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The British Empire and the American Union consist, each of a central or "national” government, with subordinate “local” governments. The central government in each is the only organization entitled to international recognition as the embodiment of the national will; but it is, at the same time, the comprehensive organism which overlies and binds together the various “local” governments existing within the borders of the Empire or Union. In the case of the United States, the central or Federal government has always received treatment as a tangible “national" government over one compact territory; but the British Constitution has, as a rule, been looked at as the constitution rather of Great Britain, than as an Imperial constitution. The reason is partly geographical, partly historical. The Imperial constitution, as it to-day exists, is the result of the gradual application to the government of an expanding empire, of those principles of local self-government which were adopted, at the start, as the basis of the federal union of the American colonies but this Imperial phase of the British constitution has been rather overlooked. If we can, in imagination, place ourselves in the world of (say) 1776, and try to appreciate just to what stage the British constitution had arrived, it will be found that the struggle in Great Britain to that date, had been a struggle between “the individual” and “the State.” That question had been finally settled, and the individual was protected by, and subject only to, the law of the land, and the despotism of discretionary government was forever abolished. Next in order came the question of “ local” self-government (e). In compact Eng
(e) The federal idea is really nothing more than the logical outcome of the individualistic" idea, which lies at the bottom of self-government; and it would be an interesting task to trace the growth of the idea from its root in the belief that man has certain "natural rights,” and that society controls his exercise of those rights, only to the extent necessary to give proper play to the like rights of his fellow-men, up through the growth of municipal self-government to the establishment of a federal system of government, loyical from root to topmost branch.
land, the question had not become one of practical politics (the Irish question was not then on the carpet), but as to the government of the colonies, it loomed up larger and larger as the colonies increased in population; and the loss of the Southern half of this continent is standing proof of the failure of English statesmen of those days, to grapple with the problem. The thirteen colonies, mutually independent, having joined to destroy the common tie of subjection to Great Britain, but desiring still to perpetuate their union of race and common interest, had to face the task of forming a central or union government, in such fashion as to reconcile national unity with those ideas of the right of local self-government which had been the cause of their separation from the Empire. Schooled by the failure of the "Articles of Confederation " to work this result, they formulated the “Constitution of the United States," under which they have lived and thrived for over one hundred years (f). That which, by revolution and a formal written convention, they accomplished, is now working its way out in the colonial system of the British Empire. To-day, the right of local self-government in the British colonies depends on the “conventions, usages and understandings,” recognized and acted upon by the statesmen who, throughout the Empire, are at the head of public affairs. The maintenance of national unity is legally with the government of the United Kingdom, but there are not wanting signs of a desire for a system of true Federal government, in which, as to matters of Imperial concern, the whole shall govern the parts, and not one of the parts the whole.
Viewed then as an Imperial system, the British constitution does not differ in principle from the constitution of the
(f) “I think and believe that it is one of the most skilful works which human intelligence ever created; is one of the most perfect organizations that ever governed a free people. To say that it has some defects is but to say that it is not the work of Omniscience, but of human intellects."—Sir John d. Macdonald, Confed. Deb. p. 32.
United States. In the one, by the written law of the constitution, in the other by the unwritten "conventions" of the constitution, the field of governmental action is divided, and in each there exists a “national” government, charged with matters of common concern to the whole nation, and "local" governments, charged with matters of local concern to the inhabitants of each of the territorial divisions of which that nation is composed. The fact that the “national ” government of the British Empire, is also the “ local” government of one of the territorial divisions of the Empire, is an anomaly which will no doubt disappear, but avhich makes no difference in principle. Although the parliament of the United Kingdom is the supreme power in government under the British constitution, there is a clear and even legal distinction between the exercise of its authority as an Imperial parliament, and the exercise of its authority as the parliament of the United Kingdom. Prima facie, it acts as the latter, and there must be “express words or necessary intendment” in order to make its acts truly imperial—it must, in other words, act deliberately and with intent, when it would convert itself (so to speak) into the legislative organ of the Empire (g). So that if it be said that the parliament of the United Kingdom is supreme throughout the Empire, it can with equal truth be said, that in affairs truly Imperial, that parliament speaks the will, or what it deems to be the will, of the whole body of the people of the Empire.
The British Empire is scattered over the whole earth, and in the practical work of government, matters of common concern are few and far between-much more so in fact than is commonly imagined. Take, for example, all that class of matters dealt with by the British government under the head of Foreign Affairs. The vast majority of these matters cannot be said, in any practical sense, to be Imperial -of common concern to the Empire—relating largely, as
(9) See post, Chap. IV.; 28 & 29 Vic. c. 63 (Imp.); also Chap. IX., post.
they do, to the intercourse between Great Britain and her European neighbors (h); and, as to these, the British Government can hardly be said to act as an Imperial government. Their recognition as matters largely of "local" concern to Great Britain, is made apparent in the case, for instance, of many British treaties, by the reservation to the colonies, in a number of modern instances, of the right to share, or to decline to share, the benefit and burden of these treaties just as each colony may see fit to determine for itself. Modern constitutional usage in the British Empire is rapidly approaching the point where, in matters concerning the colonies in their general relations between themselves (i), or the relations of the colonies generally with foreign powers, the will of the colonies concerned is given effect to, unless the will of the Empire as a whole should differ therefrom, and where in matters concerning the relations of the colonies to the Mother Country, those relations are settled by agreement as between independent negotiators.
In truth, the constitution of the Empire is as truly federal as is the constitution of the United States. Owing to the historical accident that the Empire is but the expansion of the population of the United Kingdom, the “local” government of the original parent stem has hitherto continued to be, as we have said, the “national” government of the Empire, but by gradual modification, by conventions and usages, the functions of the British Parliament, so far as it controls the “national” government of the Empire, are performed according to the will of the Empire. The true federal idea is clearly manifest—to reconcile national unity
(1) The very fact that different parts of the Empire lie contiguous to different foreign powers will, perhaps, necessitate the enlargement of the sphere of local self-government in the units of the British Confederation that is to be ; or, from the other view, the matters of common concern will necessarily be fewer, and the sphere of the “ central
govern ment narrower than is the case in a co territory like that of the United States.
(i) The B. N. A. Act deals with such matters.
with the right of local self-government—the very same dea that is stamped on the written constitution agreed upon by the people of the United States. The differenee of position historically is quite sufficient to account for the difference of position legally. Given the independent self-governing communities, which made up the American Commonwealth, the “national” government was super-imposed to secure unity, but upon conditions preservative of local autonomy. With us, on the other hand, the central government stands historically first, but the various communities which grew out of it have, by gradual concession, secured at least as full a measure of the right of local self-government as is enjoyed by the individual States, which together form the neighboring Republic. The sum total of conceded power at any given period, will be found to be commensurate with the opinion prevalent at such period as to the proper line of division between Imperial and local concerns.
It may, perhaps, be contended that the “national” government of the British Empire, having the power to lay down the line, which is to be the legal line of division between matters of common and matters of local concern, at just such a point as to it seems proper, differs in this respect from the “national” government of the United States. The common description of the Federal government of the United States, as a government possessed of specially delegated powers only, would seem to support this distinction. But, in truth, this special delegation is, for all practical purposes of government, a delegation of power sufficiently wide to enable the Federal government to be itself the regulator of its own sphere of authority. The subject matters are themselves comprehensive in scope, and the “implied power” which Congress possesses to choose such means as it may deem necessary and proper for carrying out the designed end of the “national” government, leaves the decision as to the line of division between Federal and State matters very much in Congress' hands;