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muy claim to be the birthplace of the first written constitution which wis popularly adopted. The plantations of Wethersfield, Windsor and Hartford sent male adults to an assembly which in 1638 drafted a document called the “Fundamental Orders of Connecticut.” This is said to mark the birth of a government under a written constitution, that is, the first plan of government by law alone without rulers and with the acceptance of the people. The “Fundamental Orders” contained eleven articles, did not recognize the King of England, and was supreme over the three plantations. The people, however, did not really denounce allegiance to England. Moreover, in 1662 the crown granted a royal charter to Connecticut which affirmed the “Fundamental Orders” and thus detracted from its true constitutional value. The “ Mayflower Compact” recognized the King and contained no plan of government; nor was the ordinary colonial charter constitution in a democratic sense. In 1776 all of the American colonies adopted real constitutions, if nothing more than the old charters with a new meaning. In 1787 the American constitution was framed and a few years later, 1791, the Poles drafted a constitution, which was scarcely put in force. At about the same date, 1790–1791, France adopted the first constitution on the continent and since that time there have been many in various parts of the world.
In connection with the colonial constitutions granted by Great Britain, it may be recalled that the fundamental principles said to underlie a written constitution are that it is superior to an act of legislation contrary to it and to the constitution of a political district, such as a State or province, under the central government, and that it derives its power from popular adoption. Where the power to declare an act void shall lie is largely a matter of expediency. The American constitution is believed to be the first instance in the world where this power is given to a coördinate branch of the government, namely, the courts. On the other hand, in Switzerland and some other continental countries, this power is given to the legislature. The fundamental laws under which the self-governing colonies of England move and have their being are in truth statutes drawn up
5 H. Doc. No. 357, 59th Cong. 2d sess., p. 519.
perhaps in the colony but enacted into law by the British Parliament in the same manner as any other bill. The first constitution of this nature granted to an English colony is probably the “ Constitutional Act” of 1791 for Upper and Lower Canada, now Ontario and Quebec, respectively. It provided for a governor and a legislative council chosen by the King and a legislative assembly elected by the people. Friction resulted between the two legislative bodies over control of the revenue in a manner almost identical with the conflict in Porto Rico during the past year.
Rebellion followed and ended in the suspension of the constitution for three years. At this time Lord Durham was appointed governor-general and his report on existing conditions is now a classic on colonial government. On this report was based the Union Act of 1840, which provided for a governor-general, a legislative council appointed by the governor and a legislative assembly elected by the people. In the hands of the latter body was placed entire control of the funds save certain fixed charges. Responsible government was not expressly granted in the act, but was introduced in practice, so that finally, 1847, both legislative bodies were responsible to the people. The other colonies of Canada were likewise given responsible government. Gradually : sentiment for union, having its origin in Nova Scotia, grew up among the colonies, and a conference was called at Quebec where “ seventytwo” resolutions were drawn up. These were adopted by the legislatures of Canada, New Brunswick and Nova Scotia, and in 1867 their delegates met in London, and incorporated the resolutions into the bill which passed the British Parliament in 1867 as the British North America Act. This has been supplemented by three other acts: the British North America Act, 1871, the Parliament of Canada Act, 1875, and the British North America Act, 1886. These four acts comprise the fundamental law of Canada.
In Australia the first movement for union occurred in 1850 when a scheme for uniformity of tariffs was proposed but failed. Efforts. however, to mitigate the evils arising from conflicting tariffs and colonial duties were continued and resulted in many attempts to establish treaties, commercial reciprocity, free trade, or customs unions. But up to 1883 erery plan had failed altogether, though
some manner of uniform legislation in the various colonies had been secured by colonial conferences which drafted bills to be enacted by each colony. No common ground, however, had been found as a basis for a political union. In 1883, German designs on New Guinea and French fascination for the New Hebrides, led the colonists to consider federation as a means of resisting these aggressions. The completion of an intercolonial railway at this time also suggested closer union. Consequently, a convention in 1883 adopted a plan for a federal council which was accepted by England in 1884. This council, however, was only an advisory body to suggest legislation but without authority to compel the acceptance of its recommendations. At length the recognized need of a national system of defense led to the framing of a genuine federal constitution in 1891. Owing to a financial depression and a political distrust the plan was dropped for a time, though meanwhile, federal sentiment was gaining strength. In 1897, a duly constituted convention met, drafted a new constitution and submitted it to the colonies for
suggestions. In the light of new views it was redrafted in 1897 and 1898 and in the latter year was accepted in referendum by the people, save in New South Wales. A conference of premiers in 1899 adjusted the differences by slight amendments and the draft, again submitted to referendum, was accepted by all the colonies. It finally passed the British Parliament, January 1, 1901, as the Commonwealth of Australia Constitution Act.6
In South Africa the first practical suggestion of a union of the colonies is accredited to Sir George Grey, governor and high commissioner in South Africa, who wrote to Sir E. B. Lytton in March, 1857, that“ by a federal union alone the South African Colonies can be made so strong and so united in policy and action that they can support themselves against the native tribes.” Holding him in unhesitating confidence, the Volksraad of the Orange Free State in the following year passed a resolution “ that a union or alliance with the Cape Colony either on a plan of federation or otherwise, is de
& The foregoing sketch of constitutional history is based on Munro, Constitution of Canada; Quick and Garran, Constitution of Australia Commonwealth, and other sources.
sirable,” and suggested a conference of two deputations who “shall draft the preliminary terms of such a union to be submitted for the approval of both governments.” The resolution was submitted to the legislature of Cape Colony by Sir George Grey, but before further steps were taken, the movement was crushed by Lytton, who informed Grey that “ Her Majesty's Government were not prepared to depart from the settled policy of their predecessors by advising the resumption of British Sovereignty in any shape over the Orange Free State.” As a result the four territories remained under separate governments and as Lord Selbourne points ont, it was inevitable that different policies, laws and traditions, peculiar to each should have sprung up “like walls of a partition where nature had built no such walls, to divide the one from the other." Events elsewhere led to the next effort at union in South Africa. The Canadian colonies were in perpetual conflict and began to realize that while they had provincial autonomy, this did not allow them to settle intercolonial matters, which, after all, were the most important to their welfare. This was solved so successfully by the Canadian union that Lord Carnarvon, in 1876, attempted to force a similar plan on South Africa. The scheme not having a South African origin, the Cape failed to support it, but the Imperial Parliament nevertheless passed an act enabling the South African governments to unite in a confederation whenever they saw fit. No attempt, however, was made to avail themselves of this act and it expired by limit in 1882. The discovery of diamonds and gold in the eighties soon led to rivalry of the various railroads, which, save those in the Transvaal, were owned by the colonies, for the traffic of the treinendously rich mining districts.? Of course, the larger part of the traffic went to railroads offering the best rates. For a time Cape Colony, by throwing a line across the Orange Free State under agreement, controlled the situation. But the Transvaal and the Portuguese colony on the east linked together their lines and formed an all-rail route from Delagoa Bay, the nearest seaport, to the mining districts. Ever
7 Memorandum on the Federation of the South African Colonies, by Lord Selbourne, p. 17.
afterwards it was a contest between the other colonies to overcome this disadvantage. The matter was never satisfactorily settled by conferences, because the railroads, being chiefly colonial concerns, were actuated by local interests. The customs duties imposed by the coast colonies were another source of discontent with the inland colonies of the Transvaal and the Orange Free State. This likewise led to many conferences and at times to partial customs unions, but the question was never satisfactorily determined, for the decisions of the conferences had to be ratified by each of four legislatures before they became effective. Besides these obstacles to commercial development, there were others less obvious but perhaps equally strong. Thus the confusion of the law due to independent legislatures and courts in the various colonies, with no central body, save the Privy Council, to bring about uniformity and coherence, hindered free intercourse. Furthermore the control of the natives, being distributed among the colonies, was weakened and their civilization retarded by the application of different methods. Consequently, the labor supply was aborted. Finally, the uncertainty resulting from these conditions dissuaded the conservative investor and the capitalist. Realizing these difficulties the governor of Cape Colony invited the high commissioner to review the general situation in South Africa and to consider the advisability of establishing a central national government. In reply Lord Selbourne submitted in January, 1907, his admirable "Memorandum on the Federation of the South African Colonies,” which was the next important step toward unification.
Following this, a conference of the governments of the colonies was held at Pretoria, in May, 1908, to amend the existing customs and railway-rate conventions. Unable to agree to any changes, the conference agreed to the old conventions and passed the following resolution which was the first practical step toward union:
In the opinion of this Conference the best interests and permanent prosperity of South Africa can only be secured by an early union under the Crown of Great Britain of the several self-governing colonies.
This resolution was adopted by each parliament, and delegates were appointed by the parliaments to draft a constitution. The delegates, thirty-three in all, the Cape sending twelve, Transvaal eight, Natal