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§ 50. “The Constitution.”

ORGANIZATION OF THE COMMONWEALTH WITHIN THE CONSTITUTION.—Up to this stage the Imperial Act has dealt with the organization of the Commonwealth outside of and without reference to the Constitution. Clause 9 unfolds the Constitution, which, as we have already seen, deals with the internal organization of the Commonwealth, distributes power, provides for the government of the Commonwealth, guarantees the corporate rights of the States, parts of the Commonwealth, and the personal rights and liberties of individuals resident within the Commonwealth; and contains provisions for the accomplishment of changes to meet the possible requirements and potentialities of the future. We are now able to appreciate the distinction, previously emphasized, between the Commonwealth and the Constitution. Back of the Federal and State governments lies the amending power—the quasi-sovereign organization of the Commonwealth within the Constitution; back of the amending power and the Constitution lies the sovereign British Parliament, which ordained the Constitution. (Burgess, Political Sc., I., p. 57.) The Constitution embodies the terms of the deed of political partnership between the people and the States, by whose union the Commonwealth is composed. This deed contains a complete scheme for the regulation of the legal rights and duties of the people, considered both as members of the united community, and as members of the provincial communities in which they respectively reside; it contains a full delimitation and distribution of the governing powers of the Commonwealth, not only creating a central government, but expressly confirming the Constitutions, powers and laws of the State governments so far as not inconsistent with grants of powers to the central government. This is a feature which presents a marked contrast to the Constitution of the United States, referring to which Bryce says:—

“It must, however, be remembered that the Constitution does not profess to be a complete scheme of government, creating organs for the discharge of all the functions and duties which a civilized community undertakes. It pre-supposes the State governments. It assumes their existence, their wide and constant activity. It is a scheme designed to provide for the discharge of such and so many functions of government as the States do not already possess and discharge.” (Bryce's American Comm., vol. I., p. 29.)

By implication, no doubt, the State Constitutions of the United States must be read along with and into the Federal Constitution in order to make it cover the whole field of civil government. But no such implication or inference is necessary in order to show that the Constitution of the Commonwealth is not a fragmentary statute dealing in a partial manner with the political government of the Union. It does not merely presuppose the State governments. It expressly recognizes and confirms their existence (secs. 106-7-8). It is a comprehensive and a complete system of government, partitioning the totality of quasi-sovereign powers delegated to the Commonwealth, as well as providing for a future development and expansion of those powers. This is suggested by a general conspectus of the Constitution now under review, and it is confirmed by an analysis of the Constitution in detail. A logical classification of the various powers exercisable under the Constitution would resolve them into three parts—




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  • (1.) General authority vested in the Federal Parliament, the Federal Executive, and the Federal Judiciary, with limitations and qualifications.
  • (2.) Residuary authority of the States as defined in their respective Constitutions, confirmed and continued by sections 106, 107, and 108 of the supreme Constitution, and exercised by them through their respective legislative, executive, and judiciary organization, with limitations and qualifications.
  • (3.) Power to amend the Constitution of the Commonwealth, enlarging or diminishing the area of federal authority and jurisdiction; or enlarging or diminishing the area of State authority and jurisdiction.

TRIPARTITE DIVISION OF GOVERNMENT.—It will be noticed that the authority and jurisdiction assigned to the central or general government is distributed among three departments—(1) The Legislature; (2) the Executive; (3) the Judiciary. A further tripartite division of the legislative power itself is seen in the threefold mode of legislation—the legislative power being vested jointly in three bodies—(1) The Queen; (2) the Senate; and (3) the House of Representatives. (See Bancroft on the Constitution of the United States, infra.)

The same division and co-ordination is observed in the Constitutions of the States. It is a fundamental principle in the British and American political systems. The Constitution of the Commonwealth is a compound, embodying the best features of both those time-honoured models, and eliminating those considered objectionable, according to the views and judgments of its framers. This tripartite principle of division and distribution of power has been followed in the Constitution of the Commonwealth; though, of course, there are differences in the relative powers of the several organs.

“In every form of government ( [?]) there are three departments ( [?]), and in every form the wise law-giver must consider, what, in respect to each of these, is for its interest. If all is well with these, all must needs be well with it, and the differences between forms of government are differences in respect to these. Of these three, one is the part which deliberates (to bonlenomenon) about public affairs; the second is that which has to do with the offices …; and the third is the judicial part ( [?]).” (Aristotle, Politics, Book vi., c. xiv.; cited Foster's Comm., I., 299.)

“The tripartite division of government into legislative, executive, and judicial, enforced in theory by the illustrious Montesquieu, and practised in the home government of every one of the American States, became a part of the Constitution of the United States, which derived their mode of instituting it from their own happy experience. It was established by the federal convention with rigid consistency that went beyond the example of Britain, where one branch of the legislature still remains a court of appeal. Each one of the three departments proceeded from the people, and each is endowed with all the authority needed for its just activity. The president may recommend or dissuade from enactments, and has a limited veto on them; but whatever becomes a law he must execute. The power of the legislature to enact is likewise uncontrolled, except by the paramount law of the Constitution. The judiciary passes upon every case that may be presented, and its decision on the case is definitive; but without further authority over the executive or the legislature, for the convention had wisely refused to make the judges a council to either of them. Tripartite division takes place not only in the threefold powers of government; it is established as the mode of legislation. There too, three powers proceeding from the people, must concur, except in cases provided for, before an act of legislation can take place. This tripartite division in the power of legislation—so at the time wrote Madison, so thought all the great builders of the constitution, so asserted John Adams with vehemence and sound reasoning—is absolutely essential to the success of a federal republic; for if all legislative powers are vested in one man or in one assembly, there is despotism; if in two branches, there is a restless antagonism between the two; if they are distributed among three, it will be hard to unite two of them in a fatal strife with the third. But the executive, and each of the two chambers must be so chosen as to have a character and strength and popular support of its own. The Government of the United States is thoroughly a government of the people. By the English aristocratic revolution of 1688, made after the failure of the popular attempt at reform, the majority of the House of Commons was in substance composed of nominees of the House of Lords, so that no ministry could prevail in it except by the power of that House; and as the prime minister and cabinet


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depended on the majority in the House of Commons, the House of Lords directly controlled the government not only in its own branch, but in the Commons, and through the Commons in the nomination of the ministry. All these branches of the government were in harmony, for all three branches represented the aristocracy. In the United States, on the other hand, all the branches of power—president, senators, and representatives—proceed directly or indirectly from the people. The government of the United States is a government by the people, for the people.” (Bancroft, History of the Constitution of the United States, vol. ii., p. 327-8-9, 6th ed., 1889.)

“It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers entrusted to the government, whether State or national, are divided into three grand departments—the executive, the legislative, and the judicial. That the function appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. To these general propositions there are in the Constitution of the United States certain important exceptions. These are then stated substantially as set forth in the text.” (Per Mr. Justice Miller, in Kilbourn v. Thompson, 103 U.S., 168; Foster's Comm., I., p. 296.)

“One branch of the government cannot encroach on the domain of another without danger.” (Per Chief Justice Waite, in the Sinking Fund Cases, 99 U.S., 700, 718; quoted with approval by Mr. Justice Harlan, in Clough v. Curtis, 134 U.S., 361; Foster, I., 297.)

“The maintenance of the system of checks and balances, characteristic of republican constitutions, requires the co-ordinate departments of government, whether federal or State, to refrain from any infringement of the independence of each other, and the possession of property by the judicial department cannot be arbitrarily encroached upon, save in violation of this fundamental principle.” (Per Chief Justice Fuller, in re Tyler, 149 U.S., 164; to the same effect in Swan, 150 U.S., 637; Foster, I., 297.)

“The classification of governmental powers into three is as old as Aristotle, but the importance of their separation was first explained by Montesquieu. His great work was accepted as infallible by the leaders of the American people throughout the Revolution and at the time of the Federal Convention. More than half the first State constitutions contained declarations of the importance of the distinction. The rest recognized it in their structure. The first constitution proposed for Massachusetts was rejected partly for the reason that the powers were not kept sufficiently apart.” (Foster, I., 299.)

“Where the government lays down general rules for the guidance of conduct, it is exercising its legislative functions. Where it is carrying those rules into effect it is exercising its executive powers. And where it is punishing or remedying the breach of them, it is fulfilling judicial duties. It by no means follows that the exercise of these different classes of functions is always entrusted to different hands. But, nevertheless, the distinctions between the functions themselves usually exist, both in central and in local matters.” (Jenks, Government of Victoria, p. 228.)

The Constitution of the Commonwealth, in accordance with these time-honoured precedents and principles, draws a clear-cut distinction between the law-making and the law-enforcing agencies; the legislative power being vested in the Federal Parliament, and the Executive power being vested in the Queen, and exercisable by the Governor-General with the advice of a Federal Executive Council. The two departments are differentiated as clearly as they can be by language. But out of the Executive Council will spring a body whose name is not to be found in this Constitution; whose name is not legally known to the British Constitution; a body which is “the connecting link, the hyphen, the buckle,” fastening the legislative to the executive part of the Federal Government; that ministerial committee of Parliament, nominally and theoretically servants of the Crown, but in reality, though indirectly, appointed by the National Chamber; that committee whose tenure of office depends upon its retention of the confidence of the National Chamber and by and through whose agency a close union, if not a complete fusion, is established between the executive and legislative powers—THE CABINET. (Walter Bagehot, English Constitution, 2nd ed., pp. 10-11.) This separation in theory, but fusion in practice, of the legislative and executive functions, through the


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agency of the Cabinet, may, to those who have not much considered it, seem a dry and small matter, but it is “the latent essence and effectual secret of the English Constitution.” (Id., p. 16; see Note, § 271, “Executive Government.)

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