Delphi complete works of.., p.443
Delphi Complete Works of Stephen Leacock, page 443
With this outline let us now briefly compare the actual distribution of powers in the chief federations under our notice. We may begin by quoting the legislative powers assigned to Congress by the Constitution of the United States.
“The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
“To borrow money on the credit of the United States;
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
“To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
“To coin Money, regulate the Value thereof, and of foreign Coin, and to fix the Standard of Weights and Measures;
“To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
“To establish Post Offices and post Roads;
“To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
“To constitute Tribunals inferior to the Supreme Court;
“To define and Punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations;
“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
“To provide and maintain a Navy;
“To make Rules for the Government and Regulation of the land and naval Forces;
“To Provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the Discipline prescribed by Congress;
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings; — And
“To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
It will be seen at once that apart from the special provisions relating to the Indians and the District of Columbia, there are no powers granted here that have not been given to the central government in all the later federations. The national government receives by this article but little more than the necessary powers of government. The residual power of government — the authority to control those things for which no special provision is made — is elsewhere explicitly withheld from it.
Let us place in immediate comparison with this the allotment of power between the federal and provincial governments in the Dominion of Canada. The basis of the constitution of Canada is a statute of the British Parliament named the British North America Act of 1867. The provisions in respect to the distribution of power are in the ninety-first, ninety-second, and ninety-third sections of the act. They are particularly interesting in the present connection because they are based on the arrangement made in the Constitution of the United States revised in the light of subsequent political experience. In addition to the powers possessed by Congress, the legislative power of the Dominion Parliament extends to the criminal law, marriage and divorce, interest, and the raising of money by any mode or system of taxation. Other things, such as banking, etc., are included which are not explicitly granted to the Congress and to which the federal authority in the United States only reaches by interpretation of implied powers. In addition to this the statute enacts that the Dominion Parliament has legislative power “in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the Provinces.” The amount of federal power expressly granted contrasts strongly with the section of the American Constitution quoted above. Even as compared with the power of Congress when expanded by the doctrine of implied powers, the control of the Dominion over such items as the criminal law represents a considerable increase of federal authority.
Closely following upon the making of the Canadian constitution, we have the constitutions of two important federal states still in operation. These are the constitution of the German Empire (1871) and that of Switzerland (1874). In each of these the scope of the central power is far wider than in that of the United States. In Germany the constitution, together with an amendment of December 20, 1873, grants to the federal government the control, not only of the things within the jurisdiction of Congress, but also the criminal law, civil law and judicial procedure, banking, medical practice, railroads (except in Bavaria), the regulation of the press, of trades, insurance (including workingmen’s insurance and pension laws), and other matters. In Germany the legislative scope of the central government is vastly greater than in America. Its action in the administrative direction is less, since the principle of decentralization is here adopted and the federal measures (tariff, etc.) are carried out by the authorities of the constituent governments. The action of the central government is further narrowed in practice by the use that is made of the principle of concurrent jurisdiction. In many of the matters mentioned above the power of the federal government is not exclusive. Where the federal government has not seen fit to act, the states are free to exercise a legislative power. This applies for example to the control of railroads, medical practice, the criminal and civil law, etc. The federal jurisdiction is only exclusive where from the nature of the case it must be so (such as raising of money on the credit of the empire) or where it is expressly stated (for example, the taxation of imports). To prevent conflict of authority it is provided that a federal law always overrides a statute of one of the constituent parts of the empire. This same principle of concurrent jurisdiction obtains of course in the United States, but to a much less extent; most of the powers granted to Congress are forbidden to the commonwealths, but in some matters, such as bankruptcy laws, they may act in the absence of federal legislation. The present constitution of Switzerland (1874), together with the amendments since added, shows a wide range of federal power. “The legislative authority of the national government,” says Professor A. Lawrence Lowell, “is much more extensive in Switzerland than in this country, for in addition to the powers conferred upon Congress it includes such subjects as the regulation of religious bodies and the exclusion of monastic orders, the manufacture and sale of alcoholic liquors, the prevention of epidemics and epizoötics, the game laws, the construction and operation of all railroads, the regulation of all labor in factories, the compulsory insurance of workmen, the collection of debts, and the whole range of commercial law.” To this may be added the fact that the federal government has the power (under the constitution) to compel the cantons to establish compulsory secular education, gratuitous in the primary schools. The Swiss government has, however, no power to levy direct taxes.
As a concluding instance let us notice the position of the central power in the recent federation of the Australian colonies. The Commonwealth of Australia, considered apart from its connection with the British Empire, is a federal unit made of six separate “states.” Its constitution, like that of Canada, is found in a statute of the British Parliament enacted in 1900, under the title of the Commonwealth of Australia Constitution Act. The legislative power of the federal parliament is laid down in great detail. It includes all the essential and virtually essential powers already treated, such as defense, taxation, postal service, tariffs, interstate commerce, etc. In addition to this the federal authority is explicitly declared to extend to bounties on production or export, insurance (other than state insurance), marriage and divorce, invalid and old-age pensions, foreign corporations, acquisition of state railways (with consent of the state), railway construction (with similar consent), railroad control even without consent if needed for military purposes, conciliation of industrial disputes, if not confined to a single state, immigration, influx of criminals, and other minor matters. It is interesting to notice the use that is made of the principle of concurrent jurisdiction. The German constitution had, as we have seen, deliberately adopted this plan. The British North America Act, on the other hand, tries to indicate the powers of Dominion and provincial governments as exclusive of one another; in practice this has led to confusion. In Australia only a few of the powers are expressly declared exclusive (§ 52). In the majority of instances the state government may act where the federal government has not done so. But, as in the German Empire, “When the law of a state is inconsistent with a law of the commonwealth the latter shall prevail.” This last provision must not be misunderstood. The law of the commonwealth in question must not transcend the constitutional power of the federal parliament, otherwise its application can be declared invalid by the courts, just as in America.
6. Conclusions. From the foregoing comparison of the chief federations of the nineteenth century, important conclusions are to be drawn. There is manifest throughout the tendency to entrust the central or national government with a wider and wider sphere of authority. For this several reasons are to be assigned. In the first place it represents a process that is altogether natural, and which may rightly be spoken of as organic. The units of the federation once brought into contact begin to grow together, and to be knit into a more and more united body. The original jealousy and particularism of the separate parts are gradually merged into the wider outlook that accompanies a larger national life; the central government of the federation becomes a part and parcel of each individual citizen, and enlists in its support a broader patriotism than narrow adherence to the interests of his section of the community. Where the sense of natural greatness is involved constitutional limitations can be overridden with public approval; the addition of Louisiana to the territory of the United States at once suggests itself in illustration. An equally potent factor leading to the extension of federal power is found in the material conditions of modern life. Rapid transportation, the telegraph, and the evolution of production and commerce on a scale undreamed of at the making of the Constitution have broken down the economic barriers that once existed. Communities that were originally absolutely distinct in their economic and social life have undergone a complete industrial amalgamation. Each administers to the wants of the other, and each in turn receives a benefit. The wheatfields of the Dakotas and the factories of Massachusetts are complementary to one another. Where industry and commerce are thus fused into a single economic life, it is impossible to separate the control of them into distinct territorial districts. It becomes an absolute necessity that the powers of the federal government must be either so expressed or so interpreted as to cover the whole range of economic life that has passed the bounds of the component “states” and become national. It is for this reason that the process of addition to federal power may be expected to continue in the future. Before the intruding forces of industrial civilization “state lines” are becoming more and more meaningless. Moreover, the true path to be followed has been already indicated by the German and Australian constitutions. By adopting the plan of concurrent jurisdiction and leaving it to the central government to occupy the field in proportion as the progress of national evolution demands it, a way is open for continued expansion without suffering the pangs of amendment, or relying upon the strained interpretation of the law.
We have still left out of consideration the question of how the American Constitution, made at a time when local jealousies prescribed the most grudging admission of federal power, is able to adapt itself to the changed situation of to-day. That this is not done by legal amendment has been already shown: the amending machinery of the Constitution is so rigid and immovable that it is valueless for the kind of adaptation here demanded. But instead of technical amendment a process of virtual amendment has been effected continuously through the nineteenth century by the interpretation given to the Constitution by the courts. The Constitution is fortunately an elastic document, capable of meaning much or little at the will of its interpreter. The courts therefore have fallen back on the doctrine of “implied powers,” and have stretched the Constitution to cover things never contemplated in its literal meaning. “A power vested,” said Chief-Justice Marshall, “carries with it all those incidental powers which are necessary to its complete and efficient execution.” The purchase of Louisiana, the Embargo Act of 1807, grants of land for railroads and canals, the annexation of Texas, grants of land for agricultural colleges, etc., are not things for which direct authority can be found in the enumerated powers of the federal government. It is by interpretation only that Congress has the power to issue paper money, to make anything it wills legal tender, to charter and regulate national banks, to claim a monopoly of the postal service. It is probable that, if future needs demand it, the Constitution can be held to permit the national government to build, buy, and own railroads, and to monopolize the telegraph service. That this device of latitudinarian interpretation has filled a most useful historical purpose is beyond a doubt. It is an excellent example of the political genius inherent in the Anglo-Saxon temperament, that the difficulty created by the error in making amendment so rigid should be surmounted by so simple and natural a remedy. The error remains an error nevertheless. The Swiss or Australian system, whereby recurring amendment is part of the life of the constitution, is greatly to be preferred.
READINGS SUGGESTED
Sidgwick, H., Development of European Polity (1903), Lectures IX and XXIX.
The Federalist, Essays XV, XVI, XVII.
Fiske, J., American Political Ideas (1902), Lecture II.
FURTHER AUTHORITIES
Story, J., Commentaries on the Constitution of the United States (5th edition, 1891).
Curtis, G. T., Constitutional History of the United States, vol. i (1896).
Vincent, J. M., Government in Switzerland (1900).
Moore, H., The Commonwealth of Australia (1902).
Bourinot, Sir John, Manual of the Constitutional History of Canada (1888).
Freeman, E. A., History of Federal Government (1863).
Dareste, F. R., Les Constitutions Modernes (1891).
Laband, Staatsrecht des Deutschen Reiches (4th edition, 1901).
Constitution of the Confederate States of America (see Curtis, Constitutional History, vol. ii, appendix).
Stephens, A. H., A Constitutional View of the War between the States (1867-70).
Merriam, C. E., History of the Theory of Sovereignty since Rousseau (1900).
Doyle, J. A., English in America (1887).
Andrews, E. W., Manual of the Constitution of the United States (1887).
CHAPTER VI. COLONIAL GOVERNMENT
1. THE ACQUISITION of Dependencies. — 2. Colonies of the Ancient World. — 3. Colonial Expansion after the Discovery of the Sea Route to the East Indies and the Discovery of America; Spanish Colonial System. — 4. Colonial Policy of England and France in the Seventeenth and Eighteenth Centuries. — 5. The American Revolution. — 6. Alteration of British Colonial Policy in the Nineteenth Century; Establishment of Self-Government. — 7. Present British System of Colonial Administration. — 8. Imperial Federation. — 9. Recent Colonial Expansion of European States. — 10. The Dependencies of the United States.
1. The Acquisition of Dependencies. Taking the word colony in its widest sense to include all kinds of dependencies, we are met by the fact that the colonies of the world occupy two fifths of the land surface of the globe, and contain a population of half a billion people. Great Britain has at least 350,000,000 colonial subjects, France 56,000,000, the Netherlands 35,000,000, Belgium 30,000,000, and Germany about 15,000,000. The political status of the communities thus controlled presents the greatest diversity. In the strict theory of law each of them is under the absolute dominion of the sovereign state to which it “belongs.” In practice they vary, from the virtual independence enjoyed by Canada and Australia to the total dependence of Gibraltar or Madagascar. The vast extent and the great natural resources of the modern colonial area indicate its importance in the future history of the world. The realization of this by the great powers has led, during the past twenty-five years, to a renewed colonial expansion, in which practically all the “unclaimed” territory of the world has been partitioned among the leading states. The subject of colonial administration, both political and economic, has taken on, in consequence, an increased interest, and attention is more and more directed to the study of the systematic management of dependencies. The recent expansion of the United States resulting from the war with Spain has rendered this portion of the study of government one of especial consequence to Americans. The present chapter, therefore, will be directed towards an inquiry into the origin and evolution of colonial government, the different systems of administration now employed, and the question of the political future of colonies. Throughout the chapter it will be proper to devote most attention to the colonies of the United Kingdom. Great Britain has been, par excellence, and still is, the colonizing country; and it is by the British government, in a somewhat groping and half-conscious way, that what may be called the modern system of colonial administration has been worked out. The new dependencies of the United States will be examined in conclusion in order that their present government may be discussed in the light of British experience in the past.
