« AnteriorContinuar »
The preliminary part of this work is a historical introduction and guide to the, study of the Constitution of the Australian Commonwealth. This is followed by analytical, legal, and political commentaries on the Constitution, for the use of those who seek a special and comprehensive acquaintance with its provisions.
Our chief aim has been a practical one. Clear as is the language of the Constitution, it cannot be fully understood without the study of a large correlated literature.
The Federation of the Australian colonies has occupied the best energies of the statesmen and the people of Australia for many years; and this Constitution is the outcome of exhaustive debates, heated controversies, and careful compromises. It is an adaptation of the principles of British and colonial government to the federal system. Its language and ideas are drawn, partly from the model of all modern governments, the British Constitution itself; partly from the colonial Constitutions based on the British model; partly from the Federal Constitution of the United States of America; and partly from the semi-federal Constitution of the Dominion of Canada; with such modifications as were suggested by the circumstances and needs of the Australian people.
The Constitution of the Commonwealth, therefore, is not an isolated document. It has been built on traditional foundations. Its roots penetrate deep into the past. It embodies the best achievements of political progress, and realizes the latest attainable ideals of liberty. It represents the aspirations of the Australian people in the direction of nationhood, so far as is consistent and in harmony with the solidarity of the Empire.
Such an instrument of government must needs be rich in historical associations, and many of its derivative enactments
are necessarily intertwined with the course of constitutional development and interpretation in kindred systems and communities. There is hardly a phrase in it without a history, or without analogy with a phrase which in some other Constitution has been the subject of exhaustive arguments and judicial decisions. The Commentaries of the great American jurists, and the numerous judgments on constitutional questions given by the Supreme Court of the United States during the last century, are full of profound reasoning which is applicable to the words of this Constitution. Many decisions of the Supreme Courts of Canada and the Australian colonies upon constitutional questions, and reviews of them by the Privy Council, are of great value in the elucidation of the Constitution of the Commonwealth. There is thus an immense store of material for comparative study.
The actual history of the Constitution is traced generally in Part IV. of the Historical Introduction, and in detail in the Historical Notes appended to each clause, section, or subsection. But its study involves many other aspects. Its character as a colonial Constitution demands a review of the history and principles of colonization, which are shortly dealt with in Parts I. and II. of the Historical Introduction. As an Australian Constitution, it is intimately associated with the story of the constitutional development of the Australian colonies, which is traced in Part III. of the Historical Introduction. As a Constitution on the British model, it requires some knowledge of British constitutional law and history, the outlines of which are sketched in the notes to the Preamble and elsewhere. And as a Federal Constitution, light is thrown upon it by the American, Canadian, Swiss, and German Constitutions. Wherever comparison was thought useful, the corresponding provisions of those Constitutions have been set out in small type immediately after each section.
We are fully sensible of the difficulty of attempting to expound a Constitution before it has been the subject of practical working or judicial exposition. It is impossible to foretell where the real difficulties will be found, or how they
will be met. The experience of other countries is a guide, but not an infallible guide; and the development of the Constitution of the Commonwealth must assuredly follow lines of its own. We have, however, endeavoured, from the vast and scattered materials bearing on the subject, to produce a work which we hope will facilitate the interpretation of, and foster au affection for, the Constitution. We trust that by the orderly arrangement of historical matter, by the minute and impartial analysis of every fundamental word, phrase, and enactment of the Constitution, and by the provisiou made for the comparative study of other Constitutions, with their wealth of associated precedents, the work may prove of assistance, not only to students of constitutional history and political science, but also to those who, in the active fields of law, politics, or commerce, have a practical interest in the working of the new federal institutions of Australia.
For valuable assistance to the study and exposition of the Constitution of the Commonwealth, we desire to express our acknowledgments and obligations to the following works :
Sir Thos. Erskine May: Parliamentary Practice.
Sir Richard Chaffey Baker, M.L.C.: Manual for the Use of the Convention of
Kent's Commentaries on the Constitution of the United States.
George Bancroft: Formation of the Constitution of the United States.
Dr. John W. Burgess Political Science and Constitutional Law.
A. J. Baker (Iowa): Annotated Constitution of the United States.
Dr. J. A. Pomeroy: Constitutional Law of the United States.
Dr. H. Von Holst: Constitutional Law of the United States.
John Fiske: The Critical Period of American History.
Roger Foster Commentaries on the Constitution of the United States.
Dr. Thomas M. Cooley: Constitutional Limitations and Constitutional Law or the United States.
E. P. Prentice and J. G. Egan Commerce Clause of the United States
James Bryce: The American Commonwealth.
Carl E. Boyd: Cases on American Constitutional Law.
Alpheus Todd: Parliamentary Government in the British Colonies.
Goldwin Smith: Canada and the Canadian Question.
Gerald John Wheeler: Confederation Law of Canada.
A. H. F. Lefroy: Legislative Power in Canada.
For information as to the progress of Federation and constitutional government in South Australia we are indebted to Sir Richard C. Baker, and for similar materials in the case of Tasmania to the Hon. Nicholas J. Brown, M.H.A. Professor Morris, of the University of Melbourne, kindly revised the sketch of ancient colonies and modern coloniza
tion down to Magellan's great voyage. We have to thank Mr. Francis Walsh, Parliamentary Librarian of New South Wales, Mr. R. Church, Parliamentary Librarian of Victoria, Mr. G. W. Waddell, Librarian of the Supreme Court of New South Wales, and Mr. John Schutt, Librarian of the Supreme Court of Victoria, for courteous facilities afforded and assistance given in referring to original reports and authorities.
7th Dec., 1900.