previous
next



  ― 927 ―

11. The States.

444

§ 444. “The States.”

The States are parts of the Commonwealth; this is one of the basic principles in the structure and organization of the federated community. In order to present a true conception of the position of the States in the Commonwealth some of the ground previously traversed must be here reviewed, and attention drawn to the fundamental conceptions and relations expressed by the words “Empire,” “Commonwealth,” “States,” “Constitution,” and “Government.”

In accordance with the agreement of the people of the Australian Colonies to unite in one Federal Commonwealth under the Crown, the British Parliament, in which resides the supreme and absolute sovereignty of the Empire, has established the Commonwealth and ratified and legalized the Constitution previously approved by the people. The Commonwealth is the united political society thus established; it consists of the people and of the pre-existing colonies, converted into States. Attention is particularly drawn to this definition of Commonwealth, which is clear and unchallengeable, according to the express wording of the Preamble and the first six clauses of the Imperial Act. In certain sections of the Constitution, however, the word Commonwealth is used to denote the central Government established by the Constitution, and not the political society itself which is organized under the Constitution, and governed by Federal and State governments alike. In the American Constitution it has been noticed that a similar confusion of meaning exists. In the Preamble and other sections, the term “United States” means the united political society composed of the people of the States. Occasionally, however, as in Art. IV. Sec. 4, and the Tenth Amendment, the term “United States” is used to signify the Federal Government. (Luther v. Borden, 7 How. 1; Pomeroy's Const. Law, 10th ed. p. 68. Note, § 466, infra.) These are illustrations of the manner in which a political community capable of exercising sovereign or quasi-sovereign powers may be confused with its governing organs. Care must, therefore, be taken to note and understand the meaning of the word Commonwealth, as conveyed by its context; by so doing misapprehension and confusion of thought will be avoided.

The primary and fundamental meaning of “The Commonwealth” is the united political community composed of the people and the antecedent colonies, now converted into States. That political community has been established by the Imperial Parliament, and endowed with the powers of self-government, by virtue of which the community may be described, for the purpose of this analysis, as possessing a kind of political sovereignty; not absolute and independent sovereignty, for that belongs to the British Parliament, but a derivative, delegated, or quasi-sovereignty. This quasi-sovereignty is conveyed to the new society by the Imperial Act, and through the Constitution in that Act. The Constitution partitions or distributes the powers pertaining to this quasi-sovereignty in the following manner: One bundle or set of the totality of quasi-sovereign powers is expressly and definitely assigned to certain governing organs called the Federal Parliament, the Federal Executive, and the Federal Judiciary, accompanied by limitations and prohibitions, determining the methods or principles according to which those powers are to be used. The balance of the quasi-sovereign powers are reserved to certain autonomous and governing groups, formerly called colonies, now called States; those powers being such as are defined in the Constitutions of the States, granted to them by the Imperial Parliament before the union. By the Federal Constitution the State Constitutions were confirmed and continued in existence, subject to the grants of power made by the Constitution to the Federal organs of government. In addition to these


  ― 928 ―
assignments of power among the two sets of governing agencies, the Constitution contains a section enabling the people of the united community, in the exercise of their quasi-sovereign power, to amend the supreme instrument of government itself. This power of amendment enables the people, if necessary, to redistribute the powers granted and apportioned by the Constitution, either by taking from the State Governments and giving to the Federal Government, or by taking from the Federal Government and giving to the State Governments. The subjoined conspectus may be used to illustrate the relation of the State Governments to the Federal Government, and the joint relation of both to the amending power, to the Constitution, and to the Commonwealth:—

From these observations it appears that the Imperial Parliament has vested, in the united and indivisible people of the Commonwealth, some of the highest attributes of sovereignty, limited only by its own paramount supremacy; that in the Constitution there is a division of that delegated sovereignty into two spheres or areas, one being assigned to the Federal Government, and the other to the State Governments; that each Government is separate and distinct from the rest; that the Federal Government cannot encroach on the sphere or area of the State Governments, and that the State Governments cannot encroach on the sphere or area of the Federal Government; that the sphere or area of the Federal jurisdiction can only be modified, enlarged or diminished by an alteration of the Constitution; that the sphere or area of the State jurisdictions can only be modified, enlarged, and diminished by a similar alteration. This dual system of government is said to be one of the essential features of a Federation.

It may be added that the governing powers reserved to the States are not inferior in origin to the governing powers vested in the Federal Government. The States do not derive their governing powers and institutions from the Federal Government, in the way that municipalities derive their powers from the Parliament of their country. The State Governments were not established by the Federal Government, nor are they in any way dependent upon the Federal Government, except by the special provisions of sec. 119. The States existed as colonies prior to the passing of the Federal Constitution, and possessed their own charters of government, in the shape of the Constitutions granted to them by the Imperial Parliament. Those charters have been confirmed and continued by the Federal Constitution, not created thereby. Hence, though the powers reserved to the States are not wide, general, and national, no badge of inferiority or subordination can be associated with those powers, or with the State institutions through which they are exercised. State powers and State institutions, Federal powers and Federal institutions, all spring directly from the same supreme source—British sovereignty. The Federal Government and the State Governments are in fact merely different grantees and trustees of power, acting for and on behalf of the people of the Commonwealth. Each of them has to exercise its powers within the limits and in the manner prescribed by the Constitution; each of them has different powers to be used in different domains for different purposes. The Constitution is the title, the master, and the guardian of all these various governing agencies. At the back of the Federal and State Governments are the quasi-sovereign people of the Commonwealth, organized


  ― 929 ―
within the Constitution as a quasi-national State; they can alter the instrument of government, abolishing existing institutions of government, and substituting new ones, subject only to its special provisions and the Imperial supremacy. The States, therefore, as governing organizations, are not inferior in origin or status to the Federal governing organizations. Both are equally subject to the law of the Constitution, and equally entitled to its protection. “The perpetuity and indissolubility of the Union by no means imply the loss of distinct and individual existence, or of the right of self-government by the States. Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may not be unreasonably said that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible States.” (Per Chief Justice Chase in Texas v. White, 1868, 7 Wall. 724–5.) “In these opinions the Supreme Court, for the first time in its entire history, struck the solid ground of historic fact, and announced a theory which defines and preserves both the inherent nationality of the United States, and the separate existence, necessity, and local rights of the several States.” (The Nation, 29th June, 1871.)

Saving of Constitutions.

106. The Constitution of each State445 of the Commonwealth shall, subject to this Constitution446, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

HISTORICAL NOTE.—Clause 6, Chap. V. of the Commonwealth Bill of 1891 was to the same effect. In Committee, in the Convention of 1891, Mr. Gordon moved to add: —“But it shall not be necessary to reserve any proposed alteration of the Constitution of any State for the Queen's pleasure to be made known.” This was negatived by 27 votes to 11. Sir Geo. Grey moved to add:—“But it shall not be necessary to reserve for the Queen's pleasure any law made by a State.” This was negatived by 30 votes to 9. (Conv. Deb., Syd. [1891] pp. 864–5.) At the Adelaide session, 1897, the clause was framed in almost exactly the same words. In Committee, Mr. Gordon moved to omit the words “in accordance with” &c. This was negatived. (Conv. Deb., Adel., pp. 991–2.) At the Melbourne session, a redraft was agreed to. (Conv. Deb., Melb., pp. 664–5.) A drafting amendment was made after the fourth report.

§ 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


  ― 930 ―
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.)




  ― 931 ―

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.)

§ 446. “Subject to this Constitution.”

The Federal Constitution withdraws powers and functions, but it does not abolish or interfere with any of the political institutions established in the States under their respective Constitutions. The States retain their executive, legislative, and judicial departments as before, but shorn of some of their powers and functions. The Governor and Executive of a State will not be required to discharge all the duties which belonged to the Governor and Executive of a separate colony. The Parliament of a State will not have the same quantity of work to get through as the Parliament of a separate colony. The Courts of the States, however, will not, to any appreciable extent, lose any of their old duties, whilst new Federal work may be imposed upon them.

UNIMPAIRED EXECUTIVE POWER.—The Executive Government of each State retains the right to hold direct and immediate communication with the Imperial Government in all matters relating to State business. In the Draft Bill of 1891, ch. V. clause 5, it was provided that “all references or communications required by the Constitution of any State or otherwise to be made by the Governor of the State to the Queen shall be made through the Governor-General, as Her Majesty's Representative in the Commonwealth, and the Queen's pleasure shall be made known through him.” In support of this section strong arguments were advanced by members of the Convention of 1891, of known sympathy with State rights:

“I have always maintained that one of the principal reasons for establishing a federation in Australia was because the Governments were always pulling in different directions. Australia speaks with seven voices instead of with one voice. Now, the hon. gentleman wishes that Australia should continue to speak with seven voices instead of with one voice. (Mr. Gillies: Only on matters appertaining to themselves! Dr. Cockburn: On matters appertaining to themselves they should not want to communicate with the Imperial Government at all!) I maintain that ministers in Australia are to be the Queen's ministers for the Commonwealth, and any communication affecting any part of the Commonwealth which has to be made to or by the Queen, should be made with their knowledge. Without that we shall not have the voice of one Commonwealth in Australia. I maintain that this argument is quite indisputable. The hon. member's argument amounts to this: somebody will not like it; some people object to it, and it is not absolutely necessary. I admit that it is not absolutely necessary; but I say it is necessary if we are going to establish a real Commonwealth in Australia. I think the idea is that there is to be but one Government for Australia, and that we shall have


  ― 932 ―
nothing more to do with the Imperial Government except the link of the Crown. We recognize the Crown, but do not desire to have the Governments of Australia all trying to attract the attention of the Secretary of State in Downing-street. (Mr. Gillies: We cannot prevent them from having agents-general!) Certainly not; but the agents-general will be limited to their functions as commercial agents. (Mr. Gillies: Will they?) They will no longer be diplomatic agents. I maintain that Australia is to have only one diplomatic existence, and, therefore, only one diplomatic mouth-piece in any other part of the world.” (Sir Samuel Griffith, Conv. Deb., 1891, p. 850.)

“I do not think there is in this Convention a stronger advocate of State rights and State interests than I am; but, still, I strongly support the clause as it stands, for it seems to me that one of the very fundamental ideas of a federation is that, so far as all outside nations are concerned, we shall be Australia to the outside world, in which expression I include Great Britain; that we shall speak, if not with one voice, at all events, through one channel of communication to the Imperial Government.” (Mr. R. C. Baker, id. p. 852.)

“It really does one good to hear so sound a sentiment from my hon. friend, Mr. Baker, to which I entirely respond. I cannot understand for the very life of me, how we can aspire to be one Australian people under the Crown, and have several channels of communication with the Crown. We must either be a nation or we must be a chain of unfederated States.” (Sir Henry Parkes, id. 853.)

The clause was carried by 16 votes to 6. The draft of the Constitution, as submitted by the Constitutional Committee to the Federal Convention at Adelaide, contained no such clause. In the Convention Mr. Deakin proposed to insert a clause similar to that of the old Bill. Such a provision, he argued, was absolutely essential to secure a proper national administration of Australasian affairs. There should be only one channel of communication with the Imperial Government. If there were separate and independent communications sent to the Imperial Government through the various State Governors, there would be the possibility of dissension and discord. There should be only one Australian voice heard in London, and to secure that, every official communication relating to public matters within the Commonwealth should go through the Governor-General. (Mr. A. Deakin, Conv. Deb., Adel., p. 1177.)

The proposed new clause was strongly objected to by Sir Edward Braddon and Mr. Kingston. It was agreed that the federation should speak with only one voice on behalf of Australia generally, but subject to the qualification that it should only speak on national affairs, and that it should leave State affairs to the management of the States without the slightest interference. If every communication relating to State affairs had to pass through the Governor-General, it would mean the subordination and degradation of the office of State Governor to the position occupied by a Lieutenant-Governor in Canada. The States would regard it as objectionable to have to send their reserved Bills to the Imperial Government through the Governor-General. It would be a serious blow to the autonomy of the States, and likely to lead to friction between the Governments of the States and the Federal Government; it might result in the loss of power and prestige, which it was not intended that the States should suffer. The proposed clause was negatived.

LOSS OF EXECUTIVE POWER.—Among the prominent executive powers to be transferred from the States to the Federal Government are the administration of the customs and excise departments, and the control of the payment of bounties, from the establishment of the Commonwealth; the administration of the post, telegraph, and telephone departments, the command-in-chief of the naval and military forces, the management of light-houses, light-ships, beacons, buoys, and quarantine, on dates to be proclaimed by the Governor-General after the establishment of the Commonwealth.

GAIN OF EXECUTIVE POWER.—The Governments of the States have, under the new Constitution, assigned to them some new executive powers, among which may be mentioned the issue of writs for election of senators (sec. 12); the certification to the Governor-General of the names of senators chosen for each State (sec. 7); on the place of a senator becoming vacant, before the expiration of his term of office whilst the Houses of Parliament of the State are not in session, the appointment of a person to hold the place temporarily (sec. 15).




  ― 933 ―

Saving of power of State Parliaments.

107. Every power of the Parliament of a Colony447 which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

UNITED STATES —The powers not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.—Amendment X. SWITZERLAND.—The Cantons are sovereign, so far as their sovereignty is not limited by the Federal Constitution; and, as such, they exercise all the rights which are not delegated to the Federal Government.—Art. 3.

HISTORICAL NOTE.—Clause 1, Chap. V. of the Commonwealth Bill of 1891, was as follows:—

“All powers which at the date of the establishment of the Commonwealth are vested in the Parliaments of the several Colonies, and which are not by this Constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliaments of the several States, are reserved to, and shall remain vested in, the Parliaments of the States respectively.” (Conv. Deb., Syd. [1891], pp. 849–50.)

At the Adelaide session, 1897, the clause was passed almost verbatim. At the Melbourne session, before the first report, it was re-drafted as follows:—

“All powers of the Parliament of a colony or province which at the establishment of the Commonwealth or afterwards becomes a State, except such powers as are by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, shall continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.”

After the fourth report the clause was altered to its present form.

§ 447. “Power of the Parliament of a Colony.”

The Parliament of each State is a creation of the Constitution of the State. The Constitution of each State is preserved, and the parliamentary institutions of each State are maintained without any structural alteration, but deprived of power to the extent to which their original legislative authority and jurisdiction has been transferred to the Federal Parliament. In the early history of the Commonwealth the States will not seriously feel the deprivation of legislative power intended by the Constitution, but as Federal legislation becomes more active and extensive the powers contemplated by the Constitution will be gradually withdrawn from the States Parliaments and absorbed by the Federal Parliament. The powers to be so withdrawn may be divided into two classes—“exclusive” and “concurrent.” Exclusive powers are those absolutely withdrawn from the State Parliaments and placed solely within the jurisdiction of the Federal Parliament. Concurrent powers are those which may be exercised by the State Parliaments simultaneously with the Federal Parliament, subject to the condition that, if there is any conflict or repugnancy between the Federal law and the State law relating to the subject, the Federal law prevails, and the State law to the extent of its inconsistency is invalid.

EXCLUSIVE POWERS.—The following are the powers which in the course of time will be absolutely withdrawn from the States:—

  • (1.) Power to make laws with respect to the seat of Government (sec. 52—i.). This power will become exclusive on the acquisition of the territory within which the seat of Government is situated (sec. 125).



  •   ― 934 ―
  • (2.) Power to make laws with respect to places acquired by the Commonwealth for public purposes (secs. 52—i. and 122).
  • (3.) Power to make laws with respect to any part of a State surrendered by the State to and accepted by the Commonwealth (sec. 111), or to territory placed by the Queen under the authority of and accepted by the Commonwealth (sec. 122).
  • (4.) Power to make laws with respect to departments of the public service transferred to the Commonwealth (sec. 52—ii.). This power will become exclusive immediately upon the transfer of the departments.
  • (5.) Power to make laws imposing duties of customs and of excise (sec. 90). This power will become exclusive on the imposition of uniform duties of customs.
  • (6.) Power to make laws granting bounties on the production or export of goods (sec. 90). According to the literal words of the Constitution this power does not become exclusive until the imposition of uniform duties of customs.
  • (7.) Power to make laws with respect to the naval and military defence of the Commonwealth and of the States (sec. 51—vi.). This power becomes exclusive on the establishment of the Commonwealth (sec. 114).
  • (8.) Power to make laws with respect to the coinage of money (sec. 51—xii., and sec. 115).
  • (9.) Power to make laws with respect to legal tender in anything but gold and silver coin (sec. 115).

CONCURRENT POWERS.—Of the 39 classes of subjects enumerated in sec. 51, with respect to which the Federal Parliament has power to make laws, 13 are quite new, and are applicable only to the Commonwealth, having been created by the Constitution, and are of such a character that they could only be vested in and effectually exercised by the Federal Parliament; such as: The power to borrow money on the credit of the Commonwealth, fisheries in Australian waters beyond territorial limits, and sub-sections xxiv., xxv., xxix., xxx., xxxi., xxxiii., xxxv., xxxvi., xxxvii., xxxviii., and xxxix. Three of those 39 classes of subjects, viz.:—

  • (1.) Bounties (except aids on mining for gold, silver, or metal)—after the imposition of uniform duties of customs (sec. 90).
  • (2.) Naval and military defence (secs. 51—vi. and 114).
  • (3.) Coinage and legal tender (secs. 51—xii. and 115).

formerly vested in the States — are exclusively within the competence of the Federal Parliament. Trade and Commerce is a concurrent power, but a branch of it, viz., the power to impose duties of customs and excise, becomes exclusively vested in the Federal Parliament on the imposition of uniform duties of customs (sec. 90). This leaves, in the list of 39 subjects, 23 old powers which formerly belonged to the States, but are now concurrently vested in the State Parliaments and the Federal Parliament, subject to the condition imposed by sec. 109. These concurrent powers are as follows:—

  • (1.) Astronomical and meteorological observations (viii.).
  • (2.) Banking, other than State banking; also State banking extending beyond the limit of the State concerned, the incorporation of banks, and the issue of paper money (xiii.).
  • 3.) Bankruptcy and insolvency (xvii.).
  • (4.) Bills of exchange and promissory notes (xvi.).
  • (5.) Census and statistics (xi.).
  • (6.) Copyrights, patents of inventions and designs, and trade-marks (xviii.).



  •   ― 935 ―
  • (7.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants (xxii.).
  • (8.) Foreign corporations, and trading or financial corporations formed within the Commonwealth (xx.).
  • (9.) Immigration and emigration (xxvii.).
  • (10.) Influx of criminals (xxviii.).
  • (11.) Insurance, other than State insurance; also State insurance extending beyond the limits of tho State concerned (xiv.).
  • (12.) Invalid and old-age pensions (xxiii.).
  • (13.) Light-houses, light-ships, beacons and buoys (vii.).
  • (14.) Marriage (xxi.).
  • (15.) Naturalization and aliens (xix.).
  • (16.) People of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws (xxvi.).
  • (17.) Postal, telegraphic, telephonic, and other like services (v.).
  • (18.) Quarantine (ix.).
  • (19.) Railways, control with respect to transport for naval and military purposes of the Commonwealth (xxxii.).
  • (20.) Railway construction and extension in any State with the consent of that State (xxxiv.).
  • (21.) Taxation; but so as not to discriminate between States or parts of States (ii.).
  • (22.) Trade and commerce with other countries, and among the States (i.); except that on the imposition of uniform duties of customs the power to impose duties of customs and excise becomes exclusively vested in the Federal Parliament (sec. 90).
  • (23.) Weights and measures (xv.).

RESIDUARY LEGISLATIVE POWERS.—The residuary authority left to the Parliament of each State, after the exclusive and concurrent grants to the Federal Parliament, embraces a large mass of constitutional, territorial, municipal, and social powers, including control over:

  • Agriculture and the cultivation of the soil:
  • Banking — State banking within the limits of the State:
  • Borrowing money on the sole credit of the State:
  • Bounties and aids on mining for gold, silver, or metals:
  • Charities—establishment and management of asylums:
  • Constitution of State: amendment, maintenance and execution of
  • Corporations—other than foreign corporations and trading or financial corporations:
  • Courts—civil and criminal, maintenance and organization for the execution of the laws of a State:
  • Departments of State Governments — regulation of
  • Education
  • Factories
  • Fisheries within the State:
  • Forests
  • Friendly Societies
  • Game
  • Health
  • Inspection of goods imported or proposed to be exported in order to detect fraud or prevent the spread of disease:



  •   ― 936 ―
  • Insurance — State Insurance within the limits of the State:
  • Intoxicants—the regulation and prohibition of the manufacture within the State of fermented, distilled, or intoxicating liquids:
  • Justice—Courts:
  • Land—management and sale of public lands within the State:
  • Licenses—the regulation of the issue of licenses to conduct trade and industrial operations, within the State, such as liquor licenses and auctioneers' licenses. Subject however to sec. 92:
  • Manufactures—see factories:
  • Mines and Mining:
  • Municipal institutions and local government:
  • Officers—appointment and payment of public officers of the State:
  • Police — regulations, social and sanitary:
  • Prisons—State prisons and reformatories:
  • Railways—control and construction of railways within the State, subject to constitutional limitations (see Restricted Powers):
  • Rivers—subject to constitutional limitations (see Restricted Powers):
  • Shops—subject to constitutional limitations (see Restricted Powers):
  • Taxation on order to the raising of revenue for State purposes (see Restricted Powers):
  • Trade and Commerce within the State (see Restricted Powers):
  • Works—construction and promotion of public works and internal improvements, subject to the constitutional limitations (see Restricted Powers):

RESTRICTED POWERS.—Some powers reserved to the States can only be exercised sub modo—subject to conditions and limitations specified by the Constitution:

  • Bounties—A State may, with the consent of both Houses of the Federal Parliament, expressed by resolution, grant any aid or bounty on the production or export of goods (sec. 91):
  • Naval and Military Forces—A State may with the consent of the Federal Parliament raise and maintain naval and military forces (sec. 114):
  • Railways—A State may construct, use, and control its railways, but subject to Federal control with respect to transport for naval and military purposes of the Commonwealth (sec. 51—xxxii.) and subject to the rule that in the use and control of its railways the State may be forbidden to make any preferences or discriminations, which in the judgment of the Inter-State Commission are undue and unreasonable, or unjust to any State (sec. 102):
  • Rivers—A State and its residents have the right to the reasonable use of the waters of rivers within the State for conservation or irrigation (secs. 98, 100):
  • Taxation of Federal property—A State may, with the consent of the Federal Parliament, impose any tax on property of any kind belonging to the Commonwealth (sec. 114):
  • Taxation—A State may impose taxation so long as it does not conflict with federal taxation, and so long as it does not violate the rule of inter-state freedom of trade and commerce. It is forbidden to impose duties of customs and excise after the imposition of uniform duties of customs by the Federal Parliament (secs. 90, 92):

NEW LEGISLATIVE POWERS.—By the Federal Constitution certain new legislative powers are conferred on the Parliament of each State, the exercise of which is necessary for the constitution of the Federal Parliament. The Parliament of each State is permanently endowed with power to make laws for determining the times and places of elections of senators for the State (sec. 9). Until the Federal Parliament otherwise provides, the Parliament of each State may make laws prescribing the method of


  ― 937 ―
choosing the senators for that State (sec. 9). Until the Federal Parliament otherwise provides, the Parliament of any State may make laws for determining the divisions in each State, for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division (sec. 29). Until other provision is made by the Federal Parliament, the qualification of electors of members of both Federal Houses is, in each State, that which is prescribed by the law of the State as the qualification of electors of the more numerous House of the Parliament of the State (sec. 30). The laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State, apply to the election of members of the Federal Parliament, as far as practicable, and until the Federal Parliament makes other provision (secs. 10 and 31). If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, are authorized to choose a person to hold the place until the expiration of the term, or until the election of a successor (sec. 15).

Saving of State laws.

108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament448 of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal449 in respect of any such law as the Parliament of the Colony had until the Colony became a State.

HISTORICAL NOTE.—Clause 2, Chap. V. of the Commonwealth Bill of 1891 was as follows:—

“All laws in force in any of the colonies relating to any of the matters declared by this Constitution to be within the legislative powers of the Parliament of the Commonwealth shall, except as otherwise provided by this Constitution, continue in force in the States respectively, and may be repealed or altered by the Parliaments of the States, until other provision is made in that behalf by the Parliament of the Commonwealth.”

At the Adelaide session, 1897, this clause was adopted verbatim. At the Melbourne session it was verbally amended. (Conv. Deb., Melb., pp. 642–3.) It was redrafted after the fourth report.

§ 448. “Any Matter Within the Powers of the Parliament.”

The preceding section declares how the Federal Constitution will affect the powers of the Parliament of a State; it provides that those powers not exclusively vested in the Federal Parliament, or withdrawn from the States, continue as at the establishment of the Commonwealth. This section declares how the Federal Constitution will affect the laws in force in a colony which has become a State. The powers of a Parliament are those conferred on it by its Constitution. The laws of a Parliament are its acts passed in the exercise of its powers. The possession of power is different from the exercise of power; powers may not conflict, but their exercise may; in the event of a conflict the laws of the Union are supreme. (Lewis, Fed. Power Over Commerce, p. 39.)




  ― 938 ―

Every law in force in a colony, relating to any matter within the power of the Federal Parliament, continues in force, subject to the Federal Constitution. In considering what laws remain in force and how long, regard must be had to the distinctions between different classes of powers.

As regards laws of the States relating to matters in which the Federal Parliament is given concurrent powers, no difficulty arises. Such laws clearly remain in force except so far as they may be inconsistent with laws passed by the Federal Parliament in the exercise of its concurrent power. When a conflict arises, the federal law prevails; but unless there is a conflict, the State law holds good.

As regards laws passed by a colony, or a State, in respect of any matter which has subsequently come within the exclusive jurisdiction of the Federal Parliament, we have already distinguished between (1) matters as to which the Federal Parliament is given “exclusive power to make laws,” and (2) matters as to which the Federal Parliament is given “power to make laws”—not expressed to be exclusive—and as to which the States are expressly or by necessary implication prohibited from acting. In the first case, what is prohibited to the States is merely the making of laws, and laws already made are not affected, unless inconsistent with federal laws; in the second case, the States are prohibited from either legislative or executive action, and existing laws purporting to authorize them to deal with these matters cease to have effect. (See Note, “Exclusive Power,” § 234, supra.)

Thus the power to raise or maintain a naval or military force; the power to coin money; the power to make anything but gold and silver coin a legal tender in payment of debts, are all denied to the States and granted to the Federal Parliament; therefore, they become exclusively Federal powers from the establishment of the Commonwealth, and all State laws relating thereto are dislodged and displaced once and for all.

There may thus be a distinction between two different degrees of exclusiveness, as regards the operation of the exclusive power upon State laws passed before the character of exclusiveness attached. But the exclusive powers of the Federal Parliament all have one common quality; that with respect to any matter within such exclusive power the State Parliaments, after the exclusiveness of the power attaches, are absolutely deprived of power. The laws which they have previously made may hold good; but they cannot extend, modify, alter, or repeal those laws in any way whatever, because their legislative power is gone.

§ 449. “Powers of Alteration and of Repeal.”

In matters within the power of the Federal Parliament concurrently with the State Parliaments, the laws in force in a State continue until inconsistent provision is made in that behalf by the Federal Parliament; then they cease to have force to the extent of their inconsistency. Subject to that contingency, the Parliament of a State may alter or repeal laws bearing on concurrent matters, in the same way as it could before the colony became a State. The words quoted must refer to concurrent powers. It would be illogical to contend that they refer to powers which have become exclusively vested in the Federal Parliament. The ability to alter or repeal must be based on concurrent power.

Inconsistency of laws.

109. When a law of a State is inconsistent450 with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

HISTORICAL NOTE.—Clause 3, Chap. V. of the Commonwealth Bill of 1891 was in the same words, and was adopted verbatim at the Adelaide session in 1897. At the Melbourne session, Mr. Reid suggested the insertion, after “law of the Commonwealth,” of the words “upon a subject within the legislative powers of the Commonwealth.”


  ― 939 ―
Mr. Symon and Mr. Isaacs explained that this was unnecessary, as a law of the Federal Parliament outside the legislative powers of the Commonwealth would be no law. (Conv. Deb., Melb., pp. 643–4.) After the first report, Mr. Barton, at Mr. Reid's suggestion, moved the same amendment, to remove doubts. On Mr. Reid's request for a postponement, the amendment was withdrawn. (Id. pp. 1911–3.)

§ 450. “When a Law of a State is Inconsistent.”

Our analysis and explanations of secs. 106, 107, and 108 render it unnecessary to elaborate on sec. 109, which is practically a corollary to the three preceding sections. Sec. 106 provides that the Constitution of each State is to continue, subject to the Constitution of the Commonwealth. Sec. 107 provides that the power of each State Parliament is to continue, subject to the Constitution of the Commonwealth. Sec. 108 provides that every law in force in a colony is to continue, subject to the Constitution of the Commonwealth. The consequence of this subjection of State Constitution, State Parliamentary power, and State law, to the Federal Constitution, would have been obvious without the insertion of sec. 109. That section, however, places beyond doubt the principle that the Federal Constitution and the laws passed by the Federal Parliament, in pursuance of that Constitution, prevail over the State Constitutions and the State laws passed by the State Parliaments, in pursuance of the State Constitutions. The later laws, however, are declared to be invalid only to the extent of their inconsistency with the former.

“A law of the Commonwealth” means a valid law. A law passed by the Federal Parliament outside the scope of its authority would be no law at all. (Norton v. Shelby County, 118 U.S. 425.)

It has been held in the United States that the cases in which federal legislation will supersede the legislation of a State are those in which the same matter is the subject of legislation by both. (Davis v. Beason, 133 U.S. 333.) When a State statute and a Federal statute operate upon the same subject matter, and prescribe different rules concerning it, and the Federal statute is one within the power of the Federal Parliament, the State statute must give way. (Gulf, Colorado, and Santa Fè R. Co. v. Hefley, 158 U.S. 98.)

Provisions referring to Governor.

110. The provisions of this Constitution relating to the Governor of a State451 extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.

HISTORICAL NOTE.—Clause 9, Chap. V., of the Commonwealth Bill of 1891 was in identical terms, with the addition of the words “by whatever title he is designated.” At the Adelaide session, 1897, this was adopted without modification. At the Melbourne session, drafting amendments were made before the first report and after the fourth report. (Conv. Deb., Melb., p. 645.)

Chap. V. of the Commonwealth Bill of 1891 also contained the two following clauses:—

  • 7. “In each State of the Commonwealth there shall be a Governor.
  • 8. The Parliament of a State may make such provisions as it thinks fit as to the manner of appointment of the Governor of a State, and for the tenure of his office, and for his removal from office.”

In Committee, Sir John Bray objected to clause 7 as unnecessary and inadvisable, and as an interference with the States. Sir Samuel Griffith did not remember why it


  ― 940 ―
was inserted, but suggested that it was to “indicate that the States are sovereign,” and are not merely to have Lieutenant-Governors. The clause was agreed to. Clause 8 was objected to as limiting the powers of the Crown, as an interference with the State Constitutions which was beyond the functions of the Convention, and as encouraging an undesirable system of elected Governors. On the other hand it was urged that the clause was merely enabling, that there should be some such power, and that the objections were imaginary. The clause was carried by 20 votes to 19. (Conv. Deb., Syd., 1891, pp. 865–77.)

At the Adelaide session the clause providing that there should be State Governors was introduced verbatim, but the clause dealing with their mode of appointment was omitted. In Committee, Dr. Cockburn moved to insert it, as otherwise the appointment of the Governors would practically be with the Federal Executive, as in Canada. This amendment would have enabled the Parliament of a State to provide for the election of the Governor, either by the Parliament of the State, or by a mass vote of the people. Mr. Grant suggested the substitution of “Lieutenant-Governor,” and Sir John Downer supported Dr. Cockburn, to make it clear that the State Governors are not Lieutenant-Governors. The clause was objected to partly on the ground that the Convention had no authority to interfere with the Constitutions of the States, even to make them more easy of amendment than at present; and partly on the ground that the clause was not only a power but an invitation to the States to elect their own Governors. On the other hand it was urged that the Constitution practically abolished the necessity for State Governors, or at least altered the character of their office; and that it was the duty of the Convention to empower the States to meet the altered circumstances. Eventually Dr. Cockburn withdrew his amendment on the understanding that the clause requiring that “in each State of the Commonwealth there shall be a Governor” should also be omitted. This was done. (Conv. Deb., Adel., pp. 992–1001.)

§ 451. “Governor of a State.”

The provisions of this Constitution relating to the Governors of States are:—

  • Sec. 7, which provides that the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.
  • Sec. 12, which empowers the Governor of any State to cause writs to be issued for elections of senators for the State.
  • Sec. 15, which empowers the Governor of a State, with the advice of his Executive Council, to temporarily fill a vacancy in the representation of the State in the Senate, if the Parliament of the State is not in session.
  • Sec. 21, which requires the President of the Senate, or the Governor-General, to notify to the Governor of a State any vacancy in the representation of the State in the Senate.
  • Sec. 84, which defines the rights of any officer in the public service of a State who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth.



  ― 941 ―

States may surrender territory.

111. The Parliament of a State may surrender452 any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

HISTORICAL NOTE.—Clause 12, Chap. V. of the Commonwealth Bill of 1891 was in almost identical terms, and was adopted at the Adelaide session in 1897. At the Melbourne session, a suggestion by the Parliament of Tasmania to substitute “its territory” for “the State” was negatived. (Conv. Deb., Melb., p. 646.) Drafting amendments were made after the fourth report.

§ 452. “The Parliament of a State may Surrender.”

A State, through the legislative action of its Parliament, may surrender any part of its territory to the Commonwealth. The Commonwealth, through the Federal Parliament, may accept the surrendered territory, which thereupon becomes subject to its exclusive jurisdiction.

This provision was contained in the Bill of 1891, and seems to have had reference to two other provisions of that Bill:—namely, Clause 53-ii., Chap. I., which, following the words of the Americal Constitution, gave the Federal Parliament exclusive power with respect to the government of any territory “which may by surrender of any State or States and the acceptance of the Parliament become the seat of Government of the Commonwealth,” and the exercise of like authority over all places acquired by the Commonwealth with the consent of a State for public purposes; and Clause 3, Chap. VI., which empowered the Parliament to make laws for the provisional government of any territory surrendered by the State to or accepted by the Commonwealth.

The Bill of 1891 thus contemplated two kinds of territory which the Commonwealth might acquire from a State by surrender and acceptance: namely, (1) territory surrendered to the Federal Government for the special purpose of the seat of Government, or other public purposes; and (2) territory surrendered, to be provisionally administered by the Federal Government until the time should be ripe for its establishment as a new State or States. Between these two kinds of federal territory the American authorities show that there is a fundamental difference. Territory ceded to the “exclusive jurisdiction” of the Federal Government for special purposes cannot be erected by the Federal Government into new States, or given anything but purely municipal powers of self-government. Exclusive jurisdiction does not necessarily mean unlimited jurisdiction; the Federal Government cannot delegate this exclusive power to a local legislature—though it can, by ceding the territory back to the State from which it was obtained, or to some other State, extinguish the exclusive power altogether. (Stoutenburgh v. Hennick, 129 U.S. 141; Burgess, Pol. Sci. II. p, 160; Von Holst, Const. Law, p. 173.) On the other hand, territory ceded to the Federal Government to be organized under a territorial Government may be so organized, and may, in the discretion of the Federal Legislature, be erected into a State. (Burgess, Pol. Sci. II. p. 161.)

The two kinds of territories were clearly contrasted by Marshall, C.J., in Loughborough v. Blake, 5 Wheat. at p. 324, when he distinguished between “a part of the society which is either in a state of infancy, advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained, as is the case with the Territories; or which has voluntarily relinquished the right of representation, and has adopted the whole body of Congress for its legitimate government, as is the case with the District.”




  ― 942 ―

Whether this clause was primarily designed to meet the case of the seat of Government, and other places surrendered for public purposes, or whether it was intended to apply to territories generally, there is nothing in the debates to show. Even without this clause, the two other provisions, quoted above, would have clearly implied a power to acquire both kinds of territory; and this clause was probably added to remove any doubt that might exist as to whether the States — not having had, before Federation, the sovereign power of ceding territory—could do so without an express grant of power.

Under the Constitution as it now stands the acquisition of territory for the seat of Government seems to be provided for by sec. 124, and the power to acquire territorial possessions by surrender and acceptance seems sufficiently implied by sec. 122. This section, however, will enable the Commonwealth to acquire territory for special purposes by negotiating with the States, and without the necessity for the exercise of its power of eminent domain under sec. 51—xxxi. Territory thus acquired for special public purposes cannot be erected into a State or granted any but purely municipal powers of self-government; nor can its inhabitants be given any rights which, under the Constitution, belong only to the people of the States. (See authorities cited supra.)

States may levy charges for inspection laws.

112. After uniform duties of customs have been imposed, a State may levy453 on imports or exports454, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws455 of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.

UNITED STATES.—No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of the Congress. (Const. Art. I., sec. X. sub-s. 2.

HISTORICAL NOTE.—Clause 13 of Chap. V. of the Commonwealth Bill of 1891 was as follows:—

“A State shall not impose any taxes or duties on imports or exports, except such as are necessary for executing the inspection laws of the State; and the net produce of all taxes and duties imposed by a State on imports and exports shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.”

At the Adelaide session, the same provision was adopted, but with the introductory words “After uniform duties of customs have been imposed,” and with the substitution of “imposts or charges” for “taxes or duties.” At the Melbourne session, a suggestion by the Legislative Council of New South Wales to omit the second part of the clause was negatived. Mr. Isaacs pointed out that, according to American decisions, the prohibition did not apply to inter-state trade, and would not affect the police powers of the States. A question was raised by Mr. Henry whether the clause applied to wharfage rates, and whether marine boards and harbour trusts would be affected. Mr. Barton replied that charges for services were not imposts. Mr. Glynn proposed to add, after “inspection laws of the State,” the words (suggested by the Parliament of Tasmania):—“Or by way of payment for services actually rendered in improvement or maintenance of ports or harbours or in aid of navigation.” Mr. Barton thought the amendment dangerous, and it was withdrawn for further consideration. (Conv. Deb.,


  ― 943 ―
Melb., pp. 646–52.) Before the first report, the clause was thrown into the enabling, instead of the prohibitive form—the prohibition being already contained in secs. 90 and 92. After the fourth report the clause was further amended by the addition, after “imports or exports,” of the words “or on goods passing into or out of the State.”

§ 453. “A State may Levy.”

Sec. 90 provides that after uniform duties have been imposed, the power of the Parliament to impose duties of customs shall be exclusive. That section accordingly prohibits the States from thereafter imposing duties of customs — a term which includes both import and export duties on goods entering or leaving the Commonwealth. (Webster's Internat. Dict.) Sec. 92 further provides that from the same time “trade, commerce, and intercourse among the States … shall be absolutely free.” That section prohibits the States and the Commonwealth from imposing duties on goods passing from one State to another.

This section reserves to the States, notwithstanding the above provisions, the police power of making charges which may be necessary for executing their inspection laws. Such charges would seem to be both taxes and duties, and might, in the absence of special provision, have been held to be within either or both of the above prohibitions.

The section, however, though it expressly reserves this police power to the States, also makes the exercise of the power subject to control by the Federal Parliament. State laws imposing such charges, even though they may be necessary for executing the inspection laws of the State, may be annulled by the Federal Parliament; and if they are not necessary for that purpose, they are not protected from the prohibitions of secs. 90 and 92.

§ 454. “Imports or Exports.”

It was suggested at the Convention (Deb., Melb., p. 647), on the authority of Brown v. Houston, 114 U.S. 622, and Woodruff v. Parham, 8 Wall. 123, that these words did not apply to goods carried from one State to another, but only to goods imported from or exported to foreign countries. On the other hand in Brown v. Maryland, 12 Wheat. 419, Marshall, C.J., in deciding that a charge imposed by the State of Maryland on foreign imports was unconstitutional both as a duty on imports and as a regulation of commerce, said:—“It may be proper to add that we suppose the principles laid down in this case to apply equally to importations from a sister State.” And in Leisy v. Hardin, 135 U.S. 100, Fuller, C.J., quoting these words, said: “Manifestly this must be so, for the same public policy applied to commerce among the States as to foreign commerce, and not a reason could be assigned for confiding the power over the one which did not conduce to establish the propriety of confiding the power over the other.”

In this Constitution the words imports and exports are uniformly used of foreign imports and exports only, and the words “goods passing into or out of the State” are used with reference to inter-state trade. (See secs. 92, 93, 95.)

§ 455. “Inspection Laws.”

DEFINITION.—The inspection laws of a State are those laws which a State may enact in the exercise of its police powers, providing for the official view, survey, and examination of personal property, the subjects of commerce, in order to determine whether they are in a fit condition for sale according to the commercial usages of the world. (Foster v. Port Wardens, 94 U.S. 246.) The examination extends to the quality, form, size, weight, and measurement of articles imported. An inspection, it is held, is something which can be accomplished by looking at, or weighing, or measuring the thing to be inspected, or by applying to it at once some crucial test. When testimony or evidence is to be taken and examined, it is not inspection in any sense


  ― 944 ―
whatever. (The People v. Compagnie Transatlantique, 107 U.S. 62.) In some cases chemical analysis may be demanded, and in these cases State requirements that the vendor shall furnish samples of his goods to the State chemist, and label the product with the correct statement of its chemical ingredients, are valid. (Patapsco Guano Co. v. Board of Agriculture, 171 U.S. 345.) The object of examination is to ascertain whether the articles examined are fit for commerce, and to protect the citizens and the market from fraud. (The People v. Edye, 11 Daley [U.S.] 132.) Inspection laws must not be of a discriminating character. (Brimmer v. Rebman, 138 U.S. 78; Voight v. Wright, 141 U.S. 62.)

LIMITS OF INSPECTION LAWS.—The power to inspect is not applicable to vessels and other means of transportation. (Railroad Co. [Morgan L. and T.] v. Board of Health, 36 Louisiana Ann. 666.) Under the guise of inspection laws a State is not permitted to impose a heavy charge amounting to a tax or an obstruction of trade and commerce. The courts will scrutinize the purpose and the amount of such a tax, and will decide whether it is intended to violate the constitutional prohibition. (Goodwin v. Caraleigh Phosphate Works, 119 N. Carolina, 120.) The Federal Parliament may also at any time annul State inspection laws which are objectionable or suspected of being intended to obstruct the freedom of inter-state trade and commerce.

EXAMPLES OF INSPECTION LAWS.—A law of Maryland requiring tobacco to be brought to a State warehouse for inspection and branding, &c., and to pay charges for outage and storage, held to be valid as inspection laws. (Turner v. Maryland, 107 U.S. 38. Baker, Annot. Const. 104.)

Taxes in aid of the inspection laws of a State, under special circumstances, have been upheld as necessary to promote the interests of commerce and the security of navigation. They are so upheld as contemplating benefits to commerce and navigation, and as altogether distinct from imposts and excise duties, and duties on tonnage. (State Tonnage Tax Cases, 12 Wall. 204–219. Id.)

When the right of inspection exists and is properly exercised, it applies alike to imports and exports. (Neilson v. Garza, 2 Woods, 287. Id.)

Inspection laws, so far as they act upon articles of exportation, are generally executed on land, before the article is shipped; so far as they act on importation they are generally executed on articles which are landed. The tax or duty of inspection, then, is a tax paid for the performance of the services and while the article inspected is in the bosom of the country. This is an exception to the prohibition on the States to lay duties on imports or exports, and was made because the tax would otherwise have been within the prohibition. (Brown v. Maryland, 12 Wheat. 419–438. Id.)

This clause has reference to the inspection of property, and cannot be made to apply to free human beings. The methods of determining whether such persons are criminals, paupers, lunatics, &c., are not to be determined by inspection laws alone. (The People v. Compagnie Gen. Transatlantique, 107 U.S. 59. Id.)

The statute of Minnesota held unconstitutional and void in so far as it requires, as a condition of sales in Minnesota of fresh meat for human food, that the animals from which such meat is taken shall have been inspected in that State before being slaughtered. The inspection thus provided for is of such character, or is burdened with such conditions, as will prevent the introduction into the State of sound meats, the product of animals slaughtered in other States. (Minnesota v. Barber, 136 U.S. 314. Id.)

Intoxicating liquids.

113. All fermented, distilled, or other intoxicating liquids456 passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

HISTORICAL NOTE.—At the Adelaide session, Mr. Deakin moved, as an addition to the free-trade clause (sec. 92) the words “But nothing in this Constitution shall prevent any State from prohibiting the importation of any article or thing, the sale of which


  ― 945 ―
within the State has first been prohibited by the State.” The object was to enable the States to prevent the importation of articles—such as alcohol or opium—which it deemed hurtful. This was then postponed in order to proceed with the financial clauses. (Conv. Deb., Adel., pp. 875–7.) At a later stage, it having been suggested that the clause might affect the fiscal issue, and also that power ought to be given to regulate as well as to prohibit the sale, Mr. Deakin moved his amendment in this form:

“Nothing in this Constitution shall be construed to prevent any State from regulating the importation of opium or alcohol under conditions which are applicable as nearly as possible to the laws relating to opium and alcohol within the State.”

Mr. O'Connor opposed the amendment; partly because it was unnecessary, American decisions showing that retail sale within the State might be prohibited; and partly because the mention of these two articles might dangerously limit the police powers of the States with regard to other articles. After debate the amendment was negatived by 15 votes to 14. (Id. pp. 1140–8.)

During the statutory adjournment, the Legislative Assemblies of New South Wales and Victoria, and both Houses in South Australia, made suggestions substantially identical with Mr. Deakin's “opium and alcohol” proposal; and the Legislative Assembly of Victoria made a suggestion (practically identical with the Wilson Act—Note, § 456, infra) to add to the trade and commerce sub-clause these words:—

“Provided that all fermented, distilled, or other intoxicating liquors or liquids transported into any State or territory or remaining therein for use, consumption, sale, or storage therein, shall upon arrival in such State or territory be subject to the operation and effect of the laws of such State or territory to the same extent and in the same manner as though such liquors or liquids had been produced in such State or territory.”

At the Sydney session, Mr. Deakin moved the Victorian amendment, which after considerable debate was carried. (Conv. Deb., Syd., 1897, pp. 1037–59.) At the Melbourne session, before the first report, the provision was transferred, with verbal amendments, to a separate clause. A further drafting amendment was made after the fourth report.

§ 456. “Intoxicating Liquids.”

As an introduction to a study of this section, reference may be made to the leading provisions of the Constitution with reference to trade and commerce. The first fundamental rule is that the Federal Parliament may make laws with respect to trade and commerce with other countries and among the States (sec. 51—i.). The next rule is that after the imposition of uniform duties of customs the Federal Parliament acquires exclusive power to impose duties of customs and excise, and to grant bounties on the production or export of goods (sec. 90). The result of these two rules is to leave to the States a concurrent power to deal with inter-state and foreign commerce, but to take from them the power to deal with customs, excise, and bounties. The concurrent power, however, may not be exercised in a manner inconsistent with Federal legislation. The third rule is that each State retains the sole and exclusive power to deal with the manufacture, production, use, and consumption of articles of commerce, and the sole and exclusive power to regulate the internal trade and commerce of the State — that is, trade and commerce which begins and ends in the State—subject to the limitation that it may not grant bounties on the production of goods (sec 51—iii.). The next important rule is, that on and after a certain event trade and commerce and intercourse among the States, whether by internal carriage or ocean navigation, shall be absolutely free (sec. 92). This mandate, in favour of the freedom of inter-state trade and commerce, is as binding on the Federal Parliament as on the States. Neither the Federal Parliament nor the States are permitted to make any rule or regulation of commerce obstructing the free transportation of goods, wares, and merchandise from one State into another. To this rule of freedom sec. 113 is intended to enable the States to make an exception or qualification


  ― 946 ―
in the case of fermented, distilled, or other intoxicating liquids. As to the manner in which the section will operate several cases decided in the United States under a corresponding law will afford a valuable guide.

Prior to the year 1888, the law of the State of Iowa permitted the sale of foreign liquors imported under the laws of the United States, subject to the condition that the sale was effected by the importer in the original casks and packages. In 1888 the law was amended so as to provide that, whether imported or not, wine could not be sold in Iowa except for sacramental purposes, nor alcohol except for specified chemical purposes, nor intoxicating liquors, including ale and beer, except for pharmaceutical and medicinal purposes, and not even for those limited purposes except by registered pharmaceutists having proper permits. Certain brewers doing business in the State of Illinois shipped beer in sealed packages to Keokuk in the State of Iowa, where it was offered for sale in the original packages. A certain quantity of the beer was seized by Hardin, the City Marshall of Keokuk, under colour of authority of the law of Iowa. The brewers then brought an action against Hardin to recover the beer seized. The local court gave judgment for the plaintiffs on the ground that the State law was invalid. This judgment was reversed by the Supreme Court of Iowa. The brewers appealed to the Supreme Court of the United States, which allowed the appeal and restored the judgment of the local court. The ground of the decision was that the State could not pass a law obstructing free trade and intercourse between the States. At the same time the court suggested no doubt as to the power of the State to control the sale of imported articles, once they had become mixed with the general mass of property in the State. (Leisy v. Hardin [1890], 135 U.S. 100.)

It was in consequence of the decision in Leisy v. Hardin that on 8th August, 1890, a statute was passed by Congress now known as the Wilson Act, which provided:—

“That all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.”

As soon as this Act was passed it was challenged as involving an unconstitutional delegation of power by Congress. The power conferred by the Act was used by several States, and its meaning and constitutionality became the subject of judicial decision. No doubt as to its constitutionality was suggested by any of the courts. An Act passed by Congress in 1886, providing that the transportation of and traffic in nitroglycerine and other high explosives might be regulated or prohibited by the States, had never been questioned. It had been the settled practice of Congress to grant to the States on the sea-board permission to collect duties at their ports for the improvement of harbours, the erection of piers and light-houses, and the appointment of health officers. Such laws did not amount to a delegation of power by Congress to the States. So with reference to such a law as the Wilson Act. It delegated no power to the States; it conferred no additional authority on the States; it merely removed an impediment to the operation of State law. State statutes passed before the Wilson Act were not void but only inoperative; they became effective at once upon the passage of the Federal statute without being re-enacted. (Re Rahrer, 140 U.S. 545; Prentice and Egan, Commerce Clause, p. 81.)

The construction of the Wilson Act was a more difficult question. The most important point was whether under its provisions a State could forbid the introduction of intoxicating liquors within its limits. In the case of State v. Rhodes, 90 Iowa, 496, it was held that liquor becomes subject to the police laws of the State immediately upon its arrival within the State, and that under the law of Iowa its transportation was unlawful. This construction of the statute was not adopted by the Supreme Court of the United States, which held that the Federal statute did not authorize a State to


  ― 947 ―
forbid the introduction of intoxicating liquor, but recognized the right of transportation and permitted the State law to operate upon the liquor only when its carriage was completed, and when it had reached its destination and been delivered to the consignee. (Rhodes v. Iowa, 170 U S. 412.)

The Wilson Act has been further considered by the courts in litigation arising out of the South Carolina Dispensary Act. This law forbade the sale of intoxicating liquor, within the State, by any private individuals. It prohibited the importation of liquor for use by the importer, but permitted the use of domestic liquor. It vested in the State the sole right to sell liquor. Officers were appointed throughout the State to dispense liquor at convenient places, and the profits arising from the business were appropriated to the State, county, and municipal treasuries. This law was declared void by the Supreme Court of South Carolina. (McCullough v. Brown, 41 S. Carol. 220; Prentice and Egan, Commerce Clause, p. 80.) The decision in that case has since been overruled, but some of its doctrines have been approved of in Federal courts. This Dispensary Act, it is said, is not a proper exercise of the police power so far as it discriminates between inter-state and domestic commerce, in articles the manufacture and use of which are lawful. A State could not forbid the importation of liquor for use by the importer while it permitted the use of domestic liquors. (Donald v. Scott, 67 Fed. Rep. 854 and 165 U.S. 558.) In the case of Vance v. Vandercook Co., 170 U.S. 438, it was held that the fact of the State law permitting the sale of liquor, subject to certain restrictions, did not prevent the law from being an exercise of police power. The Federal Act, it was said, was passed to allow State regulations to operate on the sale of original packages of intoxicants brought from other States; it was not intended that a State should be unable to control the liquor traffic except by prohibition. The effect of the decision in this case is that the importation of intoxicating liquors, for use by the importer, cannot be prohibited under the Wilson Act, but that upon their importation for sale they come within the operation of the Act and State laws founded thereon. (Prentice and Egan, Commerce Clause, p. 81.)

Section 113 may now be compared with the Wilson Act, on which it is founded. It will be at once seen that it is not intended to authorize the States to prohibit the introduction of intoxicating liquids; once introduced they cannot be prevented from reaching their destination—the consignee. What the section provides is that intoxicating liquids, upon passing into any State for use, consumption, sale, or storage, shall become subject to the laws of the State as if they had been produced in the State. They are liable to the same licensing laws as locally produced intoxicants; they are liable to the same restrictive and regulating laws; they are liable to the same prohibitive laws. Their sale may be restricted to certain limited purposes; or to certain defined localities; it may be allowed to be conducted by certain qualified persons only; or it may be forbidden altogether. The only condition to the legality of the liquor laws of a State is that they must apply without discrimination to intoxicants locally produced as well as to those imported.

The liquor laws of a State would only be allowed to apply to intoxicants passing into a State for use, consumption, sale, or storage. They would not imply to intoxicants passing into a State for the purpose of being transported directly and without the intervention of a sale into another State. (See notes, § 163, pp. 528, 548, supra.)

PROHIBITION AND LOCAL OPTION.—The Federal Parliament has not control over the liquor traffic as extensive as that exercised by the Parliament of Canada, which has power to regulate “trade and commerce” generally. The Federal Parliament can deal only with trade and commerce with other countries and among the States. This excludes the trade and commerce which begins and ends in a State. A federal law authorizing the establishment of a system of local option under which the sale of liquor could be prohibited in defined areas, or restricted to defined areas, would not be a law relating to trade and commerce “among the States,” but a law relating to trade and commerce in those defined localities “within the States.”




  ― 948 ―

The Federal Parliament has no power to directly prohibit the manufacture of intoxicants or to establish a local option system in any State. It has, however, the exclusive power to impose duties of customs and excise. This will enable it to tax heavily, or lightly, all intoxicating liquids imported into the Commonwealth, or produced in any State—a power which may be exercised in a manner calculated to influence the liquor traffic in a material degree (sec. 90). The Federal Parliament has also the exclusive authority to grant bounties on the production or export of goods (sec. 90). This will enable it, if thought necessary, to directly encourage the manufacture of intoxicants by a pecuniary subsidy. The Parliament of a State would probably be able, under sec. 113, to prohibit the production, or sale, of intoxicants within the State limits, but should the Federal Parliament pass a law offering bounties for the production or export of those intoxicants, an inconsistency would arise, and the State law in that case would be invalid to the extent of the inconsistency (sec. 110). (See this question discussed, p. 548, supra.)

States may not raise forces. Taxation of property of Commonwealth or State.

114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain457 any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth458, nor shall the Commonwealth459 impose any tax on property of any kind belonging to a State.

UNITED STATES.—No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace .… or engage in war unless actually invaded, or in such imminent danger as will not admit of delays. — Const. Art. I., sec. X., sub-s. 3. CANADA.—No lands or property belonging to Canada or any Province shall be liable to taxation.—B.N.A. Act, 1867, sec. 125.

HISTORICAL NOTE.—As introduced in the Sydney Convention of 1891, the clause ran:—

“A State shall not, without the consent of the Parliament of the Commonwealth, impose any duty of tonnage, or raise or maintain any naval or military force, or impose any tax on any land or other property belonging to the Commonwealth.”

In Committee, on Sir Samuel Griffith's motion, the words “nor shall the Commonwealth impose any tax on any land or property belonging to a State” were added. (Conv. Deb., Syd. [1891], 883.) At the Adelaide session, 1897, the clause was introduced in substantially the same form. In Committee, Mr. Henry asked how the words “tonnage dues” would affect Marine Boards and Harbour Trusts, which were dependent for revenue on tonnage dues. Mr. Barton thought the words unnecessary, since if they were payments for services they ought not to be interfered with, and if taxes they would be unconstitutional as interfering with free trade. The words were omitted. At the Melbourne session, the clause was shortly discussed. (Conv. Deb., Melb., p. 653.) A verbal transposition was made after the fourth report.

§ 457. “Raise or Maintain.”

A State is forbidden without the consent of the Federal Parliament to raise or maintain any naval or military force. This inhibition, coupled with sec. 51—vi., has the effect of conferring on the Federal Parliament exclusive power with respect to naval and military forces. The negation in this section is so strong, “no State shall raise or maintain,” that it begins to operate immediately on a colony becoming a State; thereafter it will render the raising maintenance of naval and military forces by a State absolutely illegal. The inhibition, however, is accompanied by the condition that it may be removed with the consent of the Federal Parliament.




  ― 949 ―

Sec. 69 provides that the departments of naval and military defence in each State shall be transferred to the Commonwealth on a date to be proclaimed by the Governor-General. A question arises as to the position of the existing naval and military forces in the different colonies during the period after the establishment of the Commonwealth and before the actual transfer. No permissive law can be passed until the Parliament meets; and it can hardly be intended that during that interval the maintenance of the existing forces is illegal. It has been suggested, in order to meet this difficulty, that “maintain” should be read as subsidiary to “raise,” so that the words should mean “no State shall raise or (having raised) maintain.” The difficulty could, of course, be evaded by the transfer of the defence departments simultaneously with the establishment of the Commonwealth.

§ 458. “Impose any Tax on Property .. Belonging to the Commonwealth.”

The immunity of Commonwealth property from taxation by the States is secured by this section. A State may not impose any tax on property of any kind belonging to the Commonwealth without its consent given through the agency of the Federal Parliament. The property of the Commonwealth will include all revenues derived from taxation (sec. 51—ii.); money borrowed on the credit of the Commonwealth (sec. 51—iv.); land, places, buildings, and chattels acquired by the Commonwealth from the States, or from private individuals (sec. 51—xxxi.); such railways as may be taken over by the Commonwealth from the States (sec. 51—xxxii.); such railways as may be constructed or extended by the Commonwealth for the States (sec. 51—xxxiii.); revenue derived from fines, penalties, fees, and forfeitures imposed by Federal laws (sec. 53); departmental buildings and property which will be transferred to the Commonwealth by the States, such as post and telegraph buildings and materials, military and naval works, fortifications, equipments, war materials, war vessels, &c., light-house and light-ships, beacons and buoys, and quarantine stations (sec. 69); and property of any kind used in connection with departments taken over (sec. 85—i.).

Under the Constitution of the United States, which contains no express inhibition like this, it has been held that the States cannot tax the property and lawful agencies and instrumentalities of the Federal Government, no matter in whose hands they may be found. McCulloch v. Maryland, 4 Wheat. 316; Dobbins v. Commissioners of Erie County, 16 Pet. 435; Bank Tax Cases, 3 Wall. 573; Compare Leprohon v. City of Ottawa, 2 Ont. App. 522.)

A stock of the United States which constitutes the whole or a part of the capital stock of a State bank is not subject to State taxation. Such taxation would be a tax upon the exercise of the powers conferred upon Congress. If such power were recognized in the States it might be carried to such extent as to, in effect, destroy this power in Congress. (The People of New York v. Commissioners of Taxes, 2 Wall. 200. Baker, Annot. Const. 17.)

Securities of the United States are exempt from State taxation, and this immunity extends to the capital stock of a corporation if made up of such public funds. (Provident Inst. v. Massachusetts, 6 Wall. 611; National Bank v. Kentucky, 9 Wall. 353. Id. 18.)

United States certificates of indebtedness issued by the general Government directly to creditors are subject to taxation by the States. (The Banks v. Mayor, 7 Wall. 16. Id.)

Where the capital of a bank is invested in Government bonds it cannot be taxed by the States. But the shares of stock may be taxed as such in hands of stockholders. And held that the revenue law of Kentucky which imposes a tax on bank stock, and requires the officers of the bank to pay the tax so levied on the shares of stock, is a tax on the stockholders and not on the capital of the bank, and is valid. (National Bank v. Kentucky, 9 Wall. 353; Lionberger v. Rouse, 9 Wall. 468. Id. 19.)

United States securities are not subject to taxation by States. (Society for Savings v. Coite, 6 Wall. 594; Weston v. Charleston, 2 Pet. 449; McCulloch v. Maryland, 4 Wheat. 316; Osborn v. United States Bank, 9 Wheat. 738. Id.)




  ― 950 ―

§ 459. “Nor Shall the Commonwealth.”

The exemption of State property from Federal taxation is also secured. The Supreme Court of the United States has decided that the general principles of the Constitution forbid the Congress to tax the necessary governmental instrumentalities of the States, such as the salaries of officers and the revenues of municipal corporations, on the ground that such a power would enable the Congress to destroy the States, which nothing short of the amending power, the sovereignty, should be able to do in a federal system of government. (Collector v. Day, 11 Wall. 113.) The United States courts determine, of course, in what these necessary instrumentalities, in any particular case, consist. (Burgess, Political Sc., ii. p. 151.)

States not to coin money.

115. A State shall not coin money460, nor make anything but gold and silver coin a legal tender461 in payment of debts.

UNITED STATES.—No State shall … coin money; … make anything but gold and silver coin a tender in payment of debts.—Art. I., sec. x., sub-s. 1.

HISTORICAL NOTE.—The clause in the Commonwealth Bill of 1891 was in identical words—with the exception of “or” for “nor.” At the Adelaide session, 1897, it was introduced and passed as it now stands. (Conv. Deb., Adel., p. 1204.) At the Melbourne session, a suggestion by the Legislative Council of Tasmania, to insert after “money” the words “unless the Parliament otherwise provides” was negatived. A suggestion by the Legislative Assembly of New South Wales, to omit the provision as to legal tender, and insert “unless the Parliament otherwise determines,” was also negatived. (Conv. Deb., Melb., pp. 653-4.)

§ 460. “A State shall not Coin Money.”

Coinage is a prerogative of the Crown (see Note, § 177, supra). A State is forbidden to coin money; it cannot create a metal currency; it cannot give to metal any more than to paper the quality of money. The combined effect of this negation, coupled with the operation of sec. 51—xii., is that the coinage and legitimation of metal money, and in fact the regulation of the whole of the monetary system of the Commonwealth, is exclusively vested in the Federal Parliament, as against the States. That Parliament alone will be able to create money and regulate its value, as well as create paper money, and regulate its value. Its laws of course will only be operative within the Commonwealth, and may, in accordance with the usual practice, be reserved for Imperial consideration, in order to maintain the uniformity of coinage laws throughout the Empire.

§ 461. “Nor Make anything but Gold and Silver Coin a Legal Tender.”

The provision of this section, that the States may not make anything but gold and silver coin a legal tender in payment of debts, would appear, at first view, to authorize a State to make gold and silver a legal tender, in the absence of Federal legislation, and consequently to give the States a concurrent power within those limits. It must be noted, however, that gold and silver coin can only be impressed with the quality of money by Federal legislation, and Federal legislation may withdraw that quality at any time. Then the power of the States to make gold and silver a legal tender would cease; gold and silver metal can not be made legal tender until it is converted into coin; it can only be converted into coin by the Federal authority. (Burgess, Political Sc. ii. 142.)




  ― 951 ―

Commonwealth not to legislate in respect to religion.

116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance462, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

UNITED STATES—No religious test shall ever be required as a qualification to any office or public trust under the United States—Art. VI. sec. 3.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.—Amendment I.

HISTORICAL NOTE.—Clause 16, Chap. V. of the Commonwealth Bill of 1891 was:—“A State shall not make any law prohibiting the free exercise of any religion.” This was adopted verbatim at the Adelaide session, 1897. At the Melbourne session, Mr. Higgins moved an amendment to make the clause read: “A State shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or imposing any religious test or observance.” Mr. Higgins argued that these words might be necessary to prevent an implication, arising out of the recognition of Almighty God in the preamble, that the Commonwealth had power to legislate upon religious matters. The objections raised to the amendment were that the “free exercise of religion” was too wide an expression, and might sanction objectionable rites; and that the provision was unnecessary, as the Federal Parliament had no power to legislate as to religion. Mr. Higgins' amendment was negatived, as was also a suggestion by the House of Assembly in Tasmania, to add the words “nor appropriate any portion of its revenues or property for the propagation or support of any religion.” The clause itself was then negatived. (Conv. Deb., Melb., pp. 654-64.) At a later stage Mr. Higgins proposed a new clause, in substantially the form of the above section. Mr. Symon moved, as an amendment, to substitute the following provision:—

“Nothing in this Constitution shall be held to empower the Commonwealth to require any religious test as a qualification for any public office or public trust under the Commonwealth.”

After debate, Mr. Symon's amendment was negatived by 22 votes to 19, and Mr. Higgins' clause was carried by 25 votes to 16. (Conv. Deb., Melb., pp. 1769-79.) Drafting amendments were made after the fourth report.

§ 462. “Any Religion or … any Religious Observance.”

The Commonwealth is forbidden to make any law for establishing any religion or for imposing any religious observance. A preliminary observation which should be made is that the term Commonwealth as used in this section does not mean the Federal community, but the Government of the Commonwealth acting through any of its agencies or instrumentalities. The people and States constituting the Federal community could at any time interpose and amend the Constitution in order to authorize the enactment, by the Federal Parliament, of the laws now prohibited. The prohibition itself and the circumstances under which it has found a place in the Constitution next demand attention.

By the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others. It is not intended to prohibit the Federal Government from recognizing religion or religious worship. The Christian religion is, in most English speaking countries, recognized as a part of the common law. “There is abundant authority for saying that Christianity is a part and parcel of the law of the land.” (Per Kelly, C.B., in Cowan v. Milbourn [1867], L.R. 2 Ex. 234.) In America the courts of the Union and of the States find it necessary, in administering the common law, to take notice that the prevailing religion is Christian. (Vidal v. Girard's Executors, 2 How.


  ― 952 ―
127.) Consequently the fundamental principles of the Christian religion will continue to be respected, although not enforced by Federal legislation. For example, the Federal Parliament will have to provide for the administration of oaths in legal proceedings, and there is nothing to prevent it from enabling an oath to be taken, as at common law, on the sanctity of the Holy Gospel. (Cooley's Principles of Const. Law, 224)

In considering the question of religion, the Federal Convention was called on to decide (1) whether it was advisable to grant substantive power of this kind to the Federal Parliament; and if not, (2) whether it was necessary to deny this power to the Federal Parliament. As regards the first question, it was not seriously suggested that any such power should be granted. The only arguable point was whether it ought to be denied, and if so, to what extent? The Federal Parliament is a legislative body capable only of exercising enumerated powers. Its powers are determined and limited by actual grants to be found within the Constitution. Anything not granted to it is denied to it. If it is not granted the power to deal with religion, it cannot legislate concerning religion. It is superfluous to deny to it what is not granted—what it does not possess. The force of this reasoning, based on recognized canons of federal construction, was generally conceded. At the same time it was found that the American Constitution contained two important negative sections relating to religion. As originally drawn, that Constitution, in Art. VI., s. 3, declared that no religious test should ever be required as a qualification for an office or public trust under the United States Government. By the first amendment it was provided that Congress should make no laws respecting an establishment of religion or prohibiting the free exercise thereof. The prohibition of religious tests was a denial of power—a denial which was necessary, because otherwise there would have been nothing to prevent the Federal legislature, in defining the qualifications for federal office, to impose such tests. It was therefore a provision of practical use and value. The prohibition contained in the first amendment was one of the ten articles in the so-called “American Bill of Rights” adopted after the establishment of the Union, in order to satisfy popular demands and sentiments. No logical or constitutional reasons have been stated why such a negation of power which had never been granted and which, therefore, could never be legally exercised, was introduced into the instrument of Government. It does not appear that its necessity has ever been demonstrated. Still, that was one of the grounds on which Mr. H. B. Higgins asked the Convention of 1898 to adopt the section now under consideration.

The strongest argument, however, for the adoption of the earlier portion of sec. 116, was found in the special form of the preamble of the Constitution Act, which recites that the people of the colonies, “humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Commonwealth.” Referring to this recital, it was stated by Mr. Higgins that, although the preamble to the Constitution of the United States contained no such words as these, it had been decided by the courts in the year 1892 that the people of the United States were a Christian people; and although the Constitution gave no power to Congress to make laws relating to Sunday observance, that decision was shortly afterwards followed by a Federal enactment declaring that the Chicago Exhibition should be closed on Sundays. This law, he said, was passed simply on the ground that among Christian nations Christian observances should be enforced. (Conv. Deb., Melb., p. 1734.) If, then, such Federal legislation could be founded on a Constitution which contained no reference whatever to the Almighty, how much more likely was it that the Federal Parliament might, owing to the recital in the preamble, be held to possess power with respect to religion of which we have no conception. Consequently, argued Mr. Higgins, the power to deal with religion in every shape and form should be clearly denied to the Federal Parliament. These arguments were allowed to prevail, and the provisions of sec. 116 became part of the Constitution. (See, however, note, § 4, supra, “Humbly relying on the blessing of Almighty God,” and Church of the Holy Trinity v. United States, 143 U.S. 457, there cited.)

The appearance of this section in a chapter purporting to deal with the States is


  ― 953 ―
somewhat anomalous; it can only be accounted for by the fact that it took the place of clause 15 of Ch. V. in the Draft Bill of 1891, which declared that a State should not prohibit the free exercise of any religion. How such a clause crept into the Bill of 1891 it is difficult to conjecture. It was rejected without hesitation by the Convention of 1898, which saw no reason or necessity for interfering with the States in the free and unfettered exercise of their power over religion.

Whilst the Constitution forbids the Federal Parliament to interfere with the free exercise of religion, it does not make any provision for protecting the citizens of the States in their religious worship or religious liberties; this is left entirely to the State Constitutions and laws, and there is no inhibition in regard to the subject imposed upon the States. (Permoli v. First Municipality, 3 How. 589; Ex parte Garland, 4 Wall. 398. Baker, Annot. Const. p. 179.)

Bigamy and polygamy are crimes by the laws of all civilized and Christian countries, and this section cannot be invoked as a protection against legislation for their punishment. (Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S. 333. Id.)

“In the great case of Reynolds v. United States, the constitutional immunity of the individual in respect to the freedom of religion and worship was fixed and defined. The court declared that by this constitutional restriction Congress is deprived of legislative power over opinion merely, but is left free to reach actions which it may regard as violations of social duties or as subversive of good order. The free exercise of religion secured by the Constitution to the individual against the power of the government is, therefore, confined to the realm of purely spiritual worship; i.e., to relations between the individual and an extra-mundane being. So soon as religion seeks to regulate relations between two or more individuals, it becomes subject to the powers of the government and to the supremacy of the law; i.e., the individual has in this case no constitutional immunity against governmental interference.” (Burgess, Political Sc. I. p. 194.)

An appropriation of money to a hospital conducted by a Roman Catholic sisterhood is not a law respecting an establishment of religion. (Bradfield v. Roberts, 175 U.S. 291.)

Rights of residents in States.

117. A subject of the Queen463, resident in any State463A, shall not be subject in any other State to any disability or discrimination464 which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

UNITED STATES.—The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.—Const., Art. IV., sec. 2.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State .… deny to any persons within its jurisdiction the equal protection of its laws.—Fourteenth Amendment, sec. 1.

HISTORICAL NOTE.—Clause 17, Chap. V., of the Commonwealth Bill of 1891 was:—

“A State shall not make or enforce any law abridging any privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any person, within its jurisdiction, the equal protection of the laws.”

At the Adelaide session, 1897, this was adopted verbatim. At the Melbourne session, it was proposed, on the suggestion of the Legislative Assembly of New South Wales and the Legislative Council of Tasmania, to omit the first portion. No one was able to suggest a privilege or immunity of a citizen of one State which could be abridged by a law of another State, and it was pointed out that there was no definition of citizenship. Mr. Barton and Mr. Wise wished to give the citizens of each State the privileges and immunities of citizens of the other State; Mr. Reid and Mr. Symon said that this would be an interference with the independence of States, and that the Convention was only concerned with protecting the federal citizenship. Mr. Wise, as a test question,


  ― 954 ―
moved the first few words of an amendment suggested by the House of Assembly in Tasmania, based on the fourteenth amendment of the American Constitution, and declaring that the citizens of each State should be citizens of the Commonwealth, and entitled to all the privileges and immunities of citizens of the Commonwealth in the several States. After debate, this was negatived by 24 votes to 17; and the words dealing with privileges and immunities were then struck out. An amendment by Mr. O'Connor, to add “deprive any person of life, liberty, or property without due process of law,” was negatived by 23 votes to 19. An amendment by Mr. Glynn, to add “deny to the citizens of other States the privileges and immunities of its own citizens,” was also negatived, and the whole clause was struck out. (Conv. Deb., Melb., pp. 664–91.) At a later stage Dr. Quick moved to insert in the “powers of Parliament” clause a new sub-clause—“Commonwealth citizenship.” The importance of the question was recognized; but there were three different opinions expressed:—(1) That the Parliament should have power to deal with the question; (2) that citizenship ought to be defined in the Constitution itself; (3) that the rights of citizenship were already secured in the Constitution, and that citizenship itself had never been defined in Great Britain, and was better not defined. The sub-clause was negatived by 21 votes to 15. (Conv. Deb., Melb., pp. 1750–68.) On the reconsideration of clauses, Mr. Symon moved, in place of the clause struck out, to insert:—“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Dr. Quick moved as an amendment to insert a definition of Commonwealth citizenship:—“All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen, and not under any disability imposed by the Parliament, shall be citizens of the Commonwealth.” This was thought too wide, and opinions were expressed that the better plan would be to empower the Parliament to deal with the question. Mr. O'Connor then moved to insert:—“Every subject of the Queen, resident in any State or part of the Commonwealth, shall be entitled in any other State or part of the Commonwealth to all the privileges and immunities to which he would be entitled if a subject of the Queen resident in that latter State or part of the Commonwealth.” This was objected to as being too wide, and making residence in one State equivalent to another, for all purposes. It was suggested that the clause should be put negatively, instead of affirmatively, and Mr. O'Connor then proposed it as follows:—“No subject of the Queen, resident in any State, shall be subject in any other State to any disability or discrimination not equally applicable to the subjects of the Queen in such other State.” This was agreed to. (Id. pp. 1780–1802.) After the second report Mr. Deakin moved to substitute “such” for “the” before “subjects,” in order to indicate to the Drafting Committee that State rights of defining citizenship were not interfered with. This was agreed to. Drafting amendments were made after the fourth report.

§ 463. “A Subject of the Queen.”

The clause of the Bill of 1891, cited above, provided that a State should not make or enforce any law abridging any privilege or immunity of citizens of other States, nor deny to any person, within its jurisdiction, the equal protection of the laws. The framers of that clause did not define State citizenship, as distinguished from municipal citizenship. The term citizen was a novel one in the connection in which it was used. The clause was constructed out of pre-existing materials to be found in two clauses in the Constitution of the United States, viz., (1) “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” (Art. IV. sec. 2.) (2) “Nor shall any State . . deny to any person within its jurisdiction the equal protection of the laws.” (Fourteenth Amendment, sec. 1.)

Referring to the importance of the first of these provisions, Von Holst says:—“To it is chiefly due the fact that, step by step with the progressive development of the United States, the practical nationalization of the people proceeds.” (Const. Law, p. 247.) The marginal note to the clause of the Draft Bill referred to reads:—“And


  ― 955 ―
protection of citizens of the Commonwealth;” that note is not warranted by the clause itself, which did not mention a citizenship of the Commonwealth, but only protected the privileges and immunities of citizens of States.

Sec. 117 of the present Constitution represents the modest outcome of an attempt on the part of the Convention of 1898 to improve the work of 1891, and to establish a status capable of being designated “Federal citizenship.” It was suggested that in a federal Commonwealth, such as was being called into existence, there should be a full-bloomed national citizenship above and beyond and immeasurably superior to State citizenship. A person might be a domiciled resident of a State and an elector for a State, but at the same time he would occupy a broader and more dignified relationship in his membership of the great federated community, of which the States were separate parts and entities; and that relationship ought to be expressly defined. These contentions, apparently logical, were not sustained. Membership of the federal Commonwealth may, as a legal relation, be deduced from the Constitution, but it is not expressed there in the concrete form which the advocates of the foregoing views proposed.

According to the root meaning of the word, as well as its original use, a citizen was a member of a city. The political life of ancient Greece knew nothing higher or more developed than a city commonwealth, which occasionally combined with other city commonwealths in a kind of Federal Union. The independent self-ruling city was the political unit and the political ideal. A citizen was a member of a city state. The city was, to the Greek, his all in all; he was above all things a citizen. His political career and horizon were restricted to a city community. (Freeman's Greater Greece and Greater Britain, p. 18.) The Greek felt the tie of membership of such a community, with all the duties which sprang from membership. He owed faith and loyalty to his city—loyalty in its true and ancient sense of obedience to the law. The tie was local; the duty was local; of a tie of personal allegiance, binding and subjecting him to a personal superior—of loyalty in that sense the old Greek, the Phœnician never had any thought or experience (id. pp. 19–20.)

In the Roman Republic the term “civitas” expressed the bundle of rights and obligations connoted by citizenship; the conceptions involved in the Roman civitas implied citizenship in an enlarged sense, as denoting not the membership of a city state, as known to the Greeks, but the membership of a complex and highly organized political community which, beginning in the city of the Seven Hills, expanded into a national republic, which united all Italy and then all the known world into one Empire. According to Roman law men were originally divided into citizens (cives) and aliens (perigrini). The rights of citizens fell into two branches, political and civil. Political rights were those relating to the electoral and legislative powers (jus suffragii) and capacity for office (jus honorum); civil rights related to property (commercium) or to marriage (connubium). Aliens were deprived of political rights. They were also refused proprietary and family rights, except to a limited extent. (Poste's Gaius, p. 176.)

In the middle ages, during which the monarchies of modern times grew and became organized, personal allegiance or subjection became the tie which bound the people together, causing them to rally round and acknowledge a leader, who in return for allegiance and service afforded them his protection. Allegiance and subjection were then the test of membership of a political community. The members of such a community owing personal duty to a single sovereign were called “subjects.” That relationship was one that could not be acquired or lost without the permission of the personal sovereign.

“By the English common law, founded on the principle of feudal ligeance and homage, none were admissible as natural-born subjects, if they were not born in a place actually possessed at the time of their birth, either by the king himself or by some prince doing homage to him for it; except, first, the children of any subjects born beyond sea who at the birth of those children should be in the service of the Crown; secondly, the sovereign's children born during the royalty of their parents; and, thirdly,


  ― 956 ―
the heir of the Crown wherever born.” (Report of the Naturalization Committee, Part I. 1869.)

There is thus a fundamental distinction between a “citizen” as understood in ancient Greece, in ancient Rome, and in modern republics, and a “subject” as understood at common law. (See Note, “A Subject or a Citizen,” § 144, supra.)

The framers of the Constitution of the United States had no difficulty in the selection of a word to denote membership of the nation which they helped to organize. The people of the United States, having successfully rebelled against George III., ceased to be subjects of a monarch; they only recognized the obligation of loyalty to their country, to their Constitution, and to their political institutions. Hence they naturally reverted to the wider conception of citizen, as known to the Roman law, in order to express the idea of membership of the new federal community; they also used the same term to express the idea of membership of the minor groups, the States, within the federal community.

The original Constitution, in its sections relating to the organs of government, provided that no person should be qualified to be elected President or member of Congress unless he was “a citizen of the United States” of so many years standing; these clauses clearly contemplated and recognized, but did not define, a federal citizenship. Then Art. IV. s. 2 provided that the citizens of each State should be entitled to the privileges and immunities of citizens of the several States. This clause recognized a State citizenship distinct from and independent of a Federal citizenship, and from this State citizenship certain important results of advantage to citizens were intended to flow. From these provisions there was deduced the idea, so commonly met with in federal literature, that in a federation there is a dual citizenship as well as a dual system of government. The Constitutional development and formulation of a Federal citizenship was completed by the famous Fourteenth Amendment, passed after the Civil War to establish the equality and freedom of the negro race:—

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Dr. Burgess has pointed out that before the adoption of that amendment the Constitution contained no definition of citizenship, either of the United States or of a State. It referred to a citizenship of the United States as a qualification for membership of Congress and for the Presidential office, but it did not declare what should constitute such citizenship. The leaders of the State-rights party held that citizenship of the United States was but the consequence of citizenship in some State. The Supreme Court itself indicated that it was inclining to the same view in the decision that a man of African descent could not be a citizen of a State or of the United States; i.e., that the United States Government had not the power to make him so. (Dred Scott v. Sandford, 19 How. 393; Burgess, Political Sc. I. p. 219.)

“This amendment, therefore, reverses the previously-established principle. According to it, citizenship is primarily of the United States; and secondarily and consequently, of the locality in which the citizen of the United States may reside. Citizenship, both of the United States and of the States, is thus conferred by the Constitution of the United States and the laws of Congress made in accordance therewith. The States can neither confer nor withhold citizenship of the United States. A citizen of the United States is now, ipso jure, a citizen of the State in which he may fix his residence; and if any State should undertake to defeat the spirit of this provision by the enactment of hostile laws in regard to the gaining of residence within its limits, any individual suffering injury from the same may invoke the interpretation of the term ‘residence’ by the United States judiciary, and the aid of the general government in the protection of his liberty under that interpretation. There is nothing in this provision, indeed, which would prevent a State from permitting an alien to exercise the privileges of a citizen within the State so far as that particular State is concerned. The provision was meant to enlarge the enjoyment of these privileges, not to contract them.


  ― 957 ―
It is easy to see, however, that a State may abuse this power to the detriment of the whole people of the United States. For example, a State might permit aliens to hold real estate in such quantities and under such tenures as to introduce a very disturbing element into our general system of ownership of land. I will say nothing at this point concerning the possible, nay, actual, abuse of this power by the States in permitting aliens to exercise the suffrage, since the suffrage cannot be classed among the civil or private rights.” (Burgess, Political Sc. I. p. 219.)

In framing the Constitution of a Federal Commonwealth under the Crown, and in determining the status, conditions, and incidents of membership thereof, several technical difficulties were encountered, such as, what designation should be assigned and what privileges and immunities could be annexed to that membership?

In view of the historical associations and the peculiar significance of the terms “citizens” and “subjects,” one being used to express the membership of a republican community, and the other that of a community acknowledging an allegiance to a personal sovereign, it was obvious that there might have been an impropriety in discarding the time-honoured word “subject” and in adopting a nomenclature unobjectionable in itself but associated with a different system of political government.

Whatever be the reason, rightly or wrongly, the term “citizen” has been rejected and does not appear in the Constitution. In several notable passages in the instrument, the phrase, “the people of the Commonwealth,” is used to denote the personal units composing the national elements of the Commonwealth. The members of the House of Representatives are chosen by “the people of the Commonwealth” (sec. 24). In reckoning the number of “the people of the Commonwealth,” persons belonging to disqualified races are not to be counted (sec. 25). In reckoning the numbers of “the people of the Commonwealth or of a State,” aboriginal natives are not to be counted (sec. 127.) This is the nearest approach in the Constitution to a designation equivalent to citizenship, and intended to indicate membership of the Federal community. When it is sought to express a narrower political relationship than that of the Commonwealth, the phrase “the people of the States” is used. The senators for each State are chosen by “the people of the State” (sec. 7). The number of members of the House of Representatives in each State is determined by dividing “the people of each State” by the quota (sec. 24—ii.). Where it is sought to express a political relationship more comprehensive than either that of the State or that of the Commonwealth, the term used is one denoting British nationality—“a subject of the Queen.” Thus the different gradations of political status recognized by the Constitution are:—

Subjects of the Queen:

People of the Commonwealth:

People of a State.}

In their political relations, as subjects of the Queen, the people are considered as inhabitants and individual units of the Empire over which Her Majesty presides. That is the widest political relationship known to British law. “I am a British subject,” is equal in practical and Imperial significance to the proud boast of the Roman “civis Romanus sum.” Subjects of the Queen, or British subjects, have rights, privileges, and immunities secured to them by Imperial law, which they may assert and enjoy without hindrance in any part of the Queen's dominions, and in British ships on the high seas. In a modified degree some of those rights, privileges, and immunities, founded on treaty, may be enforced in foreign countries. The whole naval and military strength of the Empire, and the assistance of its highest courts of justice, may be invoked for the vindication of those rights, privileges, and immunities.

The people of the Commonwealth constitute only one group of the subjects of the Queen. The people of the Commonwealth are those people who are permanently domiciled within the territorial limits of the Commonwealth. Territorially such people may be called Australians, but constitutionally they are described as British subjects or subjects of the Queen. They do not lose their character as people of the Commonwealth by migrating from one State to another, any more than they lose their national character


  ― 958 ―
by migrating from one part of the Empire to another, or sojourning in foreign countries. Their privileges and immunities as people of the Commonwealth are secured and guaranteed to them, without regard to their residence in a particular State.

The people of a State compose a group of the people of the Commonwealth. Their privileges and immunities, as members of a State community, depend on their residence within the limits of the State, and their compliance with the requirements of State laws. Within each State there are minor municipal groups designated citizens.

In this connection it is interesting to notice how the need of some word to express colonial citizenship has evolved the phrase “subject of a colony,” first made use of by Sir G. J. Turner, L.J., in Low v. Routledge, L.R. 1 Ch. 42, 1865. Referring to this expression, a writer in 31 Canad. L.J. 37, says: “There is no such thing as a Canadian, Australian, or Indian subject.” Mr. Lefroy, commenting on this observation, admits that in an international sense no doubt this is so; but argues that the authorities on the extra-territorial application of colonial laws show that “there is a sense in which it is proper to speak of a man as a subject of a particular colony, and that legal distinctions hinge upon his position as such.” (Lefroy, Legisl. Power in Canada, p. 329, n.)

Assuming that the establishment of a distinct membership of the Federal community may be inferred from those passages in the Constitution which allude to “the people of the Commonwealth,” we now proceed to consider what incidents are annexed to such a status, and how they can be enforced and how differentiated from incidents annexed to the other condition, State membership, which may be inferred from the use of the expression, “the people of the State.”

FEDERAL PRIVILEGES AND IMMUNITIES.—In the Constitution of the Commonwealth there is no special section corresponding to the Fourteenth Amendment of the American Constitution, declaring who are “the people of the Commonwealth,” affirming their privileges and immunities, and placing them beyond the power of the States to abridge. Since the decision of the Supreme Court of the United States in the celebrated Slaughter-house Cases (16 Wall. 36), it has been doubted, by competent American jurists, whether the Fourteenth Amendment was really necessary in order to place Federal privileges and immunities beyond State control. The mere fact that the Constitution has created privileges and immunities is, it is argued, of itself sufficient to place them beyond the reach of unfriendly State legislation. The State laws can only operate within the sphere of power assigned to the States. The same reasoning applies to the Constitution of the Commonwealth, and accounts for the absence of any affirmation similar to that of the Fourteenth Amendment. The privileges and immunities of the people of the Commonwealth exist within the sphere of Federal power, and by the Constitution itself the Federal laws are paramount and supreme; they cannot be impaired or abridged by State legislation. (Cooley's Principles of Const. Law, 274.)

Although there is no special section affirming the existence of Federal privileges and immunities, such privileges and immunities may be gathered from the express provisions or necessary implications of the Constitution. Among the most prominent Federal privileges may be mentioned those relating to the suffrage—the right to vote at elections for both houses of the Federal Parliament (sec. 41); the right to participate, on terms of equality, in trade and commerce between the States and with other countries (secs. 51—i. and 99); the right to have the benefit of the postal, telegraphic, and telephonic services (sec. 51—v.); the right to share the protection of the naval and military forces of the Commonwealth (sec. 51—vi.); the right to use the navigable waters of the Commonwealth for the purposes of trade and commerce (sec. 98); the right to pass from one State into another and to hold intercourse with foreign countries (secs. 51—i. and 92). To be allowed to visit the seat of Government, to gain access to Federal territories, to petition the Federal authorities, to examine the public records of the Federal courts and institutions, are rights which, if not expressly granted, may be inferred from the Constitution, and which could not be taken away or abridged by the States any more than those directly and clearly conveyed. (Story, Comm. § 1937; Crandall v. Nevada, 6 Wall. 35.)




  ― 959 ―

Immunities are generally the corollaries of privileges. Where a privilege is granted there must be an exemption from interference or obstruction in the enjoyment of the privilege. Consequently, a State could not pass laws which would operate as burdens and impositions and prevent the free exercise of Federal privileges. Thus a State could not require an importer of foreign merchandise to pay a tax for a license to sell such goods. (Brown v. Maryland, 12 Wheat. 419.) Free intercourse between the States being established by the Constitution, a State could not impose a tax on travellers entering or leaving the State. (Crandall v. Nevada, 6 Wall. 35.) The people of the Commonwealth having a right to sue in the Federal courts in the prosecution of causes specified by the Constitution, a State could not obstruct the citizens of other States in suing its own citizens in the Federal courts. (Insurance Co. v. Morse, 20 Wall. 445.) A State could not interfere with the freedom of inter-state trade by demanding license fees from the vendors of goods imported from other States (sec. 92).

ENFORCEMENT OF FEDERAL PRIVILEGES AND IMMUNITIES.—As there is no necessity for specially declaring that the privileges and immunities of the people of the Commonwealth may not be abridged by the States, so there is no necessity for specifying any procedure by which they may be enforced. They may be described as self-executing. Every privilege or immunity conferred by the Constitution implies a prohibition against anything inconsistent with the free exercise or enjoyment thereof. Any law passed by a State, in violation of any constitutional privilege or immunity, would be null and void; the courts would not enforce it.

§ 463a. “Resident in Any State.”

We have explained generally the privileges and immunities of the people belonging to the Commonwealth, and accounted for the absence from the Constitution of any express declaration or reference to such privileges or immunities; we now come to the consideration of those privileges and immunities created by and dependent upon State laws which are the only ones coming within the purview of sec. 117. This section as drawn prohibits the imposition of disabilities and discriminations by a State against the people of another State. It would be impossible, however, to grasp the significance of this prohibition without some consideration of the privileges and immunities with respect to which such disabilities and discriminations may be enacted.

STATE PRIVILEGES AND IMMUNITIES.—In the exercise of its reserved powers each State will have exclusive authority to legislate concerning the rights, privileges, immunities, and obligations of the people. In fact the whole domain of civil liberty, except that assigned to the Federal authority, is subject to the jurisdiction of the State. A complete enumeration of the matters belonging to that domain, and dependent upon State law, would be too complicated and too lengthy to present, but a fair summary has been given by an eminent American Judge:—

“The privileges and immunities of State citizenship are all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise, to claim the benefit of the writ of habeas corpus, to institute and maintain actions of every kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the citizens of other States, may be mentioned as some of the principal privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental. (Per Washington, J., in Corfield v. Coryell, 4 Wash. C.C. 380.)

“Other Judges, while approving of this general enumeration, have been careful to say that they deem it safer and more in accordance with the duty of a judicial tribunal to leave the meaning to be determined in each case upon a view of the particular rights asserted therein. And especially is this true when we are dealing with so broad a provision, involving matters not only of great delicacy and importance, but which are


  ― 960 ―
of such a character that any merely abstract definition could scarcely be correct; and a failure to make it so would certainly produce mischief.” (Cooley's Const. Law, p. 207.)

Such being some of the fundamental privileges and immunities within the power of a State to confer, we are now in a position to consider the nature of the limitations imposed by sec. 117. This section provides that a subject of the Queen resident in one State shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. Its object is to establish a sort of inter-state reciprocity in the enjoyment of privileges and immunities created by and dependent upon State laws. This reciprocity is secured by the inhibition that a qualified resident in one State shall not, in his dealing or connection with another State, be liable to any disability or discrimination which would not be applicable to him if he were a qualified resident in that other State.

Residence is an elastic word which may be modified by the context. (Exp. Breull, re Bowie [1888], 16 Ch. D. 484; Lewis v. Graham [1888], 20 Q.B. D. 780.) Its ordinary meaning is the place where a person lives; that is, where he usually eats, drinks, and sleeps, or where his family or servants eat, drink, and sleep. (Per Bayley, J., in Rex. v. North Curry [1825], 4 Barn. and Cress. 959; and see Notes, pp. 477, 776, supra.) In this section, “a resident in any State” means a person who permanently lives in a State; one who is not a mere visitor or sojourner; one who by his continued residence in a State has become identified with it and is regarded as one of its people.

The privileges and immunities contemplated by this section are those which belong to resident subjects of the Queen in a State. The States are not forbidden to impose disabilities and make discriminations in laws relating to aliens. It is assumed that the resident subjects of the Queen will be the most favoured people and the special object of State consideration and solicitude. Hence the Constitution interposes and as a matter of national policy seeks to secure equality of treatment, in all the States, for subjects of the Queen resident in any State of the Commonwealth.

§ 464. “Disability or Discrimination.”

No privileges or immunities are secured against disability and discrimination except those annexed by the laws of a State to the combined conditions of State residence and British subjectship. A State is not forbidden to enact that certain privileges and immunities may flow from a contractual relation. Thus a State law prohibiting, in certain districts, the sale of goods other than the agricultural products and articles manufactured in the State, by persons not residents of the State, until license therefor has been obtained, is unconstitutional. (Ward v. Maryland, 12 Wall. 418.) On the other hand, in contrast to this case, privileges and immunities attached by law to contracts by reason of the place where such contracts are made or executed are not within the mischief intended to be rectified by this section. It would not be a disability or discrimination prohibited by this section, for a State to deny to a widow, whose marriage was not contracted within the State or executed there by a matrimonial domicile, the same rights of property in the estate of a deceased husband as is given to a widow whose marriage was there contracted, or where the spouses live in the State. (Conner v. Elliott, 18 How. 591.) Other American cases may be cited in illustration of the operation of this section.

A State statute which, in effect, provides that where a defendant is out of the State the statute of limitations shall not run against the plaintiff if the latter resides in the State, but shall if he resides out of the state, is not repugnant to the “privilege and immunity” clause (supra). (Ryan v. Carter, 93 U.S. 78; Baker, Annot. Const. p. 158.)

A law of Iowa, which provides that a person having in his possession “Texas cattle” which have not been wintered north of a certain line shall be liable for all damages caused by allowing such cattle to run at large and thereby spread the Texas cattle fever, is not a denial to the citizens of other States of the rights, privileges and immunities accorded to citizens of Iowa. (Kimmish v. Ball, 129 U.S. 217. Id.)




  ― 961 ―

The “privilege and immunity” clause does not control the power of the State Governments over the rights of their own citizens. Its sole purpose is to declare to the several States that whatever those rights are, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. (Slaughter-House Cases, 16 Wall. 36. Id.)

This section, like the Fourteenth Amendment, is directed against State action. Its object is to place the citizens of each State on the same footing with citizens of other States, and inhibit discriminating legislation against them by other States. (United States v. Harris, 106 U.S. 629. Id.)

Each State owns the tide-waters and beds of all tide waters within its jurisdiction; a right of fishery is a property right, and not a mere privilege or immunity of citizenship. Therefore a State may grant to its own citizens the exclusive privilege of using the lands covered by water on its borders for the purpose of maintaining oyster-beds, and may with penalties prohibit such use by citizens of other States. (McCready v. Virginia, 94 U.S. 391. Id. 157.)

It seems doubtful whether the rule affirmed in McCready v. Virginia (supra) would be followed in a legal construction of sec. 117. To grant subjects of the Queen, in a State, the exclusive right to plant oysters in soil covered by tidal waters within a State and to forbid the subjects of the Queen resident in another State to do so, would look uncommonly like a discrimination in favour of the people of one State, and a disability on the people, subjects of the Queen, of another State; as such it would be within the mischief intended to be suppressed by the Constitution.

CORPORATIONS.—It has been held in the United States that a corporation created by a State is not a “citizen” of the State, so as to be entitled to the privileges and immunities of citizens in the several States. (Paul v. Virginia, 8 Wall. 168; Blake v. M‘Clung, 172 U.S. 239.) It would seem equally clear that a corporation cannot be a “subject of the Queen” within the meaning of this section. Accordingly a State may discriminate between its own corporations and those of another State—subject of course to the limitations imposed by other sections of the Constitution. (Ducat v. Chicago, 10 Wall. 410.)

Recognition of laws, &c., of States.

118. Full faith and credit465 shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.

UNITED STATES.—Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.—Const., Art. iv., sec. 1.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891 were provisions identical with this section and with sub-sec. xxv. of sec. 51—provisions which together make up the American section quoted above. (Conv. Deb., Syd, 1891, p. 883.) At the Adelaide session in 1897, these provisions were adopted verbatim. At the Melbourne session a suggestion by the Legislative Council of New South Wales to omit (in sec. 51) “throughout the Commonwealth” was negatived.

§ 465. “Full Faith and Credit.”

Section 118 contains a constitutional declaration in favour of inter-state official and judicial reciprocity, which the Federal Parliament and the States may assist to effectuate, but which they cannot prejudice or render nugatory; the Federal Parliament being enabled to carry it into execution by sec. 51—xxiv. and xxv., and the States in the exercise of their reserved powers. Subjects of the Queen, residents in one State, may have rights of property and personal privileges which they wish to assert in


  ― 962 ―
other States where they do not reside. They may desire to take proceedings in the courts of another State, in order to assert their rights and privileges and to protect their interests. In such proceedings it may be necessary to prove the statutes, records, and judicial proceedings of their own State, or to give evidence of muniments of title existing in their own State. By the rules of international and inter-state comity, as well as at common law, there are certain recognized methods of proof and modes of enforcing such rights and privileges. These rules, however, may be altered or abolished by State legislation. It is conceivable that in times of antagonism and contention between States, laws might be passed in one State intended to defeat or delay the residents of another State in the prosecution of legal rights and remedies against residents in that State. This policy, once resorted to, would lead to reprisals and retaliations, resulting in infinite mischief and unwarrantable denial of right. The Constitution has interposed and converted the rule of comity into a rule of law, in order to promote uniformity of regulation in such inter-state proceedings as well as to prevent the possibility of resort to a narrow-minded unfraternal policy.

AMERICAN LEGISLATION.—In pursuance of power conferred on it by a similar section in the Constitution, the Congress of the United States, in 1790, passed a law which declared that the Acts of the legislatures of the several States should be authenticated by the seals of their respective States, and that the records and judicial proceedings of the courts of any State should be proved or admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed, together with a certificate of the judge that the said attestation was in due form; and that records so authenticated should have the same faith and credit given to them in every court within the United States as they had in the courts of that State. (U.S. Stat. at Large i. 122; Rev. Stat. 2nd ed. §§ 905–6; Hanley v. Donoghue, 116 U.S. 1; Cole v. Cunningham, 133 U.S. 107; cited Rorer, Inter-State Law, p. 154.)

By a subsequent Act of Congress, passed in 1804, similar provisions as to faith and credit were applied to all records and exemplications of office books kept in any public office of any State, not belonging to a court. (U.S. Stat. at Large ii. 298; Rev. Stat. 2nd ed. § 906; Rorer, Inter-State Law, p. 155.)

APPLICATION TO STATE COURTS.—“The foregoing constitutional and statutory provisions of the United States apply only to the courts of the States and Territories of the United States. They have no reference whatever to the courts, records, documents, or acts of the United States as evidence in the State courts, or to those of the State courts as evidence in the National courts; in these cases the ordinary certificate of the clerk and seal of the court, in such manner or form as renders them admissible in the courts of the same State, or in the Federal courts, as the case may be, renders these documents, records, and acts mutually admissible as between the State and Federal courts, when otherwise proper evidence. But notwithstanding those National provisions are not intended to apply to the United States courts, yet the records of those courts are admissible in other courts, though certified in accordance with said act of Congress. The fact that such authentication more than fulfils the requirement of the law as to admissibility will not be ground of exclusion.” (Rorer on Inter-State Law, p. 156.)

FEDERAL COURTS AND STATE COURTS.—“The State and National courts, though emanations of different sovereignties, are in no wise foreign tribunals to each other, nor are the National courts of one circuit or district such in reference to those of other circuits or districts, but are domestic tribunals, whose seals are recognized as matter of course. But such courts, both National and State, are courts of different sovereignties, and the National Courts are only required to give judgments of State courts such authority as they are entitled to in the courts of the State wherein they are rendered.” (Rorer on Inter-State Law, p. 156.)

PROOF OF STATUTES.—“The certificate and seal of State of the genuineness of statute laws need no other proof of their authenticity, or of the official character of the person certifying as Secretary of State, and if there be any interlineations they are presumed to have been made rightfully; and so it is settled that State laws need not be proved in the courts of the United States.” (Rorer on Inter-State Law, p. 159.)

GENERAL PRINCIPLES.—“The full faith and credit to which the public acts, records, and proceedings are entitled in other States is the same faith and credit to which they


  ― 963 ―
are entitled in the State whose acts, records, and judicial proceedings they are. (Armstrong v. Carson, 2 Dall. 302.) When, therefore, suit is brought in one State upon a judgment rendered by a court of another State, and it appears that by the law of the last-mentioned State it is conclusive upon the defendant, it must be held equally conclusive in the court in which suit upon it is brought. (Mills v. Duryee, 7 Cranch 481.) Whatever pleas would be good to it in the State where it was pronounced, and none others, might be pleaded to it in any other court within the United States. (Hampton v. McConnell, 3 Wheat. 234; Green v. Van Buskirk, 7 Wall. 139.) Judgments in one State when proved in another differ from judgments of another country in this alone, that they are not impeachable for fraud nor open to question upon the merits. (Hanley v. Donoghue, 116 U.S. 1.) But the judgment can have no greater or other force abroad than at home, and therefore it is always competent to show that it is invalid for want of jurisdiction in the court rendering it. (Harris v. Hardeman, 14 How. 334.) To preclude inquiry into it in another State, the judgment must not only be rendered by a court having jurisdiction of the subject-matter and the parties, but, if the defendant does not appear at the trial, it must be responsive to the pleadings. (Reynolds v. Stockton, 140 U.S. 254.) So anything that goes in release or discharge of the judgment may be shown. (McElmoyle v. Cohen, 13 Pet. 312; D'Arcy v. Ketchum, 11 How. 165.) And the Statute of Limitations of the State where the suit is brought will be available, if the case comes within it. But it is not competent for any State to pass an act of limitations which would, in effect, nullify judgments rendered in other States, and allow no remedy upon them whatever. Reasonable opportunity to enforce a demand must always be afforded.” (Cooley's Principles of Const. Law, p. 203.)

“Constructive service of process by publication or attachment of property is sufficient to enable the courts of a State to subject property within it to their jurisdiction in such cases as the statutes of the States may provide therefor; but such a service cannot be the foundation of a personal judgment. Process from the tribunals of one State cannot run into another State and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailable in proceedings to establish his personal liability. But in respect to the res, a judgment in rem, rendered with competent jurisdiction, is conclusive everywhere.” (Id. pp. 204–5.)

“The Act of Congress declaring the effect to be given in any court within the United States to the records and judicial proceedings of the several States does not require that they shall have any greater force and efficacy in other courts than in the courts of the States from which they are taken, but only such faith and credit as by law or usage they have there. (Robertson v. Pickrell, 109 U.S. 608.)” (Rorer on Inter-State Law, p. 155.)

“This section of the Constitution does not prevent an inquiry into the jurisdiction of the court in which a judgment is rendered, to pronounce the judgment, nor into the right of the State to exercise authority over the parties or the subject-matter, nor whether the judgment is founded in and impeachable for a manifest fraud. The Constitution did not mean to confer any new power on the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of the States domestic judgments to all intents and purposes, but only gave a general validity, faith and credit to them as evidence. No execution can be issued upon such judgments without a new suit in the tribunals of other States, and they enjoy not the right of priority or privilege or lien which they have in the State where they are pronounced, but that only which the ‘lex fori’ gives to them by its own laws, in their character of foreign judgments. (McElmoyle v. Cohen, 13 Pet. 312; D'Arcy v. Ketchum, 11 How. 165; Thompson v. Whitman, 18 Wall. 457; Pennoyer v. Neff, 95 U.S. 714; Wisconsin v. Pelican Ins. Co., 127 U.S. 265; Christmas v. Russell, 5 Wall. 290; Story, Constitution, § 1303 et seq., and Story, Conflict of Law, § 609.) And other judicial proceedings can rest on no higher ground. (Cole v. Cunningham, 133 U.S. 107, 112.)” (Id. p. 152.)

The constitutional provision does not prevent enquiry into the jurisdiction of the court in which the judgment was rendered over subject matter and parties, or into the facts necessary to give such jurisdiction. (Thormann v. Frame, 176 U.S. 350.)

FEDERAL POWER.—The cases cited merely illustrate the law of the United States, as determined by the Constitution and by Federal legislation thereunder. It must be remembered that the Parliament of the Commonwealth has large powers of legislation under sec. 51—xxiv. and xxv. It can pass laws providing for the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of


  ― 964 ―
the courts of the States. By the exercise of that power the Federal Parliament may revolutionize the principles of service of process, referred to in the extract from Cooley (supra). The Federal Parliament can likewise pass laws providing for the recognition, throughout the Commonwealth, of the laws, the public acts and records, and the judicial proceedings of the States. (As to legislation which may be passed in the exercise of these powers, see Notes on sec. 51—xxiv. and xxv.)

Protection of States from invasion and violence.

119. The Commonwealth shall protect every State against invasion466 and, on the application of the Executive Government of the State, against domestic violence467.

UNITED STATES.—The United States … shall protect [every State] against invasion; and, on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.—Art. IV., sec. 4.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, and in the Adelaide draft of 1897, this clause appeared verbatim. At the Melbourne session, Mr. Gordon moved to substitute “attack” for “invasion,” to make it clear that a naval attack was included. This was negatived. (Conv. Deb., Melb., pp. 691–2.)

§ 466. “Protect every State against Invasion.”

The Commonwealth is required to protect every State against invasion. The courts have interpreted the phrase, “United States” in a similar section in the American Constitution, to mean the Federal Government. (Luther v. Borden, 7 How. 1. See Pomeroy, Const. Law, § 101.) Hence the injunction that “the Commonwealth” shall protect a State refers to the Federal Government and not the political community of which that Government is an organ. The power and duty to protect against invasion may be exercised by the Federal authority on its own motion and according to its own judgment and discretion, without the necessity of an application from any State organization within the State.

§ 467. “Domestic Violence.”

The Federal Authority is not required or empowered to interfere to protect a State against domestic violence, except on the application of the Executive Government of the State. The maintenance of order in a State is primarily the concern of the State, for which the police powers of the State are ordinarily adequate. But even if the State is unable to cope with domestic violence, the Federal Government has no right to intervene, for the protection of the State or its citizens, unless called upon by the State Executive. If, however, domestic violence within a State is of such a character as to interfere with the operations of the Federal Government, or with the rights and privileges of federal citizenship, the Federal Government may clearly, without a summons from the State, interfere to restore order. Thus if a riot in a State interfered with the carriage of the federal mails, or with inter-state commerce, or with the right of an elector to record his vote at federal elections, the Federal Government could use all the force at its disposal, not to protect the State, but to protect itself. Were it otherwise, the Federal Government would be dependent on the Governments of the States for the effective exercise of its powers. And not only may the Executive Government interfere to suppress by force a rebellion which cripples its powers, but the federal courts may interfere in a peaceful way by issuing an injunction against the offenders, and executing the judgment of the


  ― 965 ―
Court in the ordinary way. These principles were conclusively settled in the United States, in 1895, by the case of Re Debs (158 U.S. 564). Debs and others were officers of a trade union in Illinois, who combined to boycott the cars of the Pullman Palace Car Company, and proceeded by threats, intimidation, force and violence, to obstruct and wreck trains engaged in inter-state commerce, and in carrying the United States Mails. A Federal Circuit Court in Illinois, on a bill filed by the Pullman Company, granted an injunction against Debs and his associates. Debs, having been attached for disobedience to the injunction, applied to the Supreme Court of the United States for a writ of habeas corpus, which was refused on the ground that the Circuit Court had authority to issue and enforce the injunction.

“There is no such impotency in the National Government. The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers, and the security of all rights entrusted by the Constitution to its care. The strong arm of the National Government may be put forth to brush away all obstructions to the freedom of inter-state commerce, or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia, are at the service of the Nation to compel obedience to its laws. But passing to the second question, is there no other alternative than the use of force on the part of the executive authorities whenever obstructions arise to the freedom of inter-state commerce or the transportation of the mails? Is the army the only instrument by which rights of the public can be enforced and the peace of the nation preserved? Grant that any public nuisance may be forcibly abated either at the instance of the authorities, or by any individual suffering private damage therefrom, the existence of this right of forcible abatement is not inconsistent with nor does it destroy the right of appeal in an orderly way to the courts for a judicial determination, and an exercise of their powers by writ of injunction and otherwise to accomplish the same result.” (Per Brewer, J., Re Debs, 158 U.S. 582.)

“We hold it to be an incontrovertible principle, that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent.” (Per Bradley, J., Exp. Siebold, 100 U.S. 395.)

Custody of offenders against laws of the Commonwealth.

120. Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth468, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

HISTORICAL NOTE.—A clause in substantially the same words was in the Commonwealth Bill of 1891, and was adopted at the Adelaide session, 1897. At the Melbourne session the clause was verbally amended. (Conv. Deb., Melb., pp. 692–3.) A verbal alteration was also made after the fourth report.

§ 468. “Offences Against the Laws of the Commonwealth.”

In the exercise of its constitutional powers the Federal Parliament may create privileges and immunities and impose obligations, and it may declare that any breach thereof is an offence, punishable by fine or imprisonment. Every violation of public law may be made an offence. For a definition of offences against laws of the Commonwealth, and a discussion of the question whether there is a common law of the Commonwealth, see Notes, §§ 326, 341, supra.




  ― 966 ―

§ 469. “Prisons.”

The Federal Government will be able to establish its own prisons and reformatories for the detention and punishment of prisoners convicted of offences against the law of the Commonwealth. Until such prisons are established it is the duty of every State to make provision for the detention and punishment of persons so convicted within its limits. Warrants of commitment and imprisonment signed by the proper officers of Federal courts will be as binding on the keepers of State gaols as those issued by the judges and magistrates of the States. The Federal Authority will presumably compensate the State Authorities for the expense which they may incur in providing the necessary gaol accommodation and supervision.

previous
next