Page images
PDF
EPUB

over the people of the Territories, and all the departments of the Territorial Governments. It may do for the Territories what the people under the Constitution of the United States may do for the States."

We have adverted to the proprietary character of the control given to Congress over the Territories by the Constitution. It appears to have been argued at one time that this control was to be regarded as confined to the property, and did not extend to the institution of local Governments for the people residing thereon. On the other hand, there is no express limitation of the power ; but it is believed," says Mr. Cooley, “that the general restrictions of the Constitution in favour of life, liberty, and property apply to all the legislation of Congress, including the laws which it may make or permit to be made for the Territories.”

While the Territories are not directly represented in Congress, they are entitled to send delegates to the House of Representatives, who may take part in the discussion of affairs and present bills for the consideration of the House, but who have no vote. This right, of course, is created by congressional legislation.

The Territorial system, it will be seen, attempts to embrace two elements, which many politicians pronounce to be incompatible—the practical self-government of the dependent community, and the effective supremacy of the central Government. The grant of legislative power is certainly sweeping enough, extending as it does to all “rightful subjects of legislation,” and a glance at a Territorial statute book will

show how freely it is exercised. The case of Utah shows that Congress has no hesitation in legislating according to its own principles and against the opinion of a large portion of the community where issues sufficiently important are at stake. Nor does it confine its interference to cases in which it disapproves or distrusts the action of the local Legislature. The Congress just ended, for example, has passed an Act prohibiting to aliens the acquisition of land in the Territories—a measure which is doubtless in harmony with prevailing public opinion.

It must never be forgotten, however, in considering Territorial Home Rule, that it is confessedly a state of probation. It is a temporary system, the natural end of which is the admission of the Territory into full fellowship with the Union as a State. To accelerate that end is the ambition of all Territories. Disabilities that might become intolerable if they were supposed to be permanent are easily borne when their termination is only, as it is in most Territories, a question of time. Even as it is, American constitutional writers have some difficulty in reconciling the dependence of the Territories on a Congress in which they are not represented by voting power with the principles of free government. Mr. Cooley takes refuge in the analogy of municipal institutions, which are always formed under the direction of, and within the limits prescribed by, the State.

The courts being, like all the other institutions of a Territory, the creation of Congress, occupy a position

H

of their own, which is not the same as that of either the National or the State judicature. They exercise the customary jurisdiction of both State and Federal courts, but the practice, pleadings, and forms of procedure are left to be regulated by the Territorial Legislatures. *

* Cooley's “Constitutional Principles,” p. 137.

CHAPTER V.

CONCLUSION.

THE most obvious conclusion to be drawn from a survey of American institutions is, that under them the problem of Home Rule has, on the whole, been satisfactorily solved. Whatever may be the defects of the system, it has at all events succeeded in drawing a line of demarcation between the respective provinces of the nation and the State, and in keeping each authority within its own bounds. Although political parties are based in some measure upon the rivalry of State and nation-one seeking to magnify, and the other to minimise the sphere of the Central Government—there is now a practically universal acceptance of the essential features of the present system. It is this fact which gives significance to the wide-spread American sympathy with the Home Rule movement in this country. It would be an entire mistake to suppose that such sympathy is confined to persons of Irish descent and politicians desirous of conciliating the Irish vote. The average American citizen feels that his country has been built up on a system of Home Rule, and he sympathises with the Irish movement because he be

lieves it to be an approximation to his own institutions. This feeling, coupled with the remarkably keen and intelligent interest of Americans in British affairs, counts for as much in their adherence to Home Rule as mere sympathy, personal or political, with Irish nationalism. At the same time, American sympathy is liable to be misunderstood in this country in another way. It contemplates a strictly limited Home Rule, after the American fashion, and is not based on knowledge or approval of any particular scheme which has been adopted in this country.

The ingenuity with which the rival principles of national and State control have been reconciled throughout the framework of the Constitution is also remarkable. No Constitution has ever relied SO openly and deliberately on what is called the theory of “checks and balances.” The older American publicists exulted in their enumeration

“First, the States are balanced against the General Government. Second, the House of Representatives is balanced against the Senate, and the Senate against the House, Third, the Executive Authority is, in some degree, balanced against the Legislature. Fourth, the judiciary is balanced against the Legislature, the Executive, and the State Governments. Fifth, the Senate is balanced against the President in all appointments to office and in all treaties. Sixth, the people hold in their hands the balance against their own representatives by periodical elections. Seventh, the Legislatures of the several States are balanced against the Senate by biennial elections. Eighth, the electors are balanced

« ՆախորդըՇարունակել »