previous
next



  ― 281 ―

1. Title and Preamble

An Act1 to constitute the Commonwealth of Australia.

UNITED STATES.—Constitution of the United States. (17th September, 1787.) [Title.] CANADA.—An Act for the union of Canada, Nova Scotia, and New Brunswick, and the Government thereof, and for purposes connected therewith. (29th March, 1867). [Title.] GERMANY.—The Imperial Constitution. (18th January, 1871). [Title.] SWITZERLAND.—Federal Constitution of the Swiss Confederation. (29th May, 1874). [Title.]

§ 1. “An Act.”

PARTS.—This Act may, for the purpose of analysis and classification, be considered as consisting of the following parts:—(1) Title, (2) Preamble, (3) Words of enacting authority, (4) The Covering Clauses 1 to 9, (5) The Constitution introduced by Clause 9, and divided into Chapters, Headings, Parts, and Sections, (6) The Schedule, (7) The Marginal Notes.

TITLE.—The title of a Statute forms no part of the law, and in strictness ought not to be taken into consideration at all. No more argument can be justly built upon the title prefixed in some editions of the Statutes than upon the marginal notes against the several sections—per Tindal, C.J., in delivering to the House of Lords the opinion of the consulted Judges. (Birtwistle v. Vardill, 1839, 7 Cl. and Finn., p. 929.)

The title of a statute is no part of the law—per Lord Mansfield, Rex. v. Williams, 1 W. Bl. 95. Per Lord Hardwicke, Att.-Gen. v. Lord Weymouth, Ambl. 25. Per Pollock, C.B., Salkeld v. Johnson, 2 Exch. 283, Digest of English Case Law, Vol. XIII., p. 1881.

There is no authority for saying that the title of a statute may be used where there is any ambiguity in the statute. (Coomber v. Berks Justices, 9 Q.B.D. 33. Id.)

The title cannot be resorted to for the purpose of construing the provisions of the Act. (Hunter v. Nockolds, 19 L.J. Ch. 177. Id.)

“The title of a statute does not go for much in construing it, but I do not know that it is to be absolutely disregarded. The title of Lord Campbell's Act, 9 and 10 Vic. c. 93, was certainly referred to as not without significance in the Court of Queen's Bench in Blake v. Midland Ry. Co., 18 Q.B. 93.” (Per Wills, J., in Kenrick v. Lawrence, 25 Q.B.D. 99. Id.)

If there is in the provisions of an Act anything admitting of a doubt, the title of the Act is a matter proper to be considered in the interpretation of the Act. (Shaw v. Ruddin, 9 Ir. C.L.R. 214. Id.)

The enacting part of an Act is not to be controlled by the title or recitals unless the enacting part is ambiguous, and then the title and recitals may be referred to for the purpose of ascertaining the intention of the legislature. (Bentley v. Rotherham Local Board; 4 Ch. D. 588. Id.)

HEADINGS.—The headings of a portion of a statute may be referred to in order to determine the sense of any doubtful expressions in sections ranged under it. (Hammersmith and City Railway Co. v. Brand, L.R. 4 H.L. 171, 203; but see—per Lord Cairns, id. p. 217. Eastern Counties Rail. Co. v. Marriage, 9 H.L. Ca. 32. Union Steamship Co. of N.Z. v. Melbourne Harbour Trust, 9 App. Ca. 365.)

MARGINAL NOTES.—The marginal notes of the Act and the Constitution are copious and systematic; yet the bulk of authority would seem to show that they form no portion of the law. In Claydon v. Green, L.R. 3 C.P. 511, Mr. Justice Willes said:—

“Something has been said about the marginal note in section 4 of 9 Geo. IV. c. 61. I wish to say a word upon that subject. It appears from Blackstone's Commentaries, vol. I. p. 183, that formerly, at one stage of the Bill in Parliament it was ordered to be


  ― 282 ―
engrossed upon one or more rolls of parchment. That practice seems to have continued down to the session of 1849, when it was discontinued, without, however, any statute being passed to warrant it (see May's Parliamentary Practice, 3rd ed., 382). Since that time, the only record of the proceedings of Parliament—the important proceedings of the highest tribunal of the Kingdom—is to be found in the copy printed by the Queen's printer. But I desire to record my conviction that this change in the mode of recording them cannot affect the rule which treated the title of the Act, the marginal notes, and the punctuation, not as forming part of the Act, but merely as temporanea expositio. The Act, when passed, must be looked at just as if it were still entered upon a roll, which it may be again if Parliament should be pleased so to order; in which case it would be without these appendages, which, though useful as a guide to a hasty inquirer, ought not to be relied upon in construing an Act of Parliament.”

Some doubts were thrown on the opinion of Mr. Justice Willes, expressed in 1868, by a contrary view taken and acted upon in 1876 by Sir George Jessel, Master of the Rolls, who, in the case of re Venour's Settled Estates, 2 Ch. D. 525, said:—“This view is borne out by the marginal note, and I may mention that the marginal notes of Acts now appear on the rolls of Parliament, and consequently form part of the Acts, and in fact are so clearly so that I have known them to be the subject of motion and amendment in Parliament.” In the case of Attorney-General v. Great Eastern R. Co., 1879, 11 Ch. D. 449, the Master of the Rolls gave expression to the same view. When this case came before the Court of Appeal, consisting of James, Bramwell, Baggallay, L.JJ., he was overruled, and the law was finally settled that marginal notes form no legal part of a statute. Per James, L.J.: “What authority has the Master of the Rolls for saying that the courts do look at the marginal notes?” Per Bramwell, L.J.: “What would happen if the marginal notes differed from the section, which is a possibility, as is shown in section 112 of this Act? Does the marginal note repeal the section, or does the section repeal the marginal note?” Per Baggallay, L.J.: “I never knew an amendment set down or discussed upon the marginal note to a clause. The House of Commons never has anything to do with the amendment of the marginal note.”

PUNCTUATION.—The punctuation is no part of an Act of Parliament. In the case of Barrow v. Wadkin, 24 Beav. 327, it was held that certain words in an Act were to be read “aliens duties, customs, and impositions,” not as they were printed, “aliens, duties, customs, and impositions.”

Preamble.

Whereas2 the people3 of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God4, have agreed5 to unite in one indissoluble Federal Commonwealth6 under the Crown7 of the United Kingdom of Great Britain and Ireland8, and under the Constitution9 hereby established10:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen's Most Excellent Majesty11, by and with the advice and consent of the Lords Spiritual12 and Temporal13, and Commons14, in this present Parliament assembled, and by the authority of the same15, as follows:—




  ― 283 ―
DECLARATION OF AMERICAN INDEPENDENCE.—We therefore the representatives of the United States of America in general Congress assembled, appealing to the Supreme Judge of the World for the rectitude of our intentions, do in the name and by the authority of the good people of these colonies solemnly publish and declare that these united colonies are and of right ought to be free and independent States; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is and ought to be totally dissolved…and for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honour. (4th July, 1776.) ARTICLES OF CONFEDERATION.—And whereas it hath pleased the great Governor of the World to incline the hearts of the Legislatures we respectively represent in Congress, to approve of and to authorize us to ratify the said articles of confederation and perpetual union, know ye, that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents in the name and in behalf of our respective constituents fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual union and all and singular the matters and things therein contained. (9th July, 1778; ratified, 1781.) UNITED STATES CONSTITUTION.—We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America. (Preamble, went into operation 4th March 1789.) BRITISH NORTH AMERICA ACT.—Whereas the Provinces of Canada, Nova Scotia, and New Brunswick, have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom. And whereas such a union would conduce to the welfare of the Provinces and promote the interests of the British Empire. And whereas on the establishment of the union by authority of Parliament it is expedient not only that the Constitution of the Legislative authority in the Dominion be provided for, but also that the nature of the Executive Government therein be declared. And whereas it is expedient that provision be made for the eventual admission into the union of other parts of British North America. (Preamble, 29th March, 1867.) CONSTITUTION OF THE GERMAN EMPIRE.—The Imperial Constitution for the protection of the territory of the Confederation and of the laws of the same as well as for the promotion of the welfare of the German people. (Preamble, 18th January, 1871.) CONSTITUTION OF SWITZERLAND.—In the name of Almighty God. The Swiss Confederation, desiring to confirm the alliance of the Confederates, to maintain and to promote the unity, strength and honour of the Swiss nation…The purpose of the Confederation is to secure the independence of the country against foreign nations, to maintain peace and order within, to protect the liberty and the rights of the Confederates and to foster their common welfare. (Preamble and Art. 2, 29th May, 1874.)

HISTORICAL NOTE.—The preamble of the Commonwealth Bill of 1891 was as follows:—

“Whereas the Australasian colonies of [here name the colonies which have adopted the Constitution] have by [here describe the mode by which the assent of the colonies has been expressed] agreed to unite in one Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established: And whereas it is expedient to make provision for the admission into the Commonwealth of other Australasian colonies and possessions of Her Majesty.”

Under the Enabling Acts by which the Convention of 1897–8 was constituted, the mode by which the assent of the colonies was to be expressed—namely, by the vote of the people—was already determined; and accordingly the first recital in the preamble as drawn at Adelaide was as follows:—

“Whereas the people of [here name the colonies which have adopted the Constitution] have agreed to form one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:”

In Committee, at Mr. Deakin's suggestion, the word “form” was omitted and “unite in” substituted. Several largely-signed petitions had been received praying that there should be some recognition of God in the Constitution; and Mr. Glynn moved to insert the words “invoking Divine Providence.” The Convention, however, felt some doubt as to the propriety of introducing at that stage any religious formula into the Constitution, and the amendment was negatived by 17 votes to 11. (Conv. Deb., Adel., pp. 1183–9.) During the statutory adjournment, all the Legislative Chambers, with one exception, suggested the insertion of some recognition of a Divine Being. The Legislatures of New South Wales and South Australia, and the Legislative Council of Western Australia, suggested the words “acknowledging Almighty God as the Supreme Ruler of the Universe.” The Legislature of Victoria suggested “in reliance upon the blessing of Almighty God.” The House of Assembly of Tasmania


  ― 284 ―
suggested “duly acknowledging Almighty God as the Supreme Ruler of the Universe and the source of all true Government” The Legislative Assembly of Western Australia suggested “grateful to Almighty God for their freedom, and in order to secure and perpetuate its blessings.” Numerous petitions were received to a similar effect; and at the Melbourne session a proposal by Mr. Glynn to insert the words “humbly relying on the blessing of Almighty God” was agreed to. (Conv. Deb., Melb., 1732–41.)

In the Bill as introduced in the Imperial Parliament, the names of the five colonies which had accepted the Bill were inserted in the blank left for that purpose. The words “under the Constitution hereby established” were omitted, owing to the contention of the Delegates that the alterations then proposed by the Imperial Government would make this recital inaccurate; but in Committee they were afterwards restored (see Historical Introduction, pp. 230, 238, 242, 249, supra).

§ 2. “Whereas.”

The proper function of a preamble is to explain and recite certain facts which are necessary to be explained and recited, before the enactments contained in an Act of Parliament can be understood. A preamble may be used for other reasons: to limit the scope of certain expressions or to explain facts or introduce definitions. (Lord Thring, Practical Legislation, p. 36.) The preamble has been said to be a good means to find out the intention of a statute, and, as it were, a key to the understanding of it. It usually states, or professes to state, the general object and meaning of the Legislature in passing the measure. Hence it may be legitimately consulted for the purpose of solving an ambiguity or fixing the connotation of words which may possibly have more than one meaning, or determining the scope or limiting the effect of the Act, whenever the enacting parts are, in any of these respects, open to doubt. But the preamble cannot either restrict or extend the legislative words, when the language is plain and not open to doubt, either as to its meaning or its scope. (Maxwell on the Interpretation of Statutes [1875], pp. 35–45.)

In the case of Overseers of West Ham v. Iles (1883), 8 App. Cas. p. 388, Lord Blackburn said: “My Lords, in this case the whole question turns upon the construction of sect. 19 of 59 Geo. III. c. 12. I quite agree with the argument which has been addressed to your Lordships, that in construing an Act of Parliament, where the intention of the Legislature is declared by the preamble, we are to give effect to that preamble to this extent, namely, that it shows us what the Legislature are intending; and if the words of enactment have a meaning which does not go beyond that preamble, or which may come up to the preamble, in either case we prefer that meaning to one showing an intention of the Legislature which would not answer the purposes of the preamble, or which would go beyond them. To that extent only is the preamble material.”

Although the enacting words of a statute are not necessarily to be limited or controlled by the words of the preamble, but in many instances go beyond it, yet, on a sound construction of every Act of Parliament, the words in the enacting part must be confined to that which is the plain object and general intention of the Legislature in passing the Act; and the preamble affords a good clue to discover what that object was. (Per Lord Tenterden, C.J., in Halton v. Cove, 1 B. and Ad. 538; Salkeld v. Johnson, 2 Exch. 283; per Kelly, C.B., in Winn v. Mossman, L.R. 4 Ex. 300; cited, Broom's Legal Maxims, 5th ed. p. 572.) “The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary sense. The words themselves alone do in such case best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which


  ― 285 ―
according to Chief Justice Dyer (Plowd. 369) is a key to open the minds of the makers of the Act and the mischiefs which they intended to redress.” (Per Tindal, C.J., delivering the opinion of the Judges in the Sussex Peerage Case, 11 Cl. and Fin. 143; per Buller, J., in R. v. Robinson, 2 East P.C. 1113; cited R. v. Johnson, 29 St. Tr. 303; Broom's Legal Maxims, 5th ed. 573.

It is a general rule, in the construction of statutes, that the preamble may extend, but cannot restrain, the effect of an enacting clause. (Kearns v. Cordwainers' Co., 28 L.J. C.P. 285; D.E.C.L. xiii. p. 1882.)

We ought not to restrict a section in an Act of Parliament by the preamble or general purview of the Act where the section is not inconsistent with the spirit of the Act. (Sutton v. Sutton, 22 Ch. D. 521. Id.)

The preamble of an Act of Parliament is proper to explain the general body of it. (Copeman v. Gallant, 1 P. Wms. 317. Id.)

If the enacting part of a statute will bear only one interpretation, the preamble shall not confine it; but if it is doubtful, the preamble may be applied to throw light upon it. (Mason v. Armitage, 13 Ves. 36. Id.)

In construing an Act of Parliament, or any other instrument, the court is at liberty to regard the state of the law at the time, and the facts which the preamble or recitals of the Act of instrument prove to have been the existing circumstances at the time of its preparation. (Attorney-General v. Powis, 2 Eq. R. 566. Id. 1883.)

The preamble of an Act of Parliament, though it may assist ambiguous words, cannot control a clear and express enactment. (Lees v. Summersgill, 17 Ves. 508. Id.)

But it may serve to give a definite and qualified meaning to indefinite and general terms. (Emanuel v. Constable, 3 Russ. 436, overruling Lees v. Summersgill. Id.)

In construing Acts, the court must take into consideration not only the language of the preamble, or any particular clause, but of the whole Act; and if, in some of the enacting clauses, expressions are to be found of more extensive import than in others, or than in the preamble, the Court will give effect to those more extensive expressions, if, upon a view of the whole Act, it appears to have been the intention of the Legislature that they should have effect. (Doe d. Bywater v. Brandling, 6 L.J. (o.s.) K.B. 162. Id.)

The effect of the preamble of a repealed Act was considered in Harding v. Williams, 1880, 14 Ch. Div. 197. The effect of a preamble to a particular section of an Act was considered in ex parte Gorely, re Barker, 34 L.J. (B.) 1.

§ 3. “The People.”

The opening words of the preamble proclaim that the Constitution of the Commonwealth of Australia is founded on the will of the people whom it is designed to unite and govern. Although it proceeds from the people, it is clothed with the form of law by an Act of the Imperial Parliament of Great Britain and Ireland, the Supreme Sovereign Legislature of the British Empire. The legislative supremacy of the British Parliament is, according to Dicey and all other modern jurists, the keystone of the law of the British Constitution. John Austin holds (Jurisprudence, vol. I. pp. 251–255) that the sovereign power is vested in the King, the House of Lords, and the House of Commons or electors. Referring to Austin's definition, Dicey points out that the word “sovereignty” is sometimes employed in a political rather than in a strictly legal sense. That body is politically sovereign or supreme in a State, the will of which is ultimately obeyed by the citizens of the State. In this sense of the word the electors of Great Britain may be said to be, together with the Crown and the Lords, or perhaps in strict accuracy, independently of the King and the Peers, to be the body in which the political sovereignty is vested. (Dicey, Law of the Constitution, p. 67.)

SOVEREIGNTY OF THE PEOPLE.—In the United States the political as well as the legal sovereignty of the people has been generally recognized ever since the Declaration of Independence. John Wilson, one of the framers of the American Constitution, in addressing the Pennsylvania State Convention in exposition and defence of that instrument said:—

“When I had the honour of speaking formerly on the subject I stated in as concise a manner as possible the leading ideas that occurred to me to ascertain where the supreme and sovereign power resides. It has not been, nor I presume will be denied that somewhere there is, and of necessity must be, a supreme absolute and uncontrollable authority. This I believe may justly be termed the sovereign power; for, from that gentleman's (Mr. Findlay's) account of the matter it cannot be sovereign unless it is


  ― 286 ―
supreme; for, says he, a subordinate sovereignty is no sovereignty at all. I had the honour of observing that if the question was asked where the supreme power resided, different answers would be given by different writers. I mentioned that Blackstone would tell you that in Britain it is lodged in the British Parliament; and I believe there is no writer on this subject on the other side of the Atlantic but supposed it to be vested in that body. I stated further that if the question was asked of some politician who had not considered the subject with sufficient accuracy, where the supreme power resided in our Government, he would answer that it was vested in the State Constitutions. This opinion approaches near the truth, but does not reach it, for the truth is the supreme absolute and uncontrollable authority remains with the people. I mentioned also that the practical recognition of this truth was reserved for the honour of this country. I recollect no Constitution founded on this principle; but we have witnessed the improvement and enjoy the happiness of seeing it carried into practice. The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth.” (Elliot's Debates on the Federal Constitution, vol. ii., pp. 455, 456.) Cited, Roger Foster's Comment. on the Constit. (1895), I., p. 107.

The Constitution of the United States was not ordained and established by the States, but, as the preamble declares, by “the people of the United States.” It was competent for the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers, according to their own good pleasure, and to give them a paramount and supreme authority. (Martin v. Hunter's Lessee, 1 Wheat. 304–324; Chisholm v. Georgia, 2 Dall. 419; Brown v. Maryland, 12 Wheat. 455. Noted in Baker, Annot. Const. (1891), p. 1.)

The Government of the American Union is a Government of the people. In form and in substance it emanates from them. Its powers are granted by them and are to be exercised on them and for their benefit. (Per Marshall, C.J., McCulloch v. Maryland, 4 Wheat. 316. Id.)

The expressions “the people of the United States” and “citizens” are synonymous and mean the same thing. They both describe the political body which according to American institutions, forms the sovereignty, holds the power and conducts the Government through its representatives. The members of that body are called the “sovereign people,” and every citizen is one of this people and a constituent member of the sovereignty. (Dred Scott v. Sandford, 19 How. 393. Id.)

AFFIRMATIONS OF THE PREAMBLE.—It will be noticed that the preamble to this Constitution contains no less than eight separate and distinct affirmations or declarations.

  • (i.) The agreement of the people of Australia.
  • (ii.) Their reliance on the blessing of Almighty God.
  • (iii.) The purpose to unite.
  • (iv.) The character of the Union—indissoluble.
  • (v.) The form of the Union—a Federal Commonwealth.
  • (vi.) The dependence of the Union—under the Crown.
  • (vii.) The government of the Union—under the Constitution.
  • (viii.) The expediency of provision for admission of other Colonies as States.

Of the above eight declaratory parts of the preamble only four, viz., the third, fifth, seventh, and eighth, find legislative expression in identifiable clauses to be found in the body of the Act. The remaining four have, therefore, to be regarded as promulgating principles, ideas, or sentiments operating, at the time of the formation of the instrument, in the minds of its framers, and by them imparted to and approved by the people to whom it was submitted. These principles may hereafter become of supreme interest and importance in guiding the development of the Constitution under the influence of Federal Statesmen and Federal Electors. They may also be of valuable service and potent effect in the Courts of the Commonwealth, aiding in the interpretation of words and phrases which may now appear comparatively clear, but which, in time to come, may be obscured by the raising of unexpected issues and by the conflict of newly evolved opinions. It may be asked, why are four at least of these momentous declarations to be found only in the preamble, and why have they no corresponding counterparts in the corpus of the Act? The answer is obvious. First as to the agreement of the people; that is the recital of a historical fact, and it could not therefore be reduced to the form in which a section of an Act of Parliament is generally cast, viz., that of a command coupled with a sanction. Then, again, their reliance on the Divine blessing is another recital of fact, incidental to the primary


  ― 287 ―
affirmation, and introduced in a participial sentence for the purpose of avoiding the suspicion of ostentation and irreverence; there would, indeed, have been not only a technical difficulty, but an absolute impropriety in attempting to frame a clause designed to give legislative recognition of the Deity. The indissolubility of the Federal Commonwealth is affirmed as a principle: the effect of that affirmation will be discussed at a later stage. The declaration that the Union is under the Crown is appropriate and fundamental; this also will be discussed at a later stage.

§ 4. “Humbly Relying on the Blessing of Almighty God.”

This appeal to the Deity was inserted in the Constitution at the suggestion of most of the Colonial Legislative Chambers, and in response to numerous and largely signed petitions received from the people of every colony represented in the Federal Convention. When the expression was first formulated, towards the close of the session held in Adelaide, it was thought advisable to postpone the final determination of a proposition so delicate and significant until a later stage, in order to give time and opportunity for further consideration and for the additional manifestation of public opinion and sentiment. In the interval between the Adelaide and Sydney sessions of the Convention, the Legislative Councils and Legislative Assemblies of New South Wales, Victoria, South Australia, and Western Australia, and the House of Assembly of Tasmania, resolved to recommend to the Convention the insertion in the preamble of appropriate words acknowledging and invoking the blessing of the Supreme Being. During the session held in Sydney, as well as in the last session held in Melbourne, supplementary petitions were received in favour of insertion of words of the foregoing import. A few petitions were also received in opposition to the proposal. Finally the words were inserted in the preamble without a division, but not without protest from several members of the Convention. In justification of the insertion of the words stress was laid on the great demonstration of public opinion in their favour, as expressed in the recommendations of the Legislative bodies and in the petitions presented. It was also pointed out that such an allusion was not without precedent in other notable instruments of Government, such as the American Declaration of Independence, the Articles of Confederation, and the Swiss Constitution. The views for and against are fully expressed in the following extracts:—

“The foundations of our national edifice are being laid in times of peace; the invisible hand of Providence is in the tracing of our plans. Should we not, at the very inception of our great work, give some outward recognition of the Divine guidance that we feel? This spirit of reverence for the Unseen pervades all the relations of our civil life. It is felt in the forms in our Courts of Justice, in the language of our statutes, in the oath that binds the Sovereign to the observance of our liberties, in the recognition of the Sabbath; in the rubrics of our guilds and social orders, in the anthem, through which on every public occasion we invocate a blessing on our executive head; in our domestic observances, in the offices of courtesy at our meetings and partings, and in the time-honoured motto of the nation. Says Burke: ‘We know, and, what is better, we feel inwardly that religion is the basis of civil society.’ The ancients, who in the edifices of the mind and marble have left us such noble exemplars for our guidance, invoked. under a sense of its all-pervading power, the direction of the Divine mind. Pagans though they were, and as yet but seeing dimly, they felt that the breath of a Divine Being, ‘that pure breath of life, that spirit of man,’ which God inspired—as Milton says—was the life of their establishments. It is of this that Cicero speaks when he writes of that great elemental law at the back of all human ordinances, that eternal principle which governs the entire universe, wisely commanding what is right and prohibiting what is wrong, and which he calls the mind of God. Right through the ages we find this universal sense of Divine inspiration—this feeling, that a wisdom beyond that of man shapes the destiny of states; that the institutions of men are but the imperfect instruments of a Divine and beneficent energy, helping their higher aims. Should not we, sir, grant the prayer of the many petitions that have been presented to us, by recognizing at the opening of our great future our dependence upon God? Should we not fix in our Constitution the elements of reverence and strength, by expressing our share of the universal sense that a Divine idea animates all our higher objects, and that the guiding hand of Providence leads our wanderings towards the dawn? In doing so we will be but acting on what a great statesman called ‘the


  ― 288 ―
uniformly considered sense of mankind.’ It was from a consciousness of the moral anarchy of the world's unguided course that all races of man saw in their various gradations of light the vision of an eternal Justice behind the veil of things whose intimations kept down the rebellious hearts of earth's children. It was this that made them consecrate their national purposes to God; that their hands might grow strong and their minds be illuminated by the grace of that power Divine through which alone, as Plato says, the poet sings—

‘We give like children, and the Almighty plan
Controls the forward children of weak man.’

Under a sense of this great truth, expressed some thousand years ago, I ask you to grant the prayer of these petitions: to grant it in a hope that the Justice we wish to execute may be rendered certain, in our work, and our union abiding and fruitful by the blessing of the Supreme Being.”—Mr. P. M. Glynn, Conv. Deb., Adel., 1897, p. 1185–6.

“I say frankly that I should have no objection to the insertion of words of this kind in the preamble, if I felt that in the Constitution we had a sufficient safeguard against the passing of religious laws by the Commonwealth. I shall, I hope, afterwards have an opportunity, upon the reconsideration of the measure, to bring before the Convention a clause modified to meet some criticisms which have been made on this point, and if I succeed in getting this clause passed it will provide this safeguard. I shall have an opportunity then of explaining how exceedingly important it is to have some such safeguard. There is no time for me now to go into an elaborate history of this question so far as the United States of America are concerned. I have investigated it with a great deal of care, and I can give the result of my investigations to honourable members, who, I hope, will not believe that I would mislead them if I could help doing so with regard to the effect of what has taken place there. Because they had no words in the preamble of the Constitution of the United States to the effect of those which the honourable member (Mr. Glynn) wishes to insert, Congress was unable to pass certain legislation in the direction of enforcing religion. There was a struggle for about thirty years to have some words of religious import inserted in the preamble. That struggle failed; but in 1892 it was decided by the Supreme Court that the people of the United States were a Christian people.…That decision was given in March or February, and four months afterwards it was enacted by Congress that the Chicago Exhibition should be closed upon Sundays, simply upon the ground that Sunday was a Christian day. The argument was that among a Christian nation you should enforce Christian observances.…There is nothing in the Constitution of the United States of America, even indirectly, suggesting a law of this sort. No doubt the State of Illinois could have passed such a law, because it has all its rights reserved. But there was nothing in the Constitution enabling the Congress to pass a law for the closing of the Exhibition on Sunday. As soon as ever those parties who had been working for the purpose of getting Sunday legalized throughout the United States found that decision given in February, 1892, that ‘this is a Christian nation,’ they followed it up quickly, and within four months there was a law passed for the closing of the Exhibition on Sunday.…It has been in force for five and a half or six years, and it was struggled against, as my honourable friend will know. There was a strong monetary interest against it, but I will say frankly that I was not aware that it has been held to be constitutional. I understand though that there has been no dispute among the legal men in that country as to its being constitutional. Honourable members will hardly realize how far the inferential powers have been extended in America. I should have thought it obvious, and I think Mr. Wise will agree with me that the Congress had no power to pass a law of that sort.…I should have thought that it was not in the scope of Congress to pass a law, no matter how righteous, to close the Exhibition on Sunday, but I find, on looking to a number of decisions in the United States, that it has been held again and again that, because of certain expressions, words, and phrases used in the Constitution, inferential powers are conferred upon the Congress that go beyond any dreams we have at present. I know that a great many people have been got to sign petitions in favour of inserting such religious words in the preamble of this Bill by men who knew the course of the struggle in the United States, but who have not told the people what the course of that struggle is, and what the motive for these words is. I think the people of Australia ought to have been told frankly when they were asked to sign these petitions what the history in the United States has been on the subject, and the motive with which these words have been proposed. I think the people in Australia are as reverential as any people on the face of this earth, so I will make no opposition to the insertion of seemly and suitable words, provided that it is made perfectly clear in the substantive part of the Constitution that we are not conferring on the Commonwealth a power to pass religious laws. I want to leave that as a reserved power to the State, as it is now. Let the


  ― 289 ―
States have the power. I will not interfere with the individual States in the power they have, but I want to make it clear that in inserting these religious words in the preamble of the Bill we are not by inference giving a power to impose on the Federation of Australia any religious laws.”—Mr. H. B. Higgins, Conv. Deb., Melb., pp. 1734–5.

The case referred to by Mr. Higgins was Church of the Holy Trinity v. United States, 143 U.S., p. 457. It came before the Supreme Court of the United States on error from a United States circuit court. The question involved was the construction and effect of the federal statute of 26th February, 1885, prohibiting the importation and migration of foreigners and aliens under agreement to perform labour in the United States. (23 Stat. 332 c. 164.) The Church of the Holy Trinity was duly incorporated as a religious society under the laws of the State of New York. E. Walpole Warren was, prior to September, 1887, an alien residing in England. In that month the Church made a contract with him, by which he was to remove to the city of New York and enter into its service as rector and pastor, which Warren accordingly did. It was claimed by the United States that this contract, on the part of the Church, was forbidden by the federal Act, and an action was commenced to recover the penalty prescribed by that Act. The Circuit Court held that the contract was within the prohibition of the statute, and rendered judgment accordingly. (36 Fed. Rep. 303.) The Church appealed to the Supreme Court of the United States, and the single question presented was, whether the Circuit Court had erred in giving that decision. The decision of the Court was delivered by Mr. Justice Brewer on 29th February, 1892. The Court was of opinion that the act of the Corporation was within the letter of the prohibition; for the relation of rector to his church was one of service, and implied labour on the one side with compensation on the other. Further, as noticed by the Circuit Judge in his opinion, the 5th section, which made specific exceptions, among them being professional actors, artists, lecturers, singers, and domestic servants, strengthened the idea that every other kind of labour and service was intended to be reached by the first section. While there was great force in that reasoning, the Court did not think that Congress intended to denounce, with penalties, a transaction like that in the present case. It was a familiar rule, that a thing might be within the letter of a statute, and yet not be within the statute, because not within the spirit, nor within the intention of its makers. The Court therefore found that the whole of the Act, the evil which was intended to be remedied, the circumstances surrounding the appeal to Congress, the reports of the Committee of each House, all concurred in affirming that the intent of Congress was simply to stay the influx of cheap unskilled labour.

“It was never suggested that we had in this country a surplus of brain toilers, and least of all, that the market for the services of Christian ministers was depressed by foreign competition. Those were matters to which the attention of Congress, or of the people, was not directed. So far, then, as the evil which was sought to be remedied interprets the statute, it also guides to an exclusion of this contract from the penalties of the Act.…But beyond all these matters, no purpose of action against religion can be imputed to any legislation, state or national; because, this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation. The Commission to Christopher Columbus, prior to his sail westward, is from ‘Ferdinand and lsabella, by the Grace of God, King and Queen of Castile, &c.,’ and recites that it is hoped that by God's assistance some of the continents and islands in the ocean will be discovered, &c. ….The first colonial grant, that made to Sir Walter Raleigh, in 1584, was from ‘Elizabeth by the grace of God, of England, France, and Ireland, Queen, Defender of the Faith,’ &c.; and the grant, authorizing him to enact statutes for the government of the proposed colony, provides that ‘they be not against the true Christian faith now professed in the Church of England.’ Coming nearer to the present time, The Declaration of Independence recognizes the presence of the Divine in human affairs, in these words: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’ ‘We therefore, the Representatives of the United States of America in general Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by the authority of the Good People of these colonies solemnly publish and declare,’ &c., ‘and for the support of the Declaration, with a firm reliance on the Protection of Divine Providence, we mutually


  ― 290 ―
pledge to each other our Lives, our Fortunes, and our sacred Honour.’ On examination of the Constitutions of the various States we find in them a constant recognition of religious obligations.… It is the duty of the Court, under those circumstances, to say that, however broad the language of the statute may be, the Act, although within the letter, is not within the intention of the legislature, and cannot be within the statute.” (Per Mr. Justice Brewer, Church of the Holy Trinity v. United States, 143 U.S. 457.)

On 25th April, 1890, Congress passed an Act to provide for celebrating the four hundredth anniversary of the discovery of America by Christopher Columbus, by holding in the city of Chicago, in the State of Illinois, an International Exposition of arts, industries, manufactures, and products of the soil, mine, and sea. A Commission was constituted for carrying out the enterprise, and preliminary arrangements were made. This Act was passed by Congress in the exercise of its power to regulate and promote inter-state and foreign commerce. On 5th August, 1892, Congress passed an Act (ch. 381, 1892) in furtherance of the first-mentioned Act. It recited that it was enacted “For the purpose of aiding in defraying the cost of completing in a suitable manner the work of preparation for inaugurating the World's Columbian Exposition.” It then proceeded to provide that there should be coined, at the mints, five million half-dollar silver pieces, to be known as Columbian half-dollars. It next went on to make other provisions and arrangements for the holding of the Exposition. Then came section 4, as follows:—

“That it is hereby declared that all appropriations herein made for, or pertaining to, the World's Columbian Exposition are made upon the condition that the said Exposition shall not be opened to the public on the first day of the week, commonly called Sunday; and if the said appropriations be accepted by the corporation of the State of Illinois, known as the World's Columbian Exposition, upon that condition, it shall be, and is hereby, made the duty of the World's Columbian Commission, created by the Act of Congress of April twenty-fifth, eighteen hundred and ninety, to make such rules or modification of the rules of same corporation as shall require the closing of the Exposition on the said first day of the week commonly called Sunday.”

The amending Act, like the principal Act, was passed by Congress in the exercise of its power over trade and commerce. In the debates which took place in Congress during the passage of the amending Bill no reference appears to have been made to any religious aspect of the proposed closing of the Exposition on Sundays, or to the case of the Church of the Holy Trinity v. United States.

§ 5. “Have Agreed.”

These words make distinct and emphatic reference to the consensus of the people, arrived at through the procedure, in its various successive stages, prescribed by the substantially similar Enabling Acts adopted by the Legislatures of the concurring colonies. In four of the colonies Acts were passed enabling the people to take part in the framing and acceptance or rejection of a Federal Constitution for Australia. Through those Acts the people agreed, first, to send representatives to a Federal Convention charged with the duty of framing for Australia a Federal Constitution under the Crown in the form of a Bill for enactment by the Imperial Parliament; and, secondly, they agreed to pronounce their judgment upon the Constitution at a referendum, which in each colony was arranged to follow the Convention. In all the colonies the Constitution was eventually referred to the people. At this referendum each voter was enabled to vote by ballot “Yes” or “No” on the question asked in the ballot paper, “Are you in favour of the proposed Federal Constitution?” In this manner there was in four colonies a popular initiative and finally in all the colonies a popular ratification of the Constitution, which is thus legally the work, as it will be for all time the heritage, of the Australian people. This democratic method of establishing a new form of government may be contrasted with the circumstances and conditions under which other Federal Constitutions became law.

UNITED STATES.—“It was well said by John Quincy Adams that the Constitution was ‘extorted from the grinding necessity of a reluctant nation.’ It was accepted by a


  ― 291 ―
small majority as the only alternative to disruption and anarchy. Its ratification was the success of the men who were interested in the security of property, the maintenance of order, and the enforcement of obligations against those who desired communism, lawlessness, and repudiation. It was a conflict between the cities and backwoods, between the mountains and plains. And the opposition was led by those cliques and families who had learned to control for their private interests the State patronage of which the new Government must necessarily deprive them… Two States refused to agree until after it had gone into successful operation, and the rest threatened severe retaliation in order to compel their coalition. Five of the other nine ratified with expressions of disapproval of its terms and a demand for subsequent amendments. In but three was it adopted without a struggle. In several, success was only obtained by the application of force, threats, or stratagem. In Connecticut, they silenced with tar and feathers an anti-federalist delegate who tried to talk out the Convention. A majority of the New Hampshire delegates were determined or instructed to vote against ratification, and at the first session the federalists considered a vote for an adjournment of three months as a victory. At the second, while some of its opponents were ‘detained’ at dinner, the Constitution was ratified by a snap vote taken at sharp one o'clock. The Legislature of Pennsylvania obtained a quorum to call the State Convention by the unwilling presence of two members dragged to the meeting by a mob who prevented their leaving the house. In the State of New York, a majority of the Convention was anti-federal, and victory was won by the threat of Hamilton, that in case of defeat New York, Kings, and Westchester would ratify the Constitution as an independent State, and leave the northern counties alone unprotected from foreign enemies without any outlet for their commerce to the sea. The charge was believed, if not proved, that the federalists prevented the circulation of the newspapers of the opposition with the mails. And in Pennsylvania and Maryland they suppressed, by purchase and boycott, the reports of the debates in the State Conventions.” (Foster's Comment. on the Constit. I. p. 5.)

CANADA.—“Delegates, comprising the leading men of both parties, were appointed by the Governors of Canada, Nova Scotia, New Brunswick, and Prince Edward Island at the instance of the several Legislatures. They met and drew up a scheme which, having been submitted to the Legislatures, was afterwards carried to London; there finally settled with the Colonial Office, and embodied by the Imperial Parliament in the British North America Act, which forms the instrument of confederation. The consent of the Canadian Legislature was freely and fairly given by a large majority. That of the Legislature of New Brunswick was only obtained by heavy pressure, the Colonial Office assisting, and after strong resistance, an election having taken place at which every one of the delegates had been rejected by the people. That of the Legislature of Nova Scotia was drawn from it, in defiance of the declared wishes of the people and its breach of recent pledges by vigorous use of personal influence with the members. Mr. Howe, the patriot leader of the Province, still held out and went to England, threatening recourse to violence if his people were not set free from the bondage into which, by the perfidy of their representatives, they had been betrayed. But he was gained over by the promise of office, and those who in England had listened to his patriot thunders, and had moved in response to his appeal, heard with surprise that the orator had taken his seat in a Federationist Administration. Prince Edward Island bolted outright, though high terms were offered her by the delegates, and at the time could not be brought back, though she came in some years afterwards, mollified by the boon of a local railway, for the construction of which the Dominion paid. In effect Confederation was carried by the Canadian Parliament, led by the politicians of British and French Canada, whose first object was to escape from their deadlock, with the help of the Home Government, and of the Colonial Governors acting under its direction. The debate in the Canadian Parliament fills a volume of one thousand and thirty-two pages. A good deal of it is mere assertion and counter assertion as to the probable effects of the measure, political. military, and commercial. One speaker gives a long essay on the history of federation, but without much historical discrimination. Almost the only speech which has interest for a student of political science is that of Mr. Dunkin, who, while he is an extreme and one-sided opponent of the measure, tries at all events to forecast the workings of the projected Constitution, and thus takes us to the heart of the question, whether his forecast is right or wrong. Those who will be at the trouble of toiling through the volume, however, will, it is believed, see plainly enough that whoever may lay claim to the parentage of confederation—and upon this momentous question there has been much controversy—its real parent was Deadlock. Legally of course Confederation was the act of the Imperial Parliament, which had full power to legislate for dependencies. But there was nothing morally to prevent the submission of the plan to the people any more than there was to prevent a vote of the Colonial Legislatures on the project. The framers can hardly have failed to see how much the Constitution would gain in sacredness by being the act of the whole community. They must have known what was the source of the veneration with which the American


  ― 292 ―
Constitution is regarded by the people of the United States. The natural inference is that the politicians were not sure that they had the people with them. They were sure that in some of the provinces they had it not.” (Canada and the Canadian Question, by Goldwin Smith, pp. 141–3.)

§ 6. “To Unite in One Indissoluble Federal Commonwealth.”

All the words included in this expression, except “Indissoluble,” occur in the covering clauses of the Imperial Act, and they will be duly noted in the order in which they appear there. “Indissoluble” is found in the preamble only and therefore demands a detailed notice at this stage. A brief allusion to the presence of the word in the preamble and its absence from the body of the Act has already been made (see note § 3, “Affirmations of the preamble”), but it is now necessary to enter upon a more extended discussion and explanation of the principle of indissolubility.

NULLIFICATION AND SECESSION.—The omission from the Constitution of the United States of an express declaration of the permanence and indestructibility of the Union led to the promulgation of the disastrous doctrines of nullification and secession, which were not finally exploded until the Civil War of 1862–4 forever terminated the controversy. The Kentucky and Virginia Resolutions, drafted by Jefferson (1798), and adopted by the Legislatures of those States, in protest against the Alien and Sedition Laws passed by the Federal Congress, contained the germ of the fatal and insidious contention that the Union was merely a compact among the States; that the States severally had the right to resist any breach of the compact, and to pronounce that a Legislative Act of the Federal Congress in excess of its powers, and encroaching on the rights of the States, was a nullity to be followed, if necessary, by resistance, revolution, and bloodshed.

This political heresy was afterwards (1828–33) elaborated by Hayne and Calhoun, both in their debates with Daniel Webster, and in a series of addresses formulating their views of the relations which the States and the general Government bore to each other. In October, 1832, a State Convention was held in South Carolina, at which it was declared and ordained by the people of the State that the several Acts of Congress purporting to impose duties on the importation of foreign commodities were unauthorized by the Constitution of the United States, and were, therefore, utterly null and void. This was the first serious experiment in nullification by any State. The State Legislature of South Carolina followed up the ordinances of the State Convention by passing several Acts intended to give effect to the declaration of nullification, by authorizing the citizens of the State to refuse to obey the Federal law which had been declared null and void. The President of the Republic, General Jackson, issued a proclamation to the people of South Carolina, requiring them to obey the Federal law, and he followed up his proclamation by calling out the Federal troops. Hayne, the Governor of the State, responded by mustering and drilling 20,000 volunteers. Jackson is said to have sent a private message to Calhoun threatening that he would hang him higher than Haman if nullification were not abandoned. An armed conflict between the State and the Union was only averted by a compromise, according to which Congress passed a new tariff law redressing some of the grievances complained of; and the controversy for the time was terminated.

Each side, says Foster (Constitution, I. p. 154), claimed a victory. Calhoun's policy had been successful, and the result encouraged his successors when they put to the test their claim to the right of secession from the Union. The contest was resumed in a more dangerous shape on 20th December, 1860, when a Convention of the people of South Carolina was held, at which an ordinance of secession was adopted in the following terms:—

“An ordinance to dissolve the union between the State of South Carolina and other States united with her under the compact entitled ‘The Constitution of the United States of America.’ We the people of the State of South Carolina in Convention assembled do declare and ordain and it is hereby declared and ordained that the Ordinance


  ― 293 ―
adopted by us in Convention on the 23rd of May, 1788, whereby the Constitution of the United States was ratified, and also all other Acts and part of Acts of the Federal Constitution, are hereby repealed, and the Union now subsisting between South Carolina and other States under the name of the United States of America is hereby dissolved.”

This ordinance of secession was followed up by a declaration of independence, which alleged that the Union was dissolved, and that South Carolina had resumed her position amongst the nations of the world as a free, sovereign, and independent State. The example of South Carolina was afterwards followed by the States of Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas. A Congress of seceding States was held at Montgomery, Alabama, at which a provisional Constitution was adopted and a provisional Government was formed. The Confederate Constitution was in many respects similar to that of the United States. In April, 1861, the provisional Government was called upon to give orders relating to Fort Sumter, a fortification still held by the United States, but situated within the territory of one of the Confederate States; the militia of South Carolina were directed to attack the fort, and the Civil war began. Four other States, Virginia, North Carolina, Tennessee and Arkansas, then seceded from the Union and joined the Confederacy. During the progress of the Civil war the Provisional Constitution was for a considerable time unaltered, but in February, 1862, a formal instrument of Government was adopted, which contained a few deviations from the Constitution of the United States.

“The trial of the wager of battle lasted more than five years. The dispute as to the construction of the Constitution was too mighty to be decided in a Court of Justice. The South had appealed to the final argument: in imitation of the Gallic Brennus, she had thrown her sword into the scale. To her surprise the North, less timid than the Romans, followed her example, and the weapon of the latter proved the heavier. The result determined the character of the Constitution for all time and compelled the conquered to consent to amendments which eradicated the evil (slavery) that had been the cause of the fraternal discord. No amendment which disclaimed the right of secession was written into the great Charter; pen and ink were not needed to express what had been stamped upon it by blood and iron.” (Foster, Comment. on the Constit. I., p. 185.)

The war was declared ended in August, 1866. Although the Federal Constitution was not amended by the insertion of a new clause explicitly stating that the Union was a permanent form of Government, several State Constitutions, including those of seven of the rebellious States, were amended by the introduction of provisions expressly repudiating the right of secession. In the case of the rebellious States, no doubt, the amendment was carried through the pressure and coercion of the victorious army of the North; but it was also adopted in several new States, where no such influence prevailed.

It was at a fearful cost that the principle was thus, once and for all, placed beyond the region of doubt that the United States form a perpetual union of indestructible States. This view received direct judicial sanction in the leading case of Texas v. White, 7 Wall. 700, which came before the Supreme Court in 1868. The question raised in that case was whether the State of Texas, by framing in Constitutional Convention the ordinance of secession, and by passing through its legislature Acts to give effect to such ordinance ceased to be a State of the Union, and whether its citizens ceased to be citizens of the United States.

“The union of the States never was a purely artificial and arbitrary relation… It received definite form and character and sanction by the Articles of Confederation. By these the Union was solemnly declared to be ‘perpetual.’ And when these Articles were found to be inadequate to the exigencies of the country the Constitution was ordained to form a more perfect union. It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual union, made more perfect, is not? But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence or of the right of self-government by the States.… It may be not 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; that the Constitution in all its provisions looks to an indestructible union composed of indestructible States. When,


  ― 294 ―
therefore, Texas became one of the United States she entered into an indissoluble relation. … There was no place for reconsideration or revocation except through revolution or through the consent of the States. Considered therefore as transactions under the Constitution the ordinance of secession adopted by the Convention and ratified by a majority of the citizens of Texas was absolutely null and utterly without operation in law. The obligations of the State as a member of the Union and of every citizen of the State as a citizen of the United States remained perfect and unimpaired. The State did not cease to be a State nor her citizens to be citizens of the Union.” (Per Chase, C.J., in Texas v. White, 7 Wall. 700.) Boyd's Const. Cases, p. 555.

The triumphant Federalists in the United States did not propose any amendment of the Constitution to remove doubts on the question raised by lawyers and revolutionary publicists. They denied that there was any doubt as to the perpetual duration of the Union. To propose an amendment declaring it indissoluble, after it had been so settled by the sword, would have been equal to an admission that such a doubt existed.

CANADA.—The Constitution of Canada does not contain any clause declaring the perpetuity or indissolubility of the Dominion. That Constitution is embodied in an Imperial Act, and, save with respect to certain matters of detail not affecting the fundamental features of the scheme, it can only be altered by the Imperial Parliament. No general power to amend the Constitution has been granted to the Parliament and people of Canada. Should they require to modify any constitutional provision, not within the jurisdiction of the Dominion, an application has to be made to the Imperial Parliament to effect the required legislation. Consequently, the Dominion is absolutely indissoluble so far as the Parliament and people of Canada are concerned. The Imperial Parliament, which created it, could at any time dissolve it. No clause in the Imperial Act declaring the Dominion indissoluble could have interfered with or limited the supreme sovereign power by which the Dominion was created. Nothing is more certain than that “a Parliament cannot so bind its successors, by the terms of any statute, as to limit the discretion of a future Parliament, and thereby disable the Legislature from entire freedom of action at any future time, when it might be needful to invoke the interposition of Parliament to legislate for the public welfare.” (Todd, Parliamentary Government in the British Colonies, 2nd ed. p. 243.)

These considerations explain the circumstance that the Canadian Constitution contains no reference to the durability, or otherwise, of the Dominion. They do not account for the fact that, whilst the indissolubility of the Commonwealth is not affirmed by any clause in the Imperial Act, it is recited as an accepted principle in the preamble. Why was it placed in the preamble? The only reason which can be suggested, is that the Australian Parliament and people have a general power to amend the Constitution, and it may have been considered wise and prudent that, coupled with a right so great and important, there should be a reminder, placed in the fore-front of the deed of political partnership between the federating colonies, that the union, sealed by Imperial Parliamentary sanction, was intended by the contracting parties to be a lasting one, and that no alteration should be suggested or attempted inconsistent with the continuity of the Commonwealth as an integral part of the British Empire.

§ 7. “Under the Crown.”

This phrase occurs in the preamble, and is not repeated, either in the clauses creating the Commonwealth or in the Constitution itself. It corresponds with similar words found in the preamble of the British North America Act (supra) and in the Commonwealth Bill of 1891. It is a concrete and unequivocal acknowledgment of a principle which pervades the whole scheme of Government; harmony with the British Constitution and loyalty to the Queen as the visible central authority uniting the British Empire with its multitudinous peoples and its complex divisions of political power. It has been introduced rather out of an abundance of caution, than from any consideration that its omission might suggest a doubt or from any present idea of actual necessity.




  ― 295 ―

Some years ago a few ardent but irresponsible advocates of Australian federation indulged in predictions that the time would inevitably come when Australia would separate from the mother country and become an independent Republic. Those ill-considered utterances caused, at the time, strong expressions of disapproval throughout the colonies, which effectually prevented the repetition of such suggestions, as being beyond the arena of serious contemplation and debate. Throughout the political campaign which preceded the election of the Federal Convention, not a solitary public writer or speaker seriously discussed the possibility, much less the probability, of separation.

Hence the words, “Under the Crown,” have been inserted in the preamble to the Constitution, not as a protest against any growing sentiment adverse to the British connection, but partly to harmonize it with the Canadian precedent and partly because there was no reason for departure from the precedent of 1891.

In explanation of the appearance of the words in the preamble and their non-repetition in any of the enacting clauses or sections, it may be mentioned that though the words, “Under the Crown,” are introduced in the shape of a recital of an apparently accepted and indisputable fact that the people have so agreed, and not in the shape of a command, coupled with a sanction, yet the origin of the Commonwealth and its form of government shows:—

  • 1. That it has been established by the concurrence of the Queen.
  • 2. That the Queen is an essential part of the Federal Parliament.
  • 3. That the Queen is the head of the Federal Executive.
  • 4. That the Queen is to be represented in the Commonwealth by a Governor-General.

These provisions are stronger than any formal affirmation in the preamble, as evidences and guarantees that the Commonwealth is an integral part of the Empire presided over by the wearer of the Triple Crown of England, Ireland, and Scotland—which, let us hope, it will continue to be so as long as that Empire endures. Although to some extent they are surplusage, as involving a recapitulation of what is otherwise provided in the Constitution, the words, “Under the Crown,” standing as they do in the preamble to the Imperial Act, may hereafter be of service in answering arguments in favour of amending the Constitution by repealing the provisions above referred to. Strictly speaking, such amendments might be proposed, in the manner provided by the Constitution; they are not in terms prohibited by the Constitution. Should they be proposed, however, strong arguments against their constitutionality, and even their legality, would be available in the words of the preamble. It might be contended with great force that such amendments would be repugnant to the preamble; that they would at least involve a breach of one of the cardinal understandings or conventions of the Constitution, and, indeed, the argument might go so far as to assert that they would be ultra vires of the Constitution, as being destructive of the scheme of Union under the Crown contemplated in the preamble.

On the other hand, it would be urged that section 128 of the Constitution defines the procedure by which, and the limits within which, the Constitution may be altered; that the only limitation on the power of alteration is the one indicated at the end of the section, viz.:—That no alteration diminishing the proportionate representation of any State in either House of the Parliament or the minimum representation of a State in the House of Representatives, or altering the limits of a State, shall become law, unless the majority of the electors voting in that State affirm the proposed amendments. That is the only thing like an exception to, or a restriction on, the general power of amendment specified in the Constitution, and it might afford ground for the contention that according to the rule of construction, expressio unius exclusio alterius, no other limitation was intended. It might also be submitted that an alteration not contrary to any express provision in the covering clauses would be quite legal even though it were inconsistent with the preamble, and even though it were contrary to the obvious intentions of the


  ― 296 ―
plan of Government therein contemplated. It might be added that the preamble could not be utilized to cut down the general power to amend, and that if there were any inconsistency between an affirmation in the preamble and the power to amend, conferred by the Constitution, the enacting words must prevail.

To this the opponents of such amendments might rejoin by drawing attention to the Colonial Laws Validity Act, 1865 (28 and 29 Vic. c. 63), passed to remove doubts as to the validity of colonial laws; section 2 of which provides that any colonial law, repugnant to the provisions of any Act of Parliament extending to the Colony to which such law may relate, shall, to the extent of such repugnancy, but not otherwise, be absolutely void and inoperative. An amendment of the Constitution of the Commonwealth would of course be a colonial law within the meaning of this section.

Probably such a question would not be so far developed by legislative action as to assume a form capable of being discussed in the Federal High Court. Even if any amendment, to the effect under consideration, were carried by an absolute majority in both Houses of the Federal Parliament—even if it were approved of by a majority of the electors and a majority of the States—it would still have to be reserved for the Royal assent. It is not likely that such assent would be given without the authority of the Imperial Parliament. If that Parliament, which created the Commonwealth and the Constitution of the Commonwealth, consented to a form of legislative and executive government which ignored the Crown, no trouble would arise. It is not likely that such consent would either be asked for or given, except in a combination of circumstances and a revolution of ideas and sympathies of which we can now form no possible conception.

§ 8. “United Kingdom of Great Britain and Ireland.”

The composite nature of the United Kingdom created by the union of the Crowns of England, Scotland, and Ireland, presents interesting points of comparison and contrast with the form of federal union established by the Constitution of the Commonwealth of Australia. The United Kingdom is ruled by a single sovereign Parliament; but the identity of the component parts is by no means wholly lost, as will appear from a brief reference to the Acts of Union.

UNION OF ENGLAND AND SCOTLAND.—Although the Crowns of England and Scotland were united upon the accession of James VI. of Scotland to the English throne, under the title of James I., in 1603, the two countries continued separate and distinct kingdoms, subject to the administration of two different executives and to the legislation of two independent Parliaments, for over one hundred years. The Union of the two kingdoms was, for many years, projected and discussed before the proposal assumed a tangible shape. During the reigns of Charles II. and James II., Commissioners were appointed in England to negotiate with Commissioners similarly appointed in Scotland in order to settle the terms of the Union, but no agreement was then arrived at. The realization of the manifest destiny of England and Scotland was reserved for the reign of Queen Anne.

By the Act of 1 Anne c. 8 (1702), authority was given for the appointment of a Commission representing England to meet a similar Commission representing Scotland to settle the Articles for the Union of the two kingdoms. The Commissioners met at Whitehall on 16th April, 1706, and they completed their labours and signed the treaty of Union on 22nd July following. The Treaty consisted of 25 Articles, of which the leading provisions were as follows:—

The Union.—That on 1st May, 1707, and for ever afterwards, the kingdoms of England and Scotland should be united into one kingdom by the name of Great Britain; that the succession to the throne of Great Britain should be vested in the Princess Sophia and her heirs according to the Act of Settlement passed by the English Parliament for that purpose; that there should be one Parliament for the whole kingdom.


  ― 297 ―
Rights of Subjects.—That all the subjects should enjoy the same rights, immunities and privileges; have the same allowances, encouragements and drawbacks, and be under the same regulations and restrictions as to trade and commerce. Trade and Finance.—That Scotland should not be charged with temporary duties on certain commodities; that the sum of £398,103 should be granted to Scotland as equivalent for such parts of the customs and excise charged upon that kingdom in consequence of the union, as would be applicable to the payment of the debts of England, according to the proportions which the customs and excise of Scotland bore to those of England; that as the revenues of Scotland should increase, a fair equivalent should be allowed for such proportion of the said increase as should be applicable to payment of the debts of England; that the sums to be thus paid should be employed in reducing the coin of Scotland to the standard and value of the English coin, in paying off the capital, stock and interest due to the proprietors of the African Company which should immediately be dissolved, in discharging all the public debts of the Kingdom of Scotland, in promoting and encouraging manufactures and fisheries under the direction of Commissioners to be appointed by Her Majesty and accountable to the Parliament of Great Britain. Public Laws.—That laws relating to public right, policy, and civil government should be alike throughout the whole kingdom, and that no alteration should be made in laws which concerned private right except for the evident benefit of the people of Scotland. Judicial System.—The Court of Session and all other courts of judicature in Scotland should remain as constituted, with all authority and privileges as before the union, subject only to the power of the Parliament of the United Kingdom. Local and Municipal.—All heritable offices, superiorities, heritable jurisdictions, offices for life, and jurisdictions for life, should remain the same as rights and properties as then enjoyed by the laws of Scotland. The rights and privileges of the royal boroughs in Scotland were to remain unaltered. Representation in Imperial Parliament.—Scotland should be represented in Parliament by sixteen peers elected from Parliament to Parliament, and forty-five commoners to be elected in a manner to be settled by the Parliament of Scotland before its dissolution. All peers of Scotland and the successors to their honours and dignities should from and after the union take rank and precedency next and immediately after the English peers of the like orders and degrees at the time of the union, and before all English peers of the like orders and degrees as should be created after the union; they should be tried as peers of Great Britain, and enjoy all the privileges of peers of England except that of sitting in the House of Lords and the privileges depending thereon, and particularly the right of sitting upon the trials of peers. The Crown.—The crown, sceptre and sword of state, the records of Parliaments, and all other records, rolls and registers whatsoever, should still remain as they were in Scotland. Existing Laws.—All laws and statutes in either kingdom inconsistent with these terms of union should cease and be declared void by the Parliaments of the two kingdoms. The standard of weights and measures should be reduced to that of England. The laws relating to trades, customs and excise should be the same in England and Scotland; all other laws in Scotland to remain in force until altered by the Parliament of Great Britain. Religion.—The establishment of the Presbyterian religion was guaranteed in Scotland, with a proviso that it should not at all concern the established religion of England; each religion was in its respective country to maintain its acknowledged ascendency. It was further provided that every professor of a Scottish University should acknowledge, profess and subscribe to the ‘Confessions of Faith;’ these provisions relating to religion were asserted to be fundamental and essential conditions of the union in all time coming.

In the Scottish Parliament, October, 1706, every article in the treaty was bitterly resisted, but eventually it was carried by an overwhelming majority of votes, with but few alterations of any consequence; in fact the only additions made to the articles in the Scottish Parliament related to some trivial bounty on oats, which were then grown largely in Scotland; to regulations relating to salted meats and salted fish, and to the encouragement of the herring industry. In the final session of the Scottish Parliament an Act was passed to regulate the election of 16 peers and 45 commoners to represent Scotland in the British Parliament. On the 25th March, 1707, the Scottish Parliament rose never to reassemble.




  ― 298 ―

On 28th January, 1707, the English Parliament met and was informed by the Queen that the Articles of Treaty with some slight modifications had been adopted by the Scottish Parliament. The terms of the treaty were fiercely resented in some quarters. High Churchmen denounced the establishment of two religions; others protested against the financial part of the arrangement. However, a Bill ratifying the treaty was passed by the English Parliament, amid vehement protests from a few, but without serious opposition. The result of the ratification of the treaty by the two Parliaments was the establishment of the one Kingdom of Great Britain in place of the two Kingdoms of England and Scotland. The Parliament of England and the Parliament of Scotland both ceased to exist, and the Parliament of Great Britain took their place. (6 Anne c. 11.)

“No change ever took place under more violent or general opposition, none in which more evils and calamities were prognosticated. The Scotch believed that their trade would be destroyed, their nation oppressed, and their country altogether ruined through the overwhelming influence of England. But if we look at the condition of Scotland now—at the increase of its population, the increase of its wealth and comfort, the growth of its towns, the extension of its trade and manufactures—there is scarcely anything so striking in the history of the world as the wonderful advance of Scotland since and in consequence of the union. If we look at the vast numbers of Scotch who have settled in England and in all the colonies, at the numbers who have located themselves in eminent places in the literature, law, and government of England, how wonderful is the contrast betwixt the outcry against the union and the results! But to all parts of the Empire the union has been scarcely less beneficial by the peace, unity, and strength which it has conferred, and by the infusion of Scotch enterprise, industry, and perseverance into the texture of the English character. What Defoe says of the treaty is undoubtedly true. It is one of the greatest measures and most ably-framed which ever distinguished any reign or country. ‘I shall not,’ says that great writer, ‘descend to encomiums on the persons of these treaters, for I am not about to write a panegyric here, but an impartial and unbiassed history of fact, but since the gentlemen have been illtreated, especially in Scotland—charged with strange things, and exposed in print by some who had nothing but their aversion of the treaty to move them to maltreat them, I must be allowed on all occasions to do them justice in the process of this story. And I must own that generally speaking, they were persons of the greatest probity, the best characters, and the stoutest adherents to the true interests of their country: so their abilities will appear in every step taken in so great a work; the bringing it to so good a conclusion and that in so little time, the rendering it in so concise a form and so fixing it that when all the obstruction imaginable was made to it afterwards in the Parliament of Scotland, the mountains of objections that first aroused the world proved such molehills, were so easily removed, raised so much noise, and amounted to so little in substance that, after all was granted that could in reason be demanded, the amendments were so few and of so little weight, that there was not one thing material enough to obtain a negative in the English Parliament.’ ” (Cassell's Hist. of Eng., IV., p. 225.)

By the Reform Act of 1832 (2 and 3 Will. IV. c. 45) the number of Scotch members in the House of Commons was increased to 53 in all, and by the Reform Act of 1867 (30 and 31 Vic. c. 102) that number was increased to 60, whilst by the redistribution of seats in 1885 (48 Vic. c. 3) Scotland was allotted 12 additional seats, making in all 72 members.

UNION OF GREAT BRITAIN AND IRELAND.—In the reign of Henry II. (1172–3) Ireland became à Dominion or Lordship of the King of England, who was styled ‘Dominus Hiberniœ.’ Since then the Crown has been continuously represented in Ireland by an Administrative Official under the varying names of Chief Governor, Justiciary, Lord Deputy and Lord Lieutenant. The Lordship of Ireland was eventually converted into a kingdom, and in 1542 the King of England became King of Ireland; that title was conferred on him by an Irish Act, 33 Henry VIII, Ir. c. I., and was recognized by an English Act, 35 Henry VIII. c. 3. From that period the Crown of Ireland became inseparably annexed to the Crown of England.

Ireland may be deemed to have had legislative assemblies or councils similar to those in England, based on the principle of elective representation, from the year 1295. Those assemblies or councils gradually developed into a Parliament, composed, according to the English model, of a House of Lords and a House of Commons. There were, however,


  ― 299 ―
several serious limitations on the authority of the Irish Parliament; (1) internal restraints in the shape of the Irish Privy Council, and restrictive regulations self-imposed by the Irish Parliament, under the dominating influences of the executive; and (2) external restraints in the competing authority of the English Parliament. In 10 Hen. VII. (1495) an Act was passed by the Irish Parliament called “Poynings' Law;” taking its name from Sir Edward Poynings, the Chief Governor. This law provided that no Parliament should be convened in Ireland until the causes and considerations thereof, and all such measures as were proposed to be introduced and all such Acts as were proposed to be passed, were previously certified by both Houses to the King, and the King's license for the holding of the Parliament was issued; and only such business as was previously approved of by the King could be introduced into the Parliament and dealt with by it when it was assembled. This greatly contracted the authority of the Irish Parliament, and, in time, nothing was left to it but the power to reject without the power to initiate or amend Bills.

In addition to this internal limitation, the Irish Parliament was restrained, in its legislative action, by a claim put forward by the English Parliament that it had a concurrent, if not a paramount, jurisdiction over, and right to legislate for, Ireland; it being contended that the authority of the Irish Parliament was not exclusive but secondary and subordinate. In the reigns of Charles II., William III., and Anne, several statutes were passed in England expressly binding Ireland, such as the Navigation Act, the Woollen Act, and the Tobacco Act. Despite protests, the English Parliament continued to legislate for Ireland. Especially in the matter of foreign trade, the Parliament of England, and afterwards the Parliament of Great Britain, claimed the right to legislate for the whole of the British Isles, and at length the Act of 6 Geo. I. c. 5 (1719) was passed, declaring that Ireland was a subordinate kingdom, and that the Parliament of Great Britain had full power to bind the people of Ireland. In 1782, however, the legislative independence of the Irish Parliament was restored by three statutes. (1) By 22 Geo. III. c. 53 (1782), the Act of 6 Geo. I. c. 5 was repealed. (2) By 23 Geo. III. c. 28 (1783), the right of the Irish people to be bound only by the Acts of the Irish Parliament was affirmed in these words:—“The right claimed by the people of Ireland to be bound only by laws enacted by His Majesty and the Parliament of that kingdom in all cases whatsoever, and to have all actions and suits instituted in that kingdom decided in His Majesty's courts there finally and without appeal from thence, is established and ascertained for ever.” (3) By 21 and 22 Geo. III. Ir. c. 47 (1781), the Crown assented to a modification of Poynings' Law, and thus freed the Irish Parliament from its self-imposed restraints, and from the control of the Privy Council.

After 1782, as before, the Irish Parliament had no control of the Executive, which was vested in the Lord-Lieutenant and his Chief Secretary, who were nominated by the British Government. The King, as King of Great Britain, acted on the advice of his Ministers; as King of Ireland, on the advice of the Irish Executive. The views and interests of England might seriously differ from those of Ireland on grave questions, such as peace and war, trade and commerce. The Irish Parliament, however, whilst it had no voice in such great issues, could not be forced to raise men or money to carry on a war. A conspicuous defect of such a complicated distribution of sovereign power was that it was unaccompanied by any provisions for the settlement of deadlocks or for reconciling differences that might arise between the two kingdoms.

The circumstances that led up to the passage of the Act of Union necessarily belong to the political history of Ireland. By the Irish Act, 40 Geo, III. Ir. c. 38, and by the British Act, 39 and 40 Geo. III. c. 67 (1800) the Kingdoms of Great Britain and Ireland became united into one Kingdom under the name of the United Kingdom of Great Britain and Ireland. The Parliaments of Great Britain and of Ireland became merged in one Imperial Parliament of the United Kingdom. Some of the chief Articles of this great statute, condensed from Tomlins' Law Dictionary, may be reproduced:—




  ― 300 ―
The Union.—The kingdoms of Great Britain and Ireland shall after 1st January, 1801, and for ever, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland.—Art. I. The Crown.—The succession to the Crown of the United Kingdom shall continue limited and settled in the same manner as the succession to the Crown of Great Britain and Ireland stands limited and settled according to the existing laws, and to the Terms of Union between Great Britain and Scotland.— Art. II. The Executive.—The Act of Union made no alteration in the Constitution of the Irish Executive, which still consists of a Lord Lieutenant, assisted by the Privy Council of Ireland.—Art. II. Parliament.—The United Kingdom to be represented in one Parliament. Four Lords Spiritual of Ireland, by rotation of Sessions, viz.—One of the four Archbishops, and three of the eighteen bishops, and 28 Lords Temporal of Ireland (elected for life, by the Peers of Ireland), shall sit in the House of Lords of the Parliament of the United Kingdom; and in the House of Commons, 100 Commoners; two for each of the 32 counties in Ireland; two for Dublin; two for Cork; one for Trinity College, Dublin; and one for each of the 31 most considerable cities, towns, and boroughs.—Arts. III.-IV. Ecclesiastical.—The Churches of England and Ireland shall be united into one Protestant Episcopal Church to be called “The United Church of England and Ireland,” according to the doctrine, worship, discipline, and government of the Church of England. The Church of Scotland to remain as under the Union of that Kingdom.—Art. V. Commerce.—The subjects of Great Britain and Ireland shall be entitled to the same privileges, and be on the same footing as to encouragements and bounties on the like articles, the growth, produce, or manufacture of either country respectively, and generally in respect of trade and navigation in the ports and places in the United Kingdom, and its dependencies; and in all foreign treaties Irish subjects shall be put on the same footing as subjects of Great Britain. All prohibitions and bounties on the export of articles, the growth, produce, or manufacture of either country to the other, shall cease. All articles, the growth, produce or manufacture of either country (not enumerated and subjected by the Act to specific duties) shall be imported into each country from the other free of duty, except countervailing duties. For 20 years from the Union certain articles were subjected to specified duties. National Debt.—By Article VII. it was provided that the charge of the separate national debt of either country before the Union should continue to be separately defrayed by the respective countries.—Art. VII. Existing Laws.—All laws in force at the time of the Union, and all courts, civil and ecclesiastical, within the respective kingdoms, shall remain as established, subject to future alterations by the United Parliament. All writs of error and appeals (determinable in the House of Lords of either kingdom) shall be decided by the House of Lords of the United Kingdom. The Instance Court of Admiralty in Ireland shall continue, with appeals to the delegates in Chancery there.—Art. VII.

§ 9. “Under the Constitution.”

The words, “Under the Constitution,” imply substantial subjection. The Commonwealth is a political community, carved out of the British empire and endowed through its Constitution with a defined quota of self-governing powers. Those powers are delegated by and derived from the British Parliament, and they are to be held, enjoyed, and exercised by the people of the Commonwealth in the manner prescribed by the grant, subject—(1) to the supreme British Sovereignty (under the Crown), and (2) to the Constitution of the Commonwealth. The Commonwealth is consequently under a double subjection. It is subject in the first place to the British Parliament, which, as the ultimate sovereign authority of the Empire, has the legal power to legislate for the Commonwealth as a part of the Empire, and even to amend or repeal the Constitution of the Commonwealth. The grant of a Constitution to any dependency of the Empire is, however, a practical guarantee that no Imperial legislation conflicting with such grant will be passed except at the express request and with the concurrence of the dependency.


  ― 301 ―
On a few subjects of specially Imperial concern, and as to which uniformity of regulation is specially important, the Imperial Parliament still occasionally legislates for all the Queen's Dominions; see for instance the Copyright Act, 1842 (5 and 6 Vic. c. 45); parts of the Merchant Shipping Act, 1894 (57 and 58 Vic. c. 60) and the Privy Council Acts. Such legislation when expressly extended to the Colonies will be as binding on the Parliament and people of the Commonwealth as is the Constitution itself. (See Lefroy, Leg. Power in Canada, p. 208.) In the second place, it is under a real subjection to the Constitution, as a living central force, continuously in action, keeping the ruling organs of the federated community within the respective spheres mapped out by the Constitution, and checking invasions and encroachments beyond the limits of those spheres. Not only the Federal Government, but the Governments of the States, will be under the Federal Constitution to the extent to which the Constitution limits their powers, and to the extent to which the power of amendment may be exercised. The Constitution will therefore be the supreme law of the land binding the people of the Commonwealth, the Federal Parliament, and all the governing agencies and instruments of the Commonwealth to the extent expressed.

§ 10. “Hereby Established.”

The Commonwealth is not established and the Constitution does not take effect until the date specified in the Queen's proclamation issued under Clauses 3 and 4. This proclamation was required to be issued within one year after the passing of the Act of the Imperial Parliament.

Be it therefore enacted by the Queen's Most Excellent Majesty,11 by and with the advice and consent of the Lords Spiritual12 and Temporal,13 and Commons,14 in this present Parliament assembled, and by the authority of the same,15 as follows:—

UNITED STATES.—We the People of the United States, … do ordain and establish this Constitution for the United States of America. [Preamble.] CANADA.—Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— [Preamble.] GERMANY.—His Majesty, the King of Prussia, in the name of the North German Confederation, His Majesty the King of Bavaria, His Majesty the King of Wurtenburg, His Royal Highness the Grand Duke of Baden, and His Royal Highness the Grand Duke of Hesse and by Rhine for those parts of the Grand Duchy of Hesse which are situated south of the Main, conclude an eternal alliance… This Confederation shall bear the name of the German Empire, and shall have the following Constitution:— [Preamble.] SWITZERLAND.—In the name of Almighty God. The Swiss Confederation, . . has adopted the Federal Constitution following:— [Preamble.]

§ 11. “By the Queen's Most Excellent Majesty.”

The enacting words, showing the Authority by which the Commonwealth is created, are in the form in which Acts of Parliament have been framed from a remote period of English history. According to the theory of the Constitution the Queen is the source of law, the Queen makes new laws, the Queen alters or repeals old laws, subject only to the condition that this supreme power must be exercised in Parliament and not otherwise. Every Act of Parliament bears on its face the stamp and evidence of its royal authority. It springs from the Queen's Most Excellent Majesty. It is in the Crown, and not in Parliament, that legislative authority is, according to Constitutional theory, directly vested. Parliament is the body assigned by law to advise the Crown in matters of legislation, and the Crown could not legally legislate without the advice and consent of Parliament. “It is, however, constitutionally and theoretically true that the legislative function resides in Queen Victoria no less than it resided in William the Conqueror. The conditions and limitations under which that power is exercisable have


  ― 302 ―
indeed been profoundly modified.” (Hearn's Government of England, p. 51.) Several stages in the history of the Royal legislative function, and in the mode of its initiation and its exercise, may be summarized:—

LEGISLATION BY THE KING IN COUNCIL.—In the earliest periods of English history of which we have any authentic records, we find that both the subjects of legislation and the mode of dealing with them rested entirely with the King and his Council of immediate advisers and great men; the King presiding at the Council in person, preparing and presenting the matters for consideration, and sharing in the deliberations of the Council. From time immemorial the Crown has always been assisted by a consultative or advisory body under the fluctuating names of “The Michel Synoth,” or Great Council; “The Michel Gemot,” or Great Meeting; “The Witena Gemot,” or Meeting of Wise Men. In Latin it was variously styled the Commine Concilium Regni; the Magnum Concilium; and the Curia Regis Magna. Long before the Norman conquest all matters of public importance were debated and settled by the King in the Great Council of the realm. (Freeman's Growth of the English Constitution, pp. 40 and 53.)

This practice seems to have been universal among the Northern nations, and particularly among the Teutonic tribes, in whose primitive institutions, as described by Tacitus, there can be discerned the germs which afterwards expanded into the elaborate mechanism of representative and parliamentary government. In the very earliest accounts of these tribes we find the community generally ruled by a chief or prince with the advice and consent of the assembled nobles and people. This system was afterwards carried by the Germans into all the countries of Europe which they over-ran upon the dissolution of the Roman Empire. (Tomlin's British Law, vol. II. [Parliament]; Hearn's Government of England, p. 416.) So early as the reigns of Ina, King of the West Saxons; Offa, King of the Mercians; Ethelbert, King of Kent, instances occur of the meeting of such a Council “to consider the affairs of the kingdom and to advise the king to make new laws as well as to mend old ones.”

After the union of the several realms of the Heptarchy, King Alfred ordained for a perpetual usage, that these Councils should meet twice in the year, or oftener, if need be, to treat of the government of the people; “how they should keep themselves from sin, should live in quiet, and should receive right.” Our succeeding Saxon and Danish monarchs frequently held councils of this sort, as appears from their respective codes of laws; the title whereof usually speak them to be enacted, either by the King with the advice of his Witena-gemot, or wise men, or by these sages with advice of the King, or lastly, by both together. There is also no doubt but that these great councils were occasionally held under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry II., speaking of a particular amount of an amercement in the Sheriff's Court, says, “It had never yet been ascertained by the General Assizes or Assemblies, but was left to the custom of particular counties.” (Glanvil, b. 9, c. 10.) Here the general assizes are spoken of as a meeting well known, and its statutes or decisions are put in a manifest contradistinction to custom, or the common law.—Tomlin's B.L. vol. II. (Parl.).

LEGISLATION BY THE KING ON PETITION.—The “Great Council,” whose concurrence in legislation was thus required, was the historical original of the House of Lords. Long after the sole right of the Commons to grant supplies to the Crown was established, there was no recognition of their right to be consulted in matters of general legislation. The “power of the purse,” however, enabled them to claim legislation for the redress of grievances; and in 1309, early in the reign of Edward II., we find them granting a subsidy “upon this condition, that the King should take advice and grant redress upon certain articles, in which their grievances were set forth.” Thirteen years later their right to concur in all legislation was affirmed. The Act of 15 Edward II. (1322) contains a clause which is said to be the first formal recognition of our present legislative system, viz., “the matters which are to be established for the estate of our Lord the King and


  ― 303 ―
of His Heirs and for the estate of the realm and of the people, shall be treated, accorded and established in Parliaments by our Lord the King and by the assent of prelates, earls and barons, and the commonalty of the realm, according as it hath been heretofore accustomed.” (Taswell-Langmead, p. 269.) Almost all the Acts passed during the reign of Edward III. (1327–1377) express in some shape the concurrence of the Lords and of the Commons. At the same time they were the laws of the King, made by the King, at the request of or on the petition of the people or communities of the people with the assent of the Lords “for the common benefit of the people of the realm.” (Hearn's Gov. of Eng. 54.)

LEGISLATION BY THE KING, ON BILL PRESENTED BY PARLIAMENT.—The third period marks the transition from legislation preceded by petition, to the modern form of legislation by Bill, presented to the Crown by Parliament. The Commons, disappointed at the frequent neglect of their petitions, and equally aggrieved by the frequent passage of laws, not according to the terms of their petitions, adopted a new expedient; they submitted for the Royal assent “a petition containing in itself the form of a bill.” This instrument, which contained the precise provisions that they desired, was the identical document on which the Royal fiat was placed. No room was thus left for fraud or misunderstanding. But an unforeseen and remarkable consequence followed. It became difficult, if not altogether impossible, for the Crown to amend the petition thus presented. When a request was made in so precise a form, nothing remained but either to assent to it or to reject it as a whole. Hence, although a few exceptions occur in the reign of Edward IV., the practice was established, at all events before the accession of the Tudors, that the Royal assent should be given to or withheld from the precise advice tendered to the King by his Parliament. (Hearn's Gov. of Eng. p. 59.)

§ 12. “Of the Lords Spiritual.”

One of the oldest Acts in which this expression occurs is the Statute of 4 Hen. IV. (1402), which begins—“To the honour of God and Holy Church, and for the common wealth and profit of all the realm of England, our Lord the King, by the assent of the Lords Spiritual and Temporal, and at the special instance and request of the Commons, assembled at the Parliament holden at Westminster the morrow after the feast of St. Michael, the fourth year of his reign, hath ordained and established certain statutes and ordinances by the manner as followeth.” (Stat. Rev. Ed., 1870, Vol. I., p. 272.) This form was used in all the Acts of Henry IV. It was followed in the Acts of Henry V., and with few exceptions it became the regular method of referring to the ecclesiastical element in the House of Lords. This reference to “Lords Spiritual” has led to the impression, in the minds of a large number of writers, that they constitute one of three estates of the realm. That is not so. The Lords Spiritual, in reality, form a component part of the House of Lords, which is, as a whole, only one of the estates. Another equally incorrect assumption, frequently met with, is that the Crown represents one of the three estates.

THE THREE ESTATES.—Among most of the nations of Western Europe, it was in the early and middle ages customary to consider a political community as divided into three orders or estates. In England it was generally held during a part of that period that the nobility, the clergy, and the commons, constituted the three states of which the Parliamentary Assembly was composed. The Crown shared in the sovereignty with the Parliamentary body, but it was not an estate.

THE CLERGY AS AN ESTATE.—When William the Conqueror assumed the Government of England, he changed the spiritual tenure of Frankalmoign or free alms under which the bishops, mitred abbots, and other Spiritual Lords held their land, in Saxon times, into feudal tenure by barony. This tenure subjected the ecclesiastical estate to civil charges, pecuniary claims, assessments and aids from which they were before exempt. The inferior clergy and owners of religious houses, however, continued to


  ― 304 ―
hold their lands on Frankalmoign, and thus free from liability to feudal burdens and taxation. As an incident of their right to the enjoyment of a succession to their baronies and of their consequent liability to feudal obligations, the bishops and abbots were summoned to attend the sittings of the King's Great Council (Magnum Concilium), which afterwards developed into the House of Lords, and they have ever since been allowed the privilege of membership of that order under the name, finally recognized, of the “Lords Spiritual.” The Lords Spiritual, however, never constituted an estate or assembly of the clergy as a whole. The parochial clergy and owners of religious houses being legally exempt from taxation, and protected by law as well as by the sanctity of their order, the King could not tax them without their consent. An expedient was therefore adopted for the purpose of obtaining their consent. A special assembly, or convocation, was organized in which the mass of the clergy could be officially represented by men of their own class, and of their own selection, charged with the duty of deciding the manner and measure of their taxation in aid of the King's revenue.

In the “Model Parliament” of 1295 (23 Edw. I.) the clergy were for the first time represented as one of the three estates in a really national Legislature. In the Parliamentary writ of summons served on every bishop, requiring his attendance in the King's Great Council, he was “pre-monished” to cause the Dean of his Cathedral Church and the Archdeacon of his Diocese in person, and the chapter and the parish clergy of the Diocese, by their proctors, to attend the Parliament and there take part in the deliberations of the assembly of the clergy. This command to the bishops, usually known from its initial word as the “Premunientes Clause,” was first issued in 1295; it was uniformly issued after 1354, and it was generally obeyed by the formal election of proctors until the Reformation (Hen. VIII. 1509–1547). (Hearn's Gov. of Eng. p. 432.)

The inferior clergy, however, though always summoned under the writ of premunientes, seldom attended. They preferred to keep aloof from secular legislation, and to tax themselves in their own Convocation. In the 14th century their attendance ceased altogether; though in Convocation they still formed a Legislative Council, by whose advice and consent alone, without that of the growing Commons, Edward III. and Richard II. passed laws, on ecclesiastical matters, to bind the laity. At last, in 1664, without any special legislative enactment, the practice of special ecclesiastical taxation ceased, and the lower clergy merged in the general body of the Commons. (Hallam, Middle Ages, III., 137; Taswell-Langmead, p. 250.) Thus the clergy ceased to be an estate of the realm, and now there are only two estates, namely, the Lords and the Commons, forming one Parliament in which the clergy are represented in common with the rest of the nation.

At common law the clergy were not qualified to vote at elections for the House of Commons, nor were they qualified to be elected members of that House; the reason being that they were of a distinct and separate estate, and that one estate could not take part in the political deliberations of another. By the Acts of 10 Anne c. 31, and 18 Geo. II. c. 18, clergymen who are not members of the House of Lords have been conceded the right to vote; and by 33 and 34 Vic. c. 91 (1870) clergymen may, by deed, renounce their clerical capacity and become qualified for election as members of the House of Commons and other public bodies.

§ 13. “And Temporal.”

The Lords Temporal consist of all the peers of the realm, by whatever title of nobility distinguished. Bishops are not peers; they, with the peers, form the Lords of Parliament or the House of Lords as an integrated legislative chamber. The origin of this body has been traced to the Great Council (Magnum Concilium), consisting of the nobles, tenants-in-chief, principal landowners and prelates, known before the Norman


  ― 305 ―
conquest as “Witena-gemot,” and after that event as the “Curia Regis,” which assembled to advise the King in matters of legislation and administration. The peerage of the present day is the descendant of the old Great Council of the King. (Hearn's Gov. of Eng. p. 144.)

The House of Lords now consists of members who hold their seats either—(1) by hereditary right, (2) by the creation of the reigning sovereign, (3) by virtue of their office, such as English Bishops, (4) by election for life, such as Irish peers, of whom there are twenty-eight, (5) by election for the duration of a Parliament, such as the Scotch representative peers, of whom there are sixteen. In 1830, the number of peers on the roll of Parliament was 401; in 1899, the number had increased to 591; about two-thirds of the hereditary peerages at present in existence were created during the present century. (Statesmen's Year Book, 1900, p. 7.)

§ 14. “And Commons.”

ORIGIN.—It would be difficult to condense into a brief note an adequate summary of the beginnings of that great and renowned parliamentary assembly whose name is thus officially given in the Imperial Act. The House of Commons was originally the legislative chamber in which were represented, not the common people of England, nor the English churls, nor the English plebeians, as those expressions are generally understood, but the various communities (Communitates) of the Kingdom. Communitates meant aggregations of persons residing in the same neighbourhood, entitled to the enjoyment of common rights, subject to common duties and burdens, having common interests; groups of population organized and localized; assemblages of persons liable to the same feudal obligations, and occupying the same relation to the King. Foremost in numerical strength among these Communitates were—(1) the communities of the counties, which included the knights of the shires, formerly the lesser barons and lesser Crown vassals; and (2) the communities of the cities, towns and boroughs, including the citizens and burgesses thereof. According to the theory of the Constitution, even in the middle ages, the maxim prevailed that “what touched all should be approved by all;” that no change should be made in a law affecting any class, order or community, and certainly that no tax could be imposed, without the consent of the group of persons immediately concerned. Hence the knights of the shires, when they became differentiated from the greater barons, who were summoned in person by special writ to attend the Magnum Concilium, began to meet, either in person or through their delegates, in an assembly of their own, to vote aids to the Crown and petition for redress of grievances. Similarly, the cities and boroughs, being called upon by the King to grant aids and subsidies, sent delegates to represent them and to do their business in a gathering of their own.

The growth of these two middle classes, and their gradual representation for the discharge of public functions, was at times actually encouraged by the Crown in order to facilitate the collection of revenue or to counterbalance the increasing influence of the barons and prelates; at other times the popular tendency was supported by the leaders of the nobility, in order to gain support in their contests against the Crown.

ELECTION AND REPRESENTATION.—“The ideas of election and representation, both separately and in combination, had been familiar to the nation, in its legal and fiscal system, long before they were applied to the Constitution of the National Parliament. The English Kingship was always in theory, and to a great extent in practice, elective. The bishops and abbots were supposed to be elected by the clergy, of whom they were the representatives. In the local courts of the hundred and the shire, the reeve and four men attended as representatives from each township; and the twelve assessors of the sheriff represented the judicial opinion of the whole shire.” (Taswell-Langmead, p. 229.) It must be remembered that the national Government was a mere skeleton, whilst county government was highly organized; so that the extension of the representative system to the Parliament meant the centralization of popular institutions.




  ― 306 ―

The Great Council was not a representative, but a constituent body. All the King's immediate tenants—both the greater barons and the lesser barons, or knights— had a right to attend. This right is expressly recognized by Magna Charta, by which the King promised, when calling a Council for the granting of extraordinary feudal aids, to summon all tenants-in-chief—the greater barons (lay and spiritual) individually, and the others by writs addressed to the sheriff. This difference in the mode of summons— which had existed for some time previously—marks the inferior position of the lesser barons, or knights. As a matter of fact, owing to the difficulty of attendance, their right gradually became more formal than real; until the Great Council became practically an assembly of the greater barons. (Taswell-Langmead, p. 226.)

The financial necessities of the Crown, however, required that the knights should attend, in person or by deputy; and the representative system already existing in the counties was naturally resorted to for this purpose. The first instance of the extension of the representative system to the National Council was at the Council of St. Albans, in 1213, which was attended not only by the bishops and barons, but also by the reeve and four men from each township on the royal demesne. Four instances of county representation, by writs directing the sheriff of each county to send to the Council a certain number of “discreet knights of the shire,” occur before Simon de Montfort's famous Parliament of 1265. (Taswell-Langmead, pp. 230–5.)

The knights of the shire, however, representing as they did the landed gentry, were only a portion of the commonalty. The towns had already risen to wealth, liberty, and importance; and the representation of the prosperous and progressive class of burghers was necessary as a basis for really popular institutions.

To Simon de Montfort, in the reign of Henry III., belongs the glory of taking a step which led to the systematic representation of the boroughs as well as the counties. In December, 1264, he laid the foundations of the House of Commons, by issuing writs directing the sheriffs to return not only two knights from each shire, but also two citizens from each city, and two burgesses from each borough. (Hearn's Govt. of Eng., p. 48.) This famous Parliament met at London on 20th January, 1265, to deal not merely with the granting of supplies, but with the business of the nation generally. (Gneist, Eng. Const., p. 270.)

At the battle of Evesham, which took place shortly afterwards, Simon de Montfort was killed by the Royalist troops, and the party of the barons was broken up, but the precedents established during his triumphant career were never obliterated. During this period the county freeholders were, for the first time, associated with the mercantile and trading community, in a body which was destined within less than 100 years to become organized in strength and individuality, and to assume its position as the popular chamber in a national Parliamentary system. The precedent of 1265, although it was not regularly followed for many years afterwards, distinctly foreshadows the dawning outlines of the House of Commons.

There was a transition period of 30 years before Edward I.'s “Model Parliament” in 1295, in which the three estates were represented, and which sat and voted in three bodies—the knights sitting with the greater barons, and the clergy and burgesses sitting separately. The last great stage in the evolution of the House of Commons was the gradual detachment of the knights from the greater barons, their union with the burgesses, and the consequent division of Parliament into two Houses; the House of Lords being the aristocratic and official chamber, and the House of Commons the representative chamber, consisting, as it does to this day, of representatives of the shires and representatives of the boroughs. The exact date of this development is uncertain, but it was certainly complete in the year 1347. (Taswell-Langmead, p. 262.) During the long reign of Edward III. (1327–77) the power of the Commons was consolidated, and they succeeded in establishing the three great principles that taxation without the consent of Parliament is illegal, that the concurrence of both Houses is necessary for


  ― 307 ―
legislation, and that the Commons have a right to inquire into abuses of administration. Two events, in particular, occurred which marked the complete consolidation of the once separate communities, by their representation in a united House, as well as by the assimilation and unity of the taxpayers in the counties, cities, and towns; one was in 51 Edw. III. (1378), the appointment of a permanent Speaker, Sir Thomas Hungerford; and the other was the imposition of a poll-tax on every adult person in the kingdom, except beggars. (Hearn's Gov. of Eng. 432; Gneist, Eng. Parl., 171.)

THE STATUTE OF GLOUCESTER.—The Act 9 Hen. IV. (1407) contains the first authoritative recognition and delimitation of the several functions of the King, Lords and Commons, and establishes the principle that the parliamentary bodies may deliberate apart from the King. “It shall be lawful for the Lords to treat among themselves, in the absence of the King, respecting the state of the Realm, and about the necessary means to help. And in like manner it shall be lawful for the Commons to advise among themselves in respect of the before-mentioned state, and means, &c. Saving always that the Lords, on their part, shall not report to the King any matter resolved on by the Commons, and assented to by the Lords, before the Lords and Commons have come to one opinion and concurrence in such matter, and then in the wonted way and form, to wit, through the mouth of the Speaker.” (Gneist, Eng. Parl., p. 172.)

QUALIFICATION OF ELECTORS.—Laws relating to the qualification of electors are first met with during the reigns of Henry IV. and Henry VI. At first the deputies from the counties were nominated or appointed at general public meetings, held in connection with the County Courts, presided over and conducted by sheriffs, appointed by the King, and attended by all free men, or at least all freeholders. Proposals were put to these gatherings and carried by the assent and acclamation of those present, “termed the bystanders.” This custom is said to have been a survival of the ancient method of doing public business, followed in those antique German assemblies described by Tacitus, in which the people of the community expressed by “acclamation” their approval of propositions submitted by their leaders. There is historical evidence that during the reigns of Edward I. and Edward II. all the freeholders of the counties, without regard to the tenure or value of their lands, were accustomed to vote at such meetings. The writs were directed to the sheriffs to hold the elections in “full county,” when all the freeholders were in duty bound to attend.

By 7 Hen. IV. c. 15 (1405), a uniform and general franchise for the county was distinctly recognised; “all persons present at the County Court, as well as suitors duly summoned for any cause or otherwise,” were required to attend to take part in a choice of members, and to contribute towards the wages of the chosen representatives, fixed at 4s. per day.

The first contraction of the county franchise is found in 8 Hen. VI. c. 7 (1429), which provided “that in future only freeholders of 40s. income shall take part in the elections.” Shortly afterwards, by 10 Hen. VI. c. 2. it was provided that only 40s. free-holders “within the county” should be entitled to vote at county elections. By 23 Hen. VI. c. 14, it was enacted “that only notable knights and notable esquires and gentlemen of the county are to be elected, who might become knights (consequently possessed of £20 income from land), but not any yeomen thereunder.” The reasons for these restrictive laws were thus stated in one of the above statutes: “that elections of the delegates have of late been made from among too large a number of people living in the same county, most of them having small fortunes, but fancying that each had the like right to vote as the knights and esquires, which may easily occasion murder and rebellion, strife and dispute, between the gentlemen and the rest of the people, if measures be not speedily taken to improve this state of things.” (Gneist, Eng. Parl., p. 176.)

Those limitations in the county franchise lasted down to the Reform Act 2 and 3 Wm. IV. c. 45 (1832). With respect to the franchise for cities, towns, and boroughs, some difference of opinion exists, and the subject is somewhat obscured by the absence of


  ― 308 ―
definite legislative provisions. The right to take part in elections in these communities seems to have depended upon charters, writs, customs, and municipal constitutions, in force in the respective places which had the right of returning members. It is believed by competent authorities that the old members for cities, towns, and boroughs were chosen by the free inhabitants and householders of those localities who were liable to borough rates (scot and lot). On the other hand Lord Holt was of opinion that only those were burgesses who held that description of freehold known as “burgage tenure,” the original tenure under which freeholds in town, “formerly parts of the ancient demesne of the Crown,” were held; under this system the right of voting was annexed to some existing tenement or house or to some spot of ground upon which a house had stood in ancient times. But it seems that, whatever was the original qualification, the control of elections in cities and towns eventually fell into the hands of Municipal Corporations, or wealthy landowners; hence the origin of so-called “rotten boroughs.” The question as to who were, or ought to be, electors in boroughs, frequently became the subject of debates in the House of Commons. In 22 Ja. I. a resolution was passed to the effect that, where there was no charter or custom to the contrary, the election in boroughs was to be made by all the householders, and not by the freeholders only. The defects, abuses and anomalies were not attacked until most of them were swept away by the Reform Act, 1832.

By the Reform Act, 1832 (2 and 3 Wm. IV. c. 45), important changes were made, both in the qualifications of electors and in the delimitation of constituencies. “The number of English county constituencies was increased from 52 to 82; 56 boroughs, containing a population of less than 2,000 each, were totally disfranchised, and 31 other boroughs, of less than 4,000 each, were required to send one representative instead of two. On the other hand, 22 new boroughs acquired the right to return two members, and 24 to return one member. In Scotland the town members were increased from 13 to 23—making 53 in all; while the Irish representatives were increased from 100 to 103. The next great change in the constituency of the House of Commons was made by the Reform Act of 1867–68 (30 and 31 Vic. c. 102). By this Act England and Wales were allotted 493 members, and Scotland 60, while the number for Ireland remained unaltered, and household suffrage was conferred on boroughs in England and Scotland. A still greater reform was effected by the Representation of the People Act, 1884 (48 Vic. c. 3), and the Redistribution of Seats Act, 1885 (48 and 49 Vic. c. 23). The former introduced a ‘service franchise,’ extending to householders and lodgers in counties the suffrages which in 1867 had been conferred upon householders and lodgers in boroughs, and placed the three Kingdoms on a footing of equality as regards electoral qualifications; while the latter made a new division of the United Kingdom into county and borough constituencies, and raised the total number of members to 670, England receiving 6 new members, and Scotland 12.” (Statesmen's Year Book, 1900, p. 7.)

§ 15. “And by the Authority of the Same.”

These words clearly show that, although on the face of the Act the Queen figures as the chief legislator, the Auctoritas by which the Constitution has been created is blended and conjoined in the Queen in Parliament. This is the modern practice in connection with the political organization of colonies and in the grant to them of the institutions of self-government. In the early stages of English and British colonization, the Crown, without parliamentary sanction, expressed or implied, but in the exercise of its admitted prerogative, was accustomed to grant to newly settled, ceded, or conquered provinces, Patents and Charters, containing directly or indirectly authority to establish local Legislative Assemblies endowed with the power to pass laws for the peace, order and good government of such countries:—

“On obtaining a country, or colony, the Crown has sometimes thought fit, by particular express provisions under the Great Seal, to create and form the several parts of the Constitution of a new Government; and at other times has only granted general


  ― 309 ―
powers to the Governor to frame such a Constitution, as he should think fit, with the advice of a Council, consisting of a certain number of the most competent inhabitants, subject to the approbation or disallowance of the Crown. In most instance there are three departments forming the colonial government, each of which deserves attention. 1st. The governor, who derives power from, and is substantially a mere servant or deputy of, the Crown, appointed by commission under the Great Seal. The criterion for his rules of conduct are the king's instructions, under the sign-manual. 2nd. The colonial councils, which derive their authority, both executive and legislative, from the king's instructions to the governor. 3rd. The representative assemblies chosen by certain classes of the colonial inhabitants. The right of granting this assembly is vested exclusively in the Crown, subject to after regulations by the local legislatures.” (Petersdorff, Vol. v. p. 543.)

The constitutional right of the Crown, in exercise of its prerogatives, to grant Constitutions to colonies, has been recognized in a series of judicial decisions, some of which may be here cited in illustration of the system that once prevailed, under which the English, and afterwards the British, Parliament enjoyed no share in the organization and management of colonial settlements. The case of Kielley v. Carson (1842), 4 Moore's Privy Council 63, 7 Jurist 137, turned on the nature and constitution of the House of Assembly of Newfoundland, established in 1832 by virtue of a commission under the sign-manual of King William IV., appointing Sir Thomas Cochrane Governor of the colony, and authorizing him to convoke a Legislative Assembly; and on the question whether such Assembly had been granted power, or possessed inherent power, to commit a person to gaol for contempt, in attempting to interfere with one of its members out of doors. Baron Parke (Lord Wensleydale), delivering the judgment of the Judicial Committee, said:—

“To such a colony there is no doubt that the settlers from the mother-country carried with them such portion of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have on the one hand the same laws and the same rights, unless they have been altered by Parliament; and, on the other hand, the Crown possesses the same prerogative and the same powers of government that it does over its other subjects; nor has it been disputed in the argument before us, and therefore we consider it as conceded, that the sovereign had not merely the right of appointing such magistrates and establishing such corporations and courts of justice as he might do by the common law at home, but also that of creating a local Legislative Assembly, with authority subordinate to that of Parliament, but supreme within the limits of the colony, for the government of its inhabitants. This latter power was exercised by the Crown in favour of the inhabitants of Newfoundland in the year 1832, by a commission under the Great Seal, with accompanying instructions from the Secretary of State for the Colonial Department; and the whole question resolves itself into this, whether this power of adjudication upon and committing for a contempt was by virtue of the commission and the instructions legally given to the new Legislative Assembly of Newfoundland; for, under these alone can it have any existence, there being no usage or custom to support the exercise of any power whatever. In order to determine that question, we must first consider whether the Crown did in this case invest the local legislature with such privilege. If it did, a further question would arise, whether it had a power to do so by law. If that power was incident as an essential attribute to a Legislative Assembly of a dependency of the British Crown, the concession on both sides, that the Crown had a right to establish such an assembly, puts an end to the case. But if it is not a legal (incident, then it was not conferred on the Colonial Assembly unless the Crown had authority to give such a power, and actually did give it. Their Lordships give no opinion upon the important question whether, in a settled country such as Newfoundland, the Crown could, by its prerogative, besides creating the Legislative Assembly, expressly bestow upon it an authority not incidental to it of committing for a contempt, an authority materially interfering with the liberty of the subject, and much liable to abuse. They do not enter upon that question, because they are of opinion, upon the construction of the commission, and of its accompanying document, that no such authority was meant to be communicated to the Legislative Assembly of Newfoundland; and if it did not pass as an incident by the creation of such a body, it was not granted at all.” (7 Jurist, p. 139.)

In the case of Phillips v. Eyre (1870), L.R. 6 Q.B., p. 1, the plaintiff sued a former Governor of Jamaica to recover damages for assault and false imprisonment, alleged to have been directed by the defendant after the proclamation of martial law during the


  ― 310 ―
suppression of rebellion in the Island. The defendant pleaded an indemnity, under an Act passed by the Legislature of Jamaica, and assented to by himself on behalf of the Crown, after the rebellion was over, legalizing every act done by the Governor in arresting the rebellion by force of arms. The Legislature of Jamaica, at that time, consisted of a Legislative Council and Legislative Assembly, established not by an Imperial Act, but by a Commission under the Great Seal accompanied by royal instructions. The case turned on the power of the Crown to create such a Legislature in a settled colony. In delivering the judgment of the Court of Appeal, Mr. Justice Willes said:—

“Doubts were suggested in this Court upon what was taken for granted in the argument and judgment in the Court below, namely, the power of the Crown to create a Legislative Assembly in a settled colony. Assuming, but by no means affirming that, as contended for by counsel for the plaintiff, the colony in question, though originally conquered from the Spaniards, is now to be deemed a settled as distinguished from a conquered or ceded one, we consider these doubts as to the power of the Crown and of the local Legislature to be unfounded. There is even greater reason for holding sacred the prerogative of the Crown to constitute a local Legislature in the case of a settled colony, where the inhabitants are entitled to be governed by English law, than in that of a conquered colony, where it is only by grace of the Crown that the privilege of self-government is allowed; though where once allowed it cannot be recalled. In colonies distant from the mother country to which writs to return members to the Imperial Parliament do not run, it is essential, both for the due government of the country in dealing with matters best understood upon the spot, and with emergencies which do not admit of delay, and also for giving subjects there resident the benefit of a voice, by their representatives, in the councils by which they are taxed and governed, that the Crown should have the power of creating a local Parliament. Accordingly, it is certain that the Crown has, in numerous instances, granted charters under which Houses of Assembly and Legislative Councils have been established for the government of colonies, whether conquered or settled, and that such Councils and Assemblies have, from time to time, made laws suited to the ‘emergencies of the colony,’ which, of course, include all measures necessary for the conservation of peace, order, and allegiance therein. In effect, the inhabitants have been allowed to reserve the power of self-government, through their representatives in the colony subject to the approval of the Crown and the control of the Imperial Legislature. This opinion was reflected upon in the argument, but it is in accordance with just principles of government, with the law laid down by the text-writers, including Mr. Justice Blackstone; and it has now been drawn into doubt for the first time. We are satisfied that it is sound law, and that a confirmed act of the local Legislature lawfully constituted, whether in a settled or conquered colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial Parliament.” (Per Willes, J., Phillips v. Eyre, L.R., 1 Q.B., p. 1.)

“The first important deviation from this rule was in the case of the colony of Quebec, which by statute of 1774 received an improved form of local government. The precedent was followed, in the year 1791, by Mr. Pitt's famous Canada Act, which constituted the two provinces of Quebec and Ontario. It has been declared by high authority that the reason for the introduction of Parliamentary action into the government of Canada was the desire to concede to the Roman Catholic colonists certain rights inconsistent with the severe Conformity statutes then existing, and with which the Crown had no power to dispense. But the application of the principle about the same time to the government of India, and, soon after, to Australian affairs, make it more probable that the change was really due to the growing extensions of Parliamentary influence over all departments of State. Be this as it may, the practice of the present century has been, whilst leaving to conquered acquisitions as much as possible their previous forms of government, to confer local Constitutions by Act of Parliament upon possessions acquired by settlement The course of proceeding has been fairly uniform. First, there has been a purely despotic government, when the colony has been ruled as a military position by a Governor and a handful of officials appointed by the Home Government. Then there has been a Constitution, with a Legislative Council, partly appointed by the Governor and partly elective. Of this Council the Crown officials have always formed part, but the executive has been unassailable by the Legislature, and responsible only to the Colonial Office; possessions in these two stages being technically known as ‘Crown Colonies.’ In the third stage, there have generally been two Houses of Legislature, both elective, or one elective and one nominee, and the executive has consisted of officials chosen for their Parliamentary position, and liable to dismissal, like ministers in England, in consequence of an adverse vote of Legislature. This is the era of ‘Responsible Government.’ ” (Jenks' Gov. of Victoria, pp. 10–11.)

Short Title

1. This Act16 may be cited as the Commonwealth17 of Australia Constitution18 Act.

HISTORICAL NOTE.—Clause 1 of the draft Bill framed by the Sydney Convention of 1891, and usually known as “The Commonwealth Bill of 1891,” declared that “This Act shall be cited as The Constitution of the Commonwealth of Australia.” In Committee, Mr. James Munro proposed “Federated States” in lieu of “Commonwealth.” On a division, however, “Commonwealth” was retained by 26 votes to 13. (Conv. Deb., Syd. [1891], pp. 550–7.)

At the Adelaide Session of the Convention of 1897, the clause as framed in 1891 was adopted verbatim. In Committee, Mr. Symon proposed to omit the words “Commonwealth of,” leaving simply “Australia;” but this was negatived. Mr. Walker proposed to substitute “Australasia” for “Australia,” but this also was negatived. (Conv. Deb., Adel., pp. 616–9.) At the Sydney Session, a suggestion by the Legislative Council of New South Wales, to substitute “Dominion” for “Commonwealth” was negatived. An amendment by Mr. Barton, to omit “The Constitution of the Commonwealth of Australia,” and substitute “The Commonwealth of Australia Constitution Act,” was agreed to, in order to distinguish between the Act as a whole and the Constitution embodied in the Act. (Conv. Deb., Syd. [1897], pp. 224–5.)

previous
next