§ 472. “The Government of Any Territory.”

The Parliament may make laws for the government of Federal territory. Federal territory is country within the jurisdiction of the Commonwealth and not forming part of a State. Such territory may be acquired by the Commonwealth in the following ways:—

(1.) It may be surrendered by a State and accepted by the Commonwealth.

(2.) It may be placed by the Queen under the authority of and accepted by the Commonwealth.

(3.) It may be otherwise acquired by the Commonwealth.

TERRITORY SURRENDERED.—By sec. 111, a State is authorized to surrender any part of the country within its constitutional limits to the Commonwealth, and the Commonwealth is authorized to accept the same.

It seems that territory may be thus surrendered and accepted, either for the general purpose of being administered as a territory by the Federal Government, or for some special purpose for which it is required by the public service of the Federal Government. (See Notes to sec. 111, supra.)

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TERRITORY PLACED BY THE QUEEN.—Any country not within the chartered limits of a State may be placed by the Queen under the control and authority of the Commonwealth. This grant of power will enable the Queen, with the concurrence of the Federal Parliament, to give effect to any approved plan for transferring the Northern Territory of South Australia, or British New Guinea, to the Commonwealth, and will enable those countries to be placed under the authority of the Commonwealth.

TERRITORIES OTHERWISE ACQUIRED.—The only other way of acquiring territory expressly mentioned in the Constitution is under sec. 125, which provides that the seat of Government shall be within territory which shall have been “granted to or acquired by the Commonwealth.” It seems, however, that territory may also be acquired by the joint operation of sec. 51—xxxi. and 52—ii.; under which the Federal Parliament is empowered to acquire property from any State for public purposes, and is given exclusive jurisdiction over “places” so acquired. (See Notes to sec. 52, supra.) The phrase “otherwise acquired” is wide enough to cover the acquisition of federal territory by every mode within the power of the Commonwealth, either under the express words of the Constitution, or by implication from its general quasi-sovereign powers—as for instance, the acquisition of territory by purchase or by cession from other colonies or countries not forming parts of the Commonwealth.

GOVERNMENT OF TERRITORY.—The Parliament is authorized to make laws for the government of territory however acquired. Such territory may be ruled by the Federal Authority, acting not merely as a local government but as a quasi-sovereign government. It may rule the territory as a dependency, providing for its local municipal government as well as for its national government, in such a manner as may seem politic, wise, and just, having regard to its own interests as well as those of the people of the territory. (American Ins. Co. v. Canter, 1 Pet. 511; National Bank v. Yankton Co., 101 U.S. 129.)

Territories may either be ruled by a Federal department charged to administer Federal laws therein, or they may be granted municipal institutions and territorial legislatures, empowered to make ordinances not inconsistent with the laws and Constitution of the Commonwealth. Should such territorial ordinances be contrary to Federal law, they may be annulled by the Federal Parliament. (Mormon Church v. United States, 136 U.S. p. 1.) In legislating for territories, the Federal Parliament will possess the combined powers of the National and of the State Governments. (American Ins. Co. v. Canter, 1 Pet. 511; Forsyth v. United States, 9 How. 571.) The territories bear much the same relation to the general government that counties do to the State, and the Federal Parliament may legislate for them as States do for their respective municipal subdivisions. (National Bank v. Yankton County, 101 U.S. 129. Baker, Annot. Const. p. 162.)

TERRITORIAL LEGISLATION.—A clause in the organic act of the territory of Oregon provided that the legislative power of the territory should “extend to all rightful subjects of legislation not inconsistent with the Constitution of the United States.” Held that, under the power so conferred, the territorial legislature had power to enact a law annulling the marriage of one of its citizens, even though the wife from whom he was so divorced had never resided within the territory. (Maynard v. Hill, 125 U.S. 190. Baker, Annot. Const. p. 167.)

Under the powers of the Federal legislature reserved in the organic acts of the territories to annul the acts of their legislatures, the absence of Federal action annulling a law that is in conflict with the organic act cannot be construed as recognition that such law is valid. (Clayton v. Utah, 132 U.S. 632. Id.)

The Federal legislature can grant to a corporation existing under the laws of a State, the right to construct a railroad within any of the territories of the Union, and the State afterwards created out of the territory could not put any impediment on the enjoyment of the right thus conferred except upon the same terms that it could do when applied to its own previously granted right. In such matters the State only succeeds to the Federal authority over the territory. (Van Wyck v. Knevals, 106 U.S. 360; Railroad Co. v. Baldwin, 103 U.S. 426. Id. 166.)

The Federal legislature may not only abrogate laws of the territorial legislatures, but may itself legislate directly for the local government. In other words, it has full

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and complete legislative authority over the people of the territories and all departments of the territorial governments. It may do for territories what the people under the Constitution of the Union may do for the States. (National Bank v Yankton County, 101 U.S. 129; cited and approved in Mormon Church v. United States, 136 U.S. 1–43. Id. 165.)

The people of the United States, as sovereign owners of the national territories, have supreme power over them and their inhabitants. The Federal legislature may prescribe the qualification of voters within a territory, and may exclude from such privilege persons guilty of bigamy. (Murphy v. Ramsey, 114 U.S. 15. Id.)

PREROGATIVE IN TERRITORIES.—In the case of Reg. v. Amer (42 Upp. Can. Q.B. 391), where numerous cases are cited on the prerogative of the Crown, Harrison, C.J., said: “The prerogative as to the issue of special commissions of Oyer and Terminer and General Gaol Delivery exists in all its integrity in the case of what are now known as the unorganized tracts or provisional judicial districts. The exercise of the power by the Governor-General of the Dominion, or by the Lieutenant Governor of the Provinces' is not inconsistent either with sub-sec. 27, sec. 91, or sub-sec. 14 of sec. 92 of the B.N.A. Act.” (Wheeler, C.C., p. 33.)

JUDICIAL AUTHORITY IN TERRITORIES.—The legislative and judicial authority of the Federal Government in the territories is illustrated by the Canadian case of Riel v. The Queen, 10 App. Cas. 675. By the British North America Act, 1871, the North-west Territories became part of the Dominion, which was given power to pass any law for the peace, order, and good government thereof. The Dominion Parliament passed the North-west Territory Act, 1880, which gave power to try all criminal cases to a tribunal consisting of two magistrates and a jury of six, instead of a Judge and a jury of twelve men, as in England. Louis Riel was tried by a territorial court on a charge of high treason; he was convicted and sentenced to death. Riel applied to the Privy Council for special leave to appeal against the conviction, on the ground that the court had no jurisdiction to try the case. His counsel contended that it was not competent for the Dominion Parliament, under the Act of 1871, to take away from a person charged with treason the right to be tried by a jury of twelve, whose verdict must be unanimous. The Privy Council refused leave to appeal. (See extract from the judgment, per Halsbury, L.C., quoted supra, p. 514.)