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§ 43. “Commonwealth … as Established Under this Act.”

We have summarized the literary history of the name Commonwealth. (Note § 17, supra.) We now come to the statutory definition of the term. This definition, it will be observed, is a vague and technical one; the dominant words being “as established under this Act.” For the true nature and primary meaning of the expression, the student is required to examine the first six clauses of the Act, which deal with the establishment of the new community. The Commonwealth is not in any way defined or explained by the Constitution itself; that deals only with the governing organization of the Commonwealth.

The first observation to be made is that the Commonwealth should not be confounded with the Constitution or with the Government. The Commonwealth, as a political entity and a political partnership, is outside of and supreme over the Constitution; it is outside of and supreme over the Government provided by that Constitution. The Government of the Commonwealth, consisting of two sets of legislative, executive and judicial departments, central and provincial, does not constitute the community. At the back of the Government lies the amending power—the quasi-sovereign organization of the Commonwealth within the Constitution; at the back of the Commonwealth and the Constitution is the British Parliament, its creator and guardian, whose legal relationship to it requires that the Commonwealth should be described, not as an absolutely sovereign organization, but by some term indicating a degree of subordination to that body. (Burgess, Political Sc., I., p. 57.)

The Commonwealth is established by a clause in the Imperial Act which could operate antecedently to and independently of the Constitution detailed in Clause 9, and of the machinery and procedure therein specified. In other words, the Commonwealth is the legal objective realization of an Australian quasi-Federal State or a quasi-National State, using those phrases in a sense to be hereafter explained. What then, are the essential attributes and characteristics of the Commonwealth “as established by the Act?” These may be thus summarized:—First, its population basis; secondly, its territorial basis; thirdly, its federal principle; fourthly, its Imperial relationship; resulting in the establishment of a united people, upon a defined territory, organized on a federal plan, consistently with the Imperial connection, legally equipped for political action and development.

(1.) POPULATION BASIS.—Clause 3, illustrated by the preamble of the Act, explicitly provides that on the day appointed by the Queen's proclamation the people of the concurring colonies shall be united in a Federal Commonwealth. This union is not founded on force or coercion, but on a consensus of opinion induced by a consciousness of common interests and mutual benefit. The people so agreeing had all the elements of ethnic unity, such as sameness of race, language, literature, history, custom, faith and order of life, combined with the contributing influences of antecedent intercourse and territorial neighbourhood. (Burgess' Political Sc., vol. I., p. 2.)

Hence there were, co-existing with the desire for union, all the conditions and requirements essential for successful and harmonious union. These people, then, formerly living under separate systems of government are, by Clause 3 of the Act, declared to be united in a Federal Commonwealth, and by Clause 4 the Commonwealth is established. If the Act had given no further explanation, and had enumerated no other incidents or attributes of the Commonwealth, it might have been contended that the


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Commonwealth was merely a personal union of the people without any other element of cohesion and organization; but all doubt on that point is removed by important phrases which occur in other clauses.

(2.) TERRITORIAL BASIS.—In Clause 5 a distinction is drawn between the people “of every State” and “of every part of the Commonwealth.” One expression relates to human beings, as residents of States, whilst the other evidently refers to land or country which might not be within a State, but might nevertheless be within the Commonwealth. In the clause now under review the States are defined as such of the colonies as form the union and become “parts of the Commonwealth.” In the Imperial Acts erecting the colonies they are described as territories included within certain geographical boundaries. Hence, if the colonies are parts of the Commonwealth, their territories are by the terms of the definition “parts of the Commonwealth.” These words, therefore, clearly show that the Commonwealth is a territorial community, having the right to conduct its governing operations in, over, and through certain territory, and, when they are read in conjunction with certain sections of the Constitution, it is plain that the Commonwealth has the right of eminent domain which may be exercised in the manner prescribed by the Constitution throughout its confines, when necessary for the execution and enjoyment of the powers conferred by the Constitution. (Kohl v. United States, 91 U.S., 367.) So far the Commonwealth “established under this Act” is a united people, organized within a united territory; the people being the population of the former colonies, and the territory being coincident with the territorial limits of the former colonies in addition to such other territory as may be added to the Commonwealth under section 122. Two other important features of the Commonwealth are, however, discoverable in the actual language of the Act.

(3.) FEDERAL FORM.—The only word in the Act creating the Commonwealth which is at all suggestive of structural design or functional distribution is the word “federal;” it occurs once in the preamble and once in the clause under review, as descriptive of the form and structure of the new community. It is true that it appears in several passages in the constitution, but there it is descriptive of the central governing organs of the community, and not of the community itself. The Commonwealth is declared to be a Federal Commonwealth. The original and fundamental idea implied by “federal” and its various shades of meaning, as used in modern political literature, have been already analysed. (See Note. § 27, “Federal,” supra.)

(4.) IMPERIAL RELATIONSHIP.—By the preamble the Commonwealth is declared to be “Under the Crown;” it is constitutionally a subordinate, and not an independent Sovereign community, or state. But its population is so great, its territory so vast, the obvious scope and intention of the scheme of union are so comprehensive, whilst its political organization is of such a superior type, that it is entitled to a designation which, whilst not conveying the idea of complete sovereignty and independence, will serve to distinguish it from an ordinary provincial society.

QUASI-NATIONAL STATE.—Burgess contends that there is no such thing in political science as a “federal State;” that this adjective is applicable only to the organs of government and the distribution and division of governing powers; that its application to the State itself is due to a confusion of State with Government. (Political Sc., vol. I. p. 165.) What is really meant by such expressions as “Federal State” or “Federal Commonwealth,” technically inaccurate, according to this eminent jurist, is a National State, with a federal government—a dual system of government under common sovereignty. Such a State comprehends a population previously divided into a group of independent States. Certain causes have contributed to a union of this group of States into a single State, and the new State has constructed a government for the general affairs of the whole State, and has left to the old bodies, whose sovereignty it has destroyed, certain residuary powers of government to be exercised by them so long as the new State makes no other disposition. The old States become parts of the Government in the new States, and nothing more. (Political Sc., I. 79.) The Commonwealth


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therefore, may be said to possess nearly all, but not quite all, the characteristics and features of a national State. In order to denote its subordinate relation as an integral part of the British Empire, and not an independent sovereign State, some qualifying adjective or particle is necessary, such as “semi” or “quasi.” We may therefore define the Commonwealth, established by this Act, as a quasi-national State (or semi-national State) composed of a homogeneous and related people of ethnic unity, occupying a fixed territory of geographical unity, bound together by a common Constitution, and organized by that Constitution under a dual system of provincial and central government, each supreme within its own sphere, and each subject to the common Constitution.

SECONDARY MEANING OF “COMMONWEALTH.”—In several sections of the Constitution the term “Commonwealth” is used inartistically to denote the Central Government as contrasted with the Governments of the States, i.e., “The Legislative Power of the Commonwealth,” sec. 1; “the Executive Power of the Commonwealth,” sec. 61; “the Judicial Power of the Commonwealth,” sec. 71. These expressions refer to the Legislative, Executive, and Judicial Powers granted by the Constitution to the various organs of the Central Government. In the American Constitution the term “United States” is sometimes used to describe the Union and sometimes to denote the Central Government of the Union. These are instances of the secondary use and significance of corresponding terms in both Constitutions. The secondary use and meaning of “Commonwealth” must be distinguished from its primary and proper meaning as defined in the constructive clauses of the Imperial Act.

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