§ 445. “The Constitution of each State.”

In the preparation of the new Constitution the design kept in view was to distribute the delegated sovereignty of the Commonwealth among two groups of governing organs. That delegated sovereignty consisted partly of old powers and partly of new powers. The old powers were those previously granted by the Imperial Parliament to the separate colonies. The new powers were those freshly granted by the Imperial Parliament. The whole of those powers, new and old, constituted the quasi-sovereignty of the Commonwealth. In the process of distribution nearly all the new powers and a proportion of the old powers were vested in the Federal Government, the guiding principle being that those powers, and those powers only, which could be best exercised by a Parliament representing the united people, should be transferred from the States to the Federal Government. This distribution left the States in the full possession and enjoyment of their original institutions and their previously acquired powers, minus

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only this deduction and transfer. Thus the States retain their Constitutions, their Parliaments, their Executive and Judicial organizations, subject only to the loss of those powers which by the Federal Constitution are withdrawn from the scope and operation of the State Constitutions and brought within the sphere of the Federal Constitution.

These principles of delimitation and partition were plainly outlined in the preliminary resolutions moved by Sir Henry Parkes, and adopted by the Federal Convention of 1891.

“I, therefore, lay down certain conditions which seem to me imperative as a ground-work of anything we have to do, and I prefer stating that these first four resolutions simply lay down what appear to me the four most important conditions on which we must proceed. First: ‘That the powers and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government.’ I think it is in the highest degree desirable that we should satisfy the mind of each of the colonies that we have no intention to cripple their powers, to invade their rights, to diminish their authority, except so far as it is absolutely necessary in view of the great end to be accomplished, which, in point of fact, will not be material as diminishing the powers and privileges and rights of the existing colonies. It is therefore proposed by this first condition of mine to satisfy them that neither their territorial rights nor their powers of legislation for the well-being of their own country will be interfered with in any way that can impair the security of those rights, and the efficiency of their legislative powers.” (Sir Henry Parkes, Conv. Deb., Syd., 1891, p. 24.)

In the Adelaide Convention of 1897, a similar resolution was made the basis of the Constitution which was then drawn. It was resolved that the several colonies were not to be touched in any of their powers, privileges, and territories, except where a surrender was necessary to secure uniformity of law and administration in matters of general concern; that, after the establishment of Federation, the inviolability of the territory of each colony should be still preserved, subject to the determination of the people of such colony themselves. (Conv. Deb., Adel., p. 20.)

By the force of the legislative mandate that “the Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth” it may be argued that the Constitutions of the States are incorporated into the new Constitution, and should be read as if they formed parts or chapters of the new Constitution. The whole of the details of State Government and Federal Government may be considered as constituting one grand scheme provided by and elaborated in the Federal Constitution; a scheme in which the new national elements are blended harmoniously with the old provincial elements, thus producing a national plan of government having a Federal structure.

In the pardoning power case of the Attorney-General of Canada v. Attorney-General of Ontario (1892), 19 Ont. Rep. 31, it was argued that the use of the phrase “constitution,” in referring to the federal and provincial instruments of government, indicated the existence in the case of the Provinces of the same quality of legislative power, to be exercised in the same way, and with the same degree of latitude, as to methods, means, and facilities for carrying out such legislative power, as in the case of the Dominion. The same word was used to denote the British Constitution, the Constitution of the Dominion, and the Constitutions of the Provinces. In its application to the Provinces it was contended that it could not be used in the sense of an Act for the incorporation of a company, or in the sense of a charter of a municipality; the title showed that it referred to the Constitution of a State, embracing the idea of sovereignty and political organization. (Wheeler, C C., p. 27.)

It was accordingly held in that case that the legislature of a Province could vest in the Lieutenant-Governor thereof the power to commute and remit sentences for offences against the law of the Province, or offences over which the legislative authority of the Province extends, as fully and effectually as the Dominion Parliament could vest a similar authority in the Governor-General in relation to offences against the law of the Dominion. (Lefroy, Leg. Power, p. 39.)

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The Federal Government and the State Governments are, within their respective spheres and areas, subject equally to the Constitution, and, in the last resort, to the Imperial Parliament. In the case of Maritime Bank of Canada v. New Brunswick Receiver-General (1892), App. Cas. 437, the question raised was whether the Provincial Government were entitled to payment in full over the other depositors and simple contract creditors of the bank. When the bank stopped payment, the Provincial Government was a simple contract creditor for $35,000, being public money of the Province deposited in the name of the Receiver-General. The Receiver-General claimed payment in full as representing Her Majesty. The Judicial Committee (per Lord Watson) held that the effect of the Dominion Act was not to sever all connection between the Crown and the Provinces. The Act of 1867 nowhere professes “to curtail in any respect the rights and privileges of the Crown, or to disturb the relations then subsisting between the Sovereign and the Provinces. The object of the Act was neither to weld the Provinces into one, nor to subordinate provincial governments to a central authority, but to create a Federal Government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each Province retaining its independence and autonomy” (1892, App. Cas. 441): “The prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her Majesty's Colonial possessions as in Great Britain. And the Crown, as a simple contract creditor for public moneys of the Province deposited with the bank, was entitled to priority over other creditors of equal degree.” (Wheeler, C.C., p. 31.)