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§ 29. “Shall be Established.”

Clause 3 says that the people of the Commonwealth shall be united on and after the day appointed in the Queen's Proclamation. Clause 4 contains a detailed enumeration and elaboration of the legal results of the Union so accomplished. The first immediate and necessary result is that the Commonwealth is established. The constitutional definition of the Commonwealth will be analysed later on. Meanwhile, attention may be drawn to the significance of the word “Established.” The same verb is used in the preamble to the constitution of the United States, where it is recited that in order to form a more perfect union the people “do ordain and establish this Constitution.”

The word “Established” is used in the enacting passages of several State Constitutions, such as those of Pennsylvania, Vermont, and Massachusetts. (See § 17, “Commonwealth,” supra.) In some of the constitutional Acts passed by the British


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Parliament authorizing the formation of colonies, the words “erect” and “establish” are used as synonymous terms. The Act 9 Geo. IV. c. 83, sec. 1 (1828), provided that it should be lawful for the King by charters or letters patent under the Great Seal to “erect and establish” courts of judicature in New South Wales and Van Diemen's Land. The Act 3 and 4 Vic. c. 62, sec. 2 (1840), authorized the Queen by letters patent to “erect” into a separate colony or colonies any islands being dependencies of the colony of New South Wales; and by section 3, in case Her Majesty should establish any such new colony or colonies, Legislative Councils might be “established” therein.

The Act 5 and 6 Vic. c. 76, sec. 51, enabled the Queen by letters patent to erect into a separate colony or colonies any territories of the colony of New South Wales lying northward of 26° south latitude. By section 34 of 13 and 14 Vic., c. 59, that provision was amended so as to enable the Queen to detach territories of New South Wales lying northward of 30° of south latitude and to “erect” them into a separate colony or colonies or to include the same in any colony or colonies to be “established” under 3 and 4 Vic. c. 62, sec. 2.

In the first section of the notable Act 13 and 14 Vic. c. 59, the provision occurs that the territories comprised in the district of Port Phillip should be “erected” into and thenceforth form a separate colony to be known as the colony of Victoria. In the second section of the same Act the words occur “that upon the issuing of such writs for the first election of members of the Legislative Council of the said colony of Victoria such colony shall be deemed to be established.” From these precedents it appears that the word “Established” is the one commonly used to denote the creation of a new State or community.

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