subjects, generally described in Section 91, legislative power 
 continues to reside with regard to certain matters, falling within their 
 general description, in the Legislatures of the Provinces. The language of 
 the two sections must be read together and that of one interpreted and if 
 necessary modified by the other. Thus a Provincial Act to secure uniform 
 conditions in policies of fire insurance was held to be within the power 
 of a Provincial Legislature notwithstanding the general power of the 
 Dominion Parliament for the regulation of trade and commerce. Con- 
 versely, a general Temperance Act was held good ; on the ground that it 
 related to the jieace, order, and good government of Canada, or to trade 
 and commerce, although, in a sense, it dealt with 'property and civil 
 rights '. Laws, it was said, designed for the promotion of public order, 
 safety, and morals, and which subject those who contravene them to 
 criminal procedure and punishment, belong to the subject of public wrongs 
 ratlier than to that of civil rights. Few if any laws could be made by 
 Parliament for the peace, order, and good government of Canada which 
 did not in some incidental way affect property and civil rights ; it could 
 not have been intended, when assuring to the Provinces exclusive legisla- 
 tive authority in the subjects of property and civil rights, to exclude the 
 Parliament from the exercise of this general power whenever any such 
 incidental interference would result from it. 
 
 Confusion has perhaps been caused by the British North America Act 
 refusing to recognize, except in the case of agriculture and immigration, 
 concurrent powers in the Dominion Parliament and Provincial Legisla- 
 tures ; but inasmuch as subjects, which, in one aspect and for one purpose, 
 fall within one section of the Act, may, in another aspect and for another 
 purpose, fall within the other, the existence of concurrent authorities has 
 not in fact been prevented. Thus while the Dominion Parliament deals 
 with temperance legislation generally, a jirovincial statute may make 
 regulations in the nature of police or municipal regulations of a merely 
 local character, for the good government of taverns, &c., so long, of course, 
 as they do not conflict with the general statute.
 
 152 THE BRITISH NORTH AMERICA ACT, 1867 
 
 any right or privilege with respect to Denominational 
 Schools which any class of persons have by law in the 
 Province at the Union ; ^ 
 
 (2) All the powers, privileges, and duties at the Union 
 by law conferred and imposed in Upper Canada on the 
 
 Whatever may have been the intentions of the framers of the law, the 
 Provincial Legislatures possess as plenary and ample powers within the 
 limits prescribed by Section 92 as the Imperial Parliament in the pleni- 
 tude of its power possessed or could bestow. Within these limits of 
 subjects and area the Local Legislature is supreme, and has the same 
 authority as the Imperial Parliament or the Parliament of the Dominion 
 would have had under like circumstances to confide to a municipal institu- 
 tion or body of its own creation authority to make by-laws or resolutions 
 as to subjects specified in the enactment, and with the object of carrying 
 the enactment into operation and effect. 
 
 Leading cases on the general interpretation to be placed on Sec- 
 tions 91 and 92 are Citizens and Queen Insurance Cotnjmnies v. Parsons, 
 Cartwright's Cases under B. N. A. Ad, vol. i, 265 ; Russell v. The Queen, 
 vol. i, 12 ; Hodge v. The Queen, vol. iii, 144 ; Attorney- General of Ontario v. 
 Attorney-General of the Dominion, reported in Wheeler's Confederation Law of 
 Canada, pp. 1042-74. 
 
 A conference of representatives of the Dominion and the Provinces was 
 held in March, 1910, with the object of arriving at an agreement as to the 
 relative jurisdiction of Parliament and the Provincial Legislatures over 
 commercial, financial, mining, and other companies. No agreement was 
 arrived at, but there seems good ground for the opinion of the well- 
 informed Toronto correspondent of the Times that ' owing to the exercise 
 of equal powers by the federal and the provincial authorities much uncer- 
 tainty and confusion now prevail in this important field of legislation '. 
 
 It would require a treatise to deal with the details of the subsections of 
 these clauses as illustrated by the numerous cases. See the exhaustive 
 notes in Wheeler, op. cit., and the cases under them in Cartwright, op. cit. 
 
 1 There must have been a right * by law ' and not merely by usage at the 
 time of the Union. (See Maher v. 2'own of Portland, reported in Wheeler's 
 Confederation Law of Canada, pp. 339-07.) Under the twenty-second section 
 of the Manitoba Act, 1870, the provisions with regard to education were 
 as follows : 
 
 ' In and for the Province the said Legislature may exclusively make laws 
 in relation to education, subject and according to the following provi- 
 sions : — 
 
 ' (1) Nothing in any such law shall prejudicially affect any right or 
 privilege with respect to denominational scliools, which any class of 
 persons have by law or practice in the Province at the Union. 
 
 '(2; An appeal shall lie to the Governor-General in Council from any 
 Act or decision of the Legislature of the Province, or of any Provincial 
 authority, affecting any right or privilege of the Protestant or Roman 
 Catholic minority of tlie Queen's subjects in relation to education. 
 
 ' (3) In case any such jjrovincial law, as from tinie to time seems to the 
 Governor-General in Council requisite for the due execution of the ])rovi-
 
 THE BRITISH NORTH AMERICA ACT, 1867 153 
 
 separate Schools and School Trustees of the Queen's Roman 
 Catholic Subjects, shall be and the same are hereby ex- 
 tended to the Dissentient Schools of the Queen's Protestant 
 and Roman Catholic Subjects in Quebec ; 
 
 (3) Where in any Province a system of separate or 
 
 sioiis of this section, is not made, or in case any decision of the Governor- 
 General in Council on any appeal under this section is not duly executed 
 by the proper provincial authority in that behalf, then and in every such 
 case and so far only as the circumstances of such case require, the 
 Parliament of Canada may make remedial laws for the due execution of 
 the provisions of this section, and of any decision of the Governor-General 
 in Council under this section.' 
 
 At tlie time of the entrance of Manitoba into the Union, there was no 
 law or regulation or ordinance in force respecting education. There 
 were in fact denominational schools existing ; but the Public Schools Act 
 of 1890 having introduced a general system of secular education the Privy 
 Council held in Cify of Winnipeg v. Barreit, Wheeler, op. cit., pp. 371-6, 
 that the establishment of a national system of education upon an unsec- 
 tarian basis might exist side by side with the right to set up and maintain 
 denominational schools, and that the existence of the latter did not 
 necessarily imply or involve immunity from taxation for the purposes of 
 the former. That a system of denominational education had been estab- 
 lished subsequent to the Union did not change the situation. 
 
 In the subsequent case of Brophy v. Attorney-General of Manitoba, Wheeler, 
 op. cit., pp. 376-88, it was held that the right of appeal under subsection 2, 
 and the power reserved to the Dominion Parliament under subsection 3, 
 were not bound by the provision of subsection 1, with regard to the state 
 of things existing at the Union, but could be enforced generally when 
 equitable grounds existed. 
 
 The effect of the Privy Council decision was thus to shift the burden 
 of action upon the shoulders of the Dominion Government, which was 
 placed in a very difficult position. They found themselves in conflict 
 either with the Manitoba Government or with the Roman Catholic 
 hierarchy. Still the methods adopted by Sir Mackenzie Powell's adminis- 
 tration were needlessly unconciliatory and aggressive. A remedial order 
 was promptly served upon the Manitoba authorities, which was met by 
 a refusal couched in moderate and conciliatory language. The attempt to 
 force through the Dominion Parliament a remedial Bill in 1896 was one 
 of the causes which led to the downfall of the Conservative Ministry. 
 The measure was unpopular with many Protestant supporters of the 
 Government, and, in the face of deliberate obstruction, Parliament came 
 to an end by effluxion of time before its enactment as law. In the 
 following year a compromise was arrived at between the new Liberal 
 Government and the Manitoba Ministry. Under this, religious teaching 
 can be given in the public schools under certain circumstances and under 
 certain conditions by clergymen or Roman Catholic teachers. 
 
 There are excellent chapters on ' The School Question ' and ' The School 
 Settlement ' in Willison's Sir W. Laurier and the Liberal Party, vol. ii, 201-77. 
 
 It is noteworthy that when in 1905 the new Provinces of Saskatchewan
 
 154 THE BRITISH NORTH AMERICA ACT, 1867 
 
 Dissentient Schools exists by law at the Union or is there- 
 after established by the Legislature of the Province, an 
 appeal ^ shall lie to the Governor-General in Council fi'om 
 any act or decision of any Provincial authority affecting 
 any right or privilege of the Protestant or Roman Catholic 
 minority of the Queen's Subjects in relation to Education ; 
 (4) In case any such Provincial law as from time to 
 time seems to the Governor-General in Council requisite 
 for the due execution of the provisions of this Section 
 is not made, or in case any decision of the Governor- 
 General in Council on any appeal under this Section is not 
 duly executed by the proper Provincial authority in that 
 behalf, then and in every such case, and as far only as 
 the circumstances of each case require, the Parliament of 
 Canada may make remedial laws for the due execution 
 of the provisions of this Section, and of any decision of 
 the Governor-General in Council under this Section. 
 
 Uniformity of Lavs in Ontario, Nora >Scotia, and Nev 
 Bruiisicick. 
 
 Legisla- 94. Notwithstanding anything in tliis Act, the Parlia- 
 unrformi- "^^^^ ^^ Canada may make provision for the uniformity of 
 ty of laws all or any of the laws relative to ])roperty and civil 
 
 in three . , . X . ,^ . . L f J 
 
 Provinces, rights m Ontario, Nova Scotia, and New Brunswick, and of 
 the procedure of all or any of the Courts in those three 
 Provinces, and from and after the passing of any Act in 
 that behalf, the power of the Parliament of Canada to make 
 laws in relation to any matter comprised in any such Act 
 
 and Alberti» were set on foot, the Donunion Government sought to secure 
 for denominational schools a position .similar to what they possess in 
 Quebec and Ontario. The proposal was fiercely opposed ; and finally 
 a compromise was arrived at, under which power was given to bodies 
 representing denominational schools to appoint teachers to give religious 
 instruction at proscribed times. 
 
 ' An amendment to this effect to No. 43 subsection i^G) of the Quebec 
 Resolution was moved by Mr. Gait at the Conference in London on 
 December 4th, 186G, and carrie<l. (See Pope's Confcderatinn Documents, 
 1895, p. 112.)
 
 THE BRITISH NORTH AMERICA ACT, 1867 155 
 
 shall, notwithstanding anything in this Act, be unrestricted ; 
 but any Act of the Parliament of Canada making provision 
 for such uniformity shall not have effect in any Province 
 unless and until it is adopted and enacted as law by the 
 Legislature thereof. 
 
 Agriculture and Immigration. 
 
 95. In each Province the Legislature may make laws in Concur- 
 relation to Agriculture in the Province, and to Immigration powers 
 into the Province ; and it is hereby declared that the Parlia- of f egis- 
 
 ' '' lation re- 
 
 ment of Canada may from time to time make laws in specting 
 relation to Agriculture in all or any of the Provinces, and ture, &c, 
 to Immigration into all or any of the Provinces ; and any 
 law of the Legislature of a Province, relative to Agriculture 
 or to Immigration, shall have effect in and for the Province 
 as long and as far only as it is not repugnant to any Act 
 of the Parliament of Canada. 
 
 VII, Judicature. 
 
 96. The Governor-General shall appoint the Judges of Appoint- 
 the Superior, District, and County Courts in each Province, judges. 
 except those of the Courts of Probate in Nova Scotia and 
 
 New Brunswick. 
 
 97. Until the laws relative to property and civil rights Selection 
 in Ontario, Nova Scotia, and New Brunswick, and the pro- i,i onta- 
 cedure of the Courts in those Provinces, are made uniform, ^'^^' ^^•' 
 the Judges of the Courts of those Provinces appointed by 
 
 the Governor-General shall be selected from the respective 
 Bars of those Provinces. 
 
 98. The Judges of the Courts of Quebec shall be selected in Quebec, 
 from the Bar of that Province. 
 
 99. The Judges of the Superior Courts shall hold office Tenure of 
 during good behaviour, but shall be removable by the judges of 
 Governor-General on address of the Senate and House of cou^^s^' 
 Commons. 
 
 100. The salaries, allowances, and pensions of the Salaries, 
 Judges of the Superior, District, and County Courts (except judges.
 
 156 THE BRmSH XORTH AMERICA ACT. 1^«7 
 
 ifeCbaDrts of Bnolatile in Xoxa Seotiai and Xev Brrms^riekl, 
 
 and «f :" ' " '-y Ooiiits in eas^ whei^e :i:r J^sig^es 
 
 Hmeot ^^ ^ai^p«idbys«laflty.shsl- "re 2xe*l 
 
 aoidprL iaoMiilQCCuiada. 
 
 ^isMod 101. ramatda laaj, notnithsfamding 
 
 ^^*^^ -'-- r^ pnyvide for tiie 
 
 &e. :>Qn of ai Gaienl 
 
 •a>«siK^luneiit of 
 jiiof the 
 
 ^ 1 ssns; Itesirs: Assets; Tjlsawox. 
 
 -.-tULjom 103. -^- -idi the respective 
 
 :'"-'*■'"" 1::~^"" " ' '. y-:w Bninswi^ 
 
 by this A^: 
 : - : _ "be ProTineeSs 
 
 '.dpcfwexs 
 
 . i.solid«ted 
 
 r paUic sarvice of 
 
 -Strwes in thk: 
 
 
 am receipt, 
 jr theiean
 
 THE BRITISH NORTH AMERICA ACT, 1867 157 
 
 wick at the Union shall form the second charge on the public 
 Consolidated Revenue Fund of Canada. 
 
 105. Unless altered by the Parliament of Canada,^ the Salary of 
 salary of the Governor-General shall be Ten Thousand GeneraL*^ 
 Pounds sterling money of the United Kingdom of Great 
 Britain and Ireland, payable out of the Consolidated 
 Revenue Fund of Canada, and the .same shall form the 
 
 third charge thereon. 
 
 106. Subject to the several payments by this Act charged Appro- 
 
 /- T-. T- 1 (• /-< 1 1 priation 
 
 on the Consolidated Revenue Fund or Canada, the same from time 
 shall be appropriated by the Parliament of Canada for the ^"^ *"^^' 
 public .service. 
 
 107. AH Stocks, Cash, Bankers' Balances, and Securities Transfer 
 for money belonging to each Province at the time of the ^c. ' 
 Union, except as in this Act mentioned, shall he the 
 property of Canada, and shall be taken in reduction of 
 
 the amount of the respective debts of the Provinces at 
 the Union. 
 
 108. The Public Works and Property of each Province Transfer 
 enumerated in the Third Schedule to this Act shall be the perty^n 
 Property of Canada. Sch^ule. 
 
 109. All Lands, Mines, ISIinerals, and Royalties belonging Property 
 to the several Provinces of Canada, Nova Scotia, and New Mines, &c. 
 Brunswick, at the Union, and all sums then due or payable 
 
 for such Lands, Mines, Minerals, or Royalties, shall belong 
 to the several Provinces of Ontario, Quebec, Nova Scotia, 
 and New Brunswick in which the same are situate or arise, 
 subject to any trusts existing in respect thereof, and to any 
 interest other than that of the Province in the .same.^ 
 
 110. All As.sets connected with such portions of the Assets 
 
 connected 
 ' One of the first measures of the Canadian Parliament was a Bill 
 reducing the salary to £6,500 per annum. But the assent of the Crown 
 was withheld and the proposal not persisted in by Canada. It lost, how- 
 ever, to the Dominion the services of Lord Mayo as Governor-General. 
 
 ' This section gives to each Province the entire beneficial interest of the 
 Crown in all lands within its boundaries, with the exception of such 
 lands as the Dominion acquired rights to under Sees. 108 and 117. 
 (Lord Watson in Attoniey-GeneraJ of Ontario v. Mercer, 8 App. Cas. 767.)
 
 158 THE BRITISH NORTH AMERICA ACT, 1867 
 
 with Pro- 
 vincial 
 debts. 
 
 Canada to 
 be liable 
 to them. 
 
 Debts of 
 Ontario 
 and 
 Quebec. 
 
 Assets of 
 Ontario 
 and 
 Quebec. 
 
 Debt of 
 
 Nova 
 
 Scotia. 
 
 Debt of 
 New 
 Bruns- 
 wick. 
 
 Payment 
 of interest 
 to Nova 
 Scotia and 
 New 
 Bruns- 
 wick. 
 
 Provin- 
 cial public 
 property. 
 
 Grants to 
 Provinces. 
 
 Public Debt of each Province as are assumed by that Pro- 
 vince shall belong to that Province. 
 
 111. Canada shall be liable for the Debts and Liabilities 
 of each Province existing at the Union. 
 
 112. Ontario and Quebec conjointly shall be liable to 
 Canada for the amount (if any) by which the debt of the 
 Province of Canada exceeds at the Union Sixty-two 
 million five hundred thousand dollars, and shall be charged 
 with interest at the rate of five per centum per annum 
 thereon. 
 
 113. The Assets enumerated in the Fourth Schedule 
 to this Act, belonging at the Union to the Province of 
 Canada, shall be the property of Ontario and Quebec 
 conjointly. 
 
 114. Nova Scotia shall be liable to Canada for the 
 amount (if any) by which its public debt exceeds at the 
 Union Eight million dollars, and shall be charged with 
 interest at the rate of five per centum per annum thereon. 
 
 115. New Brunswick shall be liable to Canada for the 
 amount (if any) by which its public debt exceeds at the 
 Union Seven million dollars, and shall be charged with 
 interest at the rate of five per centum per annum thereon. 
 
 116. In case the public debts of Nova Scotia and New 
 Brunswick do not at tlie Union amount to Eight million 
 and Seven million dollars respectively, they shall re- 
 spectively receive, by half-yearly payments in advance 
 from the Government of Canada, interest at five per 
 centum per annum on the difference between the actual 
 amounts of their respective debts and such stipulated 
 amounts. 
 
 117. The several Provinces shall retain all their re- 
 spective public property not otherwise disposed of in this 
 Act, subject to the right of Canada to assume any lands 
 or public property required for l^^ortifications or for the 
 defence of the country. 
 
 118. The following sums shall be paid yearly l»y Canada
 
 THE BRITISH NORTH AMERICA ACT, 1867 159 
 
 to the several Provinces for the support of their Govern- 
 ments and Legislatures: — 
 
 Dollars. 
 
 Ontario Eighty thousand. 
 
 Quebec ..... Seventy thousand. 
 
 Nova Scotia .... Sixty thousand. 
 
 New Brunswick . . . Fifty thousand. 
 
 Two hundred and Sixty thousand ; 
 and an annual grant in aid of each Province shall be made, 
 equal to Eighty cents per head of the population as 
 ascertained by the census of One thousand eight hundred 
 and sixty-one, and in the case of Nova Scotia and New 
 Brunswick, by each subsequent decennial census until the 
 population of each of those two Provinces amounts to Four 
 hundred thousand souls, at which rate such grant shall 
 thereafter remain. Such grants shall be in full settlement 
 of all future demands on Canada, and shall be paid half- 
 yearly in advance to each Province ; but the Government 
 of Canada shall deduct from such grants, as against any 
 Province, all sums chargeable as interest on the public 
 debt of that Province in excess of the several amounts 
 stipulated in this Act.^ 
 
 ^ Nova Scotia was at first much aggrieved at the amount of financial 
 aid received under the British North America Act. As the result of 
 negotiations between Sir John Macdonald and Joseph Howe ' better 
 terms ' for that Province were sanctioned by the Canadian Parliament in 
 their session of 1869. (See Pope's Life of Sir John Macdonald, vol. ii, pp. 32-7 
 and 301-11.) 
 
 Complaints having been afterwards made of the amount of the subsidies 
 granted to the Provincial Governments, an agreement was arrived at by 
 an Interprovince Conference in 1006, which was embodied in the British 
 North America Act, 1907 (7 Edward VII, ch. 11). The new annual sub- 
 sidies which replace those granted under Sec. 118 of the original Act are 
 as follows : — 
 
 (1) A fixed grant according to population. 
 
 When population is under 150,000 . . $100,000 
 
 150,000 but not exceeding 200,000 
 200,000 .. ,. 400,000 
 
 400,000 ,. ,, 800,000 
 
 800,000 ,. ,. 1,500,000 
 
 Over 1,500,000 . . . . 
 
 (2) A grant at the rate of 80 cents per head of the population of the Pro- 
 
 §150,000 
 $180,000 
 $190,000 
 $220,000 
 $240,000
 
 160 THE BRITISH NORTH AMERICA ACT, 1867 
 
 Further 119. New Brunswick shall receive, by half-yearly pay- 
 Ifg^ ments in advance from Canada, for the period of ten years 
 
 Bruns- from the Union, an additional allowance of Sixty-three 
 
 wick. 
 
 thousand dollars per annum ; but as long as the public 
 debt of that Province remains under Seven million dollars, 
 a deduction equal to the interest at five per centum per 
 annum on such deficiency shall be made from that allow- 
 ance of Sixty-three thousand dollars. 
 Form of 120. All Paj'^ments to be made under this Act, or in dis- 
 ' charge of liabilities created under any Act of the Provinces 
 of Canada, Nova Scotia, and New Brunswick respectively, 
 and assumed by Canada, shall, until the Parliament of 
 Canada otherwise directs, be made in such form and manner 
 as may from time to time be ordered by the Governor- 
 General in Council. 
 Canadian 121. All articles of the growth, produce, or manufacture 
 tures &c. of ^^Y o^iG of the Provinces shall, from and after the Union, 
 
 be admitted free into each of the other Provinces. 
 Customs 122. The Customs and Excise Laws of each Province 
 Laws. shall, subject to the provisions of this Act, continue in force 
 
 until altered by the Parliament of Canada. 
 Exporta- 123. Where Customs Duties are, at the Union, leviable on 
 
 tion and -, , ■,. . i -n - 
 
 importa- ^^7 goods, wares, or merchandises in any two Provinces, 
 
 tion as be- ^jjQgg p;oods. wares, and merchandises may, from and after 
 tween two & - ^ ./ ' 
 
 Provinces, the Union, be imported from one of those Provinces into 
 the other of them, on proof of payment of the Customs 
 Duty leviable thereon in the Province of exportation, and 
 on payment of such further amount (if any) of Customs 
 Duty as is leviable thereon in the Province of importation. 
 Lumher 124. Nothing in this Act shall affect the right of New 
 New Brunswick to levy the lumber dues^ provided in Chapter 
 
 iiruns- vinces up to 2,.')00,000 and at the rate of 60 cents per licad of so much of the 
 
 WICK. I 7 » * 
 
 population as exceeds that number. 
 
 (3) An additional grant of $100,000 given to the Province of British 
 Columbia for a period of ten years. 
 
 * Under Article XXXI of the Treaty of Washington of 1871 these lumber 
 dues were abolished ; but New Brunswick received compensation from 
 the Dominion for their abolition.
 
 THE BRITISH NORTH AMERICA ACT, 1867 161 
 
 Fifteen of Title Three of the Revised Statutes of New 
 Brunswick, or in any Act amending that Act before or after 
 the Union, and not increasing the amount of such dues ; 
 but the lumber of any of the Provinces other than New 
 Brunswick shall not be subject to such dues. 
 
 125. No Lands or Property belonging to Canada or any Exemp- 
 
 tion of 
 Province shall be liable to taxation. Public 
 
 126. Such portions of the Duties and Revenues over p^^^j*^^ 
 which the respective Legislatures of Canada, Nova Scotia, ciai Con- 
 
 • 1 1 T 1 p 1 TT • J? solidated 
 
 and New Brunswick had before the Union power ot ap- Revenue 
 propriation, as are by this Act reserved to the respective '^^ ' 
 Governments or Legislatures of the Provinces, and all 
 Duties and Revenues raised by them in accordance with 
 the special powers conferred upon them by this Act, shall 
 in each Province form one Consolidated Revenue Fund to 
 be appropriated for the Public Service of the Province. 
 
 IX. Miscellaneous Provisions. 
 General. 
 
 127. If any person being at the passing of this Act, As to 
 
 a Member of the Legislative Council of Canada, Nova tive Coun- 
 Scotia, or New Brunswick, to whom a place in the Senate ^^^^K^ ^^ 
 
 ' ' ^ Province 
 
 is offered, does not within thirty days thereafter, by becoming 
 
 Senators, 
 writing under his hand, addressed to the Governor- 
 General of the Province of Canada or to the Lieutenant- 
 Governor of Nova Scotia or New Brunswick (as the case 
 may be), accept the same, he shall be deemed to have 
 declined the same ; and any person who, being at the pass- 
 ing of this Act a Member of the Legislative Council of 
 Nova Scotia or New Brunswick, accepts a place in the 
 Senate, shall thereby vacate his Seat in such Legislative 
 Council. 
 
 128. Every Member of the Senate or House of Commons Oath of 
 of Canada shall, before taking his Seat therein, take and ance^fec. 
 subscribe before the Governor-General or some person 
 authorized by him, and every Member of a Legislative 
 
 1265 L
 
 162 THE BRITISH NORTH AMERICA ACT, 1867 
 
 Continu- 
 ance of 
 existing 
 Laws, 
 Courts, 
 Officers, 
 &c. 
 
 Transfer 
 of Officers 
 to Canada, 
 
 Appoint- 
 ment 
 of now 
 Officers. 
 
 Council or Legislative Assembly of any Province shall, 
 before taking his Seat therein, take and subscribe before 
 the Lieutenant-Governor of the Province, or some person 
 authorized by him, the Oath of Allegiance contained in the 
 Fifth Schedule to this Act ; and every Member of the 
 Senate of Canada and every Member of the Legislative 
 Council of Quebec shall also, before taking his Seat therein, 
 take and subscribe before the Governor-General, or some 
 person authorized by him, the Declaration of Qualification 
 contained in the same Schedule. 
 
 129. Except as otherwise provided by this Act, all Laws 
 in force in Canada, Nova Scotia, or New Brunswick at the 
 Union, and all Courts of Civil and Criminal Jurisdiction, 
 and all legal Commissions, Powers, and Authorities, and 
 all Officers, Judicial, Administrative, and Ministerial, exist- 
 ing therein at the Union, shall continue, in Ontario, Quebec, 
 Nova Scotia, and New Brunswick respectively, as if the 
 Union had not been made ; subject nevertheless (except 
 with respect to such as are enacted by or exist under Acts 
 of the Parliament of Great Britain or of the Parliament of 
 the United Kingdom of Great Britain and Ireland) to be 
 repealed, abolished, or altered by the Parliament of Canada, 
 or by the Legislature of the respective Province, according 
 to the authority of the Parliament or of that Legislature 
 under this Act. 
 
 130. Until the Parliament of Canada otherwise provides, 
 all Officers of the several Provinces having duties to dis- 
 charge in relation to matters otlier than those comint; within 
 the classes of subjects by this Act assigned exclusively to 
 the Legislatures of the Provinces shall be Officers of Canada, 
 and shall continue to discharge the duties of their respec- 
 tive offices under the same liabilities, responsibilities, and 
 penalties as if the Union had not been made. 
 
 131. Until the Parliament of Canada otherwise provides, 
 the Governor-General in Council may from time to time 
 appoint such Officers as the Governor-General in Council
 
 THE BRITISH NORTH AMERICA ACT, 1867 163 
 
 deems necessary or proper for the effectual execution of 
 this Act. 
 
 132. The Parliament and Government of Canada shall Treaty 
 have all powers necessary or proper for performing the tions. 
 obligations of Canada or of any Province thereof, as part 
 
 of the British Empire, towards Foreign Countries, arising 
 under Treaties between the Empire and such Foreign 
 Countries. 
 
 133. Either the English or the French language may be Use of 
 used by any person in the debates of the Houses of the and 
 Parliament of Canada and of the Houses of the Legislature i^^guaees. 
 of Quebec ; and both those languages shall be used in the 
 respective Records and Journals of those Houses ; ' and either 
 
 of those languages may be used by any person or in any 
 pleading or process in or issuing from any Court of Canada 
 established under this Act, and in or from all or any of the 
 Courts of Quebec. 
 
 The Acts of the Parliament of Canada and of the Legis- 
 lature of Quebec shall be printed and published in both 
 those languages. 
 
 Ontario and Quebec. 
 
 134. Until the Legislature of Ontario or of Quebec Appoiut- 
 otherwise provides^ the Lieutenant-Governors of Ontario Executive 
 and Quebec may each appoint, under the Great Seal of the ontTrTo*^' 
 Province, the following Officers, to hold office during and 
 pleasure, tliat is to say, — the Attorney-General, the Secre- 
 tary and Registrar of the Province, the Treasurer of the 
 Province, the Commissioner of Crown Lands, and the 
 Commissioner of Agriculture and Public Works, and in 
 
 the case of Quebec the Solicitor- General ; and may, by 
 order of the Lieutenant-Governor in Council, from time 
 to time prescribe the duties of those Officers, and of 
 the several Departments over which they shall preside 
 
 ^ Unless the practice of the Union Parliament had been continued the 
 French-Canadians would never have agreed to Confederation. 
 
 L 2
 
 164 THE BRITISH NORTH AMERICA ACT, 1867 
 
 Powers, 
 duties, 
 &c., of 
 
 or to which they shall belong, and of the Officers 
 and Clerks thereof ; and may also appoint other and 
 additional Officers to hold office during pleasure, and 
 may from time to time prescribe the duties of those 
 Officers, and of the several Departments over which they 
 shall preside or to which they shall belong, and of the 
 Officers and Clerks thereof. 
 
 135. Until the Legislature of Ontario or Quebec other- 
 wise provides, all rights, powers, duties, functions, re- 
 
 Officers 
 
 ortw*/^^ sponsibilities, or authorities at the passing of this Act 
 vested in or imposed on the Attorney-General, Solicitor- 
 General, Secretary and Registrar of the Province of Canada, 
 Minister of Finance, Commissioner of Crown Lands, Com- 
 missioner of Public Works, and Minister of Agriculture 
 and Receiver-General, by any Law, Statute, or Ordinance 
 of Upper Canada, Lower Canada, or Canada, and not re- 
 pugnant to this Act, shall be vested in or imposed on any 
 Officer to be appointed by the Lieutenant-Governor for the 
 discharge of the same or any of them; and the Commis- 
 sioner of Agriculture and Public Works shall perform the 
 duties and functions of the office of Minister of Agri- 
 culture at the passing of this Act imposed by the law of 
 tlie Province of Canada^ as well as those of the Commis- 
 sioner of Public Works. 
 
 136. Until altered by the Lieutenant-Governor in 
 Council, the Great Seals of Ontario and Quebec re- 
 spectively shall be the same, or of the same design, as 
 those used in the Provinces of Upper Canada and Lower 
 Canada respectively before their Union as the Province of 
 Canada. 
 Construe- 137. The words ' and from thence to the end of the 
 temporary then next cnsuing Session of the Legislature ', or words to 
 ^''^^' the same effect used in any temporary Act of the Province 
 of Canada not expired before the Union, shall be construed 
 to extend and apply to the next Session of the Parliament 
 of Canada, if the sul»)ect-matter of tlie Act is within tlic 
 
 Oreat 
 
 Seals.
 
 THE BRITISH NORTH AMERICA ACT, 1867 165 
 
 powers of the same as defined by this Act, or to the next 
 Sessions of the Legislatures of Ontario and Quebec respec- 
 tively, if the subject-matter of the Act is within the powers 
 of the same as defined by this Act. 
 
 138. From and after the Union the use of the words As to 
 
 ' Upper Canada ' instead of ' Ontario ', or ' Lower Canada ' names, 
 instead of ' Quebec ', in any Deed, Writ, Process, Pleading, 
 Document, Matter, or Thing shall not invalidate the 
 same. 
 
 139. Any Proclamation under the Great Seal of the As to 
 Province of Canada, issued before the Union, to take effect Proclama- 
 at a time which is subsequent to the Union, whether foreUnion 
 relating to that Province, or to Upper Canada, or to Lower **^ ^'om- 
 
 ° '- '■ ^ mence af- 
 
 Canada, and the several matters and things therein pro- ter Union, 
 claimed, shall be and continue of like force and eflfect as if 
 the Union had not been made. 
 
 140. Any Proclamation which is authorized by any Act As to issue 
 of the Legislature of the Province of Canada to be issued mations ' 
 under the Great Seal of the Province of Canada, ^^^^.^ 
 
 Union. 
 
 whether relating to that Province, or to Upper Canada, or 
 to Lower Canada, and which is not issued before the 
 Union, may be issued by the Lieutenant-Governor of 
 Ontario or of Quebec, as its subject-matter requires, under 
 the Great Seal thereof ; and from and after the issue of 
 such Proclamation the same and the several matters and 
 things therein proclaimed shall be and continue of the 
 like force and effect in Ontario or Quebec as if the Union 
 had not been made. 
 
 141. The Penitentiary of the Province of Canada shall, Peniten- 
 until the Parliament of Canada otherwise provides, be and ^ ^" 
 continue the Penitentiary of Ontario and of Quebec. 
 
 142. The division and adjustment of the Debts, Credits, Arbitra- 
 Liabilities, Properties, and Assets of Upper Canada and gpectin'g 
 Lower Canada shall be referred to the arbitrament of ^^^^^' ^^• 
 three arbitrators, one chosen by the Government of 
 Ontario, one by the Government of Quebec, and one by
 
 166 THE BRITISH NORTH AMERICA ACT, 1867 
 
 the Government of Canada ; and the selection of the 
 
 arbitrators shall not be made until the Parliament of 
 
 Canada and the Legislatures of Ontario and Quebec have 
 
 met ; and the arbitrator chosen by the Government of 
 
 Canada shall not be a resident either in Ontario or in 
 
 Quebec. 
 
 Division 143. The Govemor-General in Council may from time 
 
 ' ' to time order that such and so many of the records, 
 
 books, and documents of the Province of Canada as he 
 
 thinks fit shall be appropriated and delivered either to 
 
 Ontario or to Quebec, and the same shall thenceforth be 
 
 the property of that Province ; and any copy thereof or 
 
 extract therefrom, duly certified by the Officer having 
 
 charge of the original thereof, shall be admitted as 
 
 evidence. 
 
 Constitu- 144. The Lieutenant-Governor of Quebec may from 
 
 Town-^ time to time, by Proclamation under the Great Seal of 
 
 ships in the Province, to take effect from a day to be appointed 
 
 Quebec. . p , t^ • 
 
 therein, constitute Townships in those parts or the Province 
 of Quebec in which Townships are not then already con- 
 stituted, and fix the metes and bounds thereof. 
 
 X. Intercolonial Railway. 
 Duty of 145. Inasmuch as the Provinces of Canada, Nova Scotia, 
 menTand ^^^^ ^^^ Brunswick havc joined in a declaration that the 
 Parlia- construction of the Intercolonial Railway is essential to 
 Canada the consolidation of the Union of British North America, 
 railway^ ^^^^^ ^^ ^^^^ assent thereto of Nova Scotia and New Bruns- 
 hcrein ^ick, and have consequently agreed that provision should 
 be made for its immediate construction by the Government 
 of Canada : Therefore, in order to give efiect to that 
 agreement, it shall be the duty of the Government and 
 Parliament of Canada to provide for the commencement, 
 within Six montlis after the Union, of a Railway con- 
 necting the River St. Lawrence with the City of Halifax 
 in Nova Scotia, and for the construction thereof without
 
 THE BRITISH NORTH AMERICA ACT, 1867 167 
 
 intermission, and the completion thereof with all prac- 
 ticable speed. ^ 
 
 XI. Admission op other Colonies. 
 
 146. It shall be lawful for the Queen, by and with the Power to 
 advice of Her Majesty's Most Honourable Privy Council, jj^q^J. 
 on Addresses from the Houses of the Parliament of Canada, f'^""*^: 
 
 land, &c,, 
 
 and from the Houses of the respective Legislatures of the into the 
 Colonies or Provinces of Newfoundland, Prince Edward 
 Island, and British Columbia, to admit those Colonies or 
 Provinces, or any of them, into the Union, and on Address 
 from the Houses of the Parliament of Canada to admit 
 Rupert's Land and the North-Western Territory, or either 
 of them, into the Union, on such terms and conditions 
 in each case as are in the Addresses expressed and as the 
 Queen thinks fit to approve, subject to the provisions of 
 this Act ; and the provisions of any Order in Council in 
 that behalf shall have effect as if they had been enacted 
 by the Parliament of the United Kingdom of Great 
 Britain and Ireland.^ 
 
 147. In case of the admission of Newfoundland and As to re- 
 
 Prince Edward Island or either of them, each shall be tion of 
 
 entitled to a representation, in the Senate of Canada, of foundland 
 
 Four Members, and (notwithstanding anything in this and Prince 
 
 Act) in case of the admission of Newfoundland the Island in 
 
 Senate. 
 ^ On the Intercolonial Railway, see Tlie Intercolonial Railway, by 
 
 Sandford Fleming, 1876. Before the making of this railway the journey 
 from Halifax to Montreal was by boat to Portland in the United States 
 and thence by rail to Montreal. 
 
 ' Prince Edward Island was admitted into the Union by Order-in- 
 Council dated June 26, 1873. 
 
 British Columbia was admitted into the Union by Order-in-Council 
 dated May 16, 1871. 
 
 Rupert's Land and the North-West Territory were admitted into the 
 Union by Order-in-Council dated June 23, 1870. 
 
 A British Act of 1871 (34 & 35 Vic. ch. 28) made clear the right 
 of the Parliament of Canada to establish Provinces in new Territories 
 forming part of the Dominion, and a subsequent Act of 1886 (49 & 
 50 Vict. ch. 35) gave that Parliament power to provide representation 
 in the Senate and House of Commons for Ten-itories not yet included in 
 any Province.
 
 168 THE BRITISH NORTH AMERICA ACT, 1867 
 
 normal number of Senators shall be Seventy-six and 
 their maximum number shall be Eighty-two ; but Prince 
 Edward Island when admitted shall be deemed to be 
 comprised in the third of the Three Divisions into which 
 Canada is, in relation to the constitution of the Senate, 
 divided by this Act, and accordingly, after the admission 
 of Prince Edward Island, whether Newfoundland is ad- 
 mitted or not, the representation of Nova Scotia and 
 New Brunswick in the Senate shall, as vacancies occur, 
 be reduced from Twelve to Ten Members respectively, and 
 the representation of each of those Provinces shall not be 
 increased at any time beyond Ten, except under the 
 provisions of this Act, for the appointment of Three or 
 Six additional Senators under the direction of the Queen. 
 
 Note. — It has not been thought necessary for the purpose of this vohime 
 to reprint the schedules to the British North America Act.
 
 REPORT OF COMMITTEE 
 
 FOR TRADE AND PLANTATIONS OF PRIVY COUNCIL ' ON 
 
 PROPOSED AUSTRALIAN CONSTITUTION. 
 
 Dated May 1, 1849. 
 
 [The text is as given in Lord Grey's 7'he Colonial Policy of Lord John 
 RusselVs Administration, 1853, aoI. i, Appendix I, pp. 422-56. It will also 
 be found in Pari. Papers, 1849, vol. xxxv.] 
 
 After remarking upon the contrast between the practice 
 observed in the nineteenth century and the practice observed 
 in earlier times respecting the establishment of systems of 
 Civil Government in the Colonies, and pointing out the more 
 liberal character of the former system, the Report pro- 
 ceeds : — 
 
 '• But in sanctioning that departure from the general type 
 or model of the earlier colonial Constitutions, it has been the 
 practice of Parliament to recognize the ancient principle, and 
 to record the purpose of resuming the former constitutional 
 practice so soon as the causes should have ceased to operate, 
 which in each particular case had forbidden the immediate 
 observance of it. Nor has the pledge thus repeatedly given 
 been forgotten. It has been redeemed in New South Wales, 
 except so far as relates to the combination which has taken 
 place there of the Council and Assembly into one Legislative 
 House or Chamber. It has been redeemed with regard to 
 New Zealand, although peculiar circumstances have required 
 a temporary postponement of the operation in that Colony 
 of the Act passed by Parliament for establishing in it a 
 Representative Legislature.^ 
 
 We are of opinion that the time has not yet arrived for con- 
 ferring the franchise on the Colonists of Western Australia, 
 because they are unable to fulfil the condition on which 
 alone, it appears to us, such a grant ought to be made ; the 
 
 ' Tho Committee consisted of Mr. Labouchere, the President of the 
 Board of Trade, Lord Campbell, Sir James Stephen, who had recently 
 resigned the office of Permanent Under-Secretary at the Colonial Office, 
 and Sir Edward Ryan, a retired Indian judge. 
 
 ^ On this see chap, ix of G. C. Henderson's Life of Sir George Grey, 1907.
 
 170 REPORT OF COMMITTEE ON PROPOSED 
 
 condition, that is, of sustaining the expense of their own Civil 
 Government, by means of the local revenue, which would be 
 placed under the direction and control of their representa- 
 tives. Whenever the Settlers in Western Australia shall be 
 willing and able to perform this condition, they ought, we 
 apprehend, to be admitted to the full enjoyment of the 
 corresponding franchises, but not till then.^ 
 
 The Colonies of South Australia and Van Diemen's Land, 
 being on the other hand at once willing and able to provide 
 by local resources for the public expenditure of each, or at 
 least for so much of that expenditure as is incurred with a 
 view to colonial and local objects, the time has in our judge- 
 ment arrived when Parliament may properly be recom- 
 mended to institute in each of these Colonies a legislature, 
 in which the representatives of the people at large shall 
 enjoy and exercise their constitutional authority. 
 
 In submitting to Your Majesty this advice, we are only 
 repeating an opinion so familiar and so generally adopted 
 by all persons conversant with the Government of the 
 British Colonies, that it would seem superfluous to support it 
 by argument or explanation. The introduction of this con- 
 stitutional principle into every dependency of the British 
 Crown is a general rule sanctioned bj^ a common and clear 
 assent. The exception to that rule arises only when it can 
 be shown that the observance of it will induce evils still 
 more considerable than those which it would obviate and 
 correct. We are aware of no reason for apprehending that 
 such a preponderance of evil would follow on the introduc- 
 tion of such a change in South Australia and Van Diemen's 
 Land. The contrary anticipation appears to be entertained 
 by all those who possess the l)eHt means and the greatest 
 powers of foreseeing the probable results of such a measure. 
 We therefore recommend that, during the present session of 
 Parliament, a Bill shall be introduced for securing to the 
 
 ' It was not till 1S70 tliat tlif Legislative Council of Western Australia 
 consisted, with regard to two-thirds of it, of elected members.
 
 AUSTRALIAN CONSTITUTION, 1849 171 
 
 representatives of the people of South Australia and Van 
 Diemen's Land respectively, their due share in the legisla- 
 tion of each of those Colonies. 
 
 We apprehend however that it would be found highly in- 
 convenient to consider the question as it regards those two 
 settlements, without at the same time adverting to the 
 effects with which such a change in them must be followed 
 in the whole range of the Australian Colonies. 
 
 New Holland is at present divided between the three 
 Governments of New South Wales, South Australia, and 
 Western Australia. The most cursory inspection of the 
 maps and charts of those regions will sufficiently show, that 
 as they shall become more populous and more extensively 
 settled, it will be necessary to divide them into a greater 
 number of distinct Colonies. But, confining our immediate 
 attention to the case of New South Wales, we observe that 
 the cities of Sydney and of Melbourne, lying at a great 
 distance from each other, form the respective capitals of 
 districts of great extent, separated from each other by 
 diversities of climate and by some corresponding differences 
 in their natural resources, and in the agricultural and com- 
 mercial pursuits followed in each of them. The inhabitants 
 of the southern districts have long and earnestly solicited 
 that Melbourne should be made the seat and centre of a 
 Colonial Government separated from that of Sydney ; and 
 so decided has this wish become of late, that on the recent 
 general election of members of the Legislature of New 
 South Wales collectively, the inhabitants of the southern 
 district have virtually and in effect refused to make any 
 such choice.^ The reluctance which was at first so naturally 
 entertained at Sydney to the proposed innovation, appears 
 to have gradually but effectually yielded to the progress of 
 knowledge and reasoning on the subject. The Governor 
 and the Executive Council, the existing Legislature, and, as 
 we believe, the great body of the Colonists, now favour the 
 1 They elected Lord Grey as their representative.
 
 172 REPORT OF COMMITTEE ON PROPOSED 
 
 contemplated division of their extensive territory into a 
 northern and a southern Colony. 
 
 Xor is it surprising that such should have been the ulti- 
 mate conclusion of such a debate. The inhabitants of 
 countries recently and imperfectly settled are exposed to 
 few greater social evils than that of the remoteness of the seat 
 of Government from large bodies of the settlers. The effect 
 is virtually to disfranchise a large proportion, if not a 
 majority of the Colonists, by excluding them from any share 
 in the management of public affairs, and in the inspection 
 and control of the conduct of their rulers. In such circum- 
 stances the inconveniences of the centralisation of all the 
 powers of Government are experienced in their utmost force. 
 The population of the districts most distant from the metro- 
 polis are compelled to entrust the representation of their 
 persons and the care of their local interests to settled 
 residents at that metropolis, who possess but a very slight 
 knowledge of their constituents and a faint sympathy with 
 their peculiar pursuits and wants. 
 
 We propose therefore that Parliament should be recom- 
 mended to authorise the division of the existing Colony of 
 New South Wales into a northern and a southern Province. 
 Sydney would be the capital of the northern division, which 
 would retain the present name of New South Wales. Mel- 
 bourne would be the capital of the southern division, on 
 which we would humbly advise that Your Majesty should 
 be graciously pleased to confer the name of Victoria . . . 
 
 The line of demarcation between New South Wales and 
 Victoria would coincide with the existing boundary between 
 the two districts into which for certain purposes the Colony 
 is already divided. It would commence at Cape How, pursue 
 a straight line to the nearest source of the river Murray, and 
 follow the course of that river as far as the boundary whicli 
 now divides New South Wales from South Australia. 
 
 In each of the two proposed provinces of New South 
 Wales and Victoria we apprehend that provision ought now
 
 AUSTRALIAN CONSTITUTION, 1849 173 
 
 to be made by Parliament for creating a Legislature, in 
 which the representatives of the people should exercise their 
 Constitutional authority and influence. We do not advise 
 that resort should be had for these purposes to the ancient 
 and unaided prerogatives of Your Majesty's Crown, because 
 it is not competent to Your Majesty, in the exercise of that 
 prerogative, to supersede the Constitutions ^ which Parlia- 
 ment has already established in the Australian Colonies. 
 Parliamentary intervention is therefore indispensable. 
 
 If we were approaching the present question under cir- 
 cumstances which left to us the unfettered exercise of our 
 own judgement as to the nature of the Legislature to be 
 established in New South Wales, Victoria, South Australia, 
 and Van Diemen's Land, we should advise that Parliament 
 should be moved to recur to the ancient constitutional 
 usage by establishing in each a Governor, a Council, and an 
 Assembly. For we think it desirable that the political 
 institutions of the British Colonies should thus be brought 
 into the nearest possible analogy to the Constitution of the 
 United Kingdom. We also think it wise to adhere as 
 closely as possible to our ancient maxims of government on 
 this subject, and to the precedents in which those maxims 
 have been embodied. The experience of centuries has 
 ascertained the value and the practical efficiency of that 
 system of Colonial polity to which those maxims and prece- 
 dents afford their sanction.'^ In the absence of some very 
 clear and urgentreasonforbreakingupthe ancient uniformity 
 of design in the Government of the Colonial dependencies 
 of the Crown, it would seem unwise to depart from that 
 uniformity. And further, the whole body of constitutional 
 
 1 The rules with regard to settled Colonies and Colonies obtained by 
 cession or conquest were different, but in any case nothing but an Act of 
 Parliament can alter an Act of Parliament, and once a legislature is 
 established in a Colony, the position of the Crown is the same as its posi- 
 tion in the United Kingdom. (See Jenkyns' British Ride and Jurisdiction 
 beyond the Sea, p. 7.) 
 
 ^ It would be interesting to know on what data the committee drew this 
 optimist conclusion as to the constitutional past of the British Colonies.
 
 174 REPORT OF COMMITTEE ON PROPOSED 
 
 law, which determines the rights and duties of the difierent 
 branches of the ancient Colonial Governments, having, with 
 the lapse of time, been gradually ascertained and firmly 
 established, we must regret any innovation which tends to 
 deprive the Australian Colonies of the great advantage of 
 possessing such a code so defined and so maturely con- 
 sidered. 
 
 But great as is the weight that we attach to these con- 
 siderations, the circumstances under which we actually 
 approach the question are such as to constrain us, however 
 reluctantly, to adopt the opinion that the proposed Act of 
 Parliament should provide for the establishment in each of 
 the four Australian Colonies of a single House of Legislature 
 only ; one-third of the members of which should be nomin- 
 ated by Your Majesty and the remaining two-thirds elected 
 by the Colonists . . . We recommend therefore that the 
 proposed Act of Parliament should provide for convoking in 
 each of the four Colonies a Legislature comprising two 
 estates only, that is, a Governor and a single House, com- 
 posed of nominees of the Crown and of the representatives 
 of the people jointly. We also think that in South Australia 
 and Van Diemen's Land, as in New South Wales and 
 Victoria, the Legislatures now to be established ought to 
 have the power of amending their own Constitutions/ by 
 resolving either of these single Houses of Legislature into 
 two Houses. Whatever the result may be in either of the 
 four Colonies, Your Majesty will thus at least have the satis- 
 faction of knowing that free scope has been given for the 
 influence of public opinion in them all ; and that this con- 
 stitutional question has been finally adjusted in each, in 
 accordance with that opinion. 
 
 For the same reason we think it desirable that the 
 Legislatures now to be created should be entrusted with 
 the power of making any other amendments in their own 
 Constitutions which time and experience may show to be 
 
 ' See on this powt r Jciikyns' op. cit,, pp. 72 5.
 
 AUSTRALIAN CONSTITUTION, 1849 175 
 
 requisite.^ We are aware of no sufficient cause for with- 
 holding this power, and we believe that the want of it in 
 the other British Colonies has often been productive of 
 serious inconvenience. On the other hand, we do not think 
 it right that a subordinate Legislature should have the 
 power of enlarging or altering any of the constitutional 
 franchises conferred on it by Parliament, without either the 
 express or the implied assent of the Queen, Lords and Com- 
 mons of the United Kingdom. We should object to such 
 an unrestrained permission, not for technical or legal 
 reasons merely, but on broad and substantial grounds. 
 Changes in the Constitution of any Colony may be produc- 
 tive of consequences extending far beyond the limits of the 
 place itself. They may affect the interests of other British 
 settlements adjacent or remote. They may be injurious to 
 the less powerful classes of the local society. They may 
 be prejudicial to Your Majesty's subjects in this country, or 
 they may invade the rights of Your Majesty's Crown. We 
 think therefore that no Act of any Australian Legislature 
 which shall in any manner enlarge, retrench or alter the 
 Constitution of that Legislature or its rights or privileges, 
 or which shall be in any respect at variance with the Act 
 of Parliament or other instruments under which the Legis- 
 lature is constituted, ought to be of any validity until it 
 had been expressly confirmed and finally enacted by Your 
 Majesty in Council. And we are further of opinion that it 
 should not be lawful to make any Order in Council so con- 
 firming any such Act until it had been laid before each 
 House of Parliament for at least thirty days. 
 
 We should think it prudent, if we thought it practicable, 
 to confine the proposed Act to those provisions which are 
 necessary for constituting Legislatures in the four Colonies 
 
 ^ Mr. Coulson, the parliamentary draftsman of the Australian Govern- 
 ments Act of 1850, said that ' the Bill in effect proposed one resolution, 
 viz. that it was expedient to leave the form of their institutions to be 
 dealt with by the Colonial Legishitures.' (Pari. Pap. 1850.)
 
 176 REPORT OF COMMITTEE ON PROPOSED 
 
 in question, and for enabling those Legislatures to perform 
 the duties to which they will be called. For we contem- 
 plate with great reluctance any departure from the general 
 princij)le which leaves to the local Legislature of every 
 Colony the creation of other local institutions, and the 
 enactment of any laws which are to have their operation 
 within the local limits of the Colony." 
 
 This course, however, appeared impossible, mainly be- 
 cause of the existence, however shadowy, of the District 
 Councils, which it seemed wrong to abolish, and which 
 might be made less unpopular if they did not involve a 
 local rate. The Report proposed to hand over the terri- 
 torial revenue which was received by the Treasury for the 
 public service of the respective Colonies to these District 
 Councils, 
 
 " Passing to the subject of a Civil List, we have to observe 
 that the very large proportion of the revenue of New 
 South Wales, at present withdrawn from the control of the 
 Legislature by the permanent appropriation of Parliament, 
 has been a continual subject of complaint and remonstrance 
 in the Colony since the passing of the Constitution Act 
 of 1842 ; and we cannot conceal our opinion that these 
 complaints are not without some foundation. It appears 
 to us hardly consistent with the full adoption of the prin- 
 ciples of Representative Government that as to a large part 
 of the public expenditure of the Colon}^ the Legislature 
 should be deprived of all authority ; nor does there appear 
 to us to be any real occasion for imposing a restriction 
 upon the powers of that body which manifests so much 
 jealousy as to the manner in which those powers may be 
 exercised. The expenditure thus provided for is all in- 
 curred for services in which the Colonists alone are inter- 
 ested. The Colonists themselves are mainly concerned in 
 the proper and efficient performance of those services ; and 
 it appears to us that they ought to possess, through their 
 representatives, the power of making such changes from 
 time to time in the public establishments as circumstances
 
 AUSTRALIAN CONSTITUTION, 1849 177 
 
 may require. But while we are of opinion that there is no 
 sufficient reason for refusing to the Legislatures of the 
 Colonies a control over the whole of their expenditure, we 
 also think that great inconvenience and very serious evils 
 might be expected to arise from leaving the whole of the 
 public establishments to be provided for by annual vote.^ In 
 this country Your Majesty's Civil List is settled upon Your 
 Majesty for life, and, in addition to this, Parliament has 
 thought fit to provide, by a permanent charge on the Con- 
 solidated Fund for a very considerable part of the estab- 
 lishments kept up for the public service, including the 
 whole of those of a judicial character, leaving to be de- 
 frayed by annual votes those charges only which have been 
 regarded as requiring the more frequent revision of the 
 Legislature. The reasons which have induced the British 
 Parliament in this manner to withdraw various heads of 
 expenditure from annual discussion, and to make provision 
 for them in a manner which can only be altered by an Act of 
 the whole Legislature, apply, as we apprehend, with much 
 increased force in favour of adopting a similar policy in 
 the Colonies. It is not to be denied that in these smaller 
 societies party spirit is apt to run still higher than amongst 
 ourselves, and that ([uestions respecting the remuneration 
 of public servants are occasionally discussed, rather with 
 reference to personal feelings than to a calm consideration 
 of the real interest of the connnunity. We believe also, 
 that true economy is promoted by giving to those who are 
 employed in the public service some reasonable assurance 
 for the permanence of their official incomes. It is thus 
 only that efficient service can be secured in return for 
 a moderate remuneration. With these views the arrange- 
 ment which we should recommend is that Parliament 
 should, in the first instance, charge upon the revenues of 
 
 ^ Much of the friction under the old colonial system had been brought 
 about by the refusal of the Colonial Assemblies to vote a permanent Civil 
 List. (,See Greene, o^j. cit., and Documents reluting fo Colonial History of Neio 
 York, passim.) 
 
 1265 M
 
 178 REPORT OF COMMITTEE ON PROPOSED 
 
 the several Colonies an amount sufficient to defray the 
 expenses of those services which it would be inexpedient to 
 leave to be provided for by annual votes of the respective 
 Legislatures, leaving, however to those Legislatures full 
 poM'Cr to alter this appropriation by laws to be passed in 
 the usual form. It would remain for Your Majesty to deter- 
 mine what instructions should be given to the Governors of 
 these Colonies, as to their assenting on behalf of the Crown 
 to any laws which might be tendered to them by the 
 Legislatures for repealing or altering any of the charges 
 created by Parliament on the revenues of the respective 
 Colonies.^ We conceive that it might be advisable by such 
 instructions to restrain the Governors from assenting to Acts 
 making any alterations in the salaries of their own offices, 
 or of those of the Judges, and some others of the public 
 servants, unless these Acts contained clauses suspending their 
 operation until they should be confirmed by Your Majesty's 
 immediate authority. It appears to us that this course 
 ought to be adopted, because we consider that the salaries 
 of the principal officers of the Colonial Governments ought 
 not to be changed without Your Majesty's direct concur- 
 rence; and because the present holders of some of the 
 offices of lower rank have received their appointments 
 under circumstances which give them a strong claim to the 
 protection which would be thus afforded them. . . . We 
 doubt not that such claims would be respected by the local 
 Legislatures, whatever reductions they might see fit to make 
 in other cases ; but we think that Your Majesty ought to 
 secure them even from the risk of a hasty and ill-con- 
 sidered decision to their prejudice, occasioned by some 
 temporary excitement ; subject to these qualifications, we 
 are of opinion that complete control over the Colonial 
 expenditure ought to l)c given to the respective Legis- 
 latures. 
 
 • A pormancnt Civil List was secured under the Acts of 1856-1856, 
 under nliicli responsible government was introduced.
 
 AUSTRALIAN CONSTITUTION, 1849 179 
 
 There yet remains a question of considerable difficulty. 
 By far the larger part of the revenue of the Australian 
 Colonies is derived from duties on customs. But if, when 
 Victoria shall have been separated from New South Wales, 
 each province shall be authorised to impose duties ac- 
 cording to its own wants, it is scarcely possible but that 
 in process of time differences should arise between the rates 
 of duty imposed upon the same articles in the one and in 
 the other of them.^ There is already such a difference in 
 the tariffs of South Australia and New South Wales ; and 
 although, until of late, this has been productive of little 
 inconvenience, yet with the increase of settlers on either 
 side of the imaginary line dividing them, it will become 
 more and more serious. The division of New South Wales 
 into two Colonies would further aggravate this incon- 
 venience, if the change should lead to the introduction of 
 three entirely distinct tariffs, and to the consequent neces- 
 sity for imposing restrictions and securities on the import 
 and export of goods between them. So great indeed 
 would be the evil, and such the obstruction of the inter- 
 colonial trade, and so great the check to the development 
 of the resources of each of these Colonies, that it seems to 
 us necessary that there should be one tariff common to 
 them all, so that goods might be carried from the one into 
 the other with the same absolute freedom as between any 
 two adjacent counties in England. 
 
 We are further of opinion that the same tariff should be 
 established in Van Diemen's Land also, because the inter- 
 course between that Island and the neighbouring Colonies 
 in New Holland has risen to a great importance and 
 extent, and has an obvious tendency to increase. Yet fiscal 
 regulations on either side of the intervening strait must of 
 necessity check, and might perhaps to a great extent 
 destroy, that beneficial trade. 
 
 1 In fact in process of time Victoria enforced a strictly protective tariff, 
 whilst that of New South Wales was based on Free Trade lines. 
 
 M 2
 
 180 REPORT OF COMMITTEE ON PROPOSED 
 
 If the duties were uniform, it is obvious that there need 
 be no restrictions whatever imposed upon the import or 
 export of goods between the respective Colonies, and no 
 motive for importing into one goods liable to duty, which 
 were destined for consumption in another; and it may 
 safely be calculated that each would receive the proportion 
 of revenue to which it would be justly entitled, or, at all 
 events, that there would be no departure from this to an 
 extent of any practical importance. 
 
 Hence it seems to us that a uniformity in the rate of 
 duties should be secured. 
 
 For this purpose we recommend that a uniform tariff 
 should be established hy the authority of Parliament,^ but 
 that it should not take effect until twelve months had 
 elapsed from the promulgation in the several Colonies of 
 the proposed Act of Parliament. That interval would 
 afford time for making any financial arrangements which 
 the contemplated change might require in any of them ; 
 and by adopting the existing Tariff of New South Wales 
 (with some modifications to adapt it to existing circum- 
 stances) as the General Tariff for Australia, we apprehend 
 that there would be no risk of imposing upon the inhabit- 
 ants of these Colonies a table of duties unsuited to their 
 actual wants. We should not however be prepared to 
 offer this recommendation unless we proposed at the same 
 time to provide for making any alteration in this general 
 tariff, which time and experience may dictate, and this we 
 think can only be done by creating some authority com- 
 petent to act for all those Colonies jointly. 
 
 For this purpose we propose that one of the Governors 
 of the Australian Colonies should always hold from Your 
 Majesty a Commission constituting him the Governor- 
 General of Australia.^ We think that he should be autho- 
 
 ' Sucli ii tariff was proposed in tho Bill of 1849, but the provisions 
 regarding it wore omitted in the following year. 
 
 ■^ This proposal was afterwards adopted, but, without any other Ijond of 
 union between the Colonies, led to no results.
 
 AUSTRALIAN CONSTITUTION, 1849 181 
 
 rized to convene a body to be called the General Assembly 
 of Australia, at any time and at any place within Your 
 Majesty's Australian dominions, which he might sec fit to 
 appoint for the purpose. But we are of opinion that the 
 first convocation of that body should be postponed until 
 the Governor-General should have received from two or 
 more of the Australian Legislatures addresses requesting 
 him to exercise that power. ^ 
 
 We recommend that the General Assembly should con- 
 sist of the Governor-General and of a single ^ House to be 
 called the House of Delegates. The House of Delegates 
 should be composed of not less than twenty, nor of more 
 than thirty members. They should be elected by the 
 Legislatures of the different Australian Colonies. We sub- 
 join a schedule explanatory of the composition of this body ; 
 that is, of the total number of delegates, and of the pro- 
 portion in which each Colony should contribute that number. 
 
 We think that Your Majesty should be authorized to 
 establish provisionally, and in the first instance, all the rules 
 necessary for the election of the delegates, and for the 
 conduct of the business of the General Assembly, but that 
 it should be competent to that body to supersede any such 
 rules, and to substitute others, which substituted rules should 
 not, however, take effect until they had received Your 
 Majesty's sanction. 
 
 We propose that the General Assembly should also have 
 the power of making laws for the alteration of the number 
 of delegates,^ or for the improvement in any other respect 
 of its own Constitution. But we think that no such law 
 
 ' It would have thus been in the power of two Colonies to compel the 
 establishment of the General Assembly. This was remedied in the federal 
 clauses of the Bill of 1850. 
 
 * Mr. Gladstone at once noted this weak point in the Bill afterwards 
 drafted. ' He felt that there must be great difficulty in working a federal 
 legislature, unless it was constituted upon the principle of a double 
 chamber.' (Hans. Pari. Deb., 3rd Series, cv, p. 1130.) 
 
 * Under this provision the Assembly might apparently have altered the 
 proportion of members returned by the different Colonies.
 
 182 REPORT OF COMMITTEE ON PROPOSED 
 
 should come into operation until it had actually been con- 
 firmed by Your Maiest3\ 
 
 We propose to limit the range of the legislative authority 
 of the General Assembly to the ten topics which we proceed 
 to enumerate. These are : — 
 
 1. The imposition of duties upon imports and exports. 
 
 2. The conveyance of letters. 
 
 3. The formation of roads, canals, or railways, traversing 
 
 any two or more of such Colonies. 
 
 4. The erection and maintenance of beacons and light- 
 
 houses. 
 
 5. The imposition of dues or other charges on shipping 
 
 in every port or harbour. 
 
 6. The estal)lishment of a General Supreme Court, to be 
 
 a Court of Original Jurisdiction, or a Court of Appeal 
 from any of the inferior Courts of the separate Pro- 
 vinces. 
 
 7. The determining of the extent of the jurisdiction and 
 
 the forms and manner of proceeding of such Supreme 
 Court. 
 
 8. The regulation of weights and measures. 
 
 9. The enactment of laws affecting all the Colonies repre- 
 
 sented in the General Assembly on an}^ subject not 
 specifically mentioned in the preceding list, but on 
 which the General Assembly should be desired to 
 legislate by addresses for that purpose presented to 
 them from the Legislatures of all those Colonies. 
 10. The appropriation to any of the preceding objects of 
 such sums as may be necessary, b}' an equal percent- 
 age from the revenue received in all the Australian 
 Colonies, in virtue of any enactments of the General 
 Assembly of Australia. 
 By these means we apprehend that many important 
 objects would be accomplished wliicli would otherwise l)e 
 unattainable; and, by the (jualifications which we have 
 proposed, effectual security would, we thiid<, be taken against
 
 AUSTRALIAN CONSTITUTION, 1849 183 
 
 the otherwise danger of establishing a Central Legislature 
 in opposition to the wishes of the separate Legislatures, or 
 in such a manner as to induce collisions of authority between 
 them. The proceedings also of the Legislative Council of New 
 South Wales with reference to the proposed changes in the 
 Constitution, lead us to infer that the necessity of creating 
 some such general authority for the Australian Colonies 
 begins to be seriously felt." 
 
 Schedule :2. 
 Composition of the House of Delegates. 
 
 " Each Colony to send two members, and each to send one 
 additional member for every 15,000 of the population, 
 according to the latest census before the eonvenino; of the 
 House. 
 
 On the present population the numbers would be as 
 follows : — 
 
 Population Number 
 last census, of members. 
 
 New South Wales 155,000 12 
 
 Victoria 33,000 4 
 
 Van Diemen's Land i^ deducting convicts) . 46,000 5 
 
 South Australia 31,000 4 
 
 25" 
 
 Although the proposals of the Privy Council and the 
 clauses in the Bill of 1849 and 1850 which gave effect to 
 them were a praiseworthy attempt to avoid a danger which 
 afterwards became very serious, it must be confessed that 
 they do not show any close grip of the subject, or sign that 
 their authors realized how they could be worked in practice. 
 Lord John Russell, indeed, finally confessed that the clauses 
 relating to federation had to be withdrawn during the 
 passage of the Bill of 1850, because of the difficulty of 
 reconciling the respective rights and interests of New South 
 Wales and of the lesser Colonies (Hans. Pari. Deh., 3rd Series, 
 cxiii, p. 623). At a time when a colonial reformer of the type 
 of Sir William Molesworth ' did not see how a Federative 
 Assembly could be admitted at all unless the intention was 
 to separate these Colonies from the mother countiy ' (Hans. 
 ex, p. 800), matters were not yet ripe for the adoption of
 
 184 REPORT OF COMMITTEE, dc. 
 
 the federal principle. Had the permissive clauses of the 
 Bill of 1850 not been dropped, they would still in all proba- 
 bility have remained a dead letter. 
 
 It has been thought advisable to transcribe the greater 
 portion of the Report of the Privy Council ; because, though 
 much of it is not concerned with the subject of federation, 
 it throws valual)le light on the strong and weak points of 
 English Colonial Government in the middle of the nineteenth 
 century. 
 
 The federal sections of the Australian Colonies Bills of 
 1849 and 1850 are given in Appendices A and B of Mr. 
 C. D. Allin's Tlie Early Fcder<ition Movement of Australia, 
 1907, pp. 419-423. Their fate can be traced in the pages of 
 Hansard for these years.
 
 THE COMMONWEALTH OF AUSTRALIA 
 CONSTITUTION ACT 
 
 63 AND 64 Vict, Ciiap. 12 
 
 An Act to constitute the Commonwealth of 
 Australia. 
 
 [9th July, 1900.] 
 
 Whereas the people^ of New South Wales, Victoria, 
 South AustraHa, Queensland, and Tasmania, humbly relying 
 on the blessing of Almighty God,^ have agreed to unite in 
 one indissoluble Federal Conmionwealth ^ under the Crown 
 of the United Kingdom of Great Britain and Ireland, and 
 under the Constitution hereby established : 
 
 And whereas it is expedient to provide for the admission 
 into the Commonwealth of other Australasian Colonies and 
 possessions of the Queen : 
 
 Be it therefore enacted by the Queen's Most Excellent 
 Majesty, by and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in this present Par- 
 liament assembled, and by the authority of the same as 
 follows : — 
 
 1. This Act may be cited as the Commonwealth of siiort 
 Australia Constitution Act. 
 
 ^ Note expression 'the people", following precedent of United States 
 Constitution. The British North America Act merely spoke of ' the 
 Provinces' as expressing their desire, &c. 
 
 "^ Considerable criticism had been evoked by the omission of any mention 
 of God in the Bill of 1891. Section 116 was strengthened with a view to 
 making clear that such mention did not imply denominational proclivities. 
 
 ^ The word ' Commonwealth ' excited some criticism mainly on account 
 of its republican associations ; but it was defended by quotations from 
 Shakespeare.
 
 186 THE COMMONWEALTH OF 
 
 Act to 2. The provisions of this Act referring to the Queen shall 
 
 Queen's extend to Her Majesty's heirs and successors in the sove- 
 successors. reignty of the United Kingdom. 
 
 Proclama- 3. It shall be lawful for the Queen with the advice of the 
 Common- Privy Council to declare by Proclamation ^ that, on and after 
 wea th. g^ j^^ therein appointed, not being later than one year after 
 the passing of this Act, the people of Xew South Wales, 
 Victoria, South Australia, Queensland, and Tasmania, and 
 also, if Her Majesty is satisfied that the people of Western 
 Australia have agreed thereto, of Western Australia, shall 
 be united in a Federal Commonwealth under the name of 
 the Commonwealth of Australia. But the Queen may, at 
 any time after the Proclamation, appoint a Governor- 
 General for the Commonwealth. 
 Com- 4. The Commonwealth shall be established, and the 
 
 niGDCC- 
 
 ment of Constitution of the Commonwealth shall take effect, on and 
 '^ ■ after the day so appointed. But the Parliaments of the 
 
 several Colonies may at any time after the passing of 
 this Act make any such laws, to come into operation on the 
 day so appointed, as they might have made if the Constitu- 
 tion had taken effect at the passing of this Act. 
 Operation 5. This Act, and all laws made by the Parliament of the 
 stitution Commonwealth under the Constitution, shall be binding on 
 and Laws. ^}jg courts, judges, and people of every State and of every 
 part of the Commonwealth, notwithstanding anything in the 
 laws of any State ; and the laws of the Commonwealth shall 
 be in force on all British ships,'- the Queen's ships of war 
 
 ' Tlie Proclamation was made on September 17, 1900, and tlie Common- 
 wealtli began its life on Januarj- 1, 1901. 
 
 ^ This provision was taken from .Sec. 20 of the Federal Council of Aus- 
 tralasia Act of 1885. It was objected to by Mr. Chamberlain when the 
 Bill was first brought to England as too wide ; but in the face of tlic deter- 
 mination f.f the Australian delegates lie waived his objections. See 
 article by Mr. A. B. Keith, on ' Merchant Shipping Legislation in the 
 Colonies ', Journal of Comparative Legislation, 1909, ji. 203. Sec PentJisular 
 and Oriental Steam Navigation Companies v. Kingston [1903] A.C. 471 ; and 
 Merchant Service Guild of Australia v. A. Currie d- Co. (Lim.), 5 C. L. R. 737. 
 Sec. 5 only applies 'to cases where both the beginning and the end
 
 AUSTRALIA CONSTITUTION ACT, 1900 187 
 
 excepted, whose first port of clearance and who.se port of 
 destination are in the Commonwealth. 
 
 6. 'The Commonwealth' shall mean the Commonwealth Dcfini- 
 of Australia as established under this Act. 
 
 'The States'^ shall mean such of the Colonies of New 
 South Wales, New Zealand, Queensland, Tasmania, Victoria, 
 Western Australia, and South Australia, including the 
 Northern Territory of South Australia, as for the time being 
 are parts of the Commonwealth, and such Colonies and 
 Territories as may be admitted into or established by the 
 Commonwealth as States ; and each of such parts of the 
 Commonwealth shall be called ' a State '. ' Original States ' 
 shall mean such States as are parts of the Commonwealth 
 at its establishment. 
 
 7. The Federal Council of Australasia Act,- 1885, is hereby Repeal of 
 repealed, but so as not to affect any laws passed by the Council 
 Federal Council of Australasia and in force at the establish- ^^^- ^^ 
 ment of the Commonwealth. Vict. c. 60. 
 
 Any such law may be repealed as to any State by the 
 Parliament of the Commonwealth or as to any Colony not 
 being a State by the Parliament thereof. 
 
 8. After the passing of this Act the Colonial Boundaries Applica- 
 
 Act, 1895,^ shall not apply to any Colony which becomes Colonial 
 
 a State of the Commonwealth ; but the Commonwealth ]^oun- 
 
 shall be taken to be a self-governing Colony for the 58 & 59 
 
 Vict. c. 84. 
 
 purposes of that Act. 
 
 of the voyage are in the Commonwealtli ', per Griffith, C.J. In the 
 1891 Bill the words 'and treaties' were added after the words 'the 
 laws '. 
 
 ' The word 'State' was chosen to emphasize the continuity of the 
 separate life of the Colonies composing the Commonwealth, except with 
 regard to such powers as are expressly transferred to the Commonwealth. 
 
 ^ On this, see Introduction, p. .53. 
 
 ^ The object of this Act was to confer general .statutory authority upon 
 the Crown to alter the boundaries of a self-governing Colony with its 
 consent without having resort to the British Parliament. The Constitu- 
 tion itself now makes provision for the alteiation of the boundaries of 
 States, .so that the Colonial Boundaries Act now only apjilies to the 
 Commonwealth as a wliole.
 
 188 THE COMMONWEALTH OF 
 
 9. The Constitution of the Commonwealth shall be as 
 
 follows : — 
 
 THE CONSTITUTION. 
 
 This Constitution is divided as follows : — 
 Chapter I. The Parliament : 
 
 Part I. General : 
 „ II. The Senate : 
 
 „ III. The House of Representatives : 
 „ IV. Both Houses of the Parliament : 
 „ V. Powers of the Parliament : 
 Chapter II. The Executive Government : 
 „ III. The Judicature : 
 ., IV. Finance and Trade: 
 
 V. The States: 
 ., VI. New States : 
 „ VII. Miscellaneous : 
 ., VIII. Alteration of the Constitution : 
 
 The Schedule. 
 
 CHAPTER I. 
 
 Tlie Par- ThE PARLIAMENT, 
 
 liament. 
 
 Part I. Part I. General. 
 
 General. 
 
 Le"isla- 1. The legislative power of the Commonwealth shall be 
 
 ^^^'^ vested in a Federal Parliament which shall consist of the 
 
 power. 
 
 Queen, a Senate, and a House of Representatives, and 
 
 which is hereinafter called ' the Parliament ' or * the 
 
 Parliament of the Commonwealth'. 
 
 Gov( riior- 2. A Govemor-General appointed by the Queen shall be 
 
 Her Majesty's representative in the Commonwealth, and 
 
 shall have and may exercise in the Commonwealth during 
 
 the Queen's pleasure, but suVject to this Constitution, such 
 
 powers and functions of the Queen as Her Majesty may be 
 
 pleased to assign to him. 
 
 Salary of 3. There shall be payable to the Queen out of the Con- 
 
 <j(*m'rai.' solidatcd Revenue Fund of the Commonwealth, for the
 
 AUSTRALIA CONSTITUTION ACT, 1900 189 
 
 salary of the Governor-General, an annual sum which, until the 
 Parliament otherwise provides, sliall be ten thousand pounds. 
 The salary of a Governor-General shall not be altered 
 during his continuance in office.^ 
 
 4. The provisions of this Constitution relating to the Provisions 
 
 r^ ,^ , , , 1 /-< relating to 
 
 Governor-General extent! and apply to the Governor- Governor- 
 General for the time being, or such person as the Queen ^^^"*^''^ • 
 may appoint to administer the Government of the Common- 
 wealth ; but no such person shall be entitled to receive any 
 salar}^ from the Commonwealth in respect of any other 
 office during his administration of the Government of the 
 Commonwealth. 
 
 5. The Governor-General may appoint such times f or St'ssions of 
 holding the Sessions of the Parliament as he thinks fit, ment. 
 and may also from time to time, by Proclamation or other- f/on ^^^J 
 wise, prorogue the Parliament, and may in like manner dissolu- 
 dissolve the House of Representatives. 
 
 After any general election the Parliament shall be Summon- 
 summoned to meet not later than thirty days after the day iiament. 
 appointed for the return of the writs. The Parliament First 
 
 . 1 r- session. 
 
 shall be summoned to meet not later than six months after 
 the establishment of the Commonwealth. 
 
 6. There shall be a session of the Parliament once at Yearly 
 
 . 11 • session of 
 
 least in every year, so that twelve months shall not inter- Parlia- 
 vene between the last sitting of the Parliament in one '"^" ' 
 session and its first sitting in the next session. 
 
 Part II. The Senate. 
 
 7. The Senate ^ shall be composed of Senators for each The 
 
 Senate. 
 
 State, directly chosen by the people of the State, voting, 
 until the Parliament otherwise provides, as one Electorate." 
 
 ' Tliis provision is not in Sec. 105 of the British North America Act. 
 See note on that section. 
 
 ^ The term 'Senate' was employed in the Bill of 1891. It was after- 
 wards proposed to call the Second Chamber ' The States Assembly' ; but 
 this proposal was negatived. 
 
 ^ This is the method known to the French as Scrulin da Uste. The inten-
 
 190 THE COMMONWEALTH OF 
 
 But until the Parliament of the Common^Yealth otherwise 
 provides, the Parliament of the State of Queensland,^ if 
 that State be an Original State, may make laws dividing 
 the State into divisions and determining the number of 
 Senators to be chosen for each division, and in the absence 
 of such provision the State shall be one Electorate. 
 
 Until the Parliament otherwise provides there shall be 
 sixSenators for each Original State. The Parliament may- 
 make laws increasing or diminishing the number of Senators 
 for each State, but so that equal representation of the 
 several Original States shall be maintained and that no 
 Original State shall have less than six Senators. 
 
 The Senators shall be chosen for a term of six years and 
 the names of the Senators chosen for each State shall be 
 certified by the Governor to the Governor-General. 
 Qualifica- 8- The qualification of electors of Senators shall be in each 
 Electms State that which is prescribed by this Constitution, or by 
 the Parliament, as the qualification for electors of members 
 of the House of Representatives ; but in the choosing of 
 Senators each elector shall vote only once. 
 Method of 9. The Parliament of the Commonwealth may make laws 
 Se^nators^ prescriliing the method of choosing Senators, but so that the 
 method shall be uniform for all the States. Subject to any 
 such law the Parliament of each State may make laws pre- 
 scribing the method of choosing the Senators for that State. 
 Times and The Parliament of a State may make laws for determining 
 riaces. y^g times and places of election of Senators for the State. 
 Appiica- 10. Until the Parliament otherwise provides, but subject 
 stateiaws ^^ ^^'^'^^ Constitution, the laws in force in each State, for the 
 
 tion was to give expression to the interests of the individual States apart 
 from particular districts; the effect seems to liave been to give well- 
 organized bodies, such as the Labour Party, tlie controlling voice. 
 
 1 Queensland, it will be remembered, had held aloof from the successive 
 Conventions ; and at the meeting of Premiers in 1899 its representative 
 explained that witliout su<-h a provision the olijcctions to federation would 
 probably prove insurmountable. The Queensland Parliament, however, 
 afterwards decided to follow the method of the other States in the election 
 of Senators.
 
 AUSTRALIA CONSTITUTION ACT, 1900 101 
 
 time being, relating to elections for the more numerous 
 House of the Parliament of the State shall, as nearly as 
 practicable, apply to elections of Senators for the State. 
 
 11. The Senate may proceed to the despatch of business, Failure to 
 notwithstanding the failure of any State to provide for senators. 
 its representation in the Senate. 
 
 12. The Governor of any State may cause writs to be Issue of 
 issued for elections of Senators for the State. In case of 
 
 the dissolution of the Senate the writs shall be issued 
 within ten days from the proclamation of such dissolution. 
 
 13. As soon as may be after the Senate first meets, and Rotation 
 
 of SgIUI" 
 
 after each first meeting of the Senate following a dissolution tors, 
 thereof, the Senate shall divide the Senators chosen for 
 each State into two classes, as nearly equal in number as 
 practicable ; and the places of the Senators of the first class 
 shall become vacant at the expiration of the third year,^ 
 and the places of those of the second class at the expiration 
 of the sixth year,^ from the beginning of their term of 
 service ; and afterwards the places of Senators shall become 
 vacant at the expiration of six years from the beginning 
 of their term of service. 
 
 The election to fill vacant places shall be made in the year 
 at the expiration of which ^ the places are to become vacant. 
 
 For the purposes of this section the term of service of 
 a Senator shall be taken to begin on the first day of January ^ 
 following the day of his election, except in the cases of the 
 first election and of the election next after any dissolution 
 of the Senate, when it shall be taken to begin on the first 
 day of January ^ preceding the day of his election. 
 
 14. Whenever the number of Senators for a State is Further 
 increased or diminished, the Parliament of the Common- f^^°^^^'°" 
 wealth may make such provision for the vacating of the notation. 
 
 ' Under tlie Constitution Alteration (Senate Elections) Act, 1900, the 
 words ' three years ' and ' six years ' are substituted for ' the third 
 year' and 'the sixth year'; and the words 'witJiin one year before' 
 
 are substituted for the words * in the year at the expiration of which ' 
 
 ' July ' is also substituted for ' January '.
 
 192 THE COMMONWEALTH OF 
 
 places of Senators for the State as it deems necessary to 
 maintain regularity in the rotation. 
 Casual 15. If the place of a Senator becomes vacant before the 
 
 vacancies, g^piration of his term of service,^ the Houses of Parliament 
 of the State for which he was chosen shall, sitting and 
 voting together, choose a person to hold the place until the 
 expiration of the term, or until the election of a successor, 
 as hereinafter provided, whichever first happens. But if 
 the Houses of Parliament of the State are not in session at 
 the time when the vacancy is notified, the Governor of the 
 State, with the advice of the Executive Council thereof, 
 may appoint a person to hold the place until the expiration 
 of fourteen daj's after the beginning of the next session of 
 the Parliament of the State, or until the election of 
 a successor, whichever first happens. 
 
 At the next general election of members of the House 
 of Representatives, or at the next election of Senators for 
 the State, whichever first happens, a successor shall, if the 
 term has not then expired, be chosen to hold the place from 
 the date of his election until the expiration of the term. 
 
 The name of any Senator so chosen or appointed shall be 
 
 certified by theOovernorof theStateto the Governor-General. 
 
 Quaiifica- 16. The qualifications of a Senator shall be the same as 
 
 Senator those of a member of the House of Representatives.^ 
 
 Election 17. The Senate shall, before proceeding to the despatch 
 
 dent^^' of any other business, choose a Senator to be the President 
 
 of the Senate ; and as often as the office of President 
 
 becomes vacant the Senate shall again choose a Senator to 
 
 be the President. The President shall cease to hold his 
 
 office if he ceases to be a Senator. He may be removed from 
 
 office by a vote of the Senate, or he may resign his office 
 
 or his seat by writing addressed to the Governor-General. 
 
 Absence 18. Before or during any al)sence of the President, the 
 
 of Presi- 
 dent. ' This section only applies when there has Ijoen a dc jure as well as 
 
 a (le facto election. {Vnnlon v. U'LoijIdhi, 5 C.L.K. 201.) 
 
 2 The Bill of 1H9I had made the age tliirty, and the necessary period of 
 
 residence i'lvv years.
 
 AUSTRALIA CONSTITUTION ACT, 1900 193 
 
 Senate may choose a Senator to perform liis duties in 
 his absence. 
 
 19. A Senator may, by writing addressed to the President, Resigna- 
 or to tlie Governor-General if there is no President or if the senator. 
 President is absent from the Commonwealth, resign his 
 place, which thereupon shall become vacant. 
 
 20. The place of a Senator shall become vacant if for two Vacancy 
 consecutive months of any session of the Parliament he, absence, 
 without permission of the Senate, fails to attend the Senate. 
 
 21. Whenever a vacancy happens in the Senate, the Vacancy 
 President, or if there is no President or if the President is notifiefl. 
 absent from the Commonwealth, the Governor-General, shall 
 notify the same to the Governor of the State in the repre- 
 sentation of which the vacancy has happened. 
 
 22. Until the Parliament otherwise provides, the presence Quorum, 
 of at least one-third of the whole number of the Senators 
 
 shall be necessary to constitute a meeting of the Senate for 
 the exercise of its powers. 
 
 23. Questions arising in the Senate shall be determined Voting in 
 by a majority of votes, and each Senator shall have one ' 
 
 vote. The President shall in all cases be entitled to a vote ; 
 and when the votes are equal the question shall pass in the 
 negative.^ 
 
 ' It is obvious from a cursory glance at the clauses relating to the Aus- 
 tralian Senate that both in tlie methods of its election and in its character 
 it is essentially as democratic a body as is the House of Eepresentatives. 
 The reasons for this were as follows : The smaller States were determined 
 not to become members of a federation wherein they could not find an 
 equal voice in one House of Parliament ; but at the same time there was 
 a strong democratic sentiment throughout Australia, in the smaller no less 
 than in the greater States, that it would be treason to the democi'atic prin- 
 ciple to give large powers to a Second Chamber unless it were organized 
 on a completely democratic basis. The Bill of 1891 had proposed to give 
 the election of the members of the Senate to the State Legislatures ; but, 
 with the Legislative Council in some of the States nominated bodies, such 
 a method of choice was impossible ; and it only remained to put the 
 power in the hands of the electors to the House of Representatives, 
 arranging them differently so as possibly to produce different results. 
 Whatever, then, the merits of the Australian Senate in other ways, 
 from the circumstances of its origin it can hardly be expected to fulfil 
 the ordinary purposes of a Second Chamber. 
 
 1265 N
 
 194 THE COMMONWEALTH OF 
 
 Part III. 
 
 jjousgof Part III. The Bouse of Representatives. 
 
 Repre- 
 sentatives. 24. Tlie House of Representatives shall be composed or 
 
 Constitu- members directly chosen by the people of the Common- 
 
 tion of wealth, and the number of such members shall be, as nearly 
 
 House of ' ^ 'J 
 
 Repre- as practicable, twice the number of the Senators.^ 
 
 The number of members chosen in the several States 
 shall be in proportion to the respective numbers of their 
 people, and shall, until the Parliament otherwise provides, 
 be determined, whenever necessary, in the following 
 manner : — 
 
 (i.) A quota shall be ascertained by dividing the number 
 of the people of the Commonwealth, as shown by the 
 latest statistics of the Connnonwealth, by twice the 
 number of the Senators. - 
 (ii.) The number of members to be chosen in each State 
 shall be determined by dividing the number of the 
 people of the State, as shown by the latest statistics of 
 the Commonwealth, by the quota : and if on such 
 division there is a remainder greater than one-half of 
 the quota, one more member shall be chosen in the 
 State. 
 But, notwithstanding anything in this section, five 
 members at least shall be chosen in each Original State. 
 Provision 25. For the purposes of the last section, if by the law of 
 
 fl.s to mcGS 
 
 (lisquali- any State all persons of any race are disqualified from voting 
 lei rom ^^ elections for the more numerous House of the Parliament 
 
 voting. 
 
 of the State, then, in reckoning the number of the people 
 of the State or of the Commonwealth, persons of that race 
 resident in that State shall not be counted. 
 
 ' Tho nason of this will become evident when the provision with regard 
 to deadlocks is considered. 
 
 ^ Under Article I, sec. 2, of the American Constitution representatives 
 were ajjportioned among the several States according to their respective 
 numl)ors, which were determined by adding to the whole number 
 of free persons, excluding Indians untaxed, three-fifths <>f all other 
 persons.
 
 AUSTRALIA CONSTITI^TION ACT, 1900 195 
 
 26. Notwithstanding anything in section twenty-four, Repre- 
 the number of members to be chosen in each State at the •„ pj,.gt 
 first election sliall be as follows : Pailia- 
 
 imait. 
 
 New South Wales . , . Twenty-three : 
 Victoria ..... Twent}^ : 
 Queensland ..... Eight : 
 South Australia . . . . Six : 
 Tasmania ..... Five: 
 Provided that if Western Australia is an Original State 
 the numbers shall be as follows : 
 
 New South Wales . . . Twenty-six : ^ 
 
 Victoria Twenty-three : ^ 
 
 Queensland ..... Nine : 
 South Australia .... Seven : 
 Western Australia . . . Five : 
 Tasmania ..... Five. 
 
 27. Subject to this Constitution the Parliament may Alteration 
 make laws for increasing or diminishing the number of °j. ^Mem-*^' 
 the members of the House of Representatives. ^^'■^• 
 
 28. Every House of Representatives shall continue for Duration 
 three years from the first meeting of the House, and no °i House 
 
 •^ o ' or Repre- 
 
 longer, but may be sooner dissolved by the Governor- sentatives. 
 General. 
 
 29. Until the Parliament of the Commonwealth otherwise Electoral 
 provides,^ the Parliament of any State may make laws for ^^'^'^'*^*^"^- 
 determining the divisions in each State for which members 
 
 of the House of Representatives may be chosen, and the 
 number of members to be chosen for each division. A 
 division shall not be formed out of parts of different 
 States. 
 
 In the absence of other provision, each State shall be one 
 electorate. 
 
 * In 1910 New South Wales had twenty-seven members and Victoria 
 twenty-two. 
 
 2 The subject was dealt with by the Commonwealth Electoral Acts 
 1902-1905. 
 
 N 2
 
 196 
 
 THE COMMONWEALTH OF 
 
 Qualifica- 
 tion of 
 electors. 
 
 Applica- 
 tion of 
 State 
 laws. 
 
 Writs for 
 
 general 
 
 election. 
 
 Writs for 
 vacancies. 
 
 Qualifica- 
 tions of 
 members. 
 
 30. Until the Parliament otherwise provides,^ the 
 qualification of electors of members of the House of Repre- 
 sentatives shall be in each State that which is prescribed 
 by the law of the State as the qualification of electors 
 of the more numerous House of Parliament of the State ; 
 but in the choosing of members each elector shall vote only 
 once. 
 
 31. Until the Parliament otherwise provides, but subject 
 to this Constitution, the laws in force in each State for the 
 time being relating to elections for the more numerous 
 House of the Parliament of the State shall, as nearly as 
 practicable, apply to elections in the State of members of 
 the House of Representatives. 
 
 32. The Governor-General in Council may cause writs to 
 be issued for general elections of members of the House of 
 Ref)resentatives, 
 
 After the first general election the writs shall be issued 
 within ten days from the expiry of a House of Repre- 
 sentatives or from the proclamation of a dissolution 
 thereof. 
 
 33. Whenever a vacancy happens in the House of Repre- 
 sentatives, the Speaker shall issue his writ for the election 
 of a new member, or if there is no Speaker, or if he is 
 absent from the Commonwealth, the Governor-General in 
 Council may issue the writ. 
 
 34. Until the Parliament otherwise provides, the (jualifi- 
 cations of a member of the House of Representatives shall 
 be as follows : 
 
 (i.) He must be of the full age of twenty-one years, and 
 must be an elector entitled to vote at the election of 
 members of the House of Representatives, or a person 
 (jualified to become such elector, and must have been 
 for three years at the least a resident within the limits 
 
 ' The Commonwcaltli Parliament in 1902, Act No. 8, enacted adult 
 suffrage. By this time all the States, following the lead of South Aus- 
 tralia, liad given votes to women, except in the case of voting for the 
 Legislative Council of Victoria.
 
 AUSTRALIA CONSTITUTION ACT, 1900 197 
 
 of the Commonwealth as existing at the time when he 
 is chosen : 
 (ii.) He must be a subject of the Queen, either natural- 
 born or for at least five years naturalized under a law 
 of the United Kingdom, or of a Colony which has 
 become or becomes a State, or of the Commonwealth, or 
 of a State. 
 
 35. The House of Representatives shall, before proceeding Election of 
 to the despatch of any other business, choose a member to ^P®*^^''- 
 be the Speaker of the House, and as often as the office of 
 Speaker becomes vacant the House shall again choose a 
 member to be the Speaker. 
 
 The Speaker shall cease to hold his office if he ceases to 
 be a member. He may be removed from office by a vote of 
 the House, or he may resign his office or his seat by writing- 
 addressed to the Governor-General. 
 
 36. Before or during any absence of the Speaker, the Absence of 
 House of Representatives may choose a member to perform ^^^ ^^' 
 his duties in his absence. 
 
 37. A member may by writing addressed to the Speaker, Resigna- 
 or to the Governor- General if there is no Speaker, or if the inember. 
 Speaker is absent from the Commonwealth, resign his place, 
 which thereupon shall become vacant. 
 
 38. The place of a member shall become vacant if for Vacancy 
 two consecutive months of any session of the Parliament a*bsence. 
 he, without the permission of the House, fails to attend the 
 House. 
 
 39. Until the Parliament otherwise provides, the presence Quorum. 
 of at least one-third of the whole number of the members 
 
 of the House of Representatives shall be necessary to consti- 
 tute a meeting of the House for the exercise of its powers. 
 
 40. Questions arising in the House of Representatives Voting in 
 shall be determined by a majority of votes other than that Rg^pret*^ 
 of the Speaker. The Speaker shall not vote unless the ^entatives. 
 numbers are equal, and then he shall have a casting vote.
 
 198 THE COMMONWEALTH OF 
 
 Part IV. Part IV. Both Houses of the Parliament. 
 
 Both 
 
 Houses of 41. No adult person who has or acquires a right to vote 
 
 tlie Par- . 
 
 liameiit. ^^ electioDS for the more numerous House of the Parlia- 
 
 Ei^ht of 
 
 ment of a State shall, while the right continues, be prevented 
 electors of by any law of the Commonwealth from voting at elections 
 
 for either House of the Parliament of the Commonwealth. 
 Oatii or 42. Every senator and every Member of the House 
 
 aflRrma- 
 
 tion of of Representatives shall before taking his seat make and 
 
 ° ■ subscribe before the Governor-General, or some person 
 
 authorized by him, an oath or affirmation of allegiance in 
 
 the form set forth in the schedule to this Constitution. 
 
 Members 43, A member of either House of the Parliament shall 
 
 House be incapable of being chosen or of sittino- as a member of 
 
 fl^r ofhJr. ""= otl>«'- House. 
 Disqualifi- 44. Any person who — 
 
 '^^ '*'"■ (i.) is under any acknowledgment of allegiance, obedience, 
 
 or adherence to a Foreign Power, or is a subject or a 
 citizen or entitled to the rights or privileges of a sub- 
 ject or a citizen of a Foreign Power : or 
 (ii.) is attainted of treason, or has been convicted and is 
 under sentence, or sulject to be sentenced, for any 
 offence punishable under the law of the Common- 
 wealth or of a State by imprisonment for one year or 
 longer : or 
 (iii.) is an undischarged bankrupt or insolvent : or 
 (iv.) holds any office of pi'ofit under the Crown, or any 
 pension payable during the pleasure of the Crown out 
 of any of the revenues of the Commonwealth : or 
 (v.) has any direct or indirect pecuniary interest in any 
 agreement with the public service of the Common- 
 wealth otherwise than as a member and in connnon 
 with the otliei- tnembei's of an incorporated company 
 consisting of more than twenty-five persons: 
 shall be incapable of being chosen or of sitting as a senator 
 or member of the House of Representatives.
 
 AUSTRALIA CONSTITUTION ACT, 1900 199 
 
 But subsection iv docs not appl}^ to the office of any 
 of the Queen's Ministers of State for the Connnonwealth, 
 or of any of the Queen's Ministers for a State, or to the 
 receipt of pay, half-pay, or a pension, by any person as 
 an officer or member of the Queen's navy or army, or to 
 the receipt of pay as an officer or member of the naval 
 or military forces of the Commonwealth by any person 
 whose services are not wholly employed l)y the Common- 
 wealth. 
 
 45. If a senator or member of the House of Repre- Vacancy 
 sentatives— «" ^^P- , 
 
 pening or 
 
 (i.) becomes subject to any of the disabilities mentioned disqualifi- 
 cation. 
 HI the last preceding section : or 
 
 (ii.) takes the benefit, whether by assignment, com- 
 position, or otherwise, of any law relating to bankrupt 
 or insolvent debtors : or 
 
 (iii.) directly or indirectly takes or agrees to take any 
 fee or honorarium for services rendered to the Common- 
 wealth, or for services rendered in the Parliament to 
 any person or State : 
 his place shall thereupon liecome vacant. 
 
 46. Until the Parliament otherwise provides, any person Penalty 
 declared by this Constitution to be incapable of sitting as when dis- 
 a senator or as a member of the House of Representatives <i"^l^^^"- 
 shall, for every day on which he so sits, be liable to pay the 
 
 sum of one hundred pounds to any person who sues for it 
 in any court of competent jurisdiction. 
 
 47. Until the Parliament otherwise provides, any question Disputed 
 respecting the qualification of a senator or of a member of ^'<^'^*^'""^- 
 the House of Representatives, or respecting a vacancy in 
 either House of the Parliament, and any question of a 
 disputed election to either House, shall be determined by 
 
 the House in which the question arises.^ 
 
 48. Until the Parliament otherwise provides, each senator to 
 
 members. 
 ' By the Electoral Act (No. 19 of 1902) the determination of questions 
 respecting contested elections was transferred to the High Court.
 
 200 THE COMMONWEALTH OF 
 
 and each member of the House of Representatives shall 
 receive an allowance of four hundred pounds a year/ to be 
 reckoned from the day on which he takes his seat. 
 Privileges, 49. The powers,^ privileges, and immunities of the 
 Houses Senate and of the House of Representatives, and of the 
 members and the committees of each House, shall be such 
 as are declared by the Parliament, and until declared shall 
 be those of the Commons House of Parliament of the United 
 Kingdom, and of its members and committees, at the estab- 
 lishment of the Commonwealth. 
 Rules and 50. Each House of the Parliament may make rules and 
 
 orders. , • i 
 
 orders with respect to — 
 
 (i.) The mode in which its powers, privileges, and im- 
 munities may be exercised and upheld : 
 (ii.) The order and conduct of its business and proceed- 
 ings either separately or jointly with the other House. 
 
 Piirt V. Part V. Powers of the Parliament. 
 
 tliTparhV 51' "^^^^ Parliament shall, subject to this Constitution, 
 ment. have power to make laws for the peace, order, and good 
 Legis- government of the Commonwealth with respect to : — 
 powers of i^-) Trade and commerce with other countries, and among 
 thePariia- the States : ^ 
 
 luont. 
 
 (ii.) Taxation ; ^ but so as not to discriminate between 
 States or parts of States : 
 
 1 By Act No. 5 of 1907 this sum has boon raised to £600. 
 
 2 It will be noted that under this section the powers of the Common- 
 wealth Parliament are more extensive than those of the Dominion 
 Parliament. 
 
 ' Under a Bill to amend the Constitution which passed through (ho 
 Parliament in 1910 and will be submitted to a Referendum of the electors 
 in 1911, the words "with other countries and among the States" arc 
 omitted. 
 
 ■• A Federal Customs Tariff Act was enacted in 1902 (No. It). It was 
 held in The King v. Burger, the Commonwealth v. Mackay (6 C. L. R. 41) that the 
 Excise Tariff Act (No. 16 of 1906) was ultra vires on tlio part of the Common- 
 wealth, because, under the guise of a tariff law, it dealt with questions 
 relating to labour and thus came in conflict with Sec. 55 of the Act. But 
 see Noto on Subsection 35. 
 
 The States possess concurrent powers with regard to taxation, except 
 as to the imposition of duties of Customs and Excise.
 
 AUSTRALIA CONSTITUTION ACT, 1900 201 
 
 (iii.) Bounties^ on the production or export of ^^oods, but 
 .so that such bounties shall be uniform throughout the 
 Commonwealth : 
 
 (iv.) Borrowing money on the public credit of the 
 Commonwealth : 
 
 (v.) Postal, telegraphic, telephonic, and other like services: 
 
 (vi.) The naval and military defence of the Connnon- 
 wealth and of the several States, and the control of the 
 forces to execute and maintain the laws of the Com- 
 monwealth : 
 
 (vii.) Lighthouses, lightships, beacons and buoys : 
 
 (viii.) Astronomical and meteorological observations : 
 
 (ix.) Quarantine : 
 
 (x.) Fisheries ^ in Australian waters beyond territorial limits: 
 
 (xi.) Census and statistics : 
 
 (xii.) Currency, coinage, and legal tender : 
 
 (xiii.) Banking, other than State banking ; also State 
 banking extending beyond the limits of the State con- 
 cerned, the incorporation of banks, and the issue of 
 paper money : 
 
 (xiv.) Insurance," other than State insurance ; also State 
 insurance extending beyond the limits of the State 
 concerned : 
 
 (xv.) Weights and measures : 
 
 (xvi.) Bills of exchange and promissory notes : 
 
 (xvii.) Bankruptcy and insolvency : 
 
 (xviii.) Copyrights, patents of inventions and designs, 
 and trade marks : * 
 
 (xix.) Naturalization and aliens : 
 
 (xx.) Foreign corporations, and trading or financial 
 
 * See The Preservation of Australian Industries Act, No. 9 of 1906. 
 2 This power was possessed by the Federal Council of Australasia. 
 
 ^ Insurance was added to the subjects entrusted to the Federal Parlia- 
 ment in the Bill of 1898. 
 
 * Acts were passed with regard to the subjects in 1905 ; 1903 and 190G ; 
 and 1905. The Trademarks must bo really Trademarks and not Union 
 labels. See AUorney-General for New South Wales v. Brewery Employees' Union, 
 6 C.L.R. 469.
 
 203 THE COMMONWEALTH OF 
 
 corporations formed within the limits of the Common- 
 wealth :^ 
 
 (xxi.) Marriage : 
 
 (xxii.) Divorce and matrimonial causes ; and in relation 
 thereto, parental rights, and the custod}^ and guardian- 
 ship of infants : 
 
 (xxiii.j Invalid and old-age pensions : - 
 
 (xxiv.) The service and execution throughout the Com- 
 monwealth of the civil and criminal process and the 
 judgments of the courts of the States : 
 
 (xxv.) The recognition throughout the Commonwealth 
 of the laws, the public Acts and records, and the 
 judicial proceedings of the States : 
 
 (xxvi.) The people of any race, other than the aboriginal 
 race in any State, for whom it is deemed necessary to 
 make special laws : " 
 
 (xxvii.) Immigration and emigration : ^ 
 
 ' Under the amendment of the Constitution this subsection is altered 
 so as to run : 
 Corporations, including 
 
 (a) the creation, dissolution, regulation, and control of corporations, 
 
 (b) Corporations formed under the law of a Slate (except any corporji- 
 tion formed solely for religious, charitable, scientific, or artistic 
 purposes, and not for tlie acquisition of gain by the Corporation or 
 its members), including their dissolution, regulation or control ; and 
 
 (c) foreign corporations, including their regulation and control. 
 
 The attempt of the Australian Industries Act of 1906 to extend the 
 meaning of subsection xx. was held invalid in Iluddart Parhcr A Co, v. 
 Moorhead, 8C.L.R. 330. 
 
 '■' This subsection was first inserted in the Bill at the Melbourne 
 Session of the Convention in 1898. An Old Age Pension Appropriation 
 Act was passed in 1908 (No. 18). 
 
 ^ This provision is not in the Bill of 1891. 
 
 •• Under the Immigration Restriction Act, No. 17 of 1901, immigrants 
 must be able to write fifty words in a ' prescribed ' language ; and will bo 
 excluded if under a contract to perform manual labour. Exceptions can 
 be made in the case of workmen possessing special skill required in Aus- 
 tralia ; and No. 19 of 190.") provides that immigrants under contract may 
 land wlieii the contract is in writing, and made by or on behalf of some 
 one named in t)ie contract and resident in Australia, and is alsoapproved 
 by the responsilde Minister. The necessity of possessing special skill is 
 removed in the cast; of British subjects; but a contract can only be 
 approved if the curn-nt wages are payal>lo, ami if (he contract is not 
 made in contemplation of an industrial dispute.
 
 AUSTRALIA CONSTITUTION ACT, 1900 203 
 
 (xxviii.) The influx of criminals : 
 
 (xxix.) External affairs : ^ 
 
 (xxx.) The relations of the CommoDAvealth with the 
 islands of the Pacific : ^ 
 
 (xxxi.) The acquisition of property on just terms from 
 any State or person for any purpose in respect of 
 which the Parliament has power to make laws : ^ 
 
 (xxxii.) The control of railways with respect to transport 
 for the naval and military purposes of the Common- 
 wealth : ^ 
 
 (xxxiii.) The acquisition, with the consent of a State, of 
 any railways of the State on terms arranged between 
 the Commonwealth and the State : ^ 
 
 (xxxiv.) Railway construction and extension in any State 
 with the consent of that State : 
 
 (xxxv.) Conciliation and arbitration for the prevention 
 and settlement of industrial disputes extending be- 
 yond the limits of any one State : '' 
 
 * These words are somewhat vague and have been considered to suggest 
 some withdrawal of Imperial powers. The intention may have been to 
 meet cases such as the one which afterwards arose between the South 
 Australian Government and the Dutch Consul. The South Australian 
 Government maintained that the Commonwealth Government had no 
 locus standi, and that it could only discuss the qviestion with the Imperial 
 Government. Mr. Chamberlain, without deciding whether 'external 
 affairs ' included the subject of treaties, held that the effect of the Com- 
 monwealth Act was to create a new State or nation able 'to deal with 
 all political matters arising between them and any other part of the 
 Empire or (through His Majesty's Government) with any Foreign Power'. 
 (See Pari. Papers, 1902, Cd. 1587.) 
 
 ^ The Federal Council of Australasia had never exercised this power 
 given to it by the Act of 1885. By an Act of 1901, No. 16, the entrance 
 of Pacific labourers into Australia was forbidden after March 31, 1904. 
 
 ^ No. 13 of 1901 contains drastic provisions with regard to the exercise 
 of this power. 
 
 * These provisions were not in the 1891 Bill. 
 
 ^ Under the amendment of the Constitution this subsection runs as fol- 
 lows : ' Labour and employment including (a) the wages and conditions of 
 labour and employment in any trade, industry, or calling ; and (b) the pre- 
 vention and settlement of industrial disputes including disputes in relation 
 to employment on or about railways the property of any state.' In conse- 
 quence of this subsection the Commonwealth Conciliation and Arbitration 
 Act 1904 and the cases under it will be no longer of practical importance.
 
 204 THE COMMONWEALTH OF 
 
 (xxxvi.) Matters in respect of which this Constitution 
 makes provision until the Parliament otherwise'provides : 
 (xxxvii.) Matters referred to the Parliament of the 
 Commonwealth b}^ the Parliament or Parliaments of 
 any State or States, but so that the law shall extend 
 only to States by whose Parliaments the matter is 
 referred, or which afterwards adopt the law : ^ 
 (xxxviii.) The exercise within the Commonwealth, at the 
 request or with the concurrence of the Parliaments of 
 all the States directly concerned, of any power which 
 can at the establishment of this Constitution be exer- 
 cised only by the Parliament of the United Kingdom ^ 
 or by the Federal Council of Australasia : 
 (xxxix.) Matters incidental to the execution of any 
 power vested by this Constitution in the Parliament 
 or in either House thereof, or in tlie Government of 
 the Commonwealth, or in the Federal Judicature, or 
 in any department or officer of the Commonwealth.^ 
 Exclusive 52. The Parliament shall, subject to this Constitution, 
 theVarlia- have exclusive power to make laws for the peace, order, and 
 ^'^^^' good government of the Commonwealth with respect to — 
 (i.) The seat of government of the Commonwealth, and 
 all places acquired by the Commonwealth for public 
 purposes : 
 (ii.) Matters relating to any department of the public 
 service the control of whicli is by this Constitution 
 
 ' Cf. Sec. 94 of British North America Act. 
 
 2 It is not clear how the concurrence of the States' Parliaments can 
 affect powers only possessed by tlio Britisli Parliament. 
 
 3 Under the new Bill a new subsection is added : ' (xl.) Combinations and 
 irionopolies in rchxtion to the production, manufacture or supjily of goods 
 or services.' Under another Bill a new section is also added. 
 
 61 A. When each House of the Parliament in the same Session has 
 by Resolution declared tliat the business or industry of producing or 
 supplying any specified goods, or <>f supplying any specified services, is 
 the subject of a monopoly, the Pailiameiit sliall bave ])ower to make laws 
 for carrying on the industry or l)usin(>ss \>y or luider the control of the 
 CommonweaUb, and ac'iuiring for that purpose any i)rop(aty used in 
 connexion witli the industry or business.
 
 AUSTRALIA CONSTITUTION ACT, 1900 205 
 
 transferred to the Executive Government of the 
 Commonwealth : 
 (iii.) Other matters declared by this Constitution to be 
 within the exclusive power of the Parliament. 
 
 53. Proposed laws appropriating revenue or moneys, or Powers 
 imposing taxation, shall not originate in the Senate.^ But jj^^yg^gg j^ 
 a proposed law shall not be taken to appropriate revenue respect of 
 or moneys, or to impose taxation, by reason only of its tion. 
 containing provisions for the imposition or appropriation 
 
 of lines or other pecuniary penalties, or for the demand or 
 payment or appropriation of fees for licences, or fees for 
 services under the proposed law. 
 
 The Senate may not amend proposed laws imposing taxa- 
 tion, or proposed laws appropriating revenue or moneys for 
 the ordinary annual services of the Government. 
 
 The Senate may not amend any proposed law so as to 
 increase any proposed charge or burden on the people. 
 
 The Senate may at any stage return to the House of 
 Representatives any proposed law which the Senate may 
 not amend, requesting, by message, the omission or amend- 
 ment of any items or provisions therein.^ And the House 
 of Representatives may, if it thinks fit, make any of such 
 omissions or amendments, with or without modifications. 
 
 Except as provided in this section, the Senate shall have 
 equal power with the House of Representatives in respect 
 of all proposed laws. 
 
 54. ^ The proposed law which appropriates revenue or Appro- 
 moneys for the ordinary annual services of the Government Bills. 
 shall deal only with such appropriation, 
 
 55. ^ Laws imposing taxation shall deal only with the Tax Bill. 
 
 ^ Some opposition to this was at first made in the interests of the 
 States. The clause as it stands is the outcome of much discussion. The 
 Bill of 1897 said, ' Proposed laws having for their main, object,' &c. 
 
 '^ The Act here follows a precedent which had been at work in the 
 South Australian Parliament, and had also been adopted in Western 
 Australia. It was adopted in Victoria in 1903. 
 
 * These are the familiar provisions directed against 'tacking'. See note 
 on Section 51, subsection 1.
 
 206 THE COMMONWEALTH OF 
 
 imposition of taxation, and any provision therein dealing 
 with any other matter shall be of no effect. 
 
 Laws imposing taxation, excej)t laws imposing duties of 
 customs or of excise, shall deal with one subject of taxation 
 only ; but laws imposing duties of customs shall deal with 
 duties of customs only, and laws imposing duties of excise 
 shall deal with duties of excise only. 
 Reeom- 56. A vote, resolution, or proposed law for the appro- 
 
 niendatic^n . , . „ ^ 1^ , ^ ^ ^ 
 
 of money pi"iation 01 revenue or moneys shall not be passed unless 
 
 votes. ^j^g purpose of the appropriation has in the same session 
 
 been recommended by message of the Governor-General to 
 
 the House in which the proposal originated.^ 
 
 Disagree- 57, If the House of Representatives passes any proposed 
 
 ment be- i 1 r. • n •^ 
 
 tween the law, and the Senate rejects or fails to pass it, or passes it 
 ou>=Gs. -yyj^j^ amendments to which the House of Representatives 
 will not agree, and if after an interval of three months the 
 House of Representatives, in the same or the next session, 
 again passes the proposed law with or without any amend- 
 ments which have been made, suggested, or agreed to by 
 the Senate, and the Senate rejects or fails to pass it, or 
 passes it with amendments to which the House of Repre- 
 sentatives will not agree, the Governor-General may dissolve 
 the Senate and the House of Representatives simultane- 
 ously. But such dissolution shall not take place within six 
 months before the date of the expiry of the House of Repre- 
 sentatives by effluxion of time. 
 
 If after such dissolution the House of Representatives 
 again passes the proposed law, with or without any amend- 
 ments which have been made, suggested, or agreed to by 
 the Senate, and the Senate rejects or fails to pass it, or 
 passes it with amendments to which the House of Repre- 
 sentatives M'ill not agree, the Governor-General may con- 
 
 * The scandals under tlie oM systi^ni wiTi; onipliasi/.cd in liuid Diirliani's 
 Report. Since the Act of Union of the Canadas in 1810 the practice 
 enjoined in this clause has prevailed throughout the self-governing 
 British Knipire.
 
 AUSTRALIA CONSTITUTION ACT, 1900 207 
 
 vene a joint sitting of the members of the Senate and of 
 the House of Representatives. 
 
 The members present at the joint sitting may deliberate 
 and shall vote together upon the proposed law as last pro- 
 posed by the House of Representatives, and upon amend- 
 ments, if any, which have been made therein by one House 
 and not agreed to by the other, and any such amendments 
 which are affirmed by an absolute majority of the total 
 number of the members of the Senate and House of Repre- 
 sentatives shall be taken to have been carried, and if the 
 proposed law, with the amendments, if any, so carried is 
 affirmed by an absolute majority of the total number of the 
 members of the Senate and House of Representatives, it 
 shall be taken to have been duly passed by both Houses of 
 the Parliament, and shall be presented to the Governor- 
 General for the Queen's assent.^ 
 
 58. When a proposed law passed by both Houses of the Royal 
 Parliament is presented to the Governor- General for the gju^ 
 Queen's assent, he shall declare, according to his discretion, 
 
 ' Few subjects in the discussions regarding the Commonwealth pre- 
 sented greater difficulties than the question what to do in case of dead- 
 locks between the two Houses. The Bill of 1891 had shirked the diffi- 
 culty ; but, considering that it was intended to set on foot a Second 
 Chamber, which should both represent the federal principle and be as 
 essentially democratic in its constitution as was the House of Represen- 
 tatives, it was impossible to ignore the risks of a possible deadlock. The 
 question received exhaustive discussion at the Sessions of 1897 and 1898. 
 The main dispute lay between the adoption of the principle of a dissolu- 
 tion, whether consecutive or simultaneous, of both Houses, or of a national 
 referendum. (The latter was unpopular with the small States because it 
 ignored the federal element in the Constitution.) There was a majority 
 in favour of some kind of referendum ; but with its advocates supporting, 
 some a national and some a dual referendum, i.e. such a referendum as 
 should secure a majority in the individual States, the supporters of dissolu- 
 tion won the day. By the Bill as it left the Convention a three-fifths 
 majority at the joint sitting was necessary; but this provision was very 
 unpopular in New South Wales, and was abandoned after the meeting of 
 the Premiers in 1899. 
 
 The provision with regard to the dissolution of the Senate is a new step 
 in procedure in the evolution of Federal Governments ; except so far as it 
 has been anticipated by the Swiss provisions in the case of a proposed 
 amendment of the Constitution set out in the note to Section 128.
 
 208 
 
 THE COMMONWEALTH OF 
 
 Recom- 
 menda- 
 tions by 
 Governor- 
 General. 
 
 Disallow- 
 ance by 
 the Queen, 
 
 Significa- 
 tion of 
 Queen's 
 pleasure 
 on Bills 
 reserved. 
 
 CHAP. II. 
 
 The 
 Govern- 
 ment. 
 
 Executive 
 power. 
 
 Federal 
 
 Executive 
 
 Council. 
 
 Provisions 
 
 referring 
 
 to 
 
 but subject to this Constitution, that he assents in the 
 Queen's name, or that he withholds assent, or that he 
 reserves the law for the Queen's pleasure. 
 
 The Governor-General may return to the House in which 
 it originated any proposed law so presented to him, and may 
 transmit therewith any amendments which he may recom- 
 mend, and the Houses may deal with the recommendation. 
 
 59. The Queen may disallow any law within one year 
 from the Governor-General's assent, and such disallowance 
 on being made known by the Governor-General by speech 
 or message to each of the Houses of the Parliament, or by 
 Proclamation, shall annul the law from the day when the 
 disallowance is so made known, 
 
 60. A proposed law reserved for the Queen's pleasure 
 shall not have any force unless and until within two years 
 from the day on which it was presented to the Governor- 
 General for the Queen's assent the Governor-General makes 
 known, by speech or message to each of the Houses of the 
 Parliament, or by Proclamation, that it has received the 
 Queen's assent. 
 
 CHAPTER II. 
 The Executive Government, 
 
 61. The executive power of the Commonwealth is vested 
 in the Queen and is exerciseable by the Governor-General 
 as the Queen's representative, and extends to the execution 
 and maintenance of this Constitution, and of the laws of 
 the Connnonwealth, 
 
 62. There shall be a Federal Executive Council to advise 
 the Governor-General in the government of the Common- 
 wealth, and the members of the Council shall be chosen 
 and summoned by the Governor-General and sworn as 
 Executive Councillors, and shall hold office during his 
 pleasure, 
 
 63. The provisions of this Constitution referring to the 
 Governor-General in Council shall ])e construed as referring
 
 AUSTRALIA CONSTITUTION ACT, 1900 209 
 
 to the Governor-General acting with the advice of the Governor- 
 Federal Executive Council. 
 
 64. The Governor-General may appoint officers to admin- Ministers 
 ister such departments of State of the Commonwealth as 
 
 the Governor-General in Council may establish. 
 
 Such officers shall hold office during the pleasure of the 
 Governor-General. They shall be members of the Federal 
 Executive Council, and shall be the Queen's Ministers of 
 State for the Commonwealth. 
 
 After the first general election no Minister of State shall Ministers 
 hold office for a longer period than three months unless he Parlia- 
 is or becomes a senator or a member of the House of Repre- '"^" * 
 sentatives.^ 
 
 65. Until the Parliament otherwise provides, the Minis- Number of 
 ters of State shall not exceed seven in number, and shall 
 
 hold such offices as the Parliament prescribes, or, in the 
 absence of provision, as the Governor-General directs.^ 
 
 66. There shall be payable to the Queen, out of the Con- Salaries of 
 solidated Revenue Fund of the Commonwealth, for the 
 salaries of the Ministers of State, an annual sum which, 
 
 until the Parliament otherwise provides, shall not exceed 
 twelve thousand pounds a year. 
 
 67. Until the Parliament otherwise provides, the appoint- Appoint- 
 ment and removal of all other officers of the Executive (.[y^ 
 Government of the Commonwealth shall be vested in the servants. 
 Governor-General in Council, unless the appointment is 
 delegated by the Governor-General in Council or by a law 
 
 of the Commonwealth to some other authority.^ 
 
 ' See Introduction, p. G4. This rule, which in Great Britain is implied, 
 was expressly set out in Victoria and South Australia. 
 
 ^ The Departments are that of External Aifairs ; that of the Attorney- 
 General ; that of Defence ; that of Trade and Customs ; that of the Post- 
 master-Genei'al ; that of Home Affairs ; and that of Treasury. There 
 are generally, in addition, two or three Ministers without portfolio. The 
 Prime Minister has on several occasions held the Department of External 
 Affairs ; but there is no rule as to which Department he should hold. 
 The federal character of the Constitution is, to some extent, represented 
 in the personnel of the Cabinet. 
 
 ' By an Act of 1902, for the Regulation of the Public Service, a Public 
 
 hi65 O
 
 210 THE COMMONWEALTH OF 
 
 Command 68. The Command in chief of tlie naval and military 
 and miii- ^^rces of the Commonwealth is vested in the Governor- 
 tary forces. General as the Queen's representative. 
 Transfer 69. On a date or dates to be proclaimed by the Governor- 
 depart- General after the establishment of the Commonwealth the 
 ments, following departments of the public service in each State 
 shall become transferred to the Commonwealth : — 
 Posts, telegraphs, and telephones : 
 Naval and military defence : 
 Lighthouses, lightships, beacons, and buoys : 
 Quarantine. 
 But the departments of customs and of excise in each 
 State shall become transferred to the Commonwealth on its 
 establishment. 
 Certain 70. In respect of matters which, under this Constitution, 
 
 of Go'ver- P^ss to the Executive Government of the Commonwealth, 
 nors to g^ii powers and functions which at the establishment of the 
 
 vest in ^ 
 
 Governor- Commonwealth are vested in the Governor of a Colony, or 
 in the Governor of a Colony with the advice of his Execu- 
 tive Council, or in any authority of a Colony, shall vest in 
 the Governor-General, or in the Governor-General in Council, 
 or in the authority exercising similar powers under the 
 Commonwealth^ as the case requires. 
 
 CHAP. III. CHAPTER III. 
 
 The Judi- 
 cature. The Judicatuhe. 
 
 Judicial 71. The judicial power of the Commonwealth shall be 
 
 CouHs^'"^ vested in a Federal Supreme Court, to be called the High 
 
 Court of Australia,^ and in such other federal courts as 
 
 Service Commissioner was set on foot with very extensive powers, 
 whose office it is to recommend for all Civil Service appointments within 
 the Commonwealth ; it was also enacted that the Public Service should 
 be mainly recruited by examination. 
 
 ' In the United States a complete system of State Courts was estab- 
 lished, ramifying all over the Union and exercising exclusive jurisdiction 
 in all cases arising under Federation Statutes ; the State Courts remaining 
 indeiKiident in State matters with no ai)peal from their decisions. In
 
 AUSTRALIA CONSTITUTION ACT, 1900 211 
 
 the Parliament creates, and in such other courts as it 
 invests with federal jurisdiction. The High Court shall 
 consist of a Chief Justice, find so many other Justices, not 
 less than two, as the Parliament prescribes. 
 
 72. The Justices of the Hi oh Court and of the other Judges' 
 courts created by the Parliament — me'nt^ten- 
 
 (i.) Shall be appointed by the Governor-General in ^^'^' ^"*^ 
 
 ^ ' _ '^ ^ "^ remunera- 
 
 Council : tion. 
 
 (ii.) Shall not be removed except by the Governor- 
 General in Council, on an address from both Houses 
 of the Parliament in the same session, praying for 
 such removal on the ground of proved misbehaviour 
 or incapacity : 
 
 (iii.) Shall receive such remuneration as the Parliament 
 may fix ; but the remuneration shall not be diminished 
 during their continuance in office. 
 
 73. The High Court shall have jurisdiction, with such Appellate 
 exceptions and subject to such regulations as the Parlia- {jq^ Jf'^' 
 ment prescribes, to hear and determine appeals from all ^'s'l 
 judgments, decrees, orders, and sentences — 
 
 (i.) Of any Justice or Justices exercising the original 
 jurisdiction of the High Court : 
 
 (ii.) Of any other federal court, or court exercising 
 federal jurisdiction ; or of the Supreme Court of any 
 State, or of any other court of any State from which at 
 the establishment of the Commonwealth an appeal lies 
 to the Queen in Council : 
 
 (iii.) Of the Inter-State Commission, but as to questions 
 of law only : 
 and the judgment of the High Court in all such cases shall 
 be final and conclusive. 
 
 Canada the same Courts deal with federal and provincial questions, and 
 the Supreme Court hears appeals from all other Courts. The Australian 
 High Court, it will be seen, occupied a middle position between these two 
 extremes. Under the Judiciary Act, No. 6 of 1903, the High Court at 
 first consisted of a Chief-Justice and two Judges. It has since been 
 enlarged by the addition of two Judges. 
 
 2
 
 (^ueen in 
 Council. 
 
 212 THE COMMONWEALTH OF 
 
 But no exception or regulation prescribed by the Parlia- 
 ment shall prevent the High Court from hearing and 
 determining any appeal from the Supreme Court of a 
 State in any matter in which at the establishment of the 
 Commonwealth an appeal lies from such Supreme Court 
 to the Queen in Council. 
 
 Until the Parliament otherwise provides, the condi- 
 tions of and restrictions on appeals to the Queen in 
 Council from the Supreme Courts of the several States 
 shall be applicable to appeals from them to the High 
 Court. 
 Appeal to 74. No appeal shall be permitted to the Queen in 
 Council from a decision of the High Court upon any 
 question, howsoever arising, as to the limits inter se of the 
 Constitutional powers of the Commonwealth and those 
 of any State or States, or as to the limits inter se of the 
 Constitutional powers of any two or more States, unless 
 the High Court shall certify that the question is one 
 which ought to be determined by Her Majesty in 
 Council.^ 
 
 The High Court may so certify if satisfied that for any 
 special reason the certificate should be granted, and there- 
 
 ^ See Introduction, pp. 58, 06-7, on history of this chmse. As framed at 
 tlie Adehiide Convention it prohibited any appeal to the Privy Council, 
 either from the State Courts or the Federal Courts, and the exception only 
 applied to appeals from the Federal Courts. (The words were, ' No appeal 
 shall be allowed to be given in Council from any Court of any State, or from 
 the High Court or any other Federal Court, except that the Queen may, in 
 any matter in which the public interests of the Commonwoaltli, or of any 
 State, or of any other part of her dominions, are concerned, grant leave to 
 appeal to the Queen in Council from the High Court.') In its final form, 
 however, the prohibition only expressly applied to appeals from the High 
 Court. The curious spectacle was thus provided of the Privy Council 
 and the High Court giving directly contradictory decisions on the same 
 question. The former held that a State Government could levy income 
 tax on the income of a federal official, the latter that it could not (com- 
 pare Deakin v. Webb (1 C. L. R. 5S5) and Wtbb v. OuUrim (L. R. [1907] A. C. 81). 
 The matter has been settled by the Commonwealth (Act of 1907, No. 8) 
 aboli.shing the concurrent jurisdiction of the Courts of the States with 
 regard to questions relating to the constitutional rights and powers of the 
 Cnnunonwtiiltli and of the States intey se.
 
 AUSTRALIA CONSTITUTION ACT, 1900 ns 
 
 upon an appeal shall lie to Her Majesty in Council on the 
 question without further leave.^ 
 
 Except as provided in this section, this Constitution 
 shall not impair any right which the Queen may be pleased 
 to exercise by virtue of Her Eoyal prerogative to grant 
 special leave of appeal from the High Court to Her 
 Majesty in Council, The Parliament may make laws 
 limiting the matters in which such leave may be asked, 
 but proposed laws containing any such limitation fthall 
 be reserved by the Governor-General for Her Majesty's 
 pleasure.*^ 
 
 75. In all matters — Original 
 
 ...... , , , iuribdic- 
 
 (i.) Arisnig under any treaty : tion of 
 
 (ii.) Affecting consuls or other representatives of other ^'^^ 
 
 countries : 
 {iii.) In which the Commonwealth, or a person suing or 
 
 being sued on behalf of the Commonwealth, is a party : 
 (iv.) Between States, or between residents of different 
 
 States, or between a State and a resident of another 
 
 State : ^' 
 (v.) In which a writ of Mandamus or prohibition or an 
 
 ^ On this section see Chief-Justice Sir S. Griffith's judgement in Baxter 
 V. Collector of Taxes of New South Wales (4 C.L. R., Part 2, 1103). 
 
 In the Bill of 1891 the matter was dealt with as follows : 'The Parlia- 
 ment of the Commonwealth may provide bj' law that any appeals which 
 have heretofore been allowed from any judgment, decree, or sentence of 
 the Highest Court of final resort of any State to the Queen in Council, 
 shall be brought and heard and determined by the Supreme Court of 
 Australia, and the judgment of the Court in all such cases shall be final 
 and conclusive. Notwithstanding the provisions of the two last preceding 
 sections or any law made by the Parliament of the Commonwealth in 
 pursuance thereof, the Queen may in any case in which the public 
 interests of the Commonwealth or of any State, or of any other part 
 of the Queen's dominions are concerned, grant leave to appeal to 
 herself in Council against any judgment of the Supreme Court of 
 Australia.' 
 
 2 This proviso was inserted at the suggestion of the Home Government ; 
 at first sight its practical effect would not seem likely to be great ; but it 
 is possible that the necessity for sanction in England may deter Australian 
 Ministers from such legislation. 
 
 ^ Cf. amendment XI to the United States Constitution.
 
 214 
 
 THE COMMONWEALTH OF 
 
 Addi- 
 tional 
 original 
 jurisdic- 
 tion. 
 
 Power to 
 define 
 jurisdic- 
 tion. 
 
 Proceed- 
 ings 
 against 
 Common- 
 wealtli or 
 State. 
 Number o 
 judges. 
 
 Trial ])y 
 jury. 
 
 injunction is sought against an officer of the Common- 
 wealth : 
 the High Court shall have original jurisdiction. 
 
 76. The Parliament may make laws conferring original 
 jurisdiction on the High Court in any matter — 
 
 (i.) Arising under this Constitution, or involving its 
 
 interpretation : ^ 
 (ii.) Arising under any laws made by the Parliament : 
 (iii.) Of Admiralty and maritime jurisdiction : 
 (iv.) Relating to the same subject-matter claimed under 
 
 the laws of different States. 
 
 77. With respect to any of the matters mentioned in the 
 last two sections the Parliament may make laws — 
 
 (i.) Defining the jurisdiction of any federal court other 
 than the High Court : 
 
 (ii.) Defining the extent to which the jurisdiction of an}'' 
 federal court shall be exclusive of that which belongs 
 to or is invested in the courts of the States : 
 
 (iii.) Investing any court of a State with federal juris- 
 diction. 
 
 78. The Parliament may make laws conferring rights 
 to proceed against the Commonwealth or a State in respect 
 of matters within the limits of the judicial power. 
 
 79. The federal jurisdiction of anj^ court may be exer- 
 ^cised by such number of judges as the Parliament pre- 
 scribes. 
 
 80. The trial on indictment of any offence against any 
 law of the Commonwealth shall l)e by jur}^ and every 
 such trial shall be held in the State where the offence was 
 committed, and if the offence was not committed within 
 any State the trial shall be held at such place or places as 
 the Parliament prescribes. 
 
 ' Sec Acts No. (> of 1003, and No. 8 of 1007. Sec also above, note on Sec. 74.
 
 AUSTRALIA CONSTITUTION ACT, 1900 215 
 
 CHAPTER IV. CHAP. IV. 
 
 Finance and Trade. "nd*^^ 
 
 Trade 
 
 81. All revenues or moneys raised or received by the ' 
 
 Executive Government of the Commonwealth shall form Consoli- 
 dated 
 one Consolidated Revenue Fund, to be appropriated for Revenue 
 
 the purposes of the Commonwealth in the manner and 
 
 subject to the charges and liabilities imposed by this 
 
 Constitution. 
 
 82. The costs, charges, and expenses incident to the Expen- 
 collection, management, and receipt of the Consolidated charged 
 Revenue Fund shall form the first charge thereon ; and thereon. 
 the revenue of the Commonwealth shall in the first instance 
 
 be applied to the payment of the expenditure of the 
 Commonwealth. 
 
 83. No money shall be drawn from the Treasury of the Money to 
 Commonwealth except under appropriation made by law. pHated^' 
 
 But until the expiration of one month after the first ^y ^^^• 
 meeting of the Parliament the Governor-General in Council 
 may draw from the Treasury and expend such moneys as 
 may be necessary for the maintenance of any department 
 transferred to the Commonwealth and for the holding of 
 the first elections for the Parliament. 
 
 84. When any department of the public service of Transfer 
 a State becomes transferred to the Commonwealth, all ^ 
 officers of the department shall become subject to the 
 control of the Executive Government of the Commonwealth. 
 
 Any such officer who is not retained in the service of 
 the Commonwealth shall, unless he is appointed to some 
 other office of equal emolument in the public service of 
 the State, be entitled to I'eceive from the State any pension, 
 gratuity, or other compensation, payable under the law of 
 the State on the abolition of his office. 
 
 Any such officer who is retained in the service of the 
 Commonwealth shall preserve all his existing and accruing 
 rights, and shall be entitled to retire from office at the
 
 216 THE COMMONWEALTH OF 
 
 time, and on the pension or retiring allowance, which 
 would be permitted by the law of the State if his service 
 with the Commonwealth were a continuation of his 
 service with the State. Such pension or retiring allow- 
 ance shall be paid to him by the Commonwealth ; but the 
 State shall pay to the Commonwealth a part thereof, to 
 be calculated on the proportion which his term of service 
 with the State bears to his whole term of service, and for 
 the purpose of the calculation his salary shall be taken to 
 be that paid to him by the State at the time of the 
 transfer. 
 
 Any officer who is, at the establishment of the Common- 
 wealth, in the public service of a State, and who is, by 
 consent of the Governor of the State with the advice of 
 the Executive Council thereof, transferred to the public 
 service of the Commonwealth, shall have the same rights 
 as if he had been an officer of a department transferred 
 to the Commonwealth and were retained in the service of 
 the Commonwealth. 
 Transfer 85. When any department of the public service of a 
 of property g^.j^|.g jg transferred to the Commonwealth— 
 
 of state. 
 
 (i.) All property of the State of any kind, used exclu- 
 sively in connexion with the department, shall become 
 vested in the Commonwealth ; but, in the case of the 
 departments controlling customs and excise and boun- 
 ties, for such time only as the Governor- General in 
 Council may declare to be necessary : 
 
 (ii.) The Commonwealth may acquire any property of the 
 State, of any kind used, but not exclusively used in 
 connexion with the department; the value thereof shall, 
 if no agreement can be made, be ascertained in, as 
 nearly as may be, the manner in which the value of 
 land, or of an interest in land, taken by the State for 
 public purposes is ascertained under the law of the 
 State in force at the establishment of the Common- 
 wealth :
 
 AUSTRALIA CONSTITUTION ACT, 1900 217 
 
 (iii.) The Commonwealth sliall compensate the State for 
 the value of any property passing to the Commonwealth 
 under this section ; if no agreement can be made as to 
 the mode of compensation, it shall be determined under 
 law\s to be made by the Parliament : 
 
 (iv.) The Commonwealth shall, at the date of the transfer, 
 assume the current obligations of the State in respect 
 of the department transferred. 
 
 86. On the establishment of the Commonwealth, the 
 collection and control of duties of customs and of excise, 
 and the control of the payment of bounties, shall pass to 
 the Executive Government of the Commonwealth. 
 
 87. During a period of ten years after the establishment 
 of the Commonwealth and thereafter until the Parliament 
 otherwise provides, of the net revenue of the Commonwealth 
 from duties of customs and of excise not more than one- 
 fourth shall be applied annually by the Commonwealth 
 towards its expenditure.^ 
 
 The balance shall, in accordance with this Constitution, 
 be paid to the several States, or applied towards the pay- 
 ment of interest on debts of the several States taken over 
 by the Commonwealth. 
 
 88. Uniform duties of customs shall be imposed within Uniform 
 two years after the establishment of the Commonwealth.^ customs. 
 
 ' For the history of ' the Braddon clause ' see Introduction, pp. 59, 63 
 and 64. The clause, without the limit of time, was adopted at the Melbourne 
 Session on March 11th by a majority of three; Sir Edward Braddon having 
 affirmed that unless this provision was made he saw no hope whatever of 
 recommending the Bill to the people of Tasmania. As at first drafted, 
 the clause limited expenditure on the part of the Commonwealth, in the 
 exercise of its original powers to one-twentieth, and to four-twentieths in 
 making good the net loss on the services taken over. But Sir E. Braddon 
 afterwards amended his own clause in the interests of elasticity. As 
 amended after the meeting of Premiers in 1899, the arrangement came 
 to an end in 1910. A proposed Bill of 1909 for the alteration of the Con- 
 stitution so as to secure a permanent payment of 25s. to the States for 
 every head of their respective populations was rejected at a referendum 
 of the electors, but an Act making such i>ayment for a period often years 
 has now become law. 
 
 2 Such duties were imposed by Act No. 14 of 1902.
 
 218 THE COMMONWEALTH OF 
 
 Payment 89. Until the imposition of uniform duties of customs — 
 before *^^ (^O ^he Commonwealth shall credit to each State the 
 
 uniform revenues collected therein by the Commonwealth, 
 
 duties. _ *' 
 
 (ii.) The Commonwealth shall debit to each State — 
 (a) The expenditure therein of the Commonwealth in- 
 curred solely for the maintenance or continuance, as 
 at the time of transfer, of any department transferred 
 from the State to the Commonwealth ; 
 (6) The proportion of the State, according to the number 
 of its people, in the other expenditure of the Com- 
 monwealth, 
 (iii.) The Commonwealth shall pay to each State month 
 by month the balance (if any) in favour of the State. 
 Exclusive 90. On the imposition of uniform duties of customs the 
 ^yg^pjj^^^'^ power of the Parliament to impose duties of customs and 
 excise, and q£ gxcisc, and to jjrant bounties ^ on the production or export 
 
 bounties. . 
 
 of goods, shall become exclusive. 
 
 On the imposition of uniform duties of customs all laws 
 of the several States imposing duties of customs or of 
 excise, or offering bounties on the production or export of 
 goods, shall cease to have effect, but any grant of or agree- 
 ment for any such bounty lawfully made by or under the 
 authority of the Government of any State shall be taken 
 to be good if made before the thirtieth day of June, one 
 thousand eight hundred and ninety-eight, and not other- 
 wise. 
 Excep- 91. Nothing in this Constitution prohibits a State from 
 
 bounties, granting any aid to or bounty on mining for gold, silver, or 
 other metals, nor from granting, with the consent of both 
 Houses of the Parliament of the Commonwealth expressed 
 by resolution, any aid to or bounty on the production or 
 export of goods. 
 Trade 92. On the imposition of uniform duties of customs, 
 
 Common'-^ trade, commerce, and intercourse among the States, whether 
 
 ' This power was exorcised by ' The Preservation of Australian Indus- 
 tries Act ', No. 9 of 1906.
 
 AUSTRALIA CONSTITUTION ACT, 1900 210 
 by means of internal carriage or ocean navigation, shall l)e wcaltli to 
 
 be free. 
 
 absolutely free.^ 
 
 But notwithstanding anything in this Constitution, goods 
 imported before the imposition of uniform duties of customs 
 into any State, or into any Colony which, whilst the goods 
 remain therein, becomes a State, shall, on thence passing 
 into another State within two years after the imposition of 
 such duties, be liable to any duty chargeable on the impor- 
 tation of such goods into the Commonwealth, less any duty 
 paid in respect of the goods on their importation. 
 
 93. During the first five years after the imposition of Payment 
 uniform duties of customs, and thereafter until the Parlia- for fiVe 
 ment otherwise provides — y®^^^ ^^*^®^' 
 
 J^ _ uniform 
 
 (i.) The duties of customs chargeable on goods imported tarifts. 
 into a State and afterwards passing into another State 
 for consumption, and the duties of excise paid on goods 
 produced or manufactured in a State and afterwards 
 passing into another State for consumption, shall be 
 taken to have been collected not in the former but in 
 the latter State : 
 
 (ii.) Subject to the last subsection, the Commonwealth 
 shall credit revenue, debit expenditure, and pay balances 
 to the several States as prescribed for the period pre- 
 ceding the imposition of uniform duties of customs. 
 
 94. After five years from the imposition of uniform Distribu- 
 duties of customs, the Parliament may provide, on such su*^rplus. 
 basis as it deems fair, for the monthly payment to the 
 several States of all surplus revenue of the Commonwealth. 
 
 95. Notwithstanding anything in this Constitution, the Customs 
 Parliament of the State of Western Australia, if that State ^ygstgrn 
 be an Original State, may, during the first five years after Australia, 
 the imposition of uniform duties of customs, impose duties 
 
 of customs ^ on goods passing into that State and not 
 
 ^ Compare Section 121 of British North America Act. 
 ^ See Introduction, p. 66. Sir John F<jrrest, the Western Australia repre- 
 sentative, was not in favour of making a special case of his Colony ; but.
 
 220 THE COMMONWEALTH OF 
 
 originally imported from beyond the limits of the Com- 
 monwealth ; and such duties shall be collected by the 
 Commonwealth. 
 
 But any duty so imposed on any goods shall not exceed 
 during the first of such years the duty chargeable on the 
 goods under the law of Western Australia in force at the 
 imposition of uniform duties, and shall not exceed during 
 the second, third, fourth, and fifth of such years respectively, 
 four-fifths, three-fifths, two -fifths, and one-fifth of such 
 latter duty, and all duties imposed under this section shall 
 cease at the expiration of the fifth year after the imposition 
 of uniform duties. 
 
 If at any time during the five years the duty on any 
 goods under this section is higher than the duty imposed 
 by the Commonwealth on the importation of the like goods, 
 then such higher duty shall be collected on the goods when 
 imported into Western Australia from beyond the limits of 
 the Commonwealth. 
 Financial 96. During a period of ten years after the establishment 
 to states, of the Commonwealth and thereafter until the Parliament 
 otherwise provides, the Parliament may grant financial 
 assistance to any State on such terms and conditions as 
 the Parliament thinks fit. 
 Audit. 97. Until the Parliament otherwise provides, the laws in 
 
 force in any Colony which has become or becomes a State 
 with respect to the receipt of revenue and the expenditure 
 of money on account of the Government of the Colony, and 
 the review and audit of such receipt and expenditure, shall 
 apply to the receipt of revenue and the expenditure of 
 money on account of the Commonwealth in the State in the 
 same manner as if the Commonwealth, or the Government 
 or an officer of the Commonwealth, were mentioned when- 
 ever the Colony, or the Government or an officer of the 
 Colony, is mentioned. 
 
 as its oircuiiistancus wt-ro special, it pruvtd iin|)i)ssilil(' to protect its 
 interests by any general provision applying to the States equally.
 
 AUSTRALIA CONSTITUTION ACT, 1900 221 
 
 98. The power of the Parliament to make laws with Trade and 
 
 . , . • .• 1 commerce 
 
 respect to trade and commerce extends to navigation and includes 
 
 shipping, and to railways the property of any State.^ "nutate" 
 
 99. The Commonwealth shall not, by any law or regula- railways. 
 
 , . p . 1 •PL Common- 
 
 tion 01 trade, commerce, or revenue, give prererence to one ^veaith not 
 State or any part thereof over another State or any part **^f^^*'P''®- 
 thereof. 
 
 100. The Commonwealth shall not, by any law or regu- Nor 
 lation of trade or commerce, abridge the right of a State or right1;o 
 of the residents therein to the reasonable use of the waters "^® water, 
 of rivers for conservation or irrigation.^ 
 
 101. There shall be an Inter-State Commission,^ with Inter- 
 such powers of adjudication and administration as the mission. 
 Parliament deems necessary for the execution and main- 
 tenance, within the Commonwealth, of the provisions of 
 
 this Constitution relating to trade and commerce, and of all 
 laws made thereunder, 
 
 102. The Parliament may by any law with respect to Parlia- 
 
 ,1 p ^ • 1 L '^ c ment may 
 
 trade or commerce torbid, as to railways, any preierence or forbid pre- 
 discrimination by any State, or by any authority constituted [®^®J1^^^ 
 under a State, if such preference or discrimination is undue 
 
 ' On the limitation to the meaning of this section given by the High 
 Court, see Tlie Federated Government Raihvay and Tramway Servants' Association 
 V. Neto South Wales Ra/hvay Traffic Emploijes' Association, 4 C L. R. 488. 
 
 ^ Few subjects gave rise to more division of opinion and received more 
 careful treatment at the convention debates than the question of the 
 respective rights of the riparian owners, and of third parties interested in 
 the waters of Australia (see especially Convention Debates, Melbourne, 1898, 
 pp. 376-642), The 100th clause was substituted for a subsection in the 
 1897 Bill giving the federal legislature ' the control and regulation of the 
 navigation of the river Murray, and the use of the waters thereof from 
 where it first forms the boundary between Victoria and New South 
 Wales to the sea.' 
 
 ^ The first suggestion for an Inter-State Commission was made at the 
 Adelaide Session in 1897 ; but its establishment was then made optional. 
 With the reference to it of the subject of unfair or preferential railway 
 rates its creation was made obligatory. Precedents existed in the Inter- 
 State Commerce Commission of the United States set on foot in 1887, and 
 the English Railway Commission of 1888. In spite of this express enact- 
 ment an Inter-State Commission had not been set on foot up to the end 
 of 1910, A Bill constituting one was introduced into the Senate in 1909 ; 
 but had not passed through Parliament at the time of the dissolution.
 
 222 
 
 THE COMMONWEALTH OF 
 
 Commis- 
 sioners' 
 ai>point- 
 ment, ten- 
 ure, and 
 remunera- 
 tion. 
 
 Saving of 
 
 certain 
 
 rates. 
 
 and unreasonable,' or unjust to any State ; due regard being 
 had to the financial responsibilities incurred by any State 
 in connexion with the construction and maintenance of its 
 railwa3^s. But no preference or discrimination shall, within 
 the meaning of this section, be taken to be undue and un- 
 reasonable, or unjust to any State, unless so adjudged by 
 the Inter-State Commission. 
 
 103. The members of the Inter-State Commission — 
 
 (i.) Shall be appointed by the Governor-General in 
 Council : 
 
 (ii.) Shall hold office for seven years, but may be removed 
 within that time by the Governor-General in Council, 
 on an address from both Houses of the Parliament in 
 the same session praying for such removal on the 
 ground of proved misbehaviour or incapacity: 
 
 (iii.) Shall receive such remuneration as the Parliament 
 may fix ; but such remuneration shall not be diminished 
 during their continuance in office. 
 
 104. Nothing in this Constitution shall render unlawful 
 any rate for the carriage of goods upon a railway, the 
 property of a State, if the rate is deemed by the Inter- 
 State Commission to be necessary for the development of 
 the territory of the State, and if the rate applies equally 
 to goods within the State and to goods passing into the 
 State from other States. 
 
 105. The Parliament may take over from the States their 
 
 > The Supreme Court of the United States liiis liold tliiit ' subject 
 to tlie two leading propositions tliat their charges shall not be unjust 
 or unreasonable, and that they shall not unjustly discriminate so as 
 to give undue preference or disadvantage to persons or traffic similarly 
 circumstanced ', these words leave * common carriers as they were 
 at the common law, free to make special rates . . . and generally to 
 manage their important interests upon tho same principles, which are 
 regarded as sound, and are generally adopted in other tradtisand pursuits. 
 Tho carriers are better qualified to adjust such matters than any Court or 
 Board of public administration ; and within the lin)itations suggested it 
 is safe and wise to leave to their traffic managers the adjusting of dis- 
 similar circumstances and conditions to their business'. Quoted in 
 Memorandum <>m Snuth African Federation, Pari, rajiers [Cd. 35(54] 1907.
 
 AUSTRALIA CONSTITUTION ACT, 1900 223 
 
 public debts ^ as existing at the establishment of the Taking 
 Commonwealth, or a proportion thereof according to uc debts 
 the respective numbers of their people as shown by the '^^ states. 
 latest statistics of the Commonwealth, and may convert, 
 renew, or consolidate such debts, or any part thereof; 
 and the States shall indemnify the Commonwealth in 
 respect of the debts taken over, and thereafter the 
 interest payable in respect of the debts shall be deducted 
 and retained from the portions of the surplus revenue of 
 the Commonwealth payable to the several States, or if such 
 surplus is insufficient, or if there is no surplus, then the 
 deficiency or the whole amount shall be paid by the several 
 States. 
 
 CHAPTER V. cHAP.v. 
 
 The States.'^ The 
 
 states. 
 
 106. The Constitution of each State of the Common- 
 
 wealth shall, subject to this Constitution, continue as at constftu- 
 the establishment of the Commonwealth, or as at the ad- tio"«- 
 mission or establishment of the State, as the case may be, 
 until altered in accordance with the Constitution of the 
 State.=^ 
 
 ^ The words ' as existing at the establishment of the Commonwealth ' 
 are omitted by the Constitution Alteration (State Debts) Act, 1909, 
 
 * The status of the States is carefully considered in Harrison Moore's 
 Commonwealth of Australia, 2nd cd., 1910, pp. 345-56. The conclusion 
 reached is that there must be express or implied enactment in the 
 Commonwealth Act for any powers formerly enjoyed by the State 
 Governments, as well as Parliaments, to be taken away. On the position 
 of Commonwealth and State officials with reference to the States and 
 the Commonwealth, note the principle of the immunity of instrumen- 
 talities, which forbids the interference, direct or indirect, with the free 
 exercise of powers given by the Constitution. See Harrison Moore, op. cit., 
 pp. 421-37, and cases there cited. (It was on the subject of the im- 
 munity of federal officials from taxation that the High Court of the 
 Commonwealth and the Privy Council gave directly contrary decisions.) 
 
 ^ In the draft Bill of 1891 it was provided that all communications 
 with the Crown by the States should be made through the Governor- 
 General ; but such a clause was negatived at the Federal Convention at 
 Adelaide ; and in matters not expressly transferred to the Commonwealth 
 Australia still speaks with six voices instead of one. It was not till 1910 
 that a High Commissioner for the Commonwealth entered upon his 
 duties in Great Britain.
 
 224 THE COMMONWEALTH OF 
 
 Saving of 107. EvGiy powei' of* the Parliament of a Colony which 
 state Par- has bccome or becomes a State, shall, unless it is by this 
 lamen s. Qonstitution exclusively vested in the Parliament of the 
 Commonwealth or withdrawn from the Parliament of the 
 State, continue as at the establishment of the Common- 
 wealth, or as at the admission or establishment of the State, 
 as the case may be. 
 Saving of 108. Every law in force in a Colony which has become 
 ■ or becomes a State, and relating to any matter within the 
 powers of the Parliament of the Commonwealth, shall, 
 subject to this Constitution, continue in force in the State ; 
 and, until provision is made in that behalf by the Parlia- 
 ment of the Commonwealth, the Parliament of the State 
 shall have such powers of alteration and of repeal in re- 
 spect of any such law as the Parliament of the Colony had 
 until the Colony became a State. 
 Inconsis- 109. When a law of a State is inconsistent with a 
 laws. l^-w of the Commonwealth, the latter shall prevail, and 
 the former shall, to the extent of the inconsistency, be 
 invalid. 
 Provisions 110. The provisions of this Constitution relating to the 
 to Gover- Governor of a State extend and apply to the Governor for 
 "°*'- the time being of the State, or other chief executive officer 
 
 or administrator of the government of the State. 
 States may 111. The Parliament of a State may surrender any part 
 territory. ^^ ^^^ State to the Commonwealth; and upon such sur- 
 render, and the acceptance thereof by the Commonwealth, 
 such part of the State shall become subject to the exclusive 
 jurisdiction of the Commonwealth.^ 
 States 112. After uniform duties of customs have been im- 
 
 chargeJ^ posed, a State may levy on imports or exports, or on goods 
 for inspcc- passing into or out of the State, such charges as may be 
 necessary for executing the inspection laws of the State ; 
 
 ' By an Act of 1910 giving effect to an agreement with South Australia 
 tho Northern Territory was taken over by the Commonwealth from 
 January 1, 191 1. Another Act, No. 27 of 1910, provides for tlie adminis- 
 tration of tlie land in question.
 
 AUSTRALIA CONSTITUTION ACT, 1900 225 
 
 but the net produce of all charges so levied shall be for 
 the use of the Commonwealth ; and any such inspection 
 laws may be annulled by the Parliament of the Common- 
 wealth. 
 
 113. All fermented, distilled, or other intoxicating liquids lutoxi- 
 passing into any State or remaining therein for use, con- ifqu^fs. 
 sumption, sale, or storage, shall be subject to the laws of 
 
 the State as if such liquids had been produced in the State. 
 
 114. A State shall not, without the consent of the states 
 Parliament of the Commonwealth, raise or maintain any i^i^" 
 naval or military force, or impose any tax on property of ^^""^^f: 
 any kind belonging to the Commonwealth, nor shall the of pro- 
 Commonwealth impose any tax on property of any kind common- 
 belonging to a State.i weaUh or 
 
 115. A State shall not coin money, nor make anything states not 
 but gold and silver coin a legal tender in payment of debts. ^ money 
 
 116. The Commonwealth shall not make any law for common- 
 establishing any religion, or for imposing any religious fo^ie^islate 
 observance, or for prohibiting the free exercise of any in respect 
 religion, and no religious test shall be required as a qualifi- 
 cation for any office or public trust under the Common- 
 wealth.^ 
 
 117. A subject of the Queen, resident in any State, shall Rights of 
 not be subject in any other State to any disability or dis- in^sta"es, 
 crimination which would not be equally applicable to him 
 
 if he were a subject of the Queen resident in such other 
 State.3 
 
 118. Full faith and credit shall be given, throughout the Recogni- 
 Commonwealth to the laws, the public Acts and records, iaws°&c. 
 and the judicial proceedings of every State. °^ states. 
 
 119. The Commonwealth shall protect every State Protection 
 against invasion and, on the application of the Executive fi-omlnva- 
 Government of the State, against domestic violence. ^ion and 
 
 violence. 
 
 1 Cf. Article I, Section 10, of United States' Constitution. 
 ^ This clause seems out of place in the chapter on the States. 
 ^ On this Section see Harrison Moore, op. cit, pp. 331-4. 
 
 1265 P
 
 226 THE COMMONWEALTH OF 
 
 Custody of 120. Every State shall make provision for the detention 
 
 offenders .... „ , • j i f r»» 
 
 against ^ its prisons 01 persons accused or convicted oi oiiences 
 laws of against the laws of the Commonwealth, and for the punish- 
 Common- ment of persons convicted of such oifences, and the Parlia- 
 ment of the Commonwealth may make laws to give effect 
 to this provision. 
 
 CHAP. VI. CHAPTER VI. 
 
 sfalls. New States. 
 
 New 121. The Parliament may admit to the Commonwealth 
 
 may be ^^' establish new States, and may upon such admission or 
 admitted establishment make or impose such terms and conditions, 
 
 or estab- _ '■ 
 
 lished. including the extent of representation in either House of 
 
 the Parliament, as it thinks fit. 
 Govern- 122. The Parliament may make laws for the government 
 terri- of any territory surrendered by any State to and accepted 
 tones. j^^^ ^jjg Commonwealth, or of any territory placed by the 
 Queen under the authority of and accepted by the Common- 
 wealth,^ or otherwise acquired by the Commonwealth, and 
 may allow the representation of such territory in either 
 House of the Parliament to the extent and on the terms 
 which it thinks fit. 
 Alteration 123. The Parliament of the Commonwealth may, with 
 
 of limits <• 1 Ti !• 
 
 of States, the consent or the Parlianjent or a State, and the approval 
 of the majority of the electors of the State voting upon the 
 question, increase, diminish, or otherwise alter the limits of 
 the State, upon such terms and conditions as may be agreed 
 on, and may, with the like consent, make provision respect- 
 ing the effect and operation of any increase or diminution 
 or alteration of territory in relation to any State affected. 
 Formation 124. A new State may be formed by separation of 
 states. territory from a State, but only with the consent of the 
 
 ' By the Papua Act, No. 9 of 1905, the Commonwealth accepted British 
 New Cuinea as a territory under its authority, and provided for its 
 government.
 
 AUSTRALIA CONSTITUTION ACT, 1900 227 
 
 Parliament thereof, and a new State may be formed by the 
 union of two or more States or parts of States, but only 
 with the consent of the Parliaments of the States affected. 
 
 CHAPTER VII. cHAP.vn. 
 
 nr Miscel- 
 
 MlSCELLANEOUS. laneous. 
 
 125. The seat of Government of the Commonwealth Seat of 
 shall be determined by the Parliament, and shall be within ment. 
 territory which shall have been granted to or acquired by 
 
 the Commonwealth, and shall be vested in and belong to 
 the Commonwealth, and shall be in the State of New 
 South Wales, and be distant not less than one hundred 
 miles from Sydney.^ 
 
 Such territory shall contain an area of not less than one 
 hundred square miles, and such portion thereof as shall 
 consist of Crown lands shall be granted to the Common- 
 wealth without any payment therefor. 
 
 The Parliament shall sit at Melbourne until it meet at 
 the seat of Government. 
 
 126. The Queen may authorise the Governor-General to Power to 
 appoint any person, or any persons jointly or severally, to jesty to 
 be his deputy or deputies within any part of the Common- ^"*^<^"s® 
 wealth, and in that capacity to exercise during the pleasure General 
 of the Governor-General such powers and functions of the deputies. 
 Governor-General as he thinks fit to assign to such deputy 
 
 or deputies, subject to any limitations expressed or directions 
 given by the Queen ; but the appointment of such deputy 
 or deputies shall not affect the exercise by the Governor- 
 General himself of any power or function. 
 
 ' The seat of Government has, after much hesitation, been fixed in the 
 Yass Canberra District. The area which is to be handed over to the 
 Commonwealth as federal territory consists of nine hundred square miles. 
 
 It was only after that the Bill had not been accepted in New South 
 Wales by the required number of votes in 1898 that this provision was 
 insei-ted. Before this it had been consistently maintained that the matter 
 was one which should be decided by the Commonwealth Parliament. 
 
 P 2
 
 328 
 
 THE COMMONWEALTH OF 
 
 Aborigines 127. In reckoning the numbers of the people of the 
 counted in Commonwealth, or of a State or other part of the Common- 
 ^cT^^ia'"" wealth, aboriginal natives shall not be counted. 
 
 tion. 
 
 CHAP. VI I r. 
 
 Alteration 
 of Consti- 
 tution. 
 
 Mode of 
 altering 
 the Con- 
 stitution. 
 
 CHAPTER VIII. 
 
 Alteration of the Constitution.^ 
 128. This Constitution shall not be altered except in 
 the following manner : — 
 
 The proposed law for the alteration thereof must be 
 passed by an absolute majority of each House of the Parlia- 
 ment, and not less than two nor more than six months 
 after its passage through both Houses the proposed law 
 shall be submitted in each State to the electors qualified to 
 
 ^ On the introduction of the principle of the referendum see Introduc- 
 tion, p. 65. 
 
 The provisions with regard to the alteration of the Constitution set out 
 in Article V of the Constitution of the United States are as follows : The 
 Congress, whenever two-thirds of both Houses shall deem it necessary, 
 shall propose amendments to this Constitution, or, on the application of 
 the Legislatures of two-thirds of the several States, shall call a convention 
 for proposing amendments, which, in either case, shall be valid to all 
 intents and purposes as part of this Constitution, when ratified by the 
 Legislatures of three-fourths of the several States, or by conventions in 
 three-fourths thereof, as the one or the other mode of ratification may be 
 proposed by the Congress ; provided . . . that no State, without its con- 
 sent, shall be deprived of its equal suffrage in the Senate. 
 
 Compare Article 20 of the Swiss Constitution : Lorsqu'une section de 
 rassemblee federale decrete la revision (totale) de la constitution fdd^rale 
 et que I'autre section n'y consent pas, ou bien lorsque cinquante mille 
 citoyeus Suisses ayant droit de voter demandent la revision (totale), la 
 question de savoir si la constitution federale doit etre revisee est, dans I'un 
 comme dans I'autre cas, soumise ii la votation du peuple Suisse, par oui 
 ou par non. 
 
 Si, dans Tun ou I'autre de ces cas, la majorite des citoyens Suisses, 
 prenant part h la votation, se prouonce pour I'affirmative, les deux con- 
 seils seront renouveles pour travailler a la revision. 
 
 The alteration of the Canadian Constitution rests, as we have seen, 
 with the British Parliament. 
 
 The South African Union, being a unitary Government and not a federa- 
 tion, its Parliament has full powers to alter the Constitution. In certain 
 cases, liowover, such power cannot be exercised till after the expiration 
 of a ]ieriod often years from the coming into foi'co of the Act; and, in 
 certain other cases, a majority of two-thirds is required of the total 
 number of both Houses voting at a joint sitting.
 
 AUSTRALIA CONSTITUTION ACT, 1900 229 
 
 vote for the election of members of the House of Repre- 
 sentatives. 
 
 But if either House passes any such proposed law hy an 
 absolute majority, and the other House rejects or fails to 
 pass it or passes it with any amendment to which the first- 
 mentioned House will not agree, and if after an interval of 
 three months the first-mentioned House in the same or the 
 next session again passes the proposed law by an absolute 
 majority with or without any amendment which has been 
 made or agreed to by the other House, and such other 
 House rejects or fails to pass it or passes it with any 
 amendment to which the first-mentioned House will not 
 agree, the Governor-General may submit the proposed law 
 as last proposed by the first-mentioned House, and either 
 with or without any amendments subsequently agreed to 
 by both Houses, to the electors in each State qualified to 
 vote for the election of the House of Representatives. 
 
 When a proposed law is submitted to the electors the 
 vote shall be taken in such manner as the Parliament pre- 
 scribes. But until the qiialification of electors of members 
 of the House of Representatives becomes uniform through- 
 out 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 representa- 
 tion 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 affect- 
 ing the provisions of the Constitution in relation thereto, 
 shall become law unless the majority of the electors voting 
 in that State approve the proposed law.
 
 230 THE CONSTITUTION, &c. 
 
 SCHEDULE. 
 
 Oath. 
 
 I, A.B., do swear that I will be faithful and bear true 
 allegiance to Her Majesty Queen Victoria, Her heirs and 
 successors according to law. So help me God ! 
 
 Affirmation. 
 
 I, A.B., do solemnly and sincerely affirm and declare 
 that I will be faithful and bear true allegiance to Her 
 Majesty Queen Victoria, Her heirs and successors according 
 to law. 
 
 Note. — The name of the King or Queen of the United 
 Kingdom of Great Britain and Ireland for the time being 
 is to be substituted from time to time.
 
 SOUTH AFKICA ACT, 1909. 
 
 [9 Edw. 7. Ch. 9.] 
 
 ARRANGEMENT OF SECTIONS. 
 I. — Preliminary. 
 
 Section. 
 
 1. Short title. 
 
 2. Definitions. 
 
 3. Application of Act to King's successors. 
 
 II.— The Uniox. 
 
 4. Proclamation of Union. 
 
 5. Commencement of Act. 
 
 6. Incorporation of Colonies into the Union. 
 
 7. Application of Colonial Boundaries Act, &c. 
 
 8 
 9 
 10 
 11 
 12 
 13 
 14 
 15 
 16 
 
 17 
 
 18 
 
 III. — Executive Government. 
 
 Executive power. 
 
 Governor-General. 
 
 Salary of Governor-General. 
 
 Application of Act to Governor-General. 
 
 Executive Council. 
 
 Meaning of Governor-General in Council. 
 
 Appointment of ministers. 
 
 Appointment and removal of ofiicers. 
 
 Transfer of executive powers to Governor-General in 
 
 Council. 
 Command of naval and military forces. 
 Seat of Government. 
 
 IV. — Parliament. 
 
 19. Legislative power. 
 
 20. Sessions of Parliament. 
 
 21. Summoning of first Parliament. 
 
 22. Annual session of Parliament. 
 
 23. Seat of Legislature. 
 
 Senate. 
 
 24. Original constitution of Senate. 
 
 25. Subsequent constitution of Senate. 
 
 26. Qualifications of senators. 
 
 27. Appointment and tenure of oftice of President. 
 
 28. Deputy President.
 
 232 SOUTH AFRICA ACT, 1909 
 
 Section. 
 
 29. Resignation of senators. 
 
 30. Quorum. 
 
 31. Voting in the Senate. 
 
 House of Assembly. 
 
 32. Constitution of House of Assembl}'. 
 
 33. Original number of members. 
 
 34. Increase of number of members. 
 
 35. Qualifications of voters. 
 
 36. Application of existing qualifications. 
 
 37. Elections. 
 
 38. Commission for delimitation of electoral divisions. 
 
 39. Electoral divisions. 
 
 40. Method of dividing provinces into electoral divisions. 
 
 41. Alteration of electoral divisions. 
 
 42. Powers and duties of commission for delimiting 
 
 electoral divisions. 
 
 43. Date from which alteration of electoral divisions to 
 
 take efiect. 
 
 44. Qualifications of members of House of Assembly. 
 
 45. Duration. 
 
 46. Appointment and tenure of office of Speaker. 
 
 47. Deputy Speaker. 
 
 48. Resignation of members. 
 
 49. Quorum. 
 
 50. Voting in House of Assembly. 
 
 Both Houses of Parliament. 
 
 51. Oath or affirmation of allegiance. 
 
 52. Member of either House disqualified for being 
 
 member of the other House. 
 
 53. Disqualifications for l)eing a member of either House, 
 
 54. Vacation of seats. 
 
 55. Penalty for sitting or voting when disqualified. 
 
 56. Allowances of members. 
 
 57. Privileges of Houses of Parliament. 
 
 58. Rules of procedure. 
 
 Powers (f Parliament. 
 
 59. Powers of Parliament. 
 
 60. Money Bills. 
 
 61. Appropriation Bills. 
 
 62. Rccoimiicndation of money votes. 
 
 63. Disagreements between the two Houses. 
 
 64. Royal Assent to Bills.
 
 SOUTH AFRICA ACT, 1909 233 
 
 Section. 
 
 65. Disallowance of Bills. 
 
 66. Reservation of Bills. 
 
 67. Siofnature and enrolment of Acts. 
 
 V. — The Provinces. 
 Administrators. 
 
 68. Appointment and tenure of office of provincial 
 
 administrators. 
 
 69. Salaries of administrators. 
 
 Provincial Councils. 
 
 70. Constitution of provincial councils. 
 
 71. Qualification of provincial councillors. 
 
 72. Application of sections 53 to 55 to provincial coun- 
 
 cillors. 
 
 73. Tenure of office by provincial councillors. 
 
 74. Sessions of provincial councils. 
 
 75. Chairman of provincial councils. 
 
 76. Allowances of provincial councillors. 
 
 77. Freedom of speech in provincial councils. 
 
 Executive Committees. 
 
 78. Provincial executive committees. 
 
 79. Right of administrator, &c. to take part in proceed- 
 
 ings of provincial council. 
 
 80. Powers of provincial executive committees. 
 
 81. Transfer of powers to provincial executive commit- 
 
 tees. 
 
 82. Voting in executive committees. 
 
 83. Tenure of office by members of executive committees. 
 
 84. Power of administrator to act on behalf of Governor- 
 
 General in Council. 
 
 Powers of Provincial Councils. 
 
 85. Powers of provincial councils. 
 
 86. Effect of provincial ordinances. 
 
 87. Recommendations to Parliament. 
 
 88. Power to deal with matters proper to be dealt with 
 
 by private Bill legislation. 
 
 89. Constitution of provincial revenue fund. 
 
 90. Assent to provincial ordinances. 
 
 91. Effect and enrolment of ordinances.
 
 234 SOUTH AFRICA ACT, 1909 
 
 Miscellaneous. 
 
 Section, 
 
 92. Audit of provincial accounts. 
 
 93. Continuation of powers of divisional and municipal 
 
 councils. 
 
 94. Seats of Provincial Government. 
 
 VI. — The Supreme Court of South Africa. 
 
 95. Constitution of Supreme Court. 
 
 96. Appellate Division of Supreme Court. 
 
 97. Filling of temporary vacancies in Appellate Division. 
 
 98. Constitution of provincial and local divisions of 
 
 Supreme Court. 
 
 99. Continuation in office of existing judges. 
 
 100. Appointment and remuneration of judges. 
 
 101. Tenure of office by judges. 
 
 102. Reduction in number of judges. 
 
 103. Appeals to Appellate Division. 
 
 104. Existing appeals. 
 
 105. Appeals from inferior courts to provincial divisions. 
 
 106. Provisions as to appeals to the King in Council. 
 
 107. Rules of procedure in Appellate Division. 
 
 108. Rules of procedure in provincial and local divisions. 
 
 109. Place of sittings of Appellate Division. 
 
 110. Quorum for hearing appeals. 
 
 111. Jurisdiction of Appellate Division. 
 
 112. Execution of processes of provincial divisions. 
 
 113. Transfer of suits from one provincial or local divi- 
 
 sion to another. 
 
 114. Registrar and officers of Appellate Division. 
 
 115. Advocates and attorneys. 
 
 116. Pending suits. 
 
 VII. — Finance and Railways. 
 
 117. Constitution of Consolidated Revenue Fund and 
 
 Railway and Harbour Fund. 
 IIH. Commission of in(|uiry into financial relations be- 
 tween Union and provinces. 
 
 119. Security for existing pul)Hc debts. 
 
 120. Requirements for withdrawal of money from funds. 
 
 121. Transfer of colonial property to the Union. 
 
 122. Crown lands, &c. 
 
 123. Mines and minerals. 
 
 124. Assumption by Union of colonial debts. 
 
 125. Ports, harbours, and railways.
 
 SOUTH AFRICA ACT, 1909 235 
 
 Section. 
 
 126. Constitution of Harbour and Railway Board. 
 
 127. Administration of railways, ports, and harbours. 
 
 128. Establishment of fund for maintaining uniformity 
 
 of railway rates. 
 
 129. Management of railway and harljour balances. 
 
 130. Construction of harbour and railway works. 
 
 131. Making good of deficiencies in Railway Fund in 
 
 certain cases. 
 
 132. Controller and Auditor-General. 
 
 133. Compensation of colonial capitals for diminution of 
 
 prosperity. 
 
 VIII. — General. 
 
 134. Method of voting for senators, &c. 
 
 135. Continuation of existing colonial laws. 
 
 136. Free trade throughout Union. 
 
 137. Equality of English and Dutch languages. 
 
 1 38. Naturalisation. 
 
 139. Administration of justice. 
 
 140. Existing officers. 
 
 141. Reorganisation of public departments. 
 
 142. Public service commission, 
 
 143. Pensions of existing officers. 
 
 144. Tenure of office of existincr officers. 
 
 145. Existing officers not to be dismissed for ignorance oi 
 
 English or Dutch. 
 
 146. Compensation to existing officers who are not re- 
 
 tained. 
 
 147. Administration of native affairs, &c. 
 
 148. Devolution on Union of rights and obligations under 
 
 conventions. 
 
 IX. — New Provinces and Territories. 
 
 149. Alteration of boundaries of provinces. 
 
 150. Power to admit into Union territories administered 
 
 by British South Africa Company. 
 
 151. Power to transfer to Union government of native 
 
 territories. 
 
 X. — Amendment of Act. 
 
 152. Amendment of Act. 
 
 Schedule.
 
 236 SOUTH AFRICA ACT, 1909 
 
 CHAPTER 9. 
 
 An Act to constitute the Union of South Africa. 
 
 [•20th September, 1909.] 
 
 Whekeas it is desirable for the welfare and future pro- 
 gress of South Africa that the several British Colonies 
 therein should be united under one Government in a legisla- 
 tive union under the Crown of Great Britain and Ireland: 
 
 And whereas it is expedient to make provision for the 
 union ^ of the Colonies of the Cape of Good Hope, Natal, 
 the Transvaal, and the Orange River Colony on terms and 
 conditions to which they have agreed by resolution of their 
 respective Parliaments, and to define the executive, legisla- 
 tive, and judicial powers to be exercised in the government 
 of the Union : 
 
 And whereas it is expedient to make provision for the 
 establishment of provinces with powers of legislation and 
 administration in local matters and in such other matters 
 as may be specially reserved for provincial legislation and 
 administration : 
 
 And whereas it is expedient to provide for the eventual 
 admission into the Union or transfer to the Union of such 
 parts of South Africa as are not originally included there- 
 in : '^ 
 
 Be it therefore enacted by the King's most Excellent 
 Majesty, by and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in this present 
 Parliament assembled, and by the authority of the same, as 
 follows : — 
 
 I. — Preliminary. 
 Short 1. This Act may be cited as the South Africa Act, 1909. 
 
 Defitii- 2. In this Act, unless it is otherwise expressed or im- 
 
 tions. plied, the words "the Union " shall be taken to mean the 
 
 ' The keynote of the Act is that it ('stal)lislicd a Union, not a Federation. 
 * Khodisia was mainly in question.
 
 SOUTH AFRICA ACT, 1909 237 
 
 Union of South Africa as constituted under this Act, and 
 tlie words " Houses of Parliament," " House of Parliament," 
 or " Parliament " shall be taken to mean the Parliament of 
 the Union. 
 
 3. The provisions of this Act referring to the King Applica- 
 shall extend to His Majesty's heirs and successors in the ^"j. ^^ 
 sovereignty of the United Kinfjdom of Great Britain and king's 
 
 " ° successors. 
 
 Ireland. 
 
 II. — Union. 
 
 4. It shall be lawful for the King, with the advice of Pi-ocl.ama- 
 the Privy Council, to declare by proclamation that, on and Union, 
 after a day therein appointed, not being later than one 
 
 year after the passing of this Act, the Colonies of the Cape 
 of Good Hope, Natal, the Transvaal, and the Orange River 
 Colony, hereinafter called the Colonies, shall be united in 
 a Legislative Union under one Government under the name 
 of the Union of South Africa. On and after the day 
 appointed by such proclamation the Government and Par- 
 liament of the Union shall have full power and authority 
 within the limits of the Colonies, but the King may at any 
 time after the proclamation appoint a governor-general for 
 the Union. 
 
 5. The provisions of this Act shall, unless it is otherwise Com- 
 expressed or implied, take effect on and after the day so menrof 
 appointed. ^'^*- 
 
 6. The colonies mentioned in section four shall become incorpo- 
 original provinces of the Union under the names of Cape colonLs 
 of Good Hope, Natal, Transvaal, and Orange Free State, i"^° *^^® 
 
 ^ _ ^ ° ' Union. 
 
 as the case may be. The original provinces shall have the 
 same limits as the respective colonies at the establishment 
 of the Union. 
 
 7. Upon any colony entering the Union, the Colonial Applica- 
 Boundaries Act, 1895, and every other Act applying to any 53 & 59 
 of the Colonies as being self-governing colonies or colonies 7^*^*' ^" ^^' 
 with responsible government, shall cease to apply to that
 
 :238 
 
 SOUTH AFRICA ACT, 1909 
 
 colony, but as from the date when this Act takes effect 
 every such Act of Parliament shall apply to the Union.^ 
 
 Executive 
 power. 
 
 Governor- 
 General. 
 
 Salary of 
 Governor- 
 General. 
 
 Applica- 
 tion of 
 Act to 
 Governor- 
 General. 
 
 Executive 
 Council. 
 
 III. — Executive Government.- 
 
 8. The Executive Government of the Union is vested in 
 the King, and shall be administered by His Majesty in 
 person or by a governor-general as His representative. 
 
 9. The Goyernor-General shall be appointed by the King, 
 and shall have and may exercise in the Union during the 
 King's pleasure, but subject to this Act, such powers and 
 functions of the King as His Majesty may be pleased to 
 assign to him. 
 
 10. There shall be paj^able to the King out of the Con- 
 solidated Revenue Fund of the Union for the salary of the 
 Governor- General an annual sum of ten thousand pounds. 
 The salary of the Governor-General shall not be altered 
 during his continuance in office. 
 
 11. The provisions of this Act relating to the Governor- 
 General extend and apply to the Governor-General for the 
 time being or such person as the King may appoint to 
 administer the government of the Union. The King may 
 authorise the Governor-General to appoint any person to 
 be his deputy within the Union during his temporary 
 absence, and in that capacity to exercise for and on behalf 
 of the Governor- General during such absence all such 
 powers and authorities vested in the Governor-General as 
 the Governor-General may assign to him, subject to any 
 limitations expressed or directions given by the King; 
 but the appointment of such deputy shall not affect the 
 exercise by the Governor-General himself of any power 
 or function. 
 
 12. There shall be an Executive Council to advise the 
 Governor-General in the government of the Union, and the 
 
 ' See on this, note on similar jirovision in Conimonwoaith Act, p. 187. 
 ^ Sec suggestive remarks of Mr. K. Brand, Tlip Union uf South Africa, p. 54, 
 as to importance of Executive in South Africa.
 
 SOUTH AFRICA ACT, 1909 239 
 
 members of tlie council shall be chosen and summoned by 
 the Governor- General and sworn as executive councillors, 
 and shall hold office during his pleasure. 
 
 13. The provisions of this Act referring to the Governor- Meaning 
 General in Council shall be construed as referring to the vgrnor- 
 Governor-General acting with the advice of the Executive General 
 
 ^ ., in Coun- 
 
 Council. cil. 
 
 14. The Governor-General may appoint officers not ex- Appoint- 
 ceeding ten in number to administer such departments of ministers. 
 State of the Union as the Governor-General in Council may 
 establish ; ^ such officers shall hold office during the pleasure 
 
 of the Governor- General. They shall be members of the 
 Executive Council and shall be the King's ministers of 
 State for the Union. After the first general election of 
 members of the House of Assembly, as hereinafter pro- 
 vided, no minister shall hold office for a longer period than 
 three months unless he is or becomes a member of either 
 House of Parliament.^ 
 
 15. The appointment and removal of all officers of the Appoint- 
 public service of the Union shall be vested in the Governor- reniovaUf 
 General in Council, unless the appointment is delegated by oncers. 
 the Governor- General in Council or by this Act or by a law 
 
 of Parliament to some other authority. 
 
 16. All powers, authorities, and functions which at the Transfer 
 establishment of the Union are in any of the Colonies tive^*^^" 
 vested in the Governor or in the Governor in Council, or in Powers to 
 
 Crovernor- 
 
 any authority of the Colony, shall, as far as the same con- General in 
 tinue in existence and are capable of being exercised after 
 
 ' The ministry consists of the Prime Minister (who is also Minister of 
 Agriculture) ; the Minister of Railways and Harbours ; the Minister of the 
 Interior, Mines and Defence ; the Minister of Justice ; the Minister of 
 Education (other than primary and secondary) ; the Minister of Finance ; 
 the Minister of Lands ; the Minister of Native affairs ; the Minister of 
 Commerce and Industries ; and the Minister of Public Works, Posts and 
 Telegraphs. (There is also one Minister without a portfolio.) 
 
 ^ This provision was taken from the Commonwealth Act. In Natal, 
 under the Constitution of 1893, Ministers had to become members of Par- 
 liament within four months.
 
 240 
 
 SOUTH AFRICA ACT, 1909 
 
 Command 
 of naval 
 and mili- 
 tary 
 
 forces. 
 
 Seat of 
 Govern- 
 ment. 
 
 the establishment of the Union, be vested in the Governor- 
 General or in the Governor-General in Council, or in the 
 authority exercising similar powers under the Union, as 
 the case may be, except such powers and functions as are 
 by this Act or may by a law of Parliament be vested in 
 some other authority. 
 
 17. The command in chief of the naval and military 
 forces within the Union is vested in the King or in the 
 Governor-General as His representative. 
 
 18. Save as in section twenty-three excepted, Pretoria 
 shall be the seat of Government of the Union.^ 
 
 Legisla- 
 tive 
 power. 
 
 Sessions 
 of Parlia- 
 ment. 
 
 Summon- 
 ing of 
 first Par- 
 liament. 
 
 Annual 
 session of 
 Parlia- 
 ment. 
 
 IV.— Parliament. 
 
 19. The legislative power of the Union shall be vested 
 in the Parliament of the Union, herein called Parliament, 
 which shall consist of the King, a Senate, and a House of 
 Assembly. 
 
 20. The Governor-General may appoint such times for 
 holding the sessions of Parliament as he thinks fit, and 
 may also from time to time, by proclamation or otherwise, 
 prorogue Parliament, and may in like manner dissolve the 
 Senate and the House of Assembly simultaneously, or 
 the House of Assembly alone : provided that the Senate 
 shall not be dissolved within a period of ten years after 
 the establishment of the Union, and provided further that 
 the dissolution of the Senate shall not affect any senators 
 nominated by the Governor-General in Council. 
 
 21. Parliament shall be summoned to meet not later 
 tlian six months after the establishment of the Union.- 
 
 22. There shall be a session of Parliament once at least 
 in every year, so that a period of twelve months shall not 
 intervene between the last sitting of Parliament in one 
 session and its first sitting in the next session. 
 
 ' i.e. of the Executive Government. 
 
 ' The Parliament was opened by tlie Duk«' of Connaught on November 4, 
 J'JlO ; th<' Union having been established on May 31.
 
 SOUTH AFRICA ACT, 1909 241 
 
 23. Cape Town shall be the seat of the Legislature of Seat of 
 the Union.^ tu,^'^^ 
 
 Senate. 
 
 24. For ten years after the establishment of the Union Original 
 the constitution of the Senate shall, in respect of the ^j^^^'l^^^f"' 
 original provinces, be as follows ; — Senate. 
 
 (i) Eight senators shall be nominated by the Governor- 
 General in Council, and for each Original Province 
 eight senators shall be elected in the manner herein- 
 after provided : 
 
 (ii) The senators to be nominated by the Governor-Gen- 
 eral in Council shall hold their seats for ten years. 
 One-half of their number shall be selected on the 
 ground mainly of their thorough acquaintance, by 
 reason of their official experience or otherwise, with 
 the reasonable wants and wishes of the coloured races 
 in South Africa. If the seat of a senator so nominated 
 shall become vacant, the Governor-General in Council 
 shall nominate another person to be a senator, who 
 shall hold his seat for ten years : 
 
 (iii) After the passing of this Act, and before the day 
 appointed for the establishment of the Union, the 
 Governor of each of the Colonies shall summon a 
 special sitting of both Houses of the Legislature, and 
 the two Houses sitting together as one body and 
 presided over by the Speaker of the Legislative 
 Assembly shall elect eight persons to be senators for 
 the province. Such senators shall hold their seats for 
 ten years. If the seat of a senator so elected shall 
 become vacant, the provincial council of the province 
 for which such senator has been elected shall choose a 
 person to hold the seat until the completion of the 
 period for M'^hich the person in whose stead he is elected 
 would have held his seat. 
 
 * This arrangement was a compromise between the advocates of Capo 
 Town and of Pretoria as the capital of the new Union, 
 
 1265 Q
 
 242 
 
 SOUTH AFRICA ACT, 1909 
 
 Subse- 
 quent 
 constitu- 
 tion of 
 Senate. 
 
 Qualifica- 
 tions of 
 senators. 
 
 25. Parliament may provide for the manner in which 
 the Senate shall be constituted after the expiration of ten 
 years,^ and unless and until such provision shall have been 
 made — 
 
 (i) the provisions of the last preceding section with 
 regard to nominated senators shall continue to have 
 effect ; 
 
 (ii) eight senators for each province shall be elected by 
 the members of the provincial council of such province 
 together with the members of the House of Assem- 
 bly elected for such province.^ Such senators shall 
 hold their seats for ten years unless the Senate be 
 sooner dissolved. If the seat of an elected senator 
 shall become vacant, the members of the provincial 
 council of the province, together with the members of 
 the House of Assembly elected for such province, shall 
 choose a person to hold the seat until the completion 
 of the period for which the person in whose stead he is 
 elected would have held his seat. The Governor- Gen- 
 eral in Council shall make regulations for the joint 
 election of senators prescribed in this section. 
 
 26. The qualifications of a senator shall be as follows : — 
 He must — 
 
 (a) be not less than thirty years of age ; ^ 
 
 (6) be qualified to be registered as a voter for the 
 
 election of members of the House of Assembly in 
 
 one of the provinces ; 
 {c) have resided for five years within the limits of the 
 
 Union as existing at the time when he is elected 
 
 or nominated, as the case may be ; 
 
 ^ Note tliat under this section Parliament has a free hand with regard 
 to the constitution of the Senate after the expiration of the ton years. 
 
 ^ The method of election is an adaptationof the system of the single trans- 
 ferable vote, advocated by the English Proportional Representation Society. 
 (See Brand, op. ciL, p. 65.) 
 
 - With regard to these qualifications the South African Union followed 
 generally the Capo Colony precedent, They are similar to those in the 
 British North America Act.
 
 SOUTH AFRICA ACT, 1909 243 
 
 (d) be a British subject of European descent ; 
 
 (e) in the case of an elected senator, be the registered 
 owner of immovable property within the Union of 
 the value of not less than five hundred pounds over 
 and above any special mortgages thereon. 
 
 For the purposes of this section, residence in, and pro- 
 perty situated within, a colony before its incorporation in 
 the Union shall be treated as residence in and property 
 situated within the Union. 
 
 27. The Senate shall, before proceeding to the dispatch Appoint- 
 of any other business, choose a senator to be the President tenure of 
 of the Senate, and as often as the office of President 2>^^® ?^ , 
 
 ' President. 
 
 becomes vacant the Senate shall again choose a senator to 
 be the President. The President shall cease to hold office 
 if he ceases to be a senator. He may be removed from 
 office by a vote of the Senate, or he may resign his office by 
 writinof under his hand addressed to the Governor- General. 
 
 28. Prior to or during any absence of the President the Deputy 
 Senate may choose a senator to perform his duties in his 
 absence. 
 
 29. A senator may, by writing under his hand addressed Resigna- 
 to the Governor-General, resign his seat, which thereupon senators, 
 shall become vacant. The Governor-General shall as soon as 
 practicable cause steps to be taken to have the vacancy filled. 
 
 30. The presence of at least twelve senators shall be Quorum, 
 necessary to constitute a meeting of the Senate for the 
 exercise of its powers. 
 
 31. All questions in the Senate shall be determined by Voting 
 a majority of votes of senators present other than the senato, 
 President or the presiding senator, who shall, however, have 
 
 and exercise a casting vote in the case of an equality of 
 votes.^ 
 
 1 It will be seen that in the Constitution of the Senate the South 
 African Constitution follows to some extent American and to a less degree 
 Canadian precedents. The South African Senate will neither represent 
 the federal principle, nor bo, like the Australian, a militant democratic 
 body ; so that its secondary position to the Assembly is inevitable. 
 
 Q 2
 
 244 SOUTH AFRICA ACT, 1909 
 
 House of Assembly. 
 Constitu- 32. The House of Assembly shall be composed of 
 House of members directly chosen by the voters of the Union in 
 Assembl}'. electoral divisions delimited as hereinafter provided. 
 Original 33. The number of members to be elected in the Original 
 members. Provinces at the first election and until the number is 
 
 altered in accordance with the provisions of this Act shall 
 
 be as follows : — 
 
 Cape of Good Hope . . Fifty-one. 
 Natal .... Seventeen.^ 
 
 Transvaal .... Thirty-six. 
 Orange Free State . . Seventeen.^ 
 These numbers may be increased as provided in the next 
 succeeding section, but shall not, in the case of any Original 
 Province, be diminished until the total number of members 
 of the House of Assembly in respect of the provinces here- 
 in provided for reaches one hundred and fifty, or until a 
 period of ten years has elapsed after the establishment of 
 the Union, whichever is the longer period. 
 Increase 34. The number of members to be elected in each 
 of mem- province, as provided in section thirty-three, shall be 
 bers. increased from time to time as may be necessary in accord- 
 
 ance with the following provisions : — 
 
 (i) The quota of the Union shall be obtained by 
 dividing the total number of European male adults in 
 the Union, as ascertained at the census of nineteen 
 hundred and four, by the total number of members of 
 the House of Assembly as constituted at the establish- 
 ment of the Union : 
 
 In nineteen hundred and eleven, and every five years 
 thereafter, a census of the European population of the 
 Union shall be taken for the purposes of this Act : 
 
 ' Note that the Orange Free State and Natal have more th.nn tlieir pro- 
 portional representation, and that for a time the system of representation 
 suggests the continued existence of the separate colonies abolished by the 
 Union ; but this is not intended to be permanent. (See subsec. v of Sec. 34.)
 
 SOUTH AFRICA ACT, 1909 245 
 
 (iii) After any such census the number of" European 
 male adults in each province shall be compared with 
 the number of European male adults as ascertained 
 at the census of nineteen hundred and four, and, in the 
 case of any province where an increase is shown, as com- 
 pared with the census of nineteen hundred and four, 
 equal to the quota of the Union or any multiple 
 thereof, the number of members allotted to such pro- 
 vince in the last preceding section shall be increased by 
 an additional member or an additional number of 
 members equal to such multiple, as the case may be : 
 
 (iv) Notwithstanding anything herein contained, no 
 additional member shall be allotted to any province 
 until the total number of European male adults in such 
 province exceeds the quota of the Union multiplied by 
 the number of members allotted to such province for 
 the time being, and thereupon additional members x 
 shall be allotted to such province in respect only of such 
 excess : 
 
 (v) As soon as the number of members of the House of 
 Assembly to be elected in the Original Provinces in 
 accordance with the preceding subsections reaches the 
 total of one hundred and fifty, such total shall not 
 be further increased unless and until Parliament 
 otherwise provides ; and subject to the provisions of the 
 last preceding section the distribution of memliers 
 among the provinces shall be such that the proportion 
 between the number of members to be elected at any 
 time in each province and the number of European 
 male adults in such province, as ascertained at the last 
 preceding census, shall as far as possible be iden- 
 tical throughout the Union : 
 
 (vi) " Male adults " in this Act shall be taken to mean 
 males of twenty-one years of age or upwards not 
 being members of His Majesty's regular forces on 
 full pay :
 
 246 SOUTH AFRICA ACT, 1909 
 
 (vii) For the purposes of this Act the number of European 
 male adults, as ascertained at the census of nineteen 
 hundred and four, shall be taken to be — 
 
 For the Cape of Good Hope . . 167,546 
 
 For Natal 34,784 
 
 For the Transvaal .... 106,493 
 
 For the Orange Free State . . 41,014 
 
 Quaiifica- 35. — (1) Parliament may by law prescribe the qualifica- 
 voters. tions which shall be necessary to entitle persons to vote 
 at the election of members of the House of Assembly, but 
 no such law shall disqualify any person in the province of 
 the Cape of Good Hope who, under the laws existing in the 
 Colony of the Cape of Good Hope at the establishment of 
 the Union, is or may become capable of being registered as 
 a voter from being so registered in the province of the Cape 
 of Good Hope by reason of his race or colour only, unless 
 the Bill be passed by both Houses of Parliament sitting 
 together, and at the third reading be agreed to by not less 
 than two-thirds of the total number of members of both 
 Houses.^ A Bill so passed at such joint sitting shall be taken 
 to have been duly passed by both Houses of Parliament. 
 
 ^ Few questions presented greater difficulties than tlie question of the 
 native vote. In the Transvaal and the Orange River Colony the franchise 
 could only be exercised by white men, and in Natal, though natives could 
 get on the register, there were such impediments in the way that in fact 
 they hardly ever voted. In Cape Colony, on the other hand, imder an 
 educational qualification, considerable numbers of natives exercised the 
 vote. Neither the Transvaal nor the Orange JVee State, nor Natal, would 
 have been willing to enfranchise the natives, more especially as in the 
 two former manhood suffrage among the whites prevailed. Cape Colony 
 was determined not to take the retrograde step of disfranchising the natives, 
 and such action would have excited deep distrust and indignation in 
 England. In this state of things the only course was to let e.ach province 
 pursue its own method ; and while giving the Union Parliament power 
 over the future, to safeguard the Cape Colony position by requiring a 
 two-thirds majority at a joint sitting of both Houses. Moreover, any Bill 
 altering the position is required by the Koyal Instruction to be reserved, 
 and such reservation would in this subject be no mere formality. It may 
 be added that the only respect in which the native position is made worse by 
 the Act is that they may not sit in the Union Parliament, whereas they 
 were eligible, though never in fact elected, to that of Cape Colony.
 
 SOUTH AFRICA ACT, 1909 247 
 
 (2) No person who at the passing of any such law is 
 registered as a voter in any province shall be removed from 
 the register by reason only of any disqualification based on 
 race or colour. 
 
 36. Subject to the provisions of the last preceding Appiica- 
 section, the qualifications of parliamentary voters, as existing 
 existing: in the several Colonies at the establishment fiuaiifica- 
 
 ° _ _ tions. 
 
 of the Union, shall be the qualifications necessary to 
 entitle persons in the corresponding provinces to vote 
 for the election of members of the House of Assembly : 
 Provided that no member of His Majesty's regular 
 forces on full pay shall be entitled to be registered as 
 a voter. 
 
 37. — (1) Subject to the provisions of this Act, the laws Elections. 
 in force in the Colonies at the establishment of the Union 
 relating to elections for the more numerous Houses of 
 Parliament in such Colonies respectively, the registration 
 of voters, the oaths or declarations to be taken by voters, 
 returning officers, the powers and duties of such officers, 
 the proceedings in connection with elections, election ex- 
 penses, corrupt and illegal practices, the hearing of election 
 petitions and the proceedings incident thereto, the vacating 
 of seats of members, and the proceedings necessary for 
 filling such vacancies, shall, mutatis mutandis, apply to 
 the elections in the respective provinces of members of 
 the House of Assembly. 
 
 (2) Notwithstanding anything to the contrary in any 
 of the said laws contained, at any general election of 
 members of the House of Assembly, all polls shall be 
 taken on one and the same day in all the electoral divisions 
 throughout the Union, such day to be appointed by the 
 Governor-General in Council. 
 
 38. Between the date of the passing of this Act and Commis- 
 the date fixed for the establishment of the Union, the deiimita- 
 Governor in Council of each of the Colonies shall nominate t^o^^^ 
 
 electoral 
 
 a judge of any of the Supreme or High Courts of the divisions.
 
 248 SOUTH AFRICA ACT, 1909 
 
 Colonies, and the judges so nominated shall, upon accept- 
 ance by them respectively of such nomination, form a 
 joint commission,^ without any further appointment, for 
 the purpose of the first division of the provinces into 
 electoral divisions. The High Commissioner for South 
 Africa shall forthwith convene a meeting of such commis- 
 sion at such time and place in one of the Colonies as he 
 shall fix and determine. At such meeting the Commis- 
 sioners shall elect one of their number as chairman of such 
 commission. They shall thereupon proceed with the dis- 
 charge of their duties under this Act, and may appoint 
 persons in any province to assist them or to act as assessors 
 to the commission or with individual members thereof 
 for the purpose of inquiring into matters connected with 
 the duties of the commission. The commission may regu- 
 late their own procedure and may act by a majority of 
 their number. All moneys required for the payment of 
 the expenses of such commission before the establishment 
 of the Union in any of the Colonies shall be provided by 
 the Governor in Council of such colony. In case of the 
 death, resignation, or other disability of any of the Com- 
 missioners before the establishment of the Union, the 
 Governor in Council of the Colony in respect of which he 
 was nominated shall forthwith nominate another judge to 
 fill the vacancy. After the establishment of the Union 
 the expenses of the commission shall be defrayed by the 
 Governor-General in Council, and any vacancies shall be 
 filled by him. 
 Eiector.ai 39. The Commission shall divide each province into 
 ivisions. g]gg|^Q^..^| divisions, each returning one member. 
 Method of 40. — (1) For the purpose of such division as is in the 
 provincos ^^^^ preceding section mentioned, the quota of each pro- 
 into vince shall be obtained l>y dividing the total number of 
 
 electoral . 
 
 divisions, voters in the province, as ascertained at the last registra- 
 
 ^ The commission ii]>pointed under tliis section signed its report on 
 May 10. lyiO.
 
 SOUTH AFRICA ACT, 1909 249 
 
 tion of voters, by the number of members of the House 
 of Assembly to be elected therein.' 
 
 (2) Each province shall be divided into electoral divisions 
 in such a manner that each such division shall, subject to 
 the provisions of subsection (3) of this section, contain a 
 number of voters, as nearly as may be, equal to the quota 
 of the province. 
 
 (3) The Commissioners shall give due consideration^ to — 
 
 (a) community or diversity of interests ; ^ 
 (6) means of communication ; 
 
 (c) physical features; 
 
 (d) existing electoral boundaries ; 
 
 (e) sparsity or density of population ; * 
 
 in such manner that, while taking the quota of voters 
 as the basis of division, the Commissioners may, when- 
 ever they deem it necessary, depart therefrom, but in no 
 case to any greater extent than fifteen per centum more 
 or fifteen per centum less than the quota.'' 
 
 The following were the results 
 
 obtained :- 
 
 - 
 
 
 
 Quota. 
 
 Maximum. 
 
 Minimum. 
 
 Cape Colony . 
 
 . 2,791 
 
 3,210 
 
 2,372 
 
 Transvaal 
 
 . 2,715 
 
 3,122 
 
 2,308 
 
 Natal .... 
 
 . 1,647 
 
 1,894 
 
 1,400 
 
 Orange Free State . 
 
 . 2,131 
 
 2,451 
 
 1,811 
 
 ^ Clauses («) to (d) correspond substantially with the Instructions on 
 the same subject to the Transvaal Delimitation Commissioners in 1906. 
 
 * ' With regard to the consideration of community or diversity of interest, 
 it seemed impossible to lay down any comprehensive rule or principle.' It 
 was impossible to group small towns in such a way as to involve ' altera- 
 tion in the existing electoral boundaries '. There thus remain hard cases, 
 for which, ' under the method of single-member constituencies, and in the 
 absence of some system of proportional representation, it was not within 
 the province of the Commission to suggest a remedy.' 
 
 * This means ' electoral population ' ; but the Commissioners held it 
 a question of some doubt. ' It was found j)ractically impossible to arrive 
 at any precise definition of spai'sity or density . . . On the whole, however, 
 without framing any formula, there was no great difficulty in practice in 
 deciding in which category each division, regarded as a unit, should be 
 placed.' 
 
 ^ These provisions, inserted in the interests of the scattered Boer farmers, 
 represented a compromise between the one vote one value principle in 
 its extreme form and the method of assigning greater representation to
 
 250 SOUTH AFRICA ACT, 1909 
 
 Altera- 41. As soon as may be after every quinquennial census, 
 
 electoral ^^® Govcmor-General in Council shall appoint a commission 
 divisions, consisting of three judges of the Supreme Court of South 
 Africa to carry out any re-division which may have be- 
 come necessary as between the different electoral divisions 
 in each province, and to provide for the allocation of the 
 number of members to which such province may have 
 become entitled under the provisions of this Act. In 
 carrying out such re-division and allocation the commission 
 shall have the same powers and proceed upon the same 
 principles as are by this Act provided in regard to the 
 original division. 
 Powers 42. — (1) The joint commission constituted under section 
 
 of com- '^^ thirty- eight, and any subsequent commission appointed 
 mission under the provisions of the last preceding section, shall 
 limiting submit to the Governor-General in Council — 
 divisions. (<^) ^ list of electoral divisions, with the names given 
 to them by the commission and a description of the 
 boundaries of every such division : 
 (h) a map or maps showing the electoral divisions into 
 
 which the provinces have been divided : 
 (c) such further particulars as they consider necessary. 
 
 (2) The Governor-General in Council may refer to the 
 commission for its consideration any matter relating to 
 such list or arising out of the powers or duties of the 
 commission. 
 
 (3) The Governor-General in Council shall proclaim the 
 names and boundaries of the electoral divisions as finally 
 settled and certified by the commission, or a majority 
 thereof, and thereafter, until there shall be a re-division, 
 
 country than to town districts in force in Cape Colony. The members of 
 the Convention generally supported the former principle but allowed this 
 invasion of it. It was very difficult to obtain the consent of the Cape 
 Parliament to the principle of one vote one value, even as tlnis modified ; 
 and such consent was only obtained by jettisoning the provisions with 
 regard to employing the system of proportional representation for the 
 election of members of the House of Assembly, which were in tlie original 
 Bill.
 
 SOUTH AFRICA ACT, 1909 251 
 
 the electoral divisions as named and defined shall be the 
 electoral divisions of the Union in the provinces. 
 
 (4) If any discrepancy shall arise between the description 
 of the divisions and the aforesaid map or maps, the descrip- 
 tion shall prevail. 
 
 43. Any alteration in the number of members of the Date from 
 House of Assembly to be elected in the several provinces, teration of 
 and any re-division of the provinces into electoral divisions, ^jy^g^Q^i 
 
 shall, in respect of the election of members of the House to take 
 
 ' effect, 
 
 or Assembly, come into operation at the next general elec- 
 tion held after the completion of the re-division or of any 
 allocation consequent upon such alteration, and not earlier. 
 
 44. The qualifications of a member of the House of Qualifica- 
 Assembly shall be as follows : — members 
 
 (a) be qualified to be registered as a voter for the bly. 
 election of mem.bers of the House of Assembly in 
 one of the provinces ; 
 
 (b) have resided for five years within the limits of the 
 Union as existing at the time when he is elected ; 
 
 (c) be a British subject of European descent.^ 
 
 For the purposes of this section, residence in a colony 
 before its incorporation in the Union shall be treated as 
 residence in the Union. 
 
 45. Every House of Assembly shall continue for five Duration, 
 years from the first meeting thereof, and no longer, but 
 
 may be sooner dissolved by the Governor-General. 
 
 46. The House of Assembly shall, before proceeding to Appoint- 
 the despatch of any other business, choose a member to be tenure of 
 the Speaker of the House, and, as often as the ofiice of g^^^j.^^ 
 Speaker becomes vacant, the House shall again choose a 
 member to be the Speaker. The Speaker shall cease to 
 
 hold his office if he ceases to be a member. He may be 
 removed from office by a vote of the House, or he may resign 
 
 ' In Cape Colony natives had been eligible for election to Parliament, 
 though in fact no native had been elected.
 
 253 SOUTH AFRICA ACT, 1909 
 
 liis office or his seat by writing under his hand addressed 
 to the Governor-General. 
 Deputy 47. Prior to or during the absence of the Speaker, the 
 
 House of Assembly may choose a member to perform his 
 duties in his absence. 
 Resigna- 48. A member may, by writing under his hand addressed 
 members, to the Speaker, or, if there is no Speaker, or if the Speaker 
 is absent from the Union, to the Governor-General, resign 
 his seat, which shall thereupon become vacant. 
 Quorum. 49. The presence of at least thirty members of the 
 House of Assembly shall be necessary to constitute a meet- 
 ing of the House for the exercise of its powers. 
 Voting in 50. All ([ucstions in the House of Assembly shall be 
 Assembly, determined by a majority of votes of members present 
 other than the Speaker or the presiding member, who 
 shall, however, have and exercise a casting vote in the 
 case of an equality of votes. 
 
 Both Houses of Parliament. 
 Oath or 51. Every senator and every member of the House of 
 
 tion of Assembly shall, before taking his seat, make and subscribe 
 allegiance. }3gfQi.g i\^q Governor-General, or some person authorised 
 by him, an oath or affirmation of allegiance in the follow- 
 ing form : — 
 
 Oath. 
 
 I, A.B., do swear that I will be faithful and bear true 
 allegiance to His Majesty \Jiere insert the nanie of the 
 King or Queen of the United Kingdom of Great Britain 
 and Ireland for the time heing^ His [()r //er] heirs 
 and successors according to law. So help me God. 
 
 Afflrni((tlon. 
 
 I, A.Ji., do solemnly and sincerely aftirni aii<l declare 
 that I will be faithful and bear true allegiance to 
 His Majesty [here insert the name of the King or Queen 
 <f the United Kingdom of Great Britain and Ireland
 
 SOUTH AFRICA ACT, 1909 253 
 
 for the time being] His \or Her] heirs and successors 
 according to law. 
 
 52. A member of either House of Parliament shall be Member 
 incapable of being chosen or of sitting as a member of the House an- 
 other House : Provided that every minister of State who 'luaiified 
 
 for being 
 
 is a member of either House of Parliament shall have the member 
 right to sit and speak in the Senate and the House of other 
 Assembly, but shall vote only in the House of which he ^l'^"^"'- 
 is a member. 
 
 53. No person shall be capable of being chosen or of Disquali- 
 sitting as a senator or as a member of the House of foTbehig 
 
 Assembly who— a meinber 
 
 *' ^ ^ of either 
 
 (a) has been at any time convicted of any crime or House. 
 offence for which he shall have been sentenced to im- 
 prisonment without the option of a fine for a term of 
 not less than twelve months, unless he shall have 
 received a grant of amnesty or a free pardon, or 
 unless such imprisonment shall have expired at least 
 live years before the date of his election ; or 
 
 (6) is an unrehabilitated insolvent ; or 
 
 (c) is of unsound mind, and has been so declared by a 
 competent court ; or 
 
 {(1) holds any office of profit under the Crown within 
 the Union : Provided that the following persons shall 
 not be deemed to hold an office of profit under the 
 Crown for the purposes of this subsection : 
 
 (1) a minister of State for the Union ; 
 
 (2) a person in receipt of a pension from the Crown ; 
 
 (3) an officer or member of His Majesty's naval or 
 military forces on retired or half pay, or an oflScer 
 or member of the naval or military forces of the 
 Union whose services are not wholly employed 
 by the Union. 
 
 54. If a senator, or member of the House of Assembly — Vacation 
 («) becomes subject to any of the disabilities men- 
 tioned in the last preceding section ; or 
 
 (6) ceases to be qualified as required by law ; or
 
 254 SOUTH AFRICA ACT, 1909 
 
 (c) fails for a whole ordinary session to attend with- 
 out the special leave of the Senate or the House 
 of Assembly, as the case may be ; 
 his seat shall thereupon become vacant. 
 Penalty 55. If any person who is by law incapable of sitting as 
 ^Tvotinc'^ a senator or member of the House of Assembly shall, while 
 when dis- gg disqualified and knowing or having reasonable grounds 
 for knowing that he is so disqualified, sit or vote as a 
 member of the Senate or House of Assembly, he shall be 
 liable to a penalty of one hundred pounds for each day 
 on which he shall so sit or vote, to be recovered on be- 
 half of the Treasury of the Union by action in any 
 Superior Court of the Union. 
 Allow- 56. Each senator and each member of the House of 
 
 niembers. Assembly shall, under such rules as shall be framed by 
 Parliament, receive an allowance of four hundred pounds 
 a year, to be reckoned from the date on which he takes 
 his seat: Provided that for every day of the session on 
 which he is absent there shall be deducted from such 
 allowance the sum of three pounds : Provided further that 
 no such allowance shall be paid to a Minister receiving a 
 salary under the Crown or to the President of the Senate 
 or the Speaker of the House of Assembly. A day of the 
 session shall mean in respect of a member any day during 
 a session on which the House of which he is a member 
 or any committee of which he is a member meets. 
 Privileges 57. The powcrs, privileges, and immunities of the Senate 
 ofPai-nT-*' ^^^^ ^^ ^^® House of Assembly and of the members and 
 ment. committees of each House shall, subject to the provisions 
 of this Act, be such as are declared by Parliament,^ and 
 until declared shall be those of the House of Assembly 
 of the Cape of Good Hope and of its members and com- 
 mittees at the establishment of the Union. 
 Rules of 58. Each House of Parliament may make rules and 
 proce uie. qj,j^^,j^ with resjDect to the order and conduct of its business 
 and proceedings. Until such rules and orders shall ha,ve 
 
 ' Compare provisions of Canadian and A uslralian Statutes,
 
 SOUTH AFRICA ACT, 1909 255 
 
 been made, the rules and orders of the Legislative Council 
 and House of Assembly of the Cape of Good Hope at the 
 establishment of the Union shall mutatis mutandis apply 
 to the Senate and House of Assembly respectively. If a 
 joint sitting of both Houses of Parliament is required 
 under the provisions of this Act, it shall be convened by 
 the Governor-General by message to both Houses. At any 
 such joint sitting the Speaker of the House of Assembly 
 shall preside and the rules of the House of Assembly shall, 
 as far as practicable, apply. 
 
 Poiuers of Parliament. 
 
 59. Parliament shall have full power to make laws for Powers of 
 the peace, order, and good government of the Union. meiir' 
 
 60. — (1) Bills appropriating revenue or moneys or impos- Money 
 ing taxation shall originate only in the House of Assembly. ^ ^' 
 But a Bill shall not be taken to appropriate revenue or 
 moneys or to impose taxation by reason only of its con- 
 taining provisions for the imposition or appropriation of 
 fines or other pecuniary penalties. 
 
 (2) The Senate may not amend any Bills so far as they 
 impose taxation or appropriate revenue or moneys for the 
 services of the Government.^ 
 
 (3) The Senate may not amend any Bill so as to increase 
 any proposed charges or burden on the people. 
 
 61. Any Bill which appropriates revenue or moneys for Appro- 
 the ordinary annual services of the Government shall deal Bills, 
 only with such appropriation. 
 
 62. The House of Assembly shall not originate or pass Recom- 
 any vote, resolution, address, or Bill for the appropriation ™on of" 
 of any part of the public revenue or of any tax or impost "^^°®y 
 to any purpose unless such appropriation has been recom- 
 mended by message from the Governor-General during the 
 Session in which such vote, resolution, address, or Bill is 
 proposed. 
 
 ' These words were inserted to meet a difficulty which had arisen in 
 the Transvaal in 1909.
 
 256 SOUTH AFRICA ACT, 1909 
 
 Disagree- 63. If the House of Assembly passes any Bill and the 
 
 tween the Senate rejects or fails to pass it or passes it with amend- 
 
 i"^'^ ments to which the House of Assembly will not am-ee, and 
 
 Houses. _ ^ . f 
 
 if the House of Assembly in the next session again passes 
 the Bill with or without any amendments which have been 
 made or agreed to by the Senate and the Senate rejects or 
 fails to pass it or passes it with amendments to which the 
 House of Assembly will not agree, the Governor-General 
 may during that session convene a joint sitting of the 
 members of the Senate and House of Assembly. The 
 members present at any such joint sitting may deliberate 
 and shall vote together upon the Bill as last proposed by 
 the House of Assembly and upon amendments, if any, 
 which have been made therein by one House of Parliament 
 and not agreed to by the other ; and any such amend- 
 ments which are affirmed by a majority of the total 
 number of members of the Senate and House of Assembly 
 present at such sitting shall be taken to have been carried, 
 and if the Bill with the amendments, if any, is affirmed by 
 a majority of the members of the Senate and House of 
 Assembly present at such sitting, it sliall be taken to have 
 been duly passed by both Houses of Parliament : Provided 
 that, if the Senate shall reject or fail to pass any Bill 
 dealing with the appropriation of revenue or moneys for 
 the public service, such joint sitting may be convened 
 during the same session in which the Senate so rejects or 
 fails to pass such Bill.^ 
 
 1 Compare Australian provisions with regard to deadlocks. In South 
 Africa there is no need for a dissolution of Parliament before the joint 
 sitting ; and the size of the Senate is not more than one-third, instead of 
 one-half, of the House of Assembly ; a point which may bo of importance 
 in case of a joint sitting. As the Bill was first drafted, if the Assembly 
 passed a Bill and tlie Senate rejected it, the Governor-General might forth- 
 with convene a joint sitting. It was subsequently agreed that the Bill 
 must be rejected in successive sessions before the joint sitting could bo 
 enforced. The Union provisions were based on tlioso in force in the 
 Transvaal, which in turn were a more democratic adaptation of those of 
 the Commonwealtli Act.
 
 SOUTH AFRICA ACT, 1909 257 
 
 64. When a Bill is presented to the Governor-General Royal 
 for the King's assent, he shall declare according to his gnis. 
 discretion, but subject to the provisions of* this Act, and to 
 such instructions as may from time to time be given in 
 that behalf by the King, that he assents in the King's 
 name, or that he withholds assent, or that he reserves the 
 
 Bill for the signification of the King's pleasure. All Bills 
 repealing or amending this section or any of the provisions 
 of Chapter IV. under the heading " House of Assembly ", 
 and all Bills abolishing provincial councils or abridging 
 the powers conferred on provincial councils under section 
 eighty-five, otherwise than in accordance with the provi- 
 sions of that section, shall be so reserved. The Governor- 
 General may return to the House in which it originated 
 any Bill so presented to him, and may transmit therewith 
 any amendments which he may recommend, and the House 
 may deal with the recommendation. 
 
 65. The King may disallow any law within one year Disallow- 
 after it has been assented to by the Governor-General, and ging^ 
 such disallowance, on being made known by the Governor- 
 General by speech or message to each of the Houses of 
 Parliament or by proclamation, shall annul the law from 
 
 the day when the disallowance is so made known. 
 
 66. A Bill reserved for the King's pleasure shall not Reserva- 
 have any force unless and until, within one year from the buu. 
 day on which it was presented to the Governor- General for 
 
 the King's assent, the Governor-General makes known by 
 speech or message to each of the Houses of Parliament or 
 by proclamation that it has received the King's assent. 
 
 67. As soon as may be after any law shall have been Signature 
 assented to in the King's name by the Governor-General, rolment of 
 or having been reserved for the King's pleasure shall have ■^*^*^- 
 received his assent, the Clerk of the House of Assembly 
 
 shall cause two fair copies of such law, one being in the 
 English and the other in the Dutch language (one of which 
 copies shall be signed by the Governor-General), to be 
 1265 R
 
 258 SOUTH AFRICA ACT, 1909 
 
 enrolled of record in the office of the Registrar of the 
 Appellate Division of the Supreme Court of South Africa ; 
 and such copies shall be conclusive evidence as to the 
 provisions of every such law, and in case of conflict between 
 the two copies thus deposited that signed by the Governor- 
 General shall prevail. 
 
 v.— The PiiOViNCES.^ 
 
 A dministrators. 
 
 Appoint- 68. — (1) In each province there shall be a chief executive 
 tenure*of officer appointed by the Governor-General in Council, who 
 office of shall be styled the administrator of the province, and in 
 
 provincial 
 
 adminis- whosc name all executive acts relating to provincial affairs 
 thereinshall be done. 
 
 (2) In the appointment of the administrator of any 
 province, the Governor-General in Council shall, as far as 
 practicable, give preference to persons resident in such 
 province. 
 
 (3) Such administrator shall hold office for a term of 
 five years and shall not be removed before the expiration 
 thereof except by the Governor-General in Council for 
 cause assigned, which shall be communicated by message 
 to both Houses of Parliament within one week after the 
 removal, if Parliament be then sitting, or, if Parliament be 
 not sitting, then within one week after the commencement 
 of the next ensuing session. 
 
 (4) The Governor- General in Council may from time to 
 time appoint a deputy administrator to execute the office 
 and functions of the administrator during liis absence, 
 illness, or other inability. 
 
 ^ Seethe interesting diaptor by Mr. Brand on ' Provinciiil Constitutions', 
 op. cit., pp. 76-88. It is impossible at present to say how the system will 
 work. It may jjossibly prove not unlike the system in work in English 
 county or borough councils ; where parties exist, and the work is carried 
 on by committees, consisting of members of both parties.
 
 SOUTH AFRICA ACT, 1909 259 
 
 69. The salaries of the administrators shall be fixed and Salaries of 
 provided by Parhament, and shall not be reduced during trators. 
 their respective terms of office. 
 
 Provincial Counclh. 
 
 70. — (1) There shall be a provincial council in each Constitu- 
 province consisting of the same number of members as are provincial 
 elected in the province for the House of Assembly : Pro- councils, 
 vided that, in any province whose representatives in the 
 House of Assembly shall be less than twenty- five in 
 number, the provincial council shall consist of twenty-five 
 members. 
 
 (2) Any person qualified to vote for the election of 
 members of the provincial council shall be qualified to be a 
 member of such council. 
 
 71. — (1) The members of the provincial council shall be Qualifica- 
 elected by the persons qualified to vote for the election of provincial 
 members of the House of Assembly in the province voting j^"g"°^^" 
 in the same electoral divisions as are delimited for the 
 election of members of the House of Assembly : Provided 
 that, in any province in which less than twenty -five 
 members are elected to the House of Assembly, the delimit- 
 ation of the electoral divisions, and any necessary re- 
 allocation of members or adjustment of electoral divisions, 
 shall be effected by the same connnission and on the 
 same principles as are prescribed in regard to the electoral 
 divisions for the House of Assembly. 
 
 (2) Any alteration in the number of members of the 
 provincial council, and any re-division of the province into 
 electoral divisions, shall come into operation at the next 
 general election for such council held after the completion 
 of such re-division, or of any allocation consequent upon 
 such alteration, and not earlier. 
 
 (3) The election shall take place at such times as the ad- 
 ministrator shall by proclamation direct, and the provisions 
 of section thirty-seven applicable to the election of members 
 
 R 2
 
 260 SOUTH AFRICA ACT, 1909 
 
 of the House of Assembly shall mutatis mutandis apply to 
 such election. 
 Applica- 72. The provisions of section fifty-three, fifty-four, and 
 
 tion of oi- r. 1 • 
 
 sections fiity-five, relative to members of the House of Assembly 
 
 to pro\^n- •'^l^^ll mutatis mutandis apply to members of the provincial 
 
 ciai conn- couucils : Provided that any member of a provincial 
 Cillers. , . 
 
 council who shall become a member of either House of 
 Parliament shall thereupon cease to be a member of such 
 provincial council. 
 Tenure of 73. Each provincial council shall continue for three 
 
 oflfic6 bv 
 
 provincial years from the date of its first meeting, and shall not be 
 
 lors"^^^' subject to dissolution save by effluxion of time. 
 Sessions 74. The administrator of each province shall by pro- 
 vincial clamation fix such times for holding the sessions of the 
 councils, provincial council as he may think fit, and may from time 
 to time prorogue such council : Provided that there shall be 
 a session of every provincial council once at least in every 
 year, so that a period of twelve months shall not intervene 
 between the last sitting of the council in one session and 
 its first sitting in the next session. 
 Chairmen 75. The provincial council shall elect from among its 
 vincial members a chairman, and may make rules for the conduct 
 councils. Qf j(.g proceedings. Such rules shall be transmitted by the 
 administrator to the Governor-General, and shall have full 
 force and effect unless and until the Governor-General in 
 Council shall express his disapproval thereof in writing 
 addressed to the administrator. 
 Allow- 76. The members of the provincial council shall receive 
 
 provincial ^"^'^ allowances as shall be determined by the Governor- 
 coun- General in Council. 
 
 cillors. 
 
 Freedom 77. There shall be freedom of speech in the provincial 
 of speech council, and no member shall be liable to any action or 
 
 in pro- •' 
 
 vincial proceeding in any court l>y reason of his speech or vote in 
 councils. 
 
 such council. 
 
 Executive Committees. 
 Provin- 78. — (1) Each provincial council shall at its first meeting 
 
 cial exe-
 
 SOUTH AFRICA ACT, 1909 261 
 
 after any general election elect from among its members, cutive 
 or otherwise, four persons to form with the administrator, mittees. 
 who shall be chairman, an executive committee for the 
 province. The members of the executive committee other 
 than the administrator shall hold office until the election of 
 their successors in the same manner. 
 
 (2) Such members shall receive such remuneration as the 
 provincial council, with the approval of the Governor- 
 General in Council, shall determine. 
 
 (3) A member of the provincial council shall not be dis- 
 qualified from sitting as a member by reason of his having 
 been elected as a member of the executive committee. 
 
 (4) Any casual vacancy arising in the executive committee 
 shall be filled by election by the provincial council if then 
 in session or, if the council is not in session, by a person 
 appointed by the executive committee to hold office 
 temporarily pending an election by the council. 
 
 79. The administrator and any other member of the Right of 
 executive committee of a province, not being a member of t,ato"'&c 
 the provincial council, shall have the rip-ht to take part in *« t-'^ke 
 the proceedings of the council, but shall not have the right proceed- 
 
 , 1 ings of 
 
 to vote. provincial 
 
 80. The executive committee shall on behalf of the council. 
 
 Powers of 
 
 provincial council carry on the administration of provincial provincial 
 affairs. Until the first election of members to serve on the l^^^ ^^^ 
 executive committee, such administration shall be carried mittees. 
 on by the administrator. Whenever there are not suffi- 
 cient members of the executive committee to form a quorum 
 according to the rules of the committee, the administrator 
 shall, as soon as practicable, convene a meeting of the 
 provincial council for the purpose of electing members to 
 fill the vacancies, and until such election the administrator 
 shall carry on the administration of provincial affairs. 
 
 81. Subject to the provisions of this Act, all powers. Transfer 
 authorities, and functions which at the establishment of top^o^.^'^ 
 the Union are in any of the Colonies vested in or exercised vi"ciai
 
 262 SOUTH AFRICA ACT, 1909 
 
 executive by the Governor or the Governor in Council, or any minister 
 mittees. ^^ ^^® Colony shall after such establishment be vested in the 
 executive committee of the province so far as such powers, 
 authorities, and functions relate to matters in respect of 
 which the provincial council is competent to make ordi- 
 nances. 
 Voting in 82. Questions arising in the executive committee shall 
 com-"*^^^ be determined by a majority of votes of the members 
 mittees. present, and, in case of an equality of votes, the adminis- 
 trator shall have also a casting vote. Subject to the 
 approval of the Governor-General in Council, the executive 
 committee may make rules for the conduct of its proceedings. 
 Tenure of 83. Subject to the provisions of any law passed by Par- 
 membe'L lament regulating the conditions of appointment, tenure of 
 of execu- q^qq retirement and superannuation of public officers, the 
 
 tive com- "^ ^ _ 
 
 mittees. executive committee shall have power to appoint such officers 
 as may be necessary, in addition to officers assigned to the 
 province by the Governor-General in Council under the 
 provisions of this Act, to carry out the services entrusted 
 to them and to make and enforce regulations for the orga- 
 nisation and discipline of such officers. 
 Power of 84. In regard to all matters in respect of which no 
 trato^to powers are reserved or delegated to the provincial council, 
 
 act on t-he administrator shall act on behalf of the Governor- 
 behalf of 
 Governor- General in Council when requn-ed to do so, and in such 
 
 Coiincu/ matters the administrator may act without reference to the 
 
 other members of the executive conunittee. 
 
 Powers of Provincial Councils. 
 
 Powers of 85. Subject to the provisions of this Act and the assent 
 
 cmmcTls" *^^ ^^*^ (Jovcrnor-General in Council as hereinafter provided, 
 
 the provincial council may make ordinances in relation to 
 
 matters coining within the following classes of subjects 
 
 (that is to sa}') : — 
 
 (i) Direct taxation within the province in order to raise 
 a revenue for provincial purposes :
 
 SOUTH AFRICA ACT, 1909 263 
 
 (ii) The borrowing of money on the sole credit of the 
 province with the consent of the Governor-General in 
 Council and in accordance with regulations to be 
 framed by Parliament : 
 
 (iii) Education,^ other than higher education, for a period 
 of five years and thereafter until Parliament other- 
 wise provides : 
 
 (iv) Agriculture to the extent and subject to the con- 
 ditions to be defined by Parliament : 
 
 (v) The establishment, maintenance, and management of 
 hospitals and charitable institutions : 
 
 (vi) Municipal institutions, divisional councils, and other 
 local institutions of a similar nature : 
 
 (vii) Local works and undertakings wnthin the province, 
 other than railw^ays and harbours and other than such 
 works as extend beyond the borders of the province, 
 and subject to the power of Parliament to declare any 
 work a national work and to provide for its construc- 
 tion by arrangement with the provincial council or 
 otherwise : 
 
 (viii) Roads, outspans, ponts, and bridges, other than 
 
 bridges connecting two provinces : 
 (ix) Markets and pounds : 
 (x) Fish and game preservation : 
 (xi) The imposition of punishment by fine, penalty, or 
 
 imprisonment for enforcing any law or any ordinance 
 
 of the province made in relation to any matter coming 
 
 within any of the classes of subjects enumerated in 
 
 this section : 
 (xii) Generally all matters which, in the opinion of the 
 
 Governor-General in Council, are of a merely local or 
 
 private nature in the province : ^ 
 
 * See Introduction, p. 88. Tliis provision was inserted to placate the 
 Orange River Colony ; but from the point of view of promoting the union 
 cf races it is certainly unfortunate. 
 
 ' See on this extraordinary provision. Introduction, p. 88.
 
 264 SOUTH AFRICA ACT, 1909 
 
 (xiii) All other subjects in respect of which Parliament 
 shall by any law delegate the power of making ordi- 
 nances to the provincial council. 
 Effect of 86. Any ordinance made by a provincial council shall 
 provincj YiSive effect in and for the province as long and as far only 
 
 nances. 
 
 as it is not repugnant to any Act of Parliament. 
 
 Recom- 87. A provincial council may recommend to Parliament 
 tions to the passing of any law relating to any matter in respect of 
 Parlia- -which such council is not competent to make ordinances. 
 Power to 88. In regard to any matter which requires to be dealt 
 matters* ^ with by means of a private Act of Parliament, the pro- 
 proper to vincial council of the province to which the matter relates 
 be dealt 
 
 with by may, subject to such procedure as shall be laid down by 
 Bill legis- Parliament, take evidence by means of a Select Committee 
 lation. Qj, otherwise for and against the passing of such law, and, 
 upon receipt of a report from such council, together with 
 the evidence upon which it is founded, Parliament may 
 pass such Act without further evidence being taken in 
 support thereof. 
 Constitu- 89. A provincial revenue fund shall be formed in every 
 provincial province, into which shall be paid all revenues raised by or 
 Tnd""^ accruing to the provincial council and all moneys paid over 
 by the Governor- General in Council to the provincial 
 council. Such fund shall be appropriated by the provincial 
 council by ordinance for the purposes of the provincial 
 administration generally, or, in the case of moneys paid 
 over by the Governor- General in Council for particular 
 purposes, then for such purposes, but no such ordinance shall 
 be passed by the provincial council unless the administrator 
 shall have first recommended to the council to make pro- 
 vision for the specific service for which the appropriation is 
 to be made. No money shall be issued from the provincial 
 revenue fund except in accordance with such appropriation 
 and under warrant signed l)y the administrator: Provided 
 that, until the expiraticm of one month after the first meeting 
 of the provincial council, the administrator may expend
 
 SOUTH AFRICA ACT, 1909 265 
 
 such moneys as may be necessary for the services of the 
 province. 
 
 90. When a proposed ordinance has been passed by a Assent to 
 provincial council it shall be presented by the administrator ordi- 
 
 to the Governor-General in Council for his assent. The "^"^®^- 
 Governor-General in Council shall declare within one 
 month from the presentation to him of the proposed ordi- 
 nance that he assents thereto, or that he withholds assent, 
 or that he reserves the proposed ordinance for further 
 consideration. A proposed ordinance so reserved shall not 
 have any force unless and until, within one year from the 
 day on which it was presented to the Governor-General in 
 Council, he makes known by proclamation that it has 
 received his assent. 
 
 91. An ordinance assented to by the Governor-General Effect and 
 in Council and promulgated by the administrator shall, of ordi- 
 subject to the provisions of this Act, have the force of law "^^^'^s. 
 within the province. The administrator shall cause two 
 
 fair copies of every such ordinance, one being in the 
 English and the other in the Dutch language (one of which 
 copies shall be signed by the Governor-General), to be 
 enrolled of record in the office of the Registrar of the 
 Appellate Division of the Supreme Court of South Africa ; 
 and such copies shall be conclusive evidence as to the pro- 
 visions of such ordinance, and, in case of conflict between 
 the two copies thus deposited, that signed by the Governor- 
 General shall prevail. 
 
 Miscellaneous. 
 
 92. — (1) In each province there shall be an auditor of Audit of 
 accounts to be appointed by the Governor-General in accounts. 
 Council. 
 
 (2) No such auditor shall be removed from office except 
 by the Governor-General in Council for cause assigned, 
 which shall be communicated by message to both Houses 
 of Parliament within one week after the removal, if Parlia-
 
 :>66 SOUTH AFRICA ACT, 1909 
 
 meiit be then sitting, and, if Parliament be not sitting, then 
 \A'ithin one week after the commencement of the next 
 ensuing session, 
 
 (3) Each such auditor shall receive out of the Con- 
 solidated Revenue Fund such salary as the Governor- 
 General in Council, with the approval of Parliament, shall 
 determine. 
 
 (4) Each such auditor shall examine and audit the 
 accounts of the province to which he is assigned subject 
 to such regulations and orders as may be framed by the 
 Governor-General in Council and approved by Parliament, 
 and no warrant signed by the administrator authorising 
 the issuing of money shall have effect unless countersigned 
 by such auditor. 
 
 Continua- 93. Notwithstanding anything in this Act contained, all 
 powers of powers, authorities, and functions lawfully exercised at 
 
 divisional ^.j-^g establishment of the Union by divisional or municipal 
 and mum- "^ '■ 
 
 cipai councils, or any other duly constituted local authority, shall 
 
 councils. . . p ., . , • 1 1 
 
 be and remain in force until varied or withdrawn by 
 Parliament or by provincial council having power in that 
 behalf. 
 Seats of 94. The seats of provincial government shall be — 
 
 provincial 
 
 For the Cape of Good Hope . Cape Town. 
 
 For Natal ..... Pietermaritzburg. 
 
 For the Transvaal . . . Pretoria. 
 
 For the Orange Free State . Bloemfontein. 
 
 VI. — The Supreme Court of South Africa.' 
 
 Coiistitn- 95. There shall be a Supreme Court of South Africa 
 Supreme consisting of a Chief Justice of South Africa, the ordinary 
 
 Court. 
 
 ' The Government being a union and not a federation, and the powers 
 of Parliament, within certain limitations, being absolute, the Supremo 
 Court will not play the leading j)iirt that it does in the great federations; 
 but there will be consitlerable convenience in (lie abolition of four inde- 
 jHiidcnt Suj)reme Courts, none of which w.is bound by the decisions of the 
 other. 
 
 govern- 
 ment.
 
 SOUTH AFRICA ACT, 1909 267 
 
 judges of appeal, and the other judges of the several 
 divisions of the Supreme Court of South Africa in the 
 provinces. 
 
 96. There shall be an Appellate Division of the Supreme Appellate 
 Court of South Africa, consisting of the Chief Justice of of su-'^" 
 South Africa, two ordinary judges of appeal, and two F'eme 
 additional judges of appeal. Such additional judges of 
 appeal shall be assigned by the Governor-General in Council 
 
 to the Appellate Division from any of the provincial or 
 local divisions of the Supreme Court of South Africa, but 
 shall continue to perform their duties as judges of their 
 respective divisions when their attendance is not required 
 in the Appellate Division. 
 
 97. The Governor-General in Council may, during the Filling of 
 absence, illness, or other incapacity of the Chief Justice of tacl^nde7 
 South Africa, or of any ordinary or additional iudere of ^^ Appei- 
 
 , . , . ^ *= late Divi- 
 
 appeal, appomt any other judge of the Supreme Court of sion. 
 South Africa to act temporarily as such chief justice, 
 ordinary judge of appeal, or additional judge of appeal, as 
 the case may be. 
 
 98. — (1) The several supreme courts of the Cape Constitu- 
 of Good Hope, Natal, and the Transvaal, and the Hidi *'*''' P*" . , 
 
 ^ ' te provincial 
 
 Court of the Orange River Colony shall, on the establish- «ind local 
 ment of the Union, become provincial divisions of theofSu- 
 Supreme Court of South Africa within their respective courT 
 provinces, and shall each be presided over by a judge- 
 president. 
 
 (2) The court of the eastern districts of the Cape of Good 
 Hope, the High Court of Griqualand, the High Court of 
 Witwatersrand, and the several circuit courts, shall become 
 local divisions of the Supreme Court of South Africa with- 
 in the respective areas of their jurisdiction as existing at 
 the establishment of the Union, 
 
 (3) The said provincial and local divisions, referred to in 
 this Act as superior courts, shall, in addition to any original 
 jurisdiction exercised by the corresponding courts of the
 
 268 SOUTH AFRICA ACT, 1909 
 
 Colonies at the establishment of the Union, have jurisdiction 
 in all matters — 
 
 [a] in which the Government of the Union or a person 
 suing or being sued on behalf of such Government 
 is a party : 
 (6) in which the validity of any provincial ordinance 
 
 shall come into question. 
 (4) Unless and until Parliament shall otherwise provide, 
 the said superior courts shall mutatis mutandis have the 
 same jurisdiction in matters affecting the validity of 
 elections of members of the House of Assembly and 
 provincial councils as the corresponding courts of the 
 Colonies have at the establishment of the Union in regard 
 to parliamentary elections in such Colonies respectively. 
 Continua- 99, All judges of the supreme courts of the Colonies, 
 office of including the High Court of the Orange River Colony, 
 ?udsres^ holding office at the establishment of the Union shall on 
 such establishment become judges of the Supreme Court of 
 South Africa, assigned to the divisions of the Supreme 
 Court in the respective provinces, and shall retain all such 
 rights in regard to salaries and pensions as they may 
 possess at the establishment of the Union. The Chief 
 Justices of the Colonies holding office at the establishment of 
 the Union shall on such establishment become the Judges- 
 President of the divisions of the Supreme Court in the re- 
 spective provinces, but shall so long as they hold that office 
 retain the title of Chief Justice of their respective provinces. 
 Appoint- 100. The Chief Justice of South Africa, the ordinary 
 remune- judgcs of appeal, and all other judges of the Supreme Court 
 judgi^*^ of South Africa to be appointed after the establishment of 
 the Union shall be appointed by the Governor-General in 
 Council, and shall receive such remuneration as Parliament 
 shall prescribe, and their remuneration shall not be dim- 
 inished during their continuance in office. 
 Tcmuo of 101. The Chief Justice of South Africa and other judges 
 
 office **y ,. , c. «' & 
 
 judges. ot the Supreme Coui-t of South Africa shall not V)e removed
 
 SOUTH AFRICA ACT, 1909 269 
 
 from office except by the Governor-General in Council on 
 an address from both Houses of Parliament in the same 
 session praying for such removal on the ground of mis- 
 behaviour or incapacity. 
 
 102. Upon any vacancy occurring in any division of the Reduc- 
 Supreme Court of South Africa, other than the Appellate number of 
 Division, the Governor- General in Council may, in case he J"<iges. 
 shall consider that the number of judges of such court may 
 
 with advantage to the public interest be reduced, postpone 
 filling the vacancy until Parliament shall have determined 
 whether such reduction shall take place. 
 
 103. In every civil case in which, according to the law in Appeals to 
 force at the establishment of the Union, an appeal might Division.^ 
 have been made to the Supreme Court of any of the 
 Colonies from a Superior Court in any of the Colonies, or 
 
 from the High Court of Southern Rhodesia, the appeal 
 shall be made only to the Appellate Division, except in 
 cases of orders or judgments given by a single judge, upon 
 applications by way of motion or petition or on summons for 
 provisional sentence or judgments as to costs only, which by 
 law are left to the discretion of the court. The appeal from 
 any such orders or judgments, as well as any appeal in 
 criminal cases from any such Superior Court, or the special 
 reference by any such court of any point of law in 
 a criminal case, shall be made to the provincial division 
 corresponding to the court which before the establishment 
 of the Union would have had jurisdiction in the matter. 
 There shall be no further appeal against any judgment 
 given on appeal by such provincial division except to the 
 Appellate Division, and then only if the Appellate Division 
 shall have given special leave to appeal. 
 
 104. In every case, civil or criminal, in which at the Existing 
 establishment of the Union an appeal might have been ^^^^^ ^' 
 made from the Supreme Court of any of the Colonies or from 
 the High Court of the Orange River Colony to the King 
 in Council, the appeal shall be made only to the Appellate
 
 270 
 
 SOUTH AFRICA ACT, 1909 
 
 Appeals 
 
 from 
 
 inferior 
 
 courts to 
 
 provincial 
 
 divisions. 
 
 Provi- 
 sions as to 
 appeals 
 to the 
 King in 
 Council. 
 
 r>3 & 54 
 
 Vict. c. 27 
 
 Rules of 
 procedure 
 in Appel- 
 late Divi- 
 sion. 
 
 Division : Provided that the right of appeal in any civil suit 
 shall not be limited by reason only of the value of the matter 
 in dispute or the amount claimed or awarded in such suit. 
 
 105. In every case, civil or criminal, in which at the 
 establishment of the Union an appeal might have been made 
 from a court of resident magistrate or other inferior court 
 to a superior court in any of the Colonies, the appeal shall 
 be made to the corresponding division of the Supreme Court 
 of South Africa ; but there shall be no further appeal 
 against any judgment given on appeal by such division 
 except to the Appellate Division, and then only if the 
 Appellate Division shall have given special leave to 
 appeal. 
 
 106. There shall be no appeal from the Supreme Court 
 of South Africa or from any division thereof to the King in 
 Council, but nothing herein contained shall be construed 
 to impair any right which the King in Council may be 
 pleased to exercise to grant special leave to appeal from the 
 Appellate Division to the King in Council.^ Parliament may 
 make laws limiting the matters in respect of which such 
 special leave may be asked, but Bills containing any such 
 limitation shall be reserved by the Governor-General for 
 the signification of His Majesty's pleasure : Provided that 
 nothing in this section shall affect any right of appeal to 
 His Majesty in Council from any judgment given by the 
 Appellate Division of the Supreme Court under or in 
 virtue of the Colonial Courts of Admiralty Act, 1890. 
 
 107. The Chief Justice of South Africa and the ordinary 
 judges of appeal may, subject to the approval of tlie 
 Ciovernor-General in Council, make rules for the conduct of 
 the proceedings of the Appellate Division and prescribing 
 tlie time and manner of making appeals thereto. Until 
 such rules shall have been promulgated, tlie rules in force in 
 the Supreme Court of the Cape of Good Hope at the 
 establishment of the Union shall mutatis mutandis apply. 
 
 ' Compare language of Sec. 74 of Commonwealth Act.
 
 SOUTH AFRICA ACT, 1909 271 
 
 108. The Chief Justice and other judges of the Supreme Rules of 
 Court of South Africa may, subject to the approval of the hl'^pro-"'* 
 Governor-General in Council, frame rules for the conduct ^'"ciai 
 
 and local 
 
 of the proceedings of the several provincial and local divi- divisions, 
 sions. Until such rules shall have been promulgated, the 
 rules in force at the establishment of the Union in the 
 respective courts which become divisions of the Supreme 
 Court of South Africa shall continue to apply therein. 
 
 109. The Appellate Division shall sit in Bloemfontein,^ Place of 
 but may from time to time for the convenience of suitors Appellate 
 hold its sittings at other places within the Union. Division. 
 
 110. -On the hearing of appeals from a court consisting Quorum 
 of two or more judges, five judges of the Appellate Division ing ap- 
 shall form a quorum, but, on the hearing of appeals from P^''^'^- 
 
 a single judge, three judges of the Appellate Division shall 
 form a quorum. No judge shall take part in the hearing 
 of any appeal against the judgment given in a case heard 
 before him. 
 
 111. The process of the Appellate Division shall run Jurisdic- 
 throughout the Union, and all its judgments or orders AppeHate 
 shall have full force and effect in every province, and shall Division, 
 be executed in like manner as if they were original judg- 
 ments or orders of the provincial division of the Supreme 
 Court of South Africa in such province. 
 
 112. The registrar of every provincial division of the Execution 
 Supreme Court of South Africa, if thereto requested by cessesof 
 any party in whose favour any iudo-ment or order has Pfoymcial 
 
 -^ >■ -J J J to divisions. 
 
 been given or made by any other division, shall, upon the 
 deposit with him of an authenticated copy of such judg- 
 ment or order and on proof that the same remains un- 
 satisfied, issue a writ or other process for the execution of 
 such judgment or order, and thereupon such writ or other 
 process shall be executed in like manner as if it had been 
 originally issued from the division of wdiich he is registrar. 
 
 113. Any provincial or local division of the Supreme Transfer 
 
 of suits 
 * This provision was a sop to the Orange Free State.
 
 272 SOUTH AFEICA ACT, 1909 
 
 from one Court of Soutli Africa to which it may be made to appear 
 
 or local ^h^t any civil suit pending therein may be more con- 
 
 to^an-°" veniently or fitly heard or determined in another division 
 
 other. may order the same to be removed to such other division, 
 
 and thereupon such, last -mentioned division may proceed 
 
 with such suit in like manner as if it had been originally 
 
 commenced therein. 
 
 Registrar 114. The Governor-General in Council may appoint a 
 
 cers of ' registrar of the Appellate Division and such other officers 
 
 Appellate thereof as shall be required for the proper dispatch of the 
 
 business thereof. 
 Advocates 115. — (1) The laws regulating the admission of advocates 
 neys^ °^ ^^^'^ attorneys to practise before any superior court of any 
 of the Colonies shall mutatis mutandis apply to the admis- 
 sion of advocates and attorneys to practise in the corre- 
 sponding division of the Supreme Court of South Africa. 
 
 (2) All advocates and attorneys entitled at the establish- 
 ment of the Union to practise in any superior court of any 
 of the Colonies shall be entitled to practise as such in 
 the corresponding division of the Supreme Court of South 
 Africa. 
 
 (3) All advocates and attorneys entitled to practise 
 before any provincial division of the Supreme Court of 
 South Africa shall be entitled to practise before the Appel- 
 late Division. 
 
 Pending 116. All suits, civil or criminal, pending in any superior 
 court of any of the Colonies at the establishment of the 
 Union shall stand removed to the corresponding division 
 of the Supreme Court of South Africa, which shall have 
 jurisdiction to liear and determine the same, and all judg- 
 ments and orders of any superior court of any of the 
 Colonies given or made before the establishment of the 
 Union shall have the same force and efi'ect as if they had 
 been given or made by the corresponding division of the 
 Supreme Court of South Africa. All appeals to the King 
 in Council which shall be pending at the establishment of
 
 SOUTH AFRICA ACT, lOOU 273 
 
 the Union shall be proceeded with as if this Act had not 
 been passed. 
 
 VII. — Finance and Railways.^ 
 
 117. All revenues, from whatever source arising, over Constitu- 
 which the several Colonies have at the establishment of Consoli- 
 the Union power of appropriation, shall vest in the ^^te<l 
 Governor-General in Council. There shall be formed a Fund and 
 Railway and Harbour Fund, into which shall be paid and^^^^ 
 all revenues raised or received by the Governor-General py^d*^"' 
 in Council from the administration of the railways, ports, 
 
 and harbours, and such fund shall be appropriated by 
 Parliament to the purposes of the railwaj^s, ports, and 
 harbours in the manner prescribed by this Act, There 
 shall also be formed a Consolidated Revenue Fund, into 
 which shall be paid all other revenues raised or received 
 by the Governor-General in Council, and such fund shall 
 be appropriated by Parliament for the purposes of the 
 Union in the manner prescribed by this Act, and subject 
 to the charges imposed thereby. 
 
 118. The Governor-General in Council shall, as soon as Commis- 
 may be after the establishment of the Union, appoint a i^q^jry 
 commission, consisting of one representative from each ^^*^ finan- 
 province, and presided over by an officer from the Imperial tions 
 Service, to institute an inquiry into the financial relations xjnion 
 which should exist between the Union and the provinces. ^"^ ^^^' 
 
 '■ vinces. 
 
 Pending the completion of that inquiry and until Parlia- 
 ment otherwise provides, there shall be paid annually out 
 of the Consolidated Revenue Fund to the administrator of 
 each province — 
 
 (a) an amount equal to the sum provided in the estimates 
 for education, other than higher education, in respect 
 
 * For a striking picture of the results of disunion on tlie railway develop- 
 ment of South Africa see Part II of Lord Selborne's Memorandum on 
 a Federation of the South African Colonies, 1907 [Cd. 3564], and the paper 
 appended, at p. 65, on ' South African Railway Unification and its Effects 
 on Railway Rates '. 
 
 1265 S
 
 274 SOUTH AFRICA ACT, 1909 
 
 of the financial year, 1908-9, as voted by the Legisla- 
 ture of the corresponding colony during the year 
 nineteen hundred and eight ; 
 {b) such further sums as the Governor-General in Council 
 may consider necessary for the due performance of 
 the services and duties assigned to the provinces 
 respectively. 
 Until such inquiry shall be completed and Parliament shall 
 have made other provision, the executive committees in 
 the several provinces shall annually submit estimates of 
 their expenditure for the approval of the Governor-General 
 in Council, and no expenditure shall be incurred by any 
 executive committee which is not provided for in such 
 approved estimates. 
 Security 119. The annual interest of the public debts of the 
 ing public ^^olonies and any sinking funds constituted by law at 
 debts. ^]jg establishment of the Union shall form a first charge 
 
 on the Consolidated Revenue Fund. 
 Require- 120. No money shall be withdrawn from the Consoli- 
 wfth-^^*''^ dated Revenue Fund or the Railway and Harbour Fund 
 drawal of except Under appropriation made by law. But, until the 
 
 money ... . 
 
 from expiration of two months after the first meeting of Parlia- 
 
 ment, the Governor-General in Council may draw there- 
 from and expend such moneys as may be necessary for 
 the public service, and for railway and harbour adminis- 
 tration respectively. 
 Transfer 121. All stocks, cash, bankers' balances, and securities 
 niai pro- ^^^' money belonging to each of the Colonies at the estab- 
 pertyto Hshment of the Union shall be the property of the 
 
 the Union. _ ... 
 
 Union : Provided that the balances of any funds raised at 
 
 the establishment of the Union by law for any special 
 
 purposes in any of the Colonies shall be deemed to have 
 
 been appropriated by Parliament for the special purposes 
 
 for which they have l)een provided. 
 
 Crown 122. Crown lands, public works, and all property through- 
 
 ancH, c. ^^^^^ ^y^^ Union, movable or immovable, and all rights of
 
 SOUTH AFRICA ACT, 1909 275 
 
 whatever description belonging to the several Colonies at 
 the establishment of the Union, shall vest in the Governor- 
 General in Council subject to any debt or liability speci- 
 fically charged thereon. 
 
 123. All rights in and to mines and minerals, and all Mines and 
 rights in connection with the searching for, working for, or 
 disposing of, minerals or precious stones, which at the 
 establishment of the Union are vested in the Government 
 
 of any of the Colonies, shall on such establishment vest in 
 the Governor-General in Council. 
 
 124. The Union shall assume all debts and liabilities of Assump- 
 the Colonies existing at its establishment, subject, notwith- Union of 
 standing any other provision contained in this Act, to the Jj^bt^''^ 
 conditions imposed by any law under which such debts or 
 liabilities were raised or incurred, and without prejudice to 
 
 any rights of security or priority in respect of the payment 
 of principal, interest, sinking fund, and other charges 
 conferred on the creditors of any of the Colonies, and may, 
 subject to such conditions and rights, convert, renew, or 
 consolidate such debts. 
 
 125. All ports, harbours, and railways belonging to the Ports, 
 
 li 3,rl)oui's 
 
 several Colonies at the establishment of the Union shall and rail- 
 from the date thereof vest in the Governor-General in ^^^y^* 
 Council. No railway for the conveyance of public traflSc, 
 and no port, harbour, or similar work, shall be constructed 
 without the sanction of Parliament. 
 
 126. Subject to the authority of the Governor-General Constitu- 
 in Council, the control and management of the railways, Harbour 
 ports, and harbours of the Union shall be exercised through ^^ '*' ' 
 a board consisting of not more than three commissioners, Board, 
 who shall be appointed by the Governor-General in Council, 
 
 and a minister of State, who shall be chairman. Each 
 commissioner shall hold office for a period of five years, 
 but may be re-appointed. He shall not be removed before 
 the expiration of his period of appointment, except by the 
 Governor-General in Council for cause assigned, which 
 
 S2
 
 2/6 SOUTH AFRICA ACT, 1909 
 
 shall be communicated by message to both Houses ot* 
 Parliament within one week after the removal, if Parliament 
 be then sitting, or, if Parliament be not sitting, then within 
 one week after the commencement of the next ensuing 
 session. The salaries of the commissioners shall be fixed 
 by Parliament and shall not be reduced during their 
 respective terms of office. 
 Adminis- 127. The railways, ports, and harbours of the Union 
 railways, shall be administered on business principles, due regard 
 
 ports, and ^gj^g had to agricultural and industrial development 
 
 harbours. ... 
 
 within the Union and promotion, bj' means of cheap trans- 
 port, of the settlement of an agricultural and industrial 
 population in the inland portions of all provinces of the 
 Union. ^ So far as may be, the total earnings shall be not 
 more than are sufficient to meet the necessary outlays for 
 working, maintenance, betterment, depreciation, and the 
 pa3'ment of interest due on capital not being capital con- 
 tributed out of railway or harbour revenue, and not 
 including any sums payable out of the Consolidated 
 Revenue Fund in accordance with the provisions of sections 
 one hundred and thirty and one hundred and thirty-one. 
 The amount of interest due on such capital invested shall 
 be paid over from the Railway and Harbour Fund into the 
 Consolidated Revenue Fund. The Governor-General in 
 Council shall give effect to the provisions of this section as 
 soon as and at such time as the necessary administrative 
 and financial arrangements can be made, Init in anj' case 
 shall give full effect to them before the expiration of four 
 years from the establishment of the Union. During such 
 period, if the revenues accruing to the Consolidated 
 Revenue Fund ai'c insufficient to provide for the general 
 service of the Union, and if the earnings accruing to the 
 Railway and Har1)our Fund are in excess of the outlays 
 specified herein, Parliament may by law appropriate such 
 
 ' According to Mr. Brand, op. cit., p. 9tt, General Smuts designated these 
 clauses as the Magna Charta of the interior.
 
 SOUTH AFRICA ACT, 1909 277 
 
 excess or any part thereof towards the general expenditure 
 of the Union, and all sums so appropriated shall be paid 
 over to the Consolidated Revenue Fund. 
 
 128. Notwithstanding anything to the contrary in the Establish- 
 last preceding section, the Board may establish a fund out J\,nd*for 
 of railway and harbour revenue to be used for maintaininsr, maintain- 
 as tar as may be, uniformity of rates notwithstanding formity of 
 fluctuations in traffic, rateJ.^^ 
 
 129. All balances standing to the credit of any fund Manage- 
 established in any of the Colonies for railway or harbour railway 
 purposes at the establishment of the Union shall be under f ""^ ^^^^' 
 
 '■ '^ hour 
 
 the sole control and management of the Board, and shall balances, 
 be deemed to have been appropriated by Parliament for the 
 respective purposes for which they have been provided. 
 
 130. Every proposal for the construction of any port or Constmc- 
 
 harbour works or of any line of railway, before being sub- harbour 
 
 mitted to Parliament, shall be considered by the Board, '"^'"^ '''^''' 
 
 •^ way 
 
 which shall report thereon, and shall advise whether the works, 
 proposed works or line of railway should or should not be 
 constructed. If any such works or line shall be constructed 
 contrary to the advice of the Board, and if the Board is of 
 opinion that the revenue derived from the operation of 
 such works or line will be insufficient to meet the costs of 
 working and maintenance, and of interest on the capital 
 invested therein, it shall frame an estimate of the annual 
 loss which, in its opinion, will result from such operation. 
 Such estimate shall be examined by the Controller and 
 Auditor-General, and when approved by him the amount 
 thereof shall be paid over annually from the Con- 
 solidated Revenue Fund to the Railway and Harbour 
 Fund : ^ Provided that, if in any year the actual loss 
 incurred, as calculated l)y the Board and certified by the 
 Controller and Auditor-General, is less than the estimate 
 
 1 These elaborate provisions are to prevent political jobbery in the 
 making of new railways. They were recommended in the Memorandum 
 forwarded by Lord Selborne, of which mention has already been made. 
 See note on p. 273.
 
 278 
 
 SOUTH AFRICA ACT, 1909 
 
 Making 
 good of 
 deficien- 
 cies in 
 Railway 
 Fund in 
 certain 
 cases. 
 
 Controller 
 and 
 
 Auditor- 
 General. 
 
 framed by the Board, the amount paid over in respect of 
 that year shall be reduced accordingly so as not to exceed 
 the actual loss incurred. In calculating the loss arising 
 from the operation of any such work or line, the Board 
 shall have regard to the value of any contributions of 
 traffic to other parts of the system which may be due to 
 the operation of such work or line. 
 
 131. If the Board shall be required by the Governor- 
 General in Council or under any Act of Parliament or 
 resolution of both Houses of Parliament to provide any 
 services or facilities either gratuitously or at a rate of 
 charge which is insufficient to meet the costs involved in 
 the provision of such services or facilities, the Board shall 
 at the end of each financial year present to Parliament an 
 account approved by the Controller and Auditor-General, 
 showing, as nearly as can be ascertained, the amount of the 
 loss incurred by reason of the provision of such services 
 and facilities, and such amount shall be paid out of the 
 Consolidated Revenue Fund to the Railway and Harbour 
 Fund.i 
 
 132. The Governor-General in Council shall appoint a 
 Controller and Auditor-General who shall hold office during 
 good behaviour : provided that he shall be removed by the 
 Governor-General in Council on an address praying for 
 such removal presented to the Governor-General by both 
 Houses of Parliament : provided further that when Pai-lia- 
 ment is not in session the Governor-General in Council may 
 suspend such officer on the ground of incompetence or mis- 
 behaviour ; and, when and so often as such suspension shall 
 take place, a full statement of the circumstances shall be 
 laid before both Houses of Parliament within fourteen 
 days after the commencement of its next session ; and, if 
 an address shall at any time during the session of Parlia- 
 ment be presented to the Governor-CJeneral by both Houses 
 praying for the restoration to office of such officer, he shall 
 
 ' See note on p. 277.
 
 SOUTH AFRICA ACT, 1909 279 
 
 be restored accordingly ; and if no such address be pre- 
 sented the Governor-General shall confirm such suspension 
 and shall declare the office of Controller and Auditor- 
 General to be, and it shall thereupon become, vacant. 
 Until Parliament shall otherwise provide, the Controller 
 and Auditor-General shall exercise such powers and functions 
 and undertake such duties as may be assigned to him by 
 the Governor-General in Council by regulations framed in 
 that behalf. 
 
 133. In order to compensate Pietermaritzburg and Compen- 
 Bloemfontein for any loss sustained by them in the form colonial 
 of diminution of prosperity or decreased rateable value by ^''*P'*^^^. 
 reason of their ceasing to be the seats of government of nution of 
 
 pros- 
 
 their respective colonies, there shall be paid from the Con- perity. 
 solidated Revenue Fund for a period not exceeding twenty- 
 five years to the municipal councils of such towns a grant 
 of two per centum per annum on their municipal debts, as 
 existing on the thirty-first day of January nineteen hun- 
 dred and nine, and as ascertained by the Controller and 
 Auditor-General. The Commission appointed under section 
 one hundred and eighteen shall, after due inquiry, report 
 to the Governor-General in Council what compensation 
 should be paid to the municipal councils of Cape Town and 
 Pretoria for the losses, if any, similarly sustained by them. 
 Such compensation shall be paid out of the Consolidated 
 Revenue Fund for a period not exceeding twenty-five years, 
 and shall not exceed one per centum per annum on the 
 respective municipal debts of such towns as existing on the 
 thirty-first January nineteen hundred and nine, and as 
 ascertained by the Controller and Auditor-General. For 
 the purposes of this section Cape Town shall be deemed to 
 include the municipalities of Cape Town, Green Point, and 
 Sea Point, Woodstock, Mowbray, and Rondebosch, Clare- 
 mont, and Wynberg, and any grant made to Cape Town 
 shall be payable to the councils of such municipalities in 
 proportion to their respective debts. One half of any such
 
 280 SOUTH AFRICA ACT, 1909 
 
 grants shall be applied to the redemption of the municipal 
 debts of such towns respectively. At any time after the 
 tenth annual grant has been paid to any of such towns the 
 Governor-General in Council, with the approval of Parlia- 
 ment, may after due inquiry withdraw or reduce the grant 
 to such town. 
 
 VIII. — General. 
 Method of 134. The election of senators and of members of the 
 senators executive committees of the provincial councils as provided 
 ^^- in this Act shall, whenever such election is contested, be 
 
 according to the principle of proportional representation, 
 each voter having one transferable vote.^ The Governor- 
 General in Council, or, in the case of the first election of 
 the Senate, the Governor in Council of each of the Colonies, 
 shall frame regulations prescribing the method of voting 
 and of transferring and counting votes and the duties of 
 returning officers in connection therewith, and such regula- 
 tions or any amendments thereof after being duly promul- 
 gated shall have full force and eftect unless and until 
 Parliament shall otherwise provide. 
 Continua- 135. Subject to the provisions of this Act, all laws in 
 existing f'orce in the several Colonies at the establishment of the 
 
 colonial Union shall continue in force in the respective provinces 
 laws. ^ ^ 
 
 until repealed or amended by Parliament, or by the 
 provincial councils in matters in respect of which the 
 power to make ordinances is reserved or delegated to them. 
 All legal commissions in the several Colonies at the estab- 
 lishment of the Union shall continue as if the Union had 
 not been established. 
 Free trade 136. There shall be free trade througliout the Union, 
 out Union. ^^^ until Parliament otherwise provides the duties of 
 custom and of excise leviable under the laws existing in 
 any of the Colonies at the establishment of the Union shall 
 remain in force. 
 
 ' Sj'o p. 8-5 for attempt to introduce principle of proi)ortional repre- 
 sentation on a larger scale.
 
 SOUTH AFRICA ACT, 1909 281 
 
 137. Both the English and Dutch languages shall be official Equality 
 languages of the Union, and shall he treated on a tooting ^j^^j j^^tdj 
 of equality, and possess and enjoy equal freedom, rights, and l"ng"''ig<'^- 
 privileges ; all records, journals, and proceedings of Parlia- 
 ment shall 1)6 kept in both languages, and all Bills, Acts, and 
 notices of general public importance or interest issued by 
 
 the Government of the Union shall be in both languages.^ 
 
 138. All persons who have been naturalised in any of Natural- 
 the Colonies shall be deemed to be naturalised throughout 
 
 the Union. 
 
 139. The administration of justice throughout the Union Adminis- 
 shall be under the control of a minister of State, in whom justice. 
 shall be vested all powers, authorities, and functions which 
 
 shall at the establishment of the Union be vested in the 
 Attorneys-General of the Colonies, save and except all 
 powers, authorities, and functions relating to the prosecu- 
 tion of crimes and offences, which shall in each province be 
 vested in an officer to be appointed by the Governor- 
 General in Council, and styled the Attorney-General of the 
 province, who shall also discharge such other duties as may 
 be assigned to him by the Governor-General in Council : 
 Provided that in the province of the Cape of Good Hope 
 the Solicitor-General for the Eastern Districts and the 
 Crowai Prosecutor for Griqualand West shall respectively 
 continue to exercise the powers and duties by law vested 
 in them at the time of the establishment of the Union. 
 
 140. Subject to the provisions of the next succeeding Existing 
 
 officers 
 
 section, all officers of the public service of the Colonies 
 shall at the establishment of the Union become officers of 
 the Union. 
 
 141. — (1) As soon as possible after the establishment of Reorga- 
 the Union, the Governor-General in Council shall appoint of public 
 a public service commission to make recommendations for [J^'g^^^tV 
 
 ' Nothing more facilitated the working of the convention than the 
 readiness of the English delegates to give cordial assent to this provision. 
 It cleared the air of much suspicion and distrust.
 
 282 SOUTH AFRICA ACT. 1909 
 
 such reorganisation and readjustment of the departments 
 of the public service as may be necessary. The commission 
 shall also make recommendations in regard to the assign- 
 ment of officers to the several provinces. 
 
 (2) The Governor-General in Council may after such 
 commission has reported assign from time to time to each 
 province such officers as may be necessary for the proper 
 discharge of the services reserved or delegated to it, and 
 such officers on being so assigned shall become officers of 
 the province. Pending the assignment of such officers, the 
 Governor-General in Council may place at the disposal of 
 the provinces the services of such officers of the Union as 
 may be necessary. 
 
 (3) The provisions of this section shall not apply to any 
 service or department under the control of the Railvt^ay 
 and Harbour Board, or to any person holding office under 
 the Board. 
 
 Public 142. After the establishment of the Union the Gover- 
 
 nor-General in Council shall appoint a permanent public 
 service commission with such powers and duties relating to 
 the appointment, discipline, retirement, and superannuation 
 of public officers as Parliament shall determine.^ 
 
 Pensions 143. Any officer of the public service of any of the 
 of existing ^ , • , „ -r , . 
 
 officers. Colonies at the establishment of the Union who is not 
 
 retained in the service of the Union or assigned to that of 
 
 a province shall be entitled to receive such pension, gratuity, 
 
 or other compensation as he would have received in like 
 
 circumstances if the Union had not been established. 
 
 Tenure of 144. Any officcr of the public service of any of the 
 
 existing Colonics at the establishment of the Union who is retained 
 
 in the service of the Union or assigned to that of a province 
 
 shall retain all his existing and accruing rights, and shall 
 
 be entitled to retire from the service at the time at which 
 
 he would have been entitled by law to retire, and on the 
 
 ' TJk! Act liero followed tlie example of tlie prjurtiee of the Dominion 
 and the Conunonwealth. 
 
 commis- 
 sion.
 
 SOUTH AFRICA ACT, 1909 283 
 
 pension or retiring allowance to which he would have been 
 entitled by law in like circumstances if the Union had not 
 been established. 
 
 145. The services of officers in the public service of any Existing 
 of the Colonies at the establishment of the Union shall not not''trJ)e 
 be dispensed with by reason of their want of knowledge of ^ismissed 
 
 *^ •' *^ for ignor- 
 
 either the English or Dutch language. ance of 
 
 146. Any permanent officer of the Legislature of any of Dutch, 
 the Colonies who is not retained in the service of the Compen- 
 
 TT • p • 1 p 1 sation to 
 
 Union, or assigned to that of any province, and for whom existing 
 no provision shall have been made by such Legislature, ^vho^are 
 shall be entitled to such pension, gratuity, or compensation "".*■ ''^- 
 as Parliament may determine. 
 
 147. The control and administration of native affairs Adminis- 
 and of matters specially or differentially affecting Asiatics native 
 throughout the Union shall vest in the Governor- General ^^^^^'^> *<'• 
 in Council/ who shall exercise all special powers in regard 
 
 to native administration hitherto vested in the Governors 
 of the Colonies or exercised by them as supreme chiefs, 
 and any lands vested in the Governor or Governor and 
 Executive Council of any colony for the purpose of 
 reserves for native locations shall vest in the Governor- 
 General in Council, who shall exercise all special powers in 
 relation to such reserves as may hitherto have been exer- 
 ciseable by any such Governor or Governor and Executive 
 Council, and no lands set aside for the occupation of 
 natives which cannot at the establishment of the Union be 
 alienated except by an Act of the Colonial Legislature 
 shall be alienated or in any way diverted from the pur- 
 poses for which they are set apart except under the 
 authority of an Act of Parliament. 
 
 ' Under the royal instructions the Governor of Natal was bound to act 
 in native affairs on his personal discretion, after consultation with his 
 Ministers, and a similar provision was implied in the provisions of the 
 Transvaal and Orange River Colony Letters Patent of 1906 and 1907. 
 Governors, however, found it impracticable to act independently of their 
 Ministers with regard to native affairs ; so that the Act has made a con- 
 siderable change in the theory rather than the practice.
 
 284 SOUTH AFRICA ACT, 1909 
 
 Devolu- 148. — (1) All rights and obligations under any con- 
 
 Union of mentions or agreements which are binding on any of the 
 rights and Colonies shall devolve upon the Union at its establishment. 
 
 obhga- _ _ *• 
 
 tions (2) The provisions of the railway agreement between the 
 
 conven- Governments of the Transvaal, the Cape of Good Hope, 
 tions. ^jj^ Natal, dated the second of February, nineteen hundred 
 
 and nine, shall, as far as practicable, be given effect to b}^ 
 
 the Government of the Union.^ 
 
 IX. — New Provinces and Territories. 
 
 Alteration 149. Parliament may alter the boundaries of any pro- 
 darie""'f ^'i^^c, divide a province into two or more provinces, or 
 provinces, form a new province out of provinces within the Union, on 
 
 the petition of the provincial council of every province 
 
 whose boundaries are affected thereby. 
 
 Power to 150. The King, with the advice of the Privy Council, 
 
 Union may on addresses from the Houses of Parliament of the 
 
 territories ^'I'nion admit into the Union the territories administered 
 
 aaminis- 
 
 tered by by the British South Africa Company ^ on such terms and 
 
 South conditions as to representation and otherwise in each case 
 
 Africa j^g g^^Q expressed in the addresses and approved by the 
 
 King, and the provisions of any Order in Council in that 
 
 behalf shall have effect as if they had been enacted by the 
 
 Parliament of the United Kingdom of Great Britain and 
 
 Ireland. 
 
 Power to 151. The King, with the advice of the Privy Council, 
 
 to^Uniori ^^^y> ^^^ addresses from the Houses of Parliament of the 
 
 govern- Union, transfer to tlie Union the government of any fer- 
 ment of . . . , *= . "^ 
 native ter- ritories, other than the territories administered by the 
 
 B)-itish South Africa Company, belonging to or under tlie 
 
 ' Under this agreement 30 per cent, of the Rand traffic was secured for 
 Durban and 20 per cent, for tlio Cape ports. The rest of the traffic was 
 secured for Dclagoa Bay for a jieriod often years by a treaty under whieli 
 the Portuguese fiovernmLiit agreed to continue tlie granting of facilities 
 in its possessions for the lec-ruitment of native labour for the mines. 
 
 ' Though Rhodesia must in time join the Union, there seem good reasons 
 for its not so doing witliin the immediate future.
 
 SOUTH AFRICA ACT, 1909 285 
 
 protection of Hia Majesty, and inhabited wholly or in part 
 by natives, and upon such transfer the Governor-General 
 in Council may undertake the government of such territory 
 upon the terms and conditions embodied in the Schedule 
 to this Act.^ 
 
 X. — Amendment of Act. 
 
 152. Parliament may by law repeal or alter any of the Amend- 
 provisions of this Act : Provided that no provision thereof, ^^^^^ ^^ 
 for the operation of which a definite period of time is 
 prescribed, shall during such period be repealed or altered : 
 And provided further that no repeal or alteration of the 
 provisions contained in this section, or in sections thirty- 
 three and thirty-four (until the number of members of the 
 House of Assembly has reached the limit therein prescribed, 
 or until a period of ten years has elapsed after the estab- 
 lishment of the Union, whichever is the longer period), or 
 in sections thirty-five and one hundred and thirty-seven, 
 shall be valid unless the Bill embodying such repeal or alter- 
 ation shall be passed by both Houses of Parliament sitting 
 together, and at the third reading be agreed to by not less 
 than two-thirds of the total number of members of both 
 Houses. A Bill so passed at such joint sitting shall be 
 taken to have been duly passed by both Houses of Par- 
 liament.^ 
 
 ^ The Act here marks a considerable change of policy. Hitherto the 
 High Commissioner has acted in his relations with the native territories 
 independently of his responsible advisers. For the present, however 
 the Native Territories, comprising Basutoland, Bechuanaland Protectorate 
 and Swaziland, notwithstanding the establishment of the Union, still 
 remain under imperial control, and are administered by Kesident Com- 
 missioners, under the direction of the Governor-General as High Com- 
 missioner, who legislates by means of Statutory Proclamations published 
 in the Official Gazette. The inhabitants of these Territories were and 
 to some extent still are very reluctant to come imder the jurisdiction 
 of the Union. 
 
 - The comparative simplicity with which an amendment of the Consti- 
 tution can be made springs from the fact that South Africa is a union, 
 not a federation.
 
 Section 
 151. 
 
 SCHEDULE 
 
 1. After the transfer of the government of any territory 
 belonging to or under the protection of His Majesty, the 
 Governor-General in Council shall be the legislative 
 authorit}'', and may by proclamation make laws for the 
 peace, order, and good government of such territory : ^ 
 Provided that all such laws shall be laid before both Houses 
 of Parliament within seven days after the issue of the 
 proclamation or, if Parliament be not then sitting, within 
 seven days after the beginning of the next session, and 
 shall be effectual unless and until both Houses of Parlia- 
 ment shall by resolutions passed in the same session request 
 the Governor-General in Council to repeal the same, in 
 which case they shall be repealed by proclamation. 
 
 2. The Prime Minister shall be charged with the ad- 
 ministration of any territory thus transferred, and he shall 
 be advised in the general conduct of such administration by 
 a commission consisting of not fewer than three members 
 with a secretary, to be appointed by the Governor-General 
 in Council, who shall take the instructions of the Prime 
 Minister in conducting all correspondence relating to the 
 territories, and shall also under the like control have 
 custody of all official papers relating to the territories. 
 
 3. The members of the commission shall be appointed by 
 the Governor-General in Council, and shall be entitled to 
 hold office for a period of ten years, but such period may 
 be extended to successive further terms of five years. They 
 shall each be entitled to a fixed annual salar}', which shall 
 not be reduced during the continuance of tlieir term of 
 office, and they shall not be rcmovet^I from office except upon 
 addresses from both Houses of Parliament passed in the same 
 session praying for such removal. They shall not be qualified 
 
 ' See note on p. 285.
 
 SOUTH AFRICA ACT, 1909 287 
 
 to become, or to be, members of either House of Parliament. 
 One of the members of the commission shall be appointed 
 by the Governor-General in Council as vice-chairman 
 thereof. In case of the absence, illness, or other incapacity 
 of any member of the commission, the Governor-General in 
 Council may appoint some other fit and proper person to act 
 during such absence, illness, or other incapacity. 
 
 4. It shall be the duty of the members of the commission 
 to advise the Prime Minister upon all matters relating to 
 the general conduct of the administration of, or the legisla- 
 tion for, the said territories. The Prime Minister, or 
 another minister of State nominated by the Prime Minister 
 to be his deputy for a fixed period, or, failing such 
 nomination, the vice-chairman, shall preside at all meetings 
 of the commission, and in case of an equality of votes shall 
 have a casting vote. Two members of the commission shall 
 form a quorum. In case the commission shall consist of 
 four or more members, three of them shall form a quorum. 
 
 5. Any member of the commission who dissents from the 
 decision of a majority shall be entitled to have the reasons 
 for his dissent recorded in the minutes of the commission. 
 
 6. The members of the commission shall have access to 
 all official papers concerning the territories, and they may 
 deliberate on any matter relating thereto and tender their 
 advice thereon to the Prime Minister. 
 
 7. Before coming to a decision on any matter relating 
 either to the administration, other than routine, of the 
 territories or to legislation therefor, the Prime Minister 
 shall cause the papers relating to such matter to be de- 
 posited with the secretary to the commission, and shall 
 convene a meeting of the commission for the purpose of 
 obtaining its opinion on such matter. 
 
 8. Where it appears to the Prime Minister that the 
 despatch of any communication or the making of any order 
 is urgently required, the communication may be sent or 
 order made, although it has not been submitted to a meet-
 
 2^S SOUTH AFRICA ACT. 1909 
 
 ing of the commission or deposited for the perusal of the 
 members thereof. In any such case the Prime Minister 
 shall record the reasons for sending the communication or 
 making the order and give notice thereof to every member. 
 
 9. If the Prime Minister does not accept a recommenda- 
 tion of the commission or proposes to take some action 
 contrary to their advice, he shall state his views to the 
 commission, who shall be at liberty to place on record the 
 reasons in support of their recommendation or advice. 
 This record shall be laid by the Prime Minister before the 
 Governor-General in Council, whose decision in the matter 
 shall be final. 
 
 10. When the recommendations of the commission have 
 not been accepted by the Governor-General in Council, or 
 action not in accordance with their advice has been taken 
 by the Governor-General in Council, the Prime Minister, 
 if thereto requested by the commission, shall lay the record 
 of their dissent from the decision or action taken and of the 
 reasons therefor before both Houses of Parliament, unless in 
 any case the Governor-General in Council shall transmit to 
 the commission a minute recording his opinion that the 
 publication of such record and reasons would be gravely 
 detrimental to the public interest. 
 
 11. The Governor-General in Council shall appoint 
 a resident commissioner for each territory, who shall, in 
 addition to such other duties as shall be imposed on liim, 
 prepare the annual estimates of revenue and expenditure 
 for such territory, and forward the same to the secretary 
 to the commission for the consideration of the commission 
 and of the Prime Minister. A proclamation shall be 
 issued by the Governor-General in Council, giving to the 
 provisions for revenue and expenditure made in the esti- 
 mates as finally approved by the Governor-General in 
 Council the force of law. 
 
 12. There shall be paid into the Treasury of the Union 
 all duties of customs levied on dutiable articles imported
 
 SOUTH AFRICA ACT, 1909 289 
 
 into and consumed in the territories, and there shall be 
 paid out ot" the Treasury annually towards the cost of ad- 
 ministration of each territory a sum in respect of such 
 duties which shall bear to the total customs revenue of the 
 Union in respect of each financial year the same proportion 
 as the average amount of the customs revenue of such 
 territory for the three completed financial years last pre- 
 ceding the taking effect of this Act bore to the average 
 amount of the whole customs revenue for all the Colonies 
 and territories included in the Union received during the 
 same period. 
 
 13. If the revenue of any territory for any financial year 
 shall be insufiicient to meet the expenditure thereof, any 
 amount required to make good the deficiency may, with 
 the approval of the Governor-General in Council, and on such 
 terms and conditions and in such manner as with the like 
 approval may be directed or prescribed, be advanced from 
 the funds of any other territory. In default of any 
 such arrangement, the amount required to make good 
 any such deficiency shall be advanced by the Govern- 
 ment of the Union. In case there shall be a surplus for 
 any territory, such surplus shall in the first instance be 
 devoted to the repayment of any sums previously 
 advanced by any other territory or by the Union Govern- 
 ment to make good any deficiency in the revenue of such 
 territory 
 
 14. It shall not be lawful to alienate any land in Basuto- 
 land or any land forming part of the native reserves in the 
 Bechuanaland protectorate and Swaziland from the native 
 tribes inhabiting those territories. 
 
 15. The sale of intoxicating liquor to natives shall be 
 prohibited in the territories, and no provision giving 
 facilities for introducing, obtaining, or possessing such 
 liquor in any part of the territories less stringent than 
 those existing at the time of transfer shall be allowed. 
 
 16. The custom, where it exists, of holding pitsos or 
 
 1265 T
 
 290 SOUTH AFRICA ACT. 1909 
 
 other recognised forms of native assembly shall be main- 
 tained in the territories. 
 
 17. No differential duties or imposts on the produce of 
 the territories shall be levied. The laws of the Union 
 relating to customs and excise shall be made to apply to 
 the territories. 
 
 18. There shall be free intercourse for the inhabitants of 
 the territories with the rest of South Africa subject to the 
 laws, including the pass laws, of the Union. 
 
 19. Subject to the provisions of this Schedule, all revenues 
 derived from any territory shall be expended for and on 
 behalf of such territory : Provided that the Governor- 
 General in Council may make special provision for the 
 appropriation of a portion of such revenue as a contribution 
 towards the cost of defence and other services performed 
 by the Union for the benefit of the whole of South Africa, 
 so, however, that that contribution shall not bear a higher 
 proportion to the total cost of such services than that which 
 the amount payable under paragraph 12 of this Schedule 
 from the Treasury of the Union towards the cost of the 
 administration of the territory bears to the total customs 
 revenue of the Union on the average of the three years 
 immediately preceding the year for which the contribution 
 is made. 
 
 20. The King may disallow any law made by the Gover- 
 nor-General in Council bj^^ proclamation for any territory 
 within one year from the date of the proclamation, and 
 such disallowance on being made known by the Governor- 
 General by proclamation shall annul the law from the day 
 when the disallowance is so made known. 
 
 21. The members of the commission shall be entitled to 
 such pensions or superannuation allowances as the Gover- 
 nor-General in Council shall by proclamation provide, and 
 the salaries and pensions of such members and all other 
 expenses of the commission shall be borne by the terri- 
 tories in the proportion of their respective revenues.
 
 SOUTH AFRICA ACT, 1909 291 
 
 22. The rights as existing at the date of transfer of 
 officers of the public service employed in any territory 
 shall remain in force. 
 
 23. Where any appeal may l)y law be made to tlie King 
 in Council from any court of the territories, such appeal 
 shall, subject to the provisions of this Act, be made to the 
 Appellate Division of the Supreme Court of South Africa. 
 
 24. The Commission shall prepare an annual report on 
 the territories, which shall, when approved by the Gover- 
 nor-General in Council, be laid before both Houses of 
 Parliament. 
 
 25. All bills to amend or alter the provisions of this 
 Schedule shall be reserved for the signification of His 
 Majesty's pleasure. 
 
 T 2
 
 BIBLIOGRAPHY 
 
 The Ai'ticles of the New England Confederation of 1643 and the 
 Acts and Proceedings of the Commissioners are in Records of the 
 Colony of Neio Plymouth, vols, ix and x, Boston, 1855-61. 
 
 The best account of its foundation is in John Winthrop's History 
 of Neio England, 1643-9, vol. ii, new ed., Boston, 1853. 
 
 A good account of the New England Confederacy will be found 
 in vol. i of Professor H. L. Osgood's The American Colonies in the 
 Seventeenth Cent^i^ry. 1904. 
 
 See also E. Frothingham's Rise of the Reimhlic of the United 
 States. Boston, 6th ed., 1895. 
 
 The causes that led up to Penn's and Franklin's proposals for 
 union are to be sought in the volumes of The Calendar of State 
 Papers, Colonial Series : America and West Indies ; and of the 
 Documents relating to the Colonial History of New YorJc. (See note 
 on text of these papers.) Franklin's comments are in vol. iii of 
 his Works, ed. by J. Sparks. 
 
 There are some interesting remarks on Franklin's scheme in 
 the first chapter of Mr. G. L. Beer's British Colonial Policy, 
 1754-65. 1907. 
 
 For the gradual coui'se of events which led up to confederation, 
 in addition to the ordinaiy histories of Canada such constitutional 
 authorities should be consulted as Documents relating to the 
 Constitutional History of Canada, 1759-91, ed, by A. Shortt and 
 A. G. Doughty, Ottawa, 1907; Canadian Constitutional Develop- 
 ment (a collection of documents), ed. by H. E. Egerton and W. L. 
 Grant, 1907; Lord Durham's i?e/>or< on Cajiwc/a, reissued 1902; 
 and Constitutional Documents of Canada, ed. by W. Houston, 
 Toronto, 1891. Joseph Howe's Letters and Sj)eeches (new ed., 
 Halifax, 1909) are of especial inijiortance. Biographies also throw 
 light on the subject, such as the 2nd vol. of Stuart Beid's Life of 
 Lord Durham ; Lord Sydenham, by A. Shortt (in the Makers of 
 Canada Series), 1908 ; Letters and Journals of Lord Elgin, ed. by 
 T. Walrond, 1873 ; Baldwin, Lafontaine, Hincks, by S. Leacock (in 
 Makers of Canada Series), 1 907 ; Life and Speeclies of George Brovm, 
 by Alex. Mackenzie, 1882; Memoirs of Sir John Macdonald, 
 by J. Pope, 2 vols., 1894, and Sir John Macdonald, by 
 O. It. Parkin (in Makers of Canada Series), 1908. The last
 
 BIBLIOGRAPHY 293 
 
 F&rty Years : Canada since the Union 0/ 1 84 1, by J. C. Dent, 2 vols., 
 Toronto, n.d., brings out the breakdown of party government. 
 See also Le Canada sous I' Union, par L. P. Turcotte, 1871; and, 
 from another point of view, Canada and the Canadian Question, by 
 Goldwin Smith, 1891. 
 
 On the ' Gi'eater Canada ' aspect of the subject consult A. Begg's 
 History of the North-West and History of British Columbia, 
 1894 and 1895; also G. Bryce's Manitoba and the Hudson Bay 
 Company. 
 
 On the Confederation itself the main authorities are : — 
 
 The Cmife.deration of Canada, by J. H. Gray, Toronto, 1872. 
 (Only vol. i was written.) 
 
 Confederation Documents, by J. Pope, Toronto, 1895. (Contains 
 the only extant notes of the Quebec Conference.) 
 
 Confederation Debates, Quebec, 1865. (Contains debates on the 
 Resolutions in the Canadian Parliaments.) 
 
 Confederation Law of Canada, by G. J. Wheeler, 1896. An 
 exhaustive commentary, especially valuable on Sections 91, 92, and 
 93 of British Noith America Act. 
 
 The Constitution of Canada, by J. E. C. Munro, 1889. 
 
 The Law of the Legislative Power in Canada, by A. H. F. Lefroy, 
 Toronto, 1897-8. 
 
 The main authorities on the working of the Act are the cases 
 reported in :■ — ■ 
 
 Cases on the British North America Act, by J. E. Cartwright, 
 4 vols., Toronto, 1887-92. 
 
 More recent cases which have gone to the Privy Council will be 
 found in the English Appeal Cases. 
 
 In addition there is a useful appendix relating to Sees. 91-95 of 
 the Act in Sir H. Jenkyus's British Ride and. Jurisdiction beyond 
 the Seas, 1902 ; and a valuable chapter on ' The Federations' in 
 Respo^isible Government in the Dominions, by A. B. Keith, 1909. 
 
 The books relating to the constitutional history of Australia are 
 much less numerous and important than those relating to Canada ; 
 and the interest of the Commonwealth Statute itself is far greater 
 than the interest of the events which preceded it. 
 
 In addition to the ordinary histories of Australia and such books 
 as Sir H. Parkes's Reminiscences, the one book which is indis- 
 pensable for a study of attempts at federation is The Early 
 Federation Afovement of Australia, by C. V. Allin, Kingston, 1907. 
 In the portion of the Introduction relating to the proceedings of
 
 294 BIBLIOGRAPHY 
 
 Committees of the Assemblies in Victoria and New South Wales, I 
 have been greatly indebted to Mr. Allin's book, Avhich covei's ground 
 not hitherto travelled. 
 
 Lord Grey's The Colonial Policy of Lord John Russell's Ad- 
 ministration, 1853, should also be consulted. 
 
 To make up for the lack of earlier material, the Reports of the 
 Conferences which preceded federation are very full and exhaustive. 
 These are : — 
 
 Record of the Proceedings and Debates of the Australasian 
 Federation Conference, 1890. Melbourne. 
 
 National Australasian Convention, 1891. Sj^dney. 
 
 Re'port of the National Australasian Convention, 1897, March- 
 May, Adelaide. 
 
 Report of the National Australasian Cwivention, 1897, 
 September. Sydney. 
 
 Report of the National Australasian Convention, 1898, January- 
 March, 2 vols. Melbourne. 
 
 llie Annotated Constitution of the Australian Co^nmonicealth, by 
 Sir J. Quick and E. E. Garran, 1901, is a mine of authority on the 
 subject of federation. 
 
 The Constitution of the Commonwealth of Australia, by W. 
 Harrison Moore, 2nd ed., 1910, is a valuable treatise by an 
 eminent jurist. Tlie second edition contains nearly twice as many 
 pages as the first, which apj)eared in 1902, and is practically a 
 new treatise on the working of the Act. Mr. Harrison Moore 
 has also written a valuable article on the Commonwealth Con- 
 stitution in The Journal of Comparative Legislation, 1903, 
 pp. 115-31. The cases on the Commonwealth Act are unim- 
 portant compared with those on the British Nortli America Act. 
 They will be found in volumes of the Commomvealth Law Reports. 
 
 There is a suggestive essay on the new Australian Constitution in 
 Bryce's Studies in History of Jurisprudence, vol. i, 1901 ; and 
 a note on it in Dicey's 7'he, Law of the Constitution, 7th ed., p. 529, 
 1908. 
 
 See also Keith, op. cit., pp. 1G2-72. 
 
 See also 'Merchant Shipping Legislation in tlic Colonies ", Article 
 by Mr. A. B. Keith in The Journal of Comparative Legislation, 
 1909, p. 203. 
 
 Tlie subject of South African Union is closely connected with the 
 whole political past history of South Africa, and it seems 
 unnecessary here to attempt a bibliograi)hy of this wider subject.
 
 BIBLIOGRAPHY 295 
 
 The names of the standard histories and books are generally 
 familiar, and Parliamentary Papers are too numerous to specify. 
 
 For the immediate purpose it is only necessary to call attention 
 to the powerful Memorandum 'On a Federation of the South African 
 Colonies', issued under the auspices of Lord Selbornu in 1907. 
 [Cd. 3564.] 
 
 The Union of South Africa, by the Hon. R. H. Brand, 1909, 
 contains a valuable introduction to the Act written by one 
 who, as Secretary to the Transvaal Representatives at the conven- 
 tion which settled the Union, writes as one who knows. It must 
 be remembered, however, that the actual proceedings of the Conven- 
 tion are still seci'et. 
 
 The Governjiient of South Africa, 2 vols.. Cape Town, 1908, issued 
 to promote the cause of closer union, contains much useful 
 matter ; and there is a very able article on South African Union 
 by Mr. A. B. Keith in The Journal of Comparative Legislation, 
 1909 (voh X, Part 1, pp. 40-92). 
 
 To compare the Canadian and Australian Federations with that of 
 the United States, reference should be made to : — 
 
 J. Elliot's Debates on the Federal Constittition, vol. i, Washington, 
 1836-45, or (more convenient) The Journal of the Debates in the 
 Convention as recorded by J, Madison, 2 vols., ed. by G. Hunt, 
 1909. 
 
 The Federalist, ed. by H. Cabot Lodge, 1908. 
 
 History of the United States Constitution, by G. T. Curtis, 2 vols., 
 Boston, 1854. 
 
 Writings upon the Federal Constitution, by Mai'shall, C. J., 
 Boston, 1839. 
 
 Constitutional History of the United States as seen in the Develop- 
 ment of American Law, by T. M. Cooley and others, New York, 
 1889. 
 
 Growth of the Constitution in the Federal Convention of 1787, 
 by W. M. Meigs, Philadelphia, 1900. 
 
 Congressional Government, by "Woodrow "Wilson, Boston, 1885, 
 and, more especially, The American Commonwealth, by J. Bryce, 
 2 vols., new edition, 1911. 
 
 The Constitution will be found in Appendix to Houston's 
 Constitutional Documents of Canada, or in W. Macdonald's Select 
 Documents Illustrative of the History of the United States, 1776-1861. 
 
 On Federation in European countries, see : — 
 
 Governments and Parties in Continental Europe, by A. Lawrence
 
 296 BIBLIOGRAPHY 
 
 Lowell, 2 vols., 1896. Vol. ii deals with the working of the federal 
 system in Germany and Switzerland. 
 
 The Sioiss Confederaticm, by Sir F. O. Adams and C. D. 
 Cunningham, 1889. 
 
 On the referendum, as working in a federal constitution, 
 consult Lowell, op. cit., chap, xii, on ' Switzerland ; the Refei*eudum 
 and the Initiative '. (We have not to consider here the question 
 how far the referendum could be introduced into the British 
 Constitution.) 
 
 There are useful chapters on Second Chambers in the Domi- 
 nions in : — 
 
 Second Chmnhers, by J. A. R. Marriott, 1910. 
 
 And in Senates and Upper Chambers, by H. W. V. Temperley, 
 1910. 
 
 Modern Constitutions, by W. F. Dodd, 1909, contains the 
 fundamental laws of no less than twenty-two countries. 
 
 Though in some ways the British Constitution may have changed 
 since Bagehot waote his English Constitution, it is still of abiding 
 value, especially in this connexion, for the comparison of Parlia- 
 mentary with Presidential government. See also The Governance 
 of England, by S. J. Low% 1904. 
 
 The standard works on the English Constitution are 21ie Lav: 
 and Custom of the Constitutioii, by Sir William R. Anson, 3 vols, 
 (vol. i, Parliament; vols, ii and iii, The Crown), 3i'd and 4th cd., 
 1909; Introductio7i to the Study of the Law of the Constitution, 
 by A. V. Dicey, 7th ed., 1908; and TJie Governmoit of England, 
 by A. Lawrence Lowell, 2 vols., 1908.
 
 INDEX 
 
 Adams, John Quincy, 9. 
 
 Adelaide, 61, 62. 
 
 Afrikander Bund, 80. 
 
 Albany, plan of union, 15, 17. 
 
 Alberta, Province of, 35, 
 
 American Colonies, see Confedera- 
 tion of 1643 : also render Penn 
 and Franklin, 
 
 Annotated Constitution of the Aks- 
 tralian Connnonwealfh, by Quick 
 and Garran, 7. 
 
 Australia Constitution Act, see 
 Commonwealth of Australia Con- 
 stitution Act. 
 
 Australian Association, 46. 
 
 Australian Constitution, Report of 
 Committee on proposed, 1849, 
 168-84. 
 
 Australian Federation League, 60. 
 
 Australian Natives Association, 
 60, 61. 
 
 Bagot, Sir Charles, Colonial Go- 
 vernor, 25. 
 
 Baker, Sir Richard, Australian 
 Statesman, 68. 
 
 Barkly, Sir Henry, Colonial Go- 
 vernor, 71. 
 
 Barton, Mr., Australian States- 
 man, 61. 
 
 Basutoland, 77. 
 
 Bechuanaland, 77. 
 
 Bermuda, 22. 
 
 Bibliography, 292-6. 
 
 Bismarck, Prince, 52. 
 
 Blachford, Lord, Letters by, 39. 
 
 Bloemfontein Convention, 86. 
 
 Board of Trade, 13, 14, 15. 
 
 Boer Republic, 73, 74. 
 
 Boers, ' trek ' of the, 68. 
 
 Boer War, 74. 
 
 Boston, 8, 10, 108, 111, 112. 
 
 Botha, General, 79, 88, 85. 
 
 Braddon Clause, the, 59, 68, 64,65, 
 216 n. 
 
 Brand, Hon. R., 83, 87. 
 
 Brand, President, 72, 83, 85, 86, 
 87, 88. 
 
 British Columbia, 86, 37, 38, 167. 
 
 British North America Act, 1867 : 
 17-40, 72, 121-68. 
 l.Preliminari/, 122. 
 2. Union, 122-3. 
 
 1265 
 
 8. Executive Potver,12^-6; posi- 
 tion of Governor-General, 124-5. 
 
 4. Legislative Pou-er, 126-38. A. 
 The Senate : qualifications of, 
 127-8 ; numbers of, 129. B. 
 House of Commons : constitution 
 of, 131 ; electoral districts of the 
 Four Provinces, 131-6 ; Ontario, 
 131; Quebec, 132; Nova Scotia, 
 132 ; New Brunswick, 132 ; writs 
 for election, 133; representation, 
 135-6. C. Money Votes: Royal 
 Assent, 136-8. 
 
 5. Provincial Constittitions, 138- 
 47 ; executive power, 138-41 ; 
 position of Lieut.-Governor, 138- 
 40 ; legislative powers— Ontario, 
 141; Quebec, 141-2; Ontario and 
 Quebec, 143-5 ; Nova Scotia and 
 New Brunswick, 145 ; Ontario, 
 Quebec, and Nova Scotia, 145. 
 
 6. Distribution of Legislative 
 Powers, 147-55. A. Powers of 
 Parliament, 147-9. B. Exclusive 
 powers of Provincial Legislatures, 
 149-50. C. Education, 151-4. D. 
 Uniformity of Laws in Ontario, 
 Nova Scotia, and New Brunswick, 
 154. E. Agriculture and Immi- 
 gration, 155. 
 
 7. Judicature, 155-6 ; judges, 
 155 ; Court of appeal, 156. 
 
 8. Revenues, debts, assets, taxa- 
 tion, 156-61 ; grants to Provinces, 
 159. 
 
 9. Miscellaneous Provisions, 161- 
 6 ; continuance of officers, 162- 
 3 ; English and French languages, 
 163. 
 
 10. Intercolonial Rail UYii/,lQQ-7 . 
 
 11. Admission of other Colonies, 
 167-8. 
 
 Brown, George, Canadian States- 
 man, 27, 28, 29, 30, 81, 39. 
 
 Canada, Upper, 23, 24, 25, 26, 29. 
 Canada, Lower, 23, 26. 
 Canadian Confederation, 17-38. 
 Canadian Constitution, see British 
 
 North America Act, 121. 
 Canadian Constitutional Derelop- 
 
 ment, by Egerton and Grant, 17. 
 Canadian Pacific Railway, 87, 38.
 
 298 
 
 INDEX 
 
 Canadians, French, 20, 21, 22, 23, 
 24, 25, 26. 
 
 Cape Breton Island, 18. 
 
 Cape Colony, 68, 70, 71, 72, 75, 
 77, 78, 80, 81, 84,85. 
 
 Cape Colony Parliament, 71. 
 
 Cape Howe, 172. 
 
 Cape Town, 70, 241. 
 
 Carnarvon, fourth Earl, Secretary 
 of State for the Colonies, 52, 71, 
 72. 
 
 Carolina, 112. 
 
 Carolina, North, 115. 
 
 Carolina, South, 115. 
 
 Cartiei', George Etienne, French - 
 Canadian Statesman, 29, 33, 35, 
 39. 
 
 Chamberlain, Mr., 66. 
 
 Charlottetown, 19 ; conference, 
 29. 
 
 Chartered Company, The British 
 South African, 86. 
 
 Chinese coolies, 76. 
 
 Colonial Constitutions, compari- 
 son between, 90, 91, 92, 93. 
 
 Colonial Parliaments, Compari- 
 son between, 97. 
 
 Commonweal thofAustralia,40-67. 
 
 Commonwealth of Australia Con- 
 stitution Act, 1900 ; the Com- 
 monwealth of, 185-230. 
 
 1. The Parliament, 188-208. 
 A. General, 188-9. B. The Se- 
 nate, 189-93 ; qualification of 
 electors, 190-1 ; qualification of 
 senators, 192. C. House of Repre- 
 sentatives, 194-7 ; constitution 
 of, 194; representation, 195; 
 writs, 196; qualification of mem- 
 bers, 196. D. Both Houses of 
 Parliament, 198-200 ; relation 
 of members of either House, 
 198 ; position, privileges, i^c, of 
 members, 199-200. E. Powers 
 of the Parliament, 200-8; dis- 
 agreement between the Houses, 
 206-7 ; Royal assent to Bills, 207. 
 
 2. 'Die Executive Government , 
 208-10. 
 
 3. The Jmlicatiire, 210 4 ; 
 judges, 211 ; the High Court, 
 211-4. 
 
 4. Finance and Trade, 215-23; 
 transfer of officers, 215 ; transfer 
 of property, 216-7 ; customs, 
 218; free trade witliin the com- 
 monwealth, 218 9; debts, 222 -3. 
 
 5. The States, 223-6. 
 
 6. New States, 226. 
 
 1. Miscellaneous, 227. 
 ^.Alteration of the Constitu- 
 tion, 228. 
 
 Schedule and Affirmation, 230. 
 
 Co7ifedeidtion Documents, by Mr. 
 Pope, 30, 33. 
 
 Confederation in Canada, 20-38 ; 
 comparison between situation at 
 time of and situation in South 
 Africa in 1876. See also Cana- 
 dian Confederation. 
 
 Confederation in South Africa, 
 66-77. See also South Africa Act. 
 
 Confederation of New England 
 Colonies, 1643, 103-11. 
 
 Confederation Law of Canada, 
 commentary on, by Mr. Wheeler, 
 7. 
 
 Connecticut, 9, 10, 11, 12, 104. 
 109, 110, 112, 115. 
 
 Connecticut General Court, 12, 
 107. 
 
 Constitutional Act of 1791, 17. 
 
 Constitutional Documents, by 
 Shortt and Doughty, 17. 
 
 Customs Conferences in British 
 South Africa, 78, 80, 82. 
 
 Customs Unions in British South 
 Africa, 77, 78, 79. 
 
 D'Aulnay, French Governor of 
 Acadia, 10. 
 
 Deakin, Mr., Australian States- 
 man, 62. 
 
 Deas-Thomson, E., 41 ; New South 
 Wales Statesman, 46. 
 
 Delagoa Bay, 79, 80. 
 
 De la Tour, French claimant to 
 Acadia, 10. 
 
 Denison, Sir William, Colonial 
 Governor, 45. 
 
 Derby, fifteenth Earl of. 52. 
 
 De Wet, 83. 
 
 Dibbs, Mr., New South Wales 
 Statesman, 55. 
 
 Dicey, Professor, 8, 53, 93. 121 «. 
 
 Dominion, The, 34-40. See also 
 «»(/«• British North America Act. 
 
 Dorion, .\ntoine, French-Canadian 
 Statesman, 31. 
 
 Drakcnsborg Mountains, 86. 
 
 Draper, Canadian Chief-Justice, 
 28. 
 
 Dutfy, Gavnn, Victorian States- 
 man, 47, 48, 49, 50.
 
 INDEX 
 
 299 
 
 Duke of York, Grant of New 
 
 Netherland to, 11. 
 Dunkin, Christopher, Canadian 
 
 Statesman, 31. 
 Durban, 79. 
 
 Durban Convention, 1908, 88, 84. 
 Durham, first Earl of, 19, 22, 28, 
 
 24, 27, 75. 
 Dutch colonists, 68, 69. 
 
 East London, Port of, 79. 
 
 Edwards, Sir J, Bevan, General, 
 53. 
 
 Elgin, eighth Earl, Governor- 
 General of Canada, 25. 
 
 Farrar, Sir George, one of the 
 founders of the South African 
 Union, 83. 
 
 Federation, proposals for, in South 
 Africa, 69, 70, 71, 72. 
 
 Fiji, 53. 
 
 Fitzpatrick, Sir Percy, one of the 
 founders of the South African 
 Union, 83. 
 
 Franklin, B., 14, 16 ; scheme of 
 Federation, 14-17, 114-120. 
 
 Fredericton, City of, 141. 
 
 Free Trade, see setWo/^* o« Finance, 
 Trade, &c., in Australian Con- 
 stitution Act, British North 
 America Act, and South Africa 
 Act. 
 
 Frere, Sir Bartle, Colonial Gover- 
 nor, 72. 
 
 Gait, Alexander, Canadian States- 
 man, 29, 31, 33. 
 
 Gillies, Mr., Victorian Statesman, 
 56. 
 
 Gosford, Lord, Colonial Governor, 
 21. 
 
 Government of South Africa, The, 
 anonymous, 83. 
 
 Governor-General of the Dominion 
 V. The Four Provinces, case of, 96. 
 
 Grand Trunk Railway, 28. 
 
 Granville, second Earl, 35, 
 
 Grey, third Earl, 41, 42, 44, 45, 
 
 Grey, Sir George, Colonial Go- 
 vernor, 56, 69, 70, 71. 
 
 Griffith, Sir Samuel, Queensland 
 Statesman, Chief- Justice of 
 Australia, 54, 56, 57, 58. 
 
 Halifax, City of, 18, 19, 141. 
 Hamilton, Alexander, 47. 
 
 Hartford, 108. 
 
 Harvard College, 12. 
 
 Head, Sir Francis Bond, Colonial 
 
 Governor, 22. 
 Herbert, R., Queensland Colonial 
 
 Secretary, 49. 
 Hobart, 61. 
 Howe, Joseph, Nova Scotian 
 
 Statesman, 20, 28. 
 Hudson Bay Company, 28, 35, 36. 
 Hull, Mr., one of the founders of 
 
 the South African Union, 83. 
 
 Indian coolies, 76. 
 
 Intercolonial Conferences in Aus- 
 tralia, 46, 50, 52. 
 
 Intercolonial Railway Council in 
 South Africa, 81, 
 
 James II, 13. 
 
 Jameson, Dr., one of the founders 
 of the South African Union, 83. 
 Jameson Raid, 73. 
 Johannesburg, 79, 80. 
 
 Kimberley, Lord, Secretary of 
 State for the Colonies, 71. 
 
 Labouchere, Mr., Secretary of 
 State for the Colonies, 46. 
 
 Labour Party in Australia, 92 ; in 
 New South Wales, 59, 60. 
 
 Labour question in South Africa, 
 76, 77. 
 
 Lamhe Cases, The, 94. 
 
 Leeward Islands, federation of, 8. 
 
 Macdonald, John A., Canadian 
 Premier, 26, 28, 29, 31, 32, 33, 
 34, 39, 40, 93. 
 
 Mackenzie, William Lyon, Cana- 
 dian rebel, 22, 23. 
 
 MacMahon, Marshal, 79. 
 
 Maine, 9. 
 
 Manitoba, Province of, 85. 
 
 Maritime Provinces, 39, 127. 
 
 Marshall, Chief-Justice, 94. 
 
 Maryland, 112, 115. 
 
 Massachusetts, 8, 9, 10, 11, 12, 18, 
 104, 106, 107, 108, 109, 110, 115. 
 
 McDougall, Mr., Canadian States- 
 man, 35. 
 
 Melbourne, City of, 63, 65, 171, 
 172, 226. 
 
 Metcalfe, Lord, Governor-General 
 of Canada, 25. 
 
 Milner, Lord, 81, 82.
 
 300 
 
 INDEX 
 
 Molesworth, Sir William, English 
 
 Statesman, 44. 
 Monck, Lord, Governor-CTeneral 
 
 of Canada. 32. 
 Montreal, 23. 
 Murray, River, 172. 
 
 Natal, 76, 77, 81, 86, 98. 
 
 National Australian Convention, 
 55. 
 
 Native question in South Africa, 
 74, 75, 76, 77. 
 
 Native vote. 85. 
 
 Netherlands Railway, 81. 
 
 New Brunswick, 38, 121, 122, 123, 
 124, 127, 128, 131, 132, 133, 1.39, 
 141, 145, 154, 155, 156, 157, 158, 
 159, 160, 161, 162, 166, 168. 
 
 New Jlngland Confederation of 
 1643, 8, 13. 
 
 Newfoundland, 7, 38, 167, 168. 
 
 New Guinea, Germans in, 41, 51, 
 52. 
 
 New Guinea, British, territory 
 under Commonwealth, 225 ii. 
 
 New Hampshire, 9, 115. 
 
 New Haven, 11, 12, 104, 107, 108, 
 109, 110. 
 
 New Hebrides, 52. 
 
 New Holland (Australia), 179. 
 
 New Jerseys, 112, 115. 
 
 New Netherland, 10. 
 
 New South Wales, 41, 42, 43, 46, 
 48, 49, 50, 51, 52, 53, 54, 56, 59, 
 60, 61, 65, 171, 172, 173, 174, 
 179, 180. 
 
 New York, 112, 115. 
 
 NewZeahxnd, 1, 51,52. 
 
 North-West Territory, 34, 35, 37. 
 
 Nova Scotia, 38, 121, 122, 123, 
 124, 127, 128, 131, 132, 133, 139, 
 141, 145, 154, 155, 156, 157, 158, 
 159, 160, 161, 162, 166, 168. 
 
 Ontario, 93. 122, 123, 127, 131, 
 139, 140, 141, 143, 144,145,154, 
 155, 157, 158, 159, 162, 164, 166. 
 
 Orange River Colony, 69, 71, 72, 
 
 74, 75, 77, 81, 84, 85, 87, 98. 
 Ottawa, 126. 
 
 Papineau, Louis, Canadian rebel, 
 
 21. 
 Paris, Peace of, 1763, is. 
 Parkes, Sir Henry, New South 
 
 Wales Statesman, 47, 50, 52, 53, 
 
 54, 56, 60. 
 
 Penn, W., 13, 14; plan of for 
 
 union, 112, li3. 
 Pennsylvania, 112, 115. 
 Philadelphia, 115. 
 Philip's War, 1675, 12, 13. 
 Playford, Mr., South Australian 
 
 Statesman, 55. 
 Plymouth, 11, 12, 104. 107, 108, 
 
 109, no. 111. 
 Port Elizabeth, 79. 
 Port Phillip, 43. 
 Portuguese Territory, 79, 80. 
 Pretoria, Conference at in 1908, 
 
 82. 
 Prince Edward Island, 38. 167, 
 
 168. 
 Providence Plantation, 9. 
 
 Quebec, 93, 122, 123, 127, 128, 
 131, 135,139, 140, 141,143, 144, 
 145, 153, 157, 158, 159, 162, 164, 
 166. 
 
 Quebec Conference, 39, 55. 
 
 Quebec, City of, 141. 
 
 Quebec Resolutions, 33. 
 
 Queensland, 49, 51, 61, 66. 
 
 Railways, see under Tariff and rail- 
 way rates in South Africa; also 
 under British North America 
 Act, Part X ; and Common- 
 wealth of Australia Constitution 
 Act, Chapter IV. 
 
 Rand, the, 81. 
 
 Rand, the, discovery of gold in. 
 73. 
 
 Reciprocity Treaty, 1854, 27. 
 
 Red River Rebellion, 35. 
 
 Red River Settlement, 28. 
 
 Rcitz, Mr. F. W., Transvaal States- 
 man, 70. 
 
 Rey, De la, one of the founders of 
 the South African Union, 83. 
 
 Rhodesia, 7, 86, 87 ; Southern, 
 77. 
 
 Rhode Island, 9, 112, 115. 
 
 Robertson, J., New South Wales 
 Statesman, 49. 
 
 Rochester, 8. 
 
 Roman Catholic Church in 
 Canada, 20, 21, 22, 26, 27, 28, 
 153. 
 
 Royal assent : in Australia, 207, 
 211 ; in South Africa, 257, 270. 
 
 Royal power, in Canada, 122, 123, 
 137. 
 
 Rupert's Land, 34.
 
 INDEX 
 
 301 
 
 Russell, Lord John, 22. 
 
 Russell V. The Queen, case of, 96. 
 
 St. John's Island, see Prince 
 
 Edward Island. 
 Salem, 8. 
 
 Salisbury, Lord, 101. 
 Saskatchewan, Province of, 35. 
 Schreiner, Mr., Cape Colony 
 
 Statesman, 80. 
 Selborne, Lord, memorandum of. 
 
 75, 77, 81, 82. 
 Service, Mr.,Victoi-ian Premier, 52. 
 Smartt, Dr., one of the founders 
 
 of the South African Union, 83. 
 Smith, Chief Justice, 17. 
 Smuts, General, one of the 
 
 founders of the South African 
 
 Union, 83. 
 South Africa Act, 1909 : 231-91. 
 
 Arrangement of Sections, 231-5. 
 
 1. Prelimlnart/, 236-7. 
 
 2. Union, 237-8. 
 
 3. Executive Government, 238- 
 40. 
 
 4. Parliament. A. Sessions, 240. 
 B. Senate, 241-3; original con- 
 stitution of, 241 ; subsequent 
 constitution of, 242 ; qualifica- 
 tion of Senators, 242-3 ; Presi- 
 dent, 243, C. House of Assem- 
 bly, 244-52; number of mem- 
 bei"s, 244-5 ; qualification of 
 voters, 246 ; elections, 246-8 ; 
 electoi'al divisions, 248-9 ; com- 
 missions for elections, 248-50 ; 
 qualifications of House of 
 Assembly, 251 ; Speaker, 251. 
 D. Both Houses of Parliament, 
 252. E. The oath, 252. F.The 
 affirmation, 252-3 ; disqualifica- 
 tion of members, 253 ; allow- 
 ances of members, 254 ; rules of 
 Procedure, 254. G. Powers of 
 Parliament, 255-8 ; money Bills, 
 255 ; disagreement between the 
 two Houses, 256 ; Royal assent, 
 257. 
 
 5. TJie Provinces, 258-66 ; Ad- 
 ministrators, 258-9 ; Provincial 
 Councils, 259 ; qualifications for, 
 259; sessions, 260; chairmen, 
 260 ; allowances, 260 ; Executive 
 Committees, 260-2 ; powers of 
 Provincial Councils, 262-5 ; con- 
 stitution of Provincial revenue 
 fund, 264 ; miscellaneous points, 
 
 265-6 ; audit of provincial ac- 
 counts, 265 ; seats of provincial 
 government, 266. 
 
 6. The Stqjreme Couii of South 
 Africa, 266-73 ; constitution, 
 266-7; divisions, 267; judges, 
 268-9; appeals, 269 70 ; rules 
 of Procedure, 270-1 ; advocates 
 and attorneys, 272. 
 
 7. Finance and Railways, 273- 
 80 ; relations between Union 
 and Provinces, 273 ; debts, 274- 
 5 ; ports, harbours, railways, 
 275-8 ; Controller and Auditor- 
 General, 278 ; compensation to 
 previous colonial capitals, 279. 
 
 8. General Provisions : voting 
 for Senators, &c., 280 ; Free 
 Trade, 280 ; naturalization, 281 ; 
 administration of justice, 281 ; 
 pensions, 282 ; position of exist- 
 ing officers, 282-3; administra- 
 tion of Native affairs, 283. 
 
 9. New Provinces and Territories, 
 284-5 ; relation to Union, 284. 
 \Q. Amendment of the Act, 285. 
 \\. Schedule, section 151, 286- 
 91. 
 
 South Africa, the Union of, 68-89. 
 
 South Australia, 55, 61, 65, 170, 
 171,172,173,174,179. 
 
 Stamp Act of George Grenville, 
 14. 
 
 Steere, Sir J. Lee, Western 
 Australian Statesman, 55. 
 
 Stephen, Sir James, Under- 
 Secretary for the Colonies, 42, 43. 
 
 Steyn, Mi-., one of the founders of 
 the South African Union, 83. 
 
 Strachan, Archdeacon, 22. 
 
 Strathcona, Lord, 34. 
 
 Sydenham, Lord, Governor-Gene- 
 ral of Canada, 25. 
 
 Sydney, City of, 55, 63, 171, 172. 
 
 Table Bay, 71. 
 
 Tache, Sir E. P., Canadian States- 
 man, 29. 
 
 Tariff" and railway rates in South 
 Africa, 77, 78, 79, 80, 81, 82, 83- 
 5. See also Finance and Rail- 
 ways tinder South Africa Act, 
 1909, p. 273. 
 
 Tasmania, 51, 60, 61,65, 185, 186, 
 187, 195. 
 
 Tilley, Samuel, New Brunswick 
 Statesman, 30, 32.
 
 302 
 
 INDEX 
 
 Toronto, City of, 141. 
 Transvaal, 73, 74, 75, 77, 78, 79, 
 
 80, 81. 
 Tapper, Charles (now Sir Charles), 
 
 Nova Scotian Statesman, 30, 32. 
 
 Union as against Federal prin- 
 ciple in South Africa, 87. 
 
 Union, three reasons for, in South 
 Africa, 74. 
 
 Union, Societies for closer, in 
 South Africa, 82. 
 
 Utrecht, Peace of, 1713, 18. 
 
 Vancouver Island, 30, 37. 
 
 Van Diemen's Land, 170, 171, 
 
 173, 174, 179, 183. 
 Victoria, 46, 48, 49, 50, 51, 53, 
 
 54, 56, 59, 60, 61, 65, 172, 174. 
 
 Villiers, Sir Henrj- de, one of the 
 founders of the South African 
 Union, 83. 
 
 Virginia, 112, 115. 
 
 Watertown, 8. 
 
 Wentworth, William Charles, 
 New South Wales Statesman, 
 42. 
 
 Western Australia, 55, 61, 171. 
 
 William III, 14. 
 
 Wilson, James, one of the foun- 
 ders of the American Constitu- 
 tion, 47. 
 
 Wolseley, Colonel, 35. 
 
 Zambesi, 71. 
 Zulu War, 73. 
 
 Oxford : Printed at the Clarendon Press by Horace Hart, M.A.
 
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