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2. Covering Clauses

§ 16. “This Act.”

OUTLINES OF THE ACT.—This Act, to constitute the Commonwealth, consists of nine clauses, to each of which is annexed a marginal note. The marginal notes, as already observed, do not form parts of the Act; they are provided merely as brief summaries. In these commentaries, the notes, printed, in the authorized edition of the Act, at the sides or against the Clauses and Sections, will be found placed at the head of or immediately over each Clause or Section. Clause 1 gives the short title of the Act; Clause 2 declares that it binds the Crown and extends to the Queen's successors; Clause 3 provides that the Queen may issue a proclamation appointing a day when the people of the federating colonies shall be united in a Federal Commonwealth; Clause 4 specifies when the Commonwealth is to be deemed legally established; Clause 5 provides for the legal operation of the Act and of the laws of the Commonwealth; Clause 6 defines “Commonwealth,” “States,” and “Original State;” Clause 7 repeals the Federal Council Act, 1885; Clause 8 applies the “Colonial Boundaries Act, 1895,” to the Commonwealth; Clause 9 contains the Constitution of the Commonwealth.

§ 17. “Commonwealth.”

SIGNIFICANCE OF THE TERM.—The term “Commonwealth,” to designate the Australian colonies, united in a Federal Constitution, was first proposed by the Constitutional Committee of the Federal Convention held in Sydney in 1891. The suggestion emanated from Sir Henry Parkes, then Premier of New South Wales, and the convener of the Convention, in which it was eventually adopted, on a division, by a substantial majority of votes. The same name was accepted by the Federal Convention of 1897–8. In both Conventions other names were submitted for consideration, such as “United Australia,” “Federated Australia,” “The Australian Dominion,” “The Federated States of Australia,” &c., but the name Commonwealth was generally accepted, the only objections raised to it being that it was suggestive of republicanism, owing to its association with the Commonwealth of England, under Oliver Cromwell's Protectorate.

According to the derivation of the term from “common” and “weal,” or “wealth” it signified common well-being or common good. From that radical connotation it came to mean the body politic, or the whole people of a state. Then it became


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synonymous with state, realm, community, republic, nation; whilst some authorities have described it as synonymous with league, alliance, coalition, confederacy, and confederation. Webster says “a Commonwealth is a State consisting of a certain number of men united by compact, or tacit agreement under one form of government and one system of laws. It is applied more appropriately to governments which are considered free or popular, but rarely or improperly to absolute governments. Strictly, it means a government in which the general welfare is regarded rather than the welfare of any particular class.” (Webster's Internat. Dictionary.) In this Act the word is used to describe the new political community created by the union of the people and of the colonies of Australia. Although it is capable of conveying the idea of a nation, like the American Commonwealth, it does not, in its application to Australia, aspire to convey that meaning except in a restricted and potential sense. At the same time it is distinctly intended to signify that the newly-organized political society, forming a conspicuously integral part of the British empire, is entitled to a more dignified status and recognition in the international arena than that assigned to the most distinguished of the colonies or to the most powerful of the provinces out of which it has been constructed.

Numerous passages occur in the works of Shakespeare and one in the New Testament illustrative of the early use of the word in the general sense of a state or community, irrespective of any special form of government, monarchical or republican. Thus we find:—

JESSICA . . and he says, you are no good member of the commonwealth.— “Merchant of Venice,” Act III. Sc. V. PRINCESS.—Here comes a member of the commonwealth.—“Love's Labour Lost,” Act IV. Sc. I. SICINIUS.—Your Coriolanus, sir, is not much missed,
But with his friends: the commonwealth doth stand
And so would do were he more angry at it.—“Coriolanus,” Act IV. Sc. VI.

ARCHB.—Let us on,
And publish the occasion of our arms,
The commonwealth is sick of their own choice.—“King Henry IV.” (Part II.), Act I. Sc. III.

CANT.—Hear him debate of commonwealth affairs,
You would say it hath been all in all his study.—“King Henry V.,” Act I. Sc. I.

KING HENRY.—Uncles of Gloster and of Winchester
The special watchmen of our English weal.—“King Henry VI.” (Part I.), Act III. Sc. I.

KING HENRY.—Believe me, lords, my tender years can tell
Civil dissension is a viperous worm,
That gnaws the bowels of the commonwealth.—Idem.

3RD SERV.—And ere that we will suffer such a prince,
So kind a father of the common-weal,
To be disgraced by an inkhorn mate,
We, and our wives and children, all will fight,
And have our bodies slaughtered by the foe.—Idem.

APEM.—If thou couldst please me with speaking to me, thou mightest have hit upon it here: the Commonwealth of Athens is become a forest of beasts.—“Timon of Athens,” Act IV. Sc. III. That at that time ye were without Christ, being aliens from the commonwealth of Israel, and strangers from the covenants of promise, having no hope, and without God in the world. —Eph. ii. xii.

The word commonwealth was used and applied in the same general sense by numerous other English writers in the 16th and 17th centuries. Lord Bacon, in his classical essay on the “Advancement of Learning” (1597), used the word in the sense in which it was employed by Shakespeare:—“And therefore Aristotle noteth well,


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‘that the nature of every thing is best seen in his smallest portions.’ And for that cause he inquireth the nature of a commonwealth, first in the family, and the simple conjugations of man and wife, parent and child, master and servant, which are in every cottage. Even so likewise the nature of this great city of the world, and the policy thereof, must be first sought in mean concordances and small portions.” (Bacon's Moral and Historical Works [Ward, Lock, and Co.], p. 57.) “Notwithstanding, for the more public part of government, which is laws, I think good to note only one deficience: which is, that all those which have written of laws, have written either as philosophers, or as lawyers, and none as statesmen. As for the philosophers, they make imaginary laws for imaginary commonwealths, and their discourses are as the stars which give little light, because they are so high.” (Id., p. 147.) In Rawley's original preface to Bacon's unfinished work, “The New Atlantis,” it is stated “His lordship thought also in this present fable to have composed a frame of laws, or the best state, or mould of a commonwealth.” (Ward, Lock, and Co.'s Edition, p. 297.)

During the same period the kings and queens of England frequently used the word in their addresses to Parliament. James I. described himself as “the great servant of the Commonwealth.” (G. B. Barton's Notes to the Draft Bill, 1891.)

The term commonwealth came into special prominence during the revolutionary period of English history, between the execution of Charles I. in 1649 and the Restoration of 1660. On 19th March, 1649, Oliver Cromwell's Parliament established a republican form of government, in the following Ordinance:—“Be it declared and enacted by this Parliament and by the authority of the same that the people of England, and of all the dominions and territories thereunto belonging, are and shall be and are hereby constituted, made, established, and confirmed to be a Commonwealth or Free State, and shall from henceforth be governed as a Commonwealth and a Free State by the supreme authority of this nation, the representatives of the people in parliament, and by such as they shall constitute officers and ministers under them for the good of the people and without any king or House of Lords.” Even during the existence of Cromwell's Protectorate, philosophical writers continued to use the expression in its primary general sense; thus Hobbes in his “Leviathan,” published in 1651, wrote:— “And because the sovereignty is either in one man, or in an assembly of more than one, it is manifest there can be but three kinds of Commonwealth. When the representatives of the people is one man, then is the Commonwealth a monarchy; when an assembly of all that will come together, then it is a democracy, or popular Commonwealth; when an assembly of a part only, then it is called an aristocracy.” (Molesworth's Ed. of Hobbes' Works, Vol. III., p. 171.)

John Harrington, in his treatise on Political Government, entitled “The Commonwealth of Oceana,” and dedicated to the Lord Protector, used the term as an appropriate description of an Ideal State, not necessarily a republic. After Oliver Cromwell's death, John Milton, seeing that his system of Government was likely to be imperilled by the weak administration of Richard Cromwell, and believing that his advice might arrest the threatened reaction towards monarchy, published, in the early part of 1660, several treatises, including one on “A Ready and Easy Way to Establish a Free Commonwealth,” in which he employed the word in a republican sense. “A Free Commonwealth, without single person or House of Lords, is by far the best government, if it can be had. Now is the opportunity, now the very season, wherein we may obtain a free Commonwealth, and establish it for ever in the land, without difficulty or much delay.” (Cited Barton's Notes to the Draft Bill, 1891, p. 11.) “But the inevitable 29th May, 1660, came and Charles II. was restored.” (Milton's Works, Gall and Inglis' Ed., p. 12.)

After the Restoration, the term commonwealth became for a time unpalatable to the bulk of English society, as it was supposed to imply a republican form of government. In his work on Civil Government, published after the Restoration, John Locke,


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the philosopher, ignored the association of the word with Cromwell's republic and used it in its primitive sense as understood by Shakespeare, Bacon, Hobbes, and Harrington. “By the same Act, therefore, whereby any one unites his person, which was before free, to any Commonwealth, by the same he unites his possessions, which were before free, to it also; and they become, both of person and possessions, subject to the government and dominion of that Commonwealth, as long as it hath a being.” (Cited Barton's Notes on the Draft Bill, 1891, p. 10.)

The name Commonwealth has since been frequently applied to the States of the American union. The Constitution of the State of Pennsylvania (1776) framed in popular Convention, begins thus:—“We the Representatives of the free men of Pennsylvania … do … ordain, declare, and establish the following declaration of rights and frame of government to be the Constitution of this Commonwealth.” The preambles of the Constitutions of the States of Vermont (1779) and Massachusetts (1780) are in the same form. Dr. Burgess, in his important work on “Political Science and Constitutional Law,” published 1890, habitually describes the so-called American “States” as “commonwealths,” and he similarly designates the so-called German “states” (Vol. I., pp. 201–10). On the other hand, some writers have used the name as applicable to and descriptive of the United States as a union of States. Dr. Bryce's well-known work on the American Constitution is entitled the “American Commonwealth,” and in one passage he describes the union as “a Commonwealth of Commonwealths.” (Bryce, American Commonwealth, 1st ed., Vol. I., p. 12.)

§ 18. “Constitution.”

DEFINITION.—A Constitution is a general law for the government of a political community, unamendable and unrepealable, except in the manner and on compliance with the conditions prescribed by the authority which created it. It deals with the sovereign power of Government and the various forms, organs, and agencies through which that power is brought into action and the relations, interdependence, and co-operation of those forms, organs, and agencies, in the performance of the work of government.

A GENERAL LAW.—First, then, a Constitution is a general law or a collection of laws, capable of effective enforcement and binding on every member of the community, including the members of the Government in their private capacities. It is a law which should be couched in wide and general terms, avoiding minute specifications and details and thus leaving room for “unpredictable emergencies,” and possible and desirable developments. In the history of a Constitution there grow in association with it, and springing from its generalities, certain customs and practices, which cannot be exactly termed laws, strictly so called. These customs and practices generally relate to matters which, by the letter of the Constitution, are left to the discretion of some member or branch of the sovereign body. In time, owing to political influences and considerations, these discretionary powers are exercised in a certain manner; and hence arise what have been described as the “understandings and conventions” of the Constitution, distinguishable from the positive law of the Constitution. The essence of a law is its capacity of being executed; it implies the existence of a force able to command obedience and to punish disobedience. As such, a law is clearly contrasted with a mere understanding, or a practice, which is capable of variation and modification, according to the changing conditions and requirements of human society. A Constitution is also different from a social compact between the members of the society which it concerns; if it were a mere compact it could be repudiated and violated at the caprice of any faction or group within the society. It differs equally from a treaty or league between separate and independent states, terminable at the will of any of those states.




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GOVERNMENT.—Secondly, the law of the Constitution relates to the exercise of that sovereign power of Government which in every independent political community, occupying a defined territory, is vested either in a sovereign monarch or in a sovereign body, and which in a subordinate political community exercising delegated sovereign powers is vested in subordinate persons or bodies (see § 21, “Sovereignty”). Even an absolute monarch must ordinarily exercise his sovereign prerogatives according to certain well-understood rules and formal requisites, recognized by his predecessors and recommended by his counsellors. These rules and formalities, if compiled and classified, would compose the rudimentary “understandings and conventions” of a monarchical constitution. When the functions of government are divided among the members of a body, there must be some more specific rules appropriating certain classes of work to particular members of the governing body, determining the mode of appointment and succession of those members—such as Chief Magistrate, Legislators, and Judges—and the manner in which harmonious action may be maintained in the combined execution of the sovereign power. These rules would, if compiled and similarly classified, compose a more complex constitution, and so the greater the division, sub-division, and multiplication of governing agencies, and the greater the distribution of power, the more complex and elaborate a constitution becomes. Supreme governing power, as well as subordinate or delegated governing power, analyzed and classified, may be resolved into three departments or divisions—(1) The making and promulgation of laws prescribing the functions of governing agencies and regulating the legal rights and duties of the people within the jurisdiction of the government: (2) the administration of laws; and (3) the interpretation and determination of laws in cases where doubts arise as to their meaning or intention. In simple societies these three functions may be blended in one person, or one body, but in all maturely developed States they become differentiated, and divided amongst separate persons or separate bodies composing the sovereign authority as a whole. Hence arises the well-known tripartite division of government into the Legislative Department, the Executive Department, and the Judiciary Department. All constitutions which have been reduced to and expressed in the shape of written instruments, such as those of the United States, Belgium, France, Germany, and Switzerland, recognize this principle of division and distribution of power. The same distribution, indeed, is also observed in the British system of government, the Constitution of which, although it has not been reduced to the form of a single document or Act of Parliament, is as capable of being gathered from numerous Charters, Bills, Proclamations, Statutes, legal decisions, and official documents, extending from the time of King Alfred down to the reign of Queen Victoria, as the Constitutions of the countries referred to, which have been, in fact, largely constructed according to the British model.

At the time when the American Constitution was framed, Montesquieu was the great oracle of political philosophy, and he drew special attention to the tripartite division of political power as existing in England. “Contrasting the private as well as the public liberties of Englishmen with the despotism of continental Europe, he took the Constitution of England as his model, and ascribed its merits to the division of legislative, executive, and judicial functions, which he discovered in it, and to the system of checks and balances whereby its equilibrium seemed to be preserved; no general principle of politics laid such a hold on the constitution-makers and statesmen of America as the dogma that the separation of these three functions is essential to freedom.” (Bryce's Amer. Comm., vol. I., p. 26.) This tripartite classification does not necessarily imply that each of the three departments of government is independent of the others. Each of the three is endowed with a defined share in the work of government, but they are all parts of one governing machine and are exercising fractions of the aggregate of sovereign power; each acts within its respective legal sphere, but, to some extent, one may check and balance the other. Thus the legislature may exercise more or less control over the Executive. The Executive may advise, lead, or for a time


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moderate the action of the legislature, as is done in the British system, through the agency of the Cabinet. In every well-designed Constitution the Judiciary, once appointed, is almost absolutely independent of the influence of either the Executive or the Legislature; but the primary appointment of the Judges generally rests with the Executive, and for gross misconduct in office they may be removed by the Executive: in some Constitutions they may be removed by the Executive at the request of the Legislature without any particular cause assigned.

RIGHTS, PRIVILEGES, AND IMMUNITIES.—A Constitution not only deals with this partition and delimitation of governing powers, with the mode in which those powers are exercised, and with the structure of the governing organs; it generally enumerates certain cardinal rules, principles, and maxims which are intended to be the indiciae of public policy that should guide or bind the Executive the Legislature, and the Judiciary Departments. Thus Magna Charta, the Petition of Rights, and the Bill of Rights, contain declarations of rights, privileges, and immunities, which are said to be the inalienable birthright and heritage of every British subject, protecting his liberty from unlawful impairment and his property from spoliation. These declarations undoubtedly bind the British Executive and the British Judiciary; they may guide but cannot bind the British Parliament, which may amend or repeal them at any time. A similar declaration of rights has been inserted in the Federal Constitution of the United States. In a supreme constitution of a federal character, dealing as it does with a general government and with provincial governments, with States as well as with individuals, provisions are necessarily inserted for the preservation not only of individual rights, but of what are known as “State Rights,” against invasion and encroachment on the part of the general government, and for the preservation of “National Rights” against invasion and encroachment on the part of the States. In the American Constitution, as in the Constitution of the Commonwealth, these declarations bind alike the Executive, the Judiciary, and the Legislature, of each State, as well as those of the general government.

A FUNDAMENTAL LAW.—Next, the word Constitution connotes the idea of a fundamental law—a law of higher sanctity, and perhaps of greater efficacy and authority, than ordinary legislation. In all modern written Constitutions there is a tendency to establish the fundamental character of the instrument upon a firm legal basis by making the process of constitutional amendment more difficult and more complex than the process of ordinary legislation, and thus to affirm the principle that every alteration in the fundamental law is an act so solemn and momentous that it requires compliance with special formalities intended to prevent hasty and ill-advised changes, to ensure the fullest deliberation, to guard against surprises, and to protect the rights and interests of all classes of the community. A Constitution which thus makes the process of its own amendment more difficult than the process of ordinary legislation is what Professor Dicey calls a “rigid” Constitution. The degree of rigidity may vary widely; it may consist in the requirement of unusual majorities in the Legislature, or of ratification in a certain way by conventions, or by the electors, or it may involve other and more complicated processes. And even in an absolutely flexible Constitution such as that of Great Britain, where the most fundamental law can legally be altered or repealed as easily as the most trivial, the reverence for constitutional usage invests the laws which form the main fabric of the Constitution with a sanctity which makes the flexibility less absolute, in practice, than it seems.

In a unitarian or consolidated Constitution, like that of Great Britain, organic changes may be effected with greater facility and safety than in a federal Constitution such as that of the United States. In a consolidated State there may therefore be one supreme Legislature, having absolute and final jurisdiction over all matters, including the Constitution itself. But a federal Constitution deals with the conflicting views and interests of a community which is composed of a number of States, united under a general form of Government, each State having a local Constitution and local governing


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organs, as well as local rights guaranteed by the supreme Constitution. In such a system a power of amendment is usually placed not in the legislatures of the several States nor solely in the central legislature of the federal community, but in some body, more or less complex, which represents both the nation and the States.

In the case of the British Constitution, and its unitarian form of government, the British Parliament is a supreme or sovereign legislature, and could, at any time, amend or repeal any part of the Constitution, of which it is partly, if not wholly, the author and creator, including the Bill of Rights. The Federal Congress of the United States, however, is not a supreme or sovereign legislature, but is only a legislature subordinate to the supreme Constitution created by the people of the United States and exercising limited and specific powers assigned to it by that supreme Constitution. Congress cannot amend that Constitution in any way whatsoever. Majorities of two-thirds in both the Senate and the House of Representatives may suggest an amendment; but it would not become law until it were ratified by majorities of the federal electors in three-fourths of the States acting through their several legislatures or conventions. This is one of the fundamental differences between a unitarian Constitution and a Constitution of a federal character. As a practical illustration of the foregoing definition and exposition of a Constitution, the following outlines of two typical Constitutions, one Federal, the other Unitarian, are submitted:—

Outlines of the British Constitution.

Part I.

SOVEREIGNTY.—Legally vested in the British Parliament—i.e., Queen, Lords, and Commons—with a strong tendency to recognize the people represented by a majority of the electors as the body in which the ultimate political sovereignty resides; to be gathered from various Charters, Patents, Writs, Ordinances, Statutes, Acts, Proclamations, legal decisions, and established customs.

PART II.

GOVERNMENT.—Powers exercised by one set of Executive, Legislative, and Judicial Departments:—

  • (1) The Executive Department.—Presided over by the Queen, acting for the most part on the advice of Ministers of State responsible to Parliament. (The Queen's title—Act of Settlement, 12 and 13 Wm. III. c. 2.)
  • (2) The Legislative Department.—Power vested theoretically in the Queen, acting on the advice and with the consent of the Lords spiritual and temporal and the Commons; practically in the Queen in Parliament. The Queen—Her part in the convening, proroguing, dissolving Parliament; in recommending legislation; her right to assent to or disallow Bills passed by the Lords and Commons. The Lords Spiritual and Temporal—The House of Lords, composed of (1) hereditary Peers, (2) Elective Peers, i.e., those who represent the peerage of Ireland and Scotland, and (3) peers of office, such as Bishops of the Church of England. Power of the House of Lords theoretically equal to that of the Commons with certain exceptions, such as control of the Executive and the alteration of Money Bills. Title of the House of Lords, immemorial customs, charters, writs, and Acts of Parliament. The House of Commons—Composed of Representatives elected by the people according to electoral laws passed from time to time. Power of the House of Commons in the initiation of legislation unrestricted, except for the constitutional principle that it may not originate a grant of money or a tax except upon receipt of a message from the Crown recommending the same. Control of Ministers. Title of the House of Commons—charters, writs, recognized and ratified by Acts of Parliament.



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  • (3) Judicial Department.—Power vested in the Queen, but exercised by Judges appointed by the Crown during good behaviour, but subject to be removed on an Address from both Houses of Parliament. Jurisdiction—to interpret the common law and the law of Parliament, but not to question validity of the latter. Security of tenure—Act of Settlement, 12 and 13 Wm. III. c. 2, and subsequent legislation.

Part III.

RIGHTS, PRIVILEGES, AND IMMUNITIES.—Contained in numerous charters, confirmations of charters, and Acts of Parliament assented to by the Crown from the earliest period of English history, including Magna Charta (1215); the Petition of Rights (1627), 3 Char. I. c. 1; the Habeas Corpus Act (1640), 16 Char. I. c. 10; the Bill of Rights (1688), 1 Wm. and Mary c. 2; and the Act of Settlement (1700), 12 and 13 Wm. III. c. 2. The Bill of Rights is of special interest as declaring that certain recited rights are “the true ancient and indubitable rights and liberties of the people to be firmly and strictly holden and observed in all times to come.”

Part IV.

COLONIES.—The Acts 18 Geo. III., c. 12, and 28 and 29 Vic. c. 63, are the charters of Colonial Independence. By the first it is promised that the British Parliament will not impose any duty, tax, or assessment whatever, payable in any part of His Majesty's colonies, provinces, plantations, in North America or in the West Indies. The latter Act is known as the Colonial Laws Validity Act, 1865, and provides that no colonial law shall be deemed to be void or inoperative on the ground of repugnancy to the law of England, unless it is repugnant to the provisions of an Imperial Act specially applicable to the colony in which such colonial law was passed.

Part V.

AMENDMENT.—No limitation upon the power of the British Parliament to alter the Constitution; it may legally be amended by the ordinary process of Legislation; but the House of Lords—the last stronghold of resistance to constitutional innovation—is under no constitutional obligation to yield to any demand of the House of Commons until the voice of that House has been confirmed by its constituents at a general election.

Outlines of the Constitution of the United States.

Part I.

SOVEREIGNTY.—Legally vested in the electors of the States, organized within the Constitution as the amending power.

Part II.

GOVERNMENT.—Two co-ordinate sets of governing organs, national and State, acting within the spheres marked out for them by the Constitution. Each set of organs is independent of the other, but both are subject to the common sovereignty:

  • (a) National Government.—Can only act within the sphere of powers granted to it by the Constitution.
    • (1) National Executive Department.—Power vested in the President, chosen under the Constitution by the electors of the States. Some executive acts require assent of Senate.
    • (2) National Legislative Department.—Power vested in Congress; House of Representatives elected by people of States in proportion to population; Senate consisting of two Senators from each State, chosen by the Legislature of the State. President has a veto, which may be overridden by a two-thirds majority of each House.



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    • (3) National Judicial Department.—Power vested in the Supreme Court of the United States, established by the Constitution, and other federal courts established by Congress under powers conferred by the Constitution.
  • (b) State Governments.—Can only act within the residuary sphere of powers which are neither prohibited to the State Governments nor exclusively given to the Federal Government. Within that sphere, the Government of each State is vested in the electors of the State organized within the Constitution of the State. Subject to the Federal Constitution and the Constitutions of the States:—
    • (1) State Executive Departments.—Power vested in State Governors appointed under State Constitutions.
    • (2) State Legislative Departments.—Power vested in State Legislatures, elected under State Constitutions.
    • (3) State Judicial Departments.—Power vested in State Courts established under State Constitutions.

Part III.

RIGHTS, PRIVILEGES, AND IMMUNITIES.—Defined by the Constitution as amended from time to time. Subject to modification by the sovereign people, but secure against Federal and State Governments.

Part IV.

AMENDMENT.—The mode of amendment by the sovereign people prescribed by the Constitution requires:—(1) Initiation by two-thirds majority in each House of Congress, or (on the demand of the Legislatures of two-thirds of the States) by a Constitutional Convention; (2) ratification by Legislatures or Conventions in three-fourths of the States. An amendment depriving any State of its equal representation in the Senate requires the consent of that State. The process of amendment is itself subject to amendment in the prescribed mode.




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2. The provisions of this Act referring to the Queen19 shall extend to Her Majesty's heirs and successors20 in the sovereignty21 of the United Kingdom.

CANADA.—The provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland.—British North America Act, 1867, sec. 2.

HISTORICAL NOTE.—The clause as originally drawn in the Sydney Convention, 1891, was taken verbatim from the Canadian clause, supra. In Committee, on Mr. Rutledge's suggestion, the words “in the sovereignty” were substituted for “Kings and Queens.” (Conv. Deb., Syd. [1891], p. 557.) As drawn at the Adelaide session, 1897, the clause ran:—“This Act shall bind the Crown and the Executive officers of the Commonwealth, and its provisions referring to Her Majesty the Queen shall extend,” &c. Mr. Higgins moved the omission of the words “and the Executive officers of the Commonwealth,” and this was agreed to. (Conv. Deb., Adel., pp. 619–20.) At the Sydney session, there was a short discussion on the words “This Act shall bind the Crown.” (Conv. Deb., Syd. [1897], pp. 225–7.) At the Melbourne session, verbal amendments were made before the first report and after the fourth report.

In England, the Crown Law officers recommended the omission of the words “This Act shall bind the Crown” (Parl. Paper, May, 1900, p. 19). In the Bill as introduced into the Imperial Parliament this course was adopted, and the clause was worded “The provisions of this Act, and of the Constitution set forth in the schedule to this Act,” etc—


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the Constitution being then placed as a “schedule” to the Bill. When the original form of clause 9 was restored in Committee, and the word “schedule” omitted, the words in italics became inapplicable; and before the third reading they were omitted.

§ 19. “Referring to the Queen.”

REFERENCES to the QUEEN.—The direct references to the Queen in the Act and Constitution (elsewhere than in the enacting words) are as follows:—

Preamble (admission of other possessions of the Queen). Clause 3 (Queen may proclaim Commonwealth, &c.). Clause 5 (Queen's ships of war). Section 1 (Queen in Federal Parliament). Section 2 (Governor-General appointed by the Queen). Section 34 (subject of the Queen). Section 44 (Queen's Ministers for Commonwealth or State— officers or members of Queen's navy or army). Sections 57–60 (Queen's assent to Bills). Section 61 (Executive power vested in Queen). Section 64 (Queen's Ministers of State). Section 66 (salaries of Ministers). Sections 73–4 (Appeals to Queen-in-Council). Section 117 (subject of the Queen). Section 122 (territories). Section 126 (Deputy Governor-General). Section 128 (Queen's assent to constitutional amendments). Schedule (oath of allegiance).

Besides references to “the Queen,” there are references to “the Crown” (e.g., in the Preamble and sec. 44)—a term which in English law is usually used as an impersonal or abstract description of the occupant of the throne—commonly called the sovereign— whether King or Queen. Sometimes it is used in a wider and more popular sense as representing the majesty and sovereignty of the nation (see note on “Sovereignty,” § 21).

CROWN NOT BOUND UNLESS NAMED.—It is a recognized canon in the construction of Statute law that in any case where the Crown would be ousted of an existing prerogative, it is not bound, affected, or reached unless named therein either expressly or by necessary implication. It is presumed that the legislature does not intend to deprive the Crown of any right of property unless it expresses that intention in explicit terms or makes the inference irresistible. (Maxwell on Statutes, p. 186; Broom's Legal Maxims [6th ed.], p. 68.) In conformity with this principle it has been held that the compulsory clauses of Acts authorizing land to be taken for railway purposes would not apply to a Crown property, because they were not made so applicable in express terms or by necessary inference; that, it being a prerogative of the Crown not to pay tolls or rates or other burthens on property, the Poor Act of 43 Elizabeth, authorizing the imposition of poor rates on every inhabitant or occupier of property in the parish, did not apply to the Crown or to its direct or immediate servants whose occupation is for the purposes of the Crown; re Cuckfield Board, 24 L.J. Ch. 583; Mersey Docks v. Cameron, 11 H.L. Cas. 443. Numerous Acts of Parliament have at various times abolished the writ of certiorari, but they have been held not to apply to the Crown, which still had its remedy by the prerogative writ. Where a local Act imposed wharfage dues, for the repairs and maintenance of a harbour, on certain articles, including stones, and, without expressly binding the Crown to make such payments, exempted it from liability in respect of coals imported for the use of the royal packets and from a toll over a bridge, the court refused to infer from the exemptions an intention to charge the Crown in respect of any other goods. (Weymouth v. Nugent, 34 L.J., M.C. 81.)

The rights of the Crown are not barred by any Statute of Limitations, unless it is expressly named therein; and this rule extends to cases where the right of the Crown is merely nominal. (Reg. v. Bayley, 4 Ir. Eq. R. 142.) Quœre, whether, when an Act of Parliament transfers jurisdiction from one court to another, or grants an extension of the jurisdiction of an existing court, it is necessary, in order to make the Act binding on the Crown, that the Crown should be named therein. (London Corporation v. Att.-Gen., 1 H.L. Cas. 440; Dig. of Eng., Case Law v., p. 7–8.)

The Crown not being bound by the Statutes of Bankruptcy, the protection of a bankrupt from an extent is limited to actual attendance upon the commissioners, upon the common-law privilege of a witness or party, not extending through the intervals of adjournment by the statute. (Ex parte Temple, 2 Ves. and B. 391; Craufurd v. Att.-


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Gen., 7 Price, 2.) The Bankruptcy Act, 1883, sec. 150, enacting that, save as therein provided, the provisions of that Act relating to the priorities of debts, the effect of a composition or scheme of arrangement, and the effect of a discharge, shall bind the Crown, does not by virtue of the Judicature Act, 1875, s. 10, operate as an incorporation, in the Companies Act, 1862, of a similar provision so as. in a winding-up, to bar the Crown of its prerogative of priority of payment over all creditors. (Re Oriental Bank Corporation, 28 Ch. D. 643; Dig. of Eng. Case Law v., p. 8.)

The Crown, though not bound by 3 and 4 Will. 4, c. 55, s. 31, and 3 and 4 Vic., c. 105, s. 20, which give to creditors by judgment or recognizance a right to have a receiver appointed on petition, may take advantage of the Acts, but is not bound by the restrictions imposed on that right by 12 and 13 Vic., c. 95, s. 10. (Reg. v. Cruise, 2 Ir. Ch. R. 65.) The Statute of Frauds does not bind the Crown, but takes place only between party and party, for the king is not named. Lord Hardwicke, however, doubted this doctrine. (Addington v. Cann, 3 Atk. 154.) Crown property, as well as property devoted to or made subservient to the Queen's government, is exempt from poor rates, but property held upon trust to create or to improve docks and harbours in seaport towns, though having a public character, and though devoted to public purposes, is nevertheless subject to be rated to the relief of the poor. (Clyde Navigation Trustees v. Adamson, 4 Macq. H.L. 931; Dig. of Eng. Case Law v., p. 8.)

The Crown is bound by the two codes of Lower Canada; in the liquidation of a bank it can claim no priority of payment over the other creditors except what is allowed by these codes. (Exchange Bank of Canada v. Regina, 11 App. Cas. 157).

The Victorian Crown Liability and Remedies Act, 1865 28 Vic. No. 241), does not affect the prerogatives of the Crown when suing in England. (Re Oriental Bank Co-operation, 28 Ch. D. 643.)

It was to prevent the operation of this maxim—that the Crown is not bound by a statute unless named therein—that the Convention inserted the words “This Act shall bind the Crown.” Compare the phrase “This Act shall be binding on the Crown” (Imperial) Interpretation Act, 1889 (52 and 53 Vic. c. 63, sec. 30). This was objected to by the Imperial Crown Law officers as possibly affecting not only the prerogative right of the Queen-in-Council to hear appeals, but also a wide range of other prerogatives; and the words were consequently omitted (see Historical Note).

Notwithstanding the omission of these words, there are many provisions of the Constitution which affect the Crown by express reference or by necessary implication. Not only the words “the Queen,” “the Crown,” “the Governor-General,” but also the words “the Commonwealth,” and “a State,” occurring frequently throughout the Constitution, are references to the Crown which may affect the prerogative to a considerable extent. It is therefore advisable to discuss the nature of the prerogative, and the chief ways in which it may be affected by the Constitution.

PREROGATIVES.—These are the residuary fractions and remnants of the sovereign power which, unimpaired by legislation and revolution, remain vested in the Crown. They are the products and survivals of the Common Law and are not the creatures of statutes. Statute law tends gradually to invade and diminish the domain of prerogative. Among the examples of prerogatives the following may be enumerated:—

  • (1.) The exercise of the ordinary Executive authority by the Crown, through Ministers of State; subject to certain legal and customary restraints such as the control of the House of Commons by virtue of its power to refuse supplies.
  • (2.) Dissolution and Prorogation of Parliament.
  • (3.) The administration of Justice in the name of the Crown, through judges and counsel appointed by the Crown.
  • (4.) The pardon of offenders.
  • (5.) Command of the Army and Navy.
  • (6.) Foreign affairs; peace and war.
  • (7.) Accrediting and receiving Ambassadors.
  • (8.) Entering into treaties with foreign nations.
  • (9.) Recognition of foreign States.
  • (10.) Appropriating prizes of war.



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  • (11.) Sharing legislation; right to veto.
  • (12.) Allegiance; right of the Crown to the allegiance and service of its subjects.
  • (13.) Ecclesiastical authority with respect to the Church of England.
  • (14.) Control over titles, honours, precedence, franchises, &c., coining money, superintendence over infants, lunatics, and idiots.
  • (15.) Special remedies against the subject, such as intrusion, quo warranto, distress, escheat, extent.
  • (16.) Lordship of the soil.

A number of these prerogatives have become obsolete through desuetude, although they have never been swept away by Act of Parliament. Others of them have been cut down and reduced to matters of form, or denuded of most of their former vigour and activity.

PREROGATIVES LIMITED By The CONSTITUTION.—In the course of these Notes attention will be drawn to clauses and sections which apparently contract the prerogatives of the Crown; foremost amongst them may be here generally indicated four of special importance:—

  • (1.) Section 1 of the Constitution, providing that the legislative power shall be vested in a Federal Parliament consisting of the Queen, the Senate, and the House of Representatives.
  • (2.) Section 59, restricting the period within which the Queen may disallow laws assented to by the Governor-General.
  • (3.) Section 62, creating an Executive Council to advise the Governor-General as the Queen's Representative.
  • (4.) Section 74, limiting the right of appeal to the Queen in Council.

PREROGATIVES CONFIRMED BY THE CONSTITUTION.—Certain well-known and long-established powers of the Crown instead of being negatived are confirmed by the Constitution, such as:—

  • (1.) Section 5.—The Governor-General may convene, prorogue, and dissolve the Federal Parliament.
  • (2.) Section 62.—The Governor-General may choose and summon members of the Executive Council to advise him.
  • (3.) Section 64.—The Governor-General may appoint officers to administer such Departments of State as the Governor-General in Council may establish.
  • (4.) Section 68.—The Governor-General shall be the Commander-in-Chief of the naval and military forces of the Commonwealth.

No doubt most or the whole of these and other powers vested in the Governor-General will, in accordance with what have been elsewhere referred to as the “Understandings and Conventions of the Constitutions,” § 18, be exercised by the Queen's Representative in a Constitutional manner, that is, on the advice of responsible Ministers. (See § 271, “Executive Government.”)

§ 20. “Her Majesty's Heirs and Successors.”

The Succession to the Crown was, after the revolution of 1688, settled by the Bill of Rights, I. Wm. and Mary (2nd Sess.), c. 2. The throne being declared vacant by the abdication of James II., the Crown was settled on King William III., Prince of Orange, grandson of Charles I., and nephew and son-in-law of the deposed monarch, and on Queen Mary, eldest daughter of James II. and wife of William III., for their joint lives; then on the survivor of them; then on the issue of Queen Mary; upon failure of such issue it was limited to Princess Anne of Denmark, King James' second daughter, and her issue; and lastly, on the failure of that, to the issue of King William. Towards the end of King William's reign, when it became probable that neither he nor Princess


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Anne would leave issue to inherit the Crown, it became necessary to make other legislative provision for the succession, which was done by 12 and 13 William III. c. 2, commonly known as the Act of Settlement (1702). The first section of this Act declared that, after his Majesty King William III. and the Princess Anne of Denmark, and in default of issue of the said Princess Anne and of his Majesty respectively, the Princess Sophia, Electress of Hanover, grand-daughter of King James I., should be next in succession to the Imperial Crown and dignity “of the said realm of England, France, and Ireland, with the dominions and territories thereunto belonging,” and that after the decease of his Majesty William III. and her Royal Highness the Princess Anne, and in default of issue of the Princess Anne and of his Majesty respectively, the Crown and Regal Government of the “said Kingdom of England, France, and Ireland and of the dominions thereunto belonging, with the Royal State and dignity of the said realm and all honours, styles, titles, regalities, prerogatives, powers, jurisdictions, and authorities to the same belonging and appertaining, shall remain and continue to the said Most Excellent Princess Sophia and the heirs of her body being Protestants.” The fourth and last section of the Act recites that “whereas the laws of England are the birthright of the people thereof, and all the Kings and Queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws, and all their officers and ministers ought to serve them respectively according to the same; the said Lords Spiritual and Temporal and Commons do therefore further humbly pray. That all the laws and statutes of this realm for securing the Established Religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, may be ratified and confirmed; and the same are by his Majesty by and with the advice and consent of the said Lords Spiritual and Temporal and Commons and by the authority of the same ratified and confirmed accordingly.”

Both William III., and Queen Anne after him, died without leaving issue; the Princess Sophia predeceased Queen Anne. The inheritance, therefore, descended to her son and heir, who became King George I. From him it descended to King George II., from whom it descended to George III.; then to George IV., who was succeeded by his brother, William IV.; and after him it descended to his niece Princess Victoria, our present Gracious Queen, daughter of Edward, Duke of Kent. (Stephen's Comment., vol, 2. p. 451.)

§ 21. “Sovereignty of the United Kingdom.”

SOVEREIGNTY.—A clear conception of the meaning of “sovereignty” is the key to all political science. The relation of the Commonwealth to the Empire, and the relation of the Federal and State Governments of the Commonwealth to one another, can hardly be appreciated apart from a sound study of the principle of sovereignty. The speculations of such philosophers as Hobbes, Locke, and Rousseau, the learning of Blackstone and Bentham, the critical analysis of Austin, the historical researches of Maine, and the labours of such modern writers as Holland, Dicey, Leslie Stephen, Burgess, and many others, have all contributed, from many sides, to throw light on the central idea which the word sovereignty represents; and of recent years the interchange of thought between English and American writers, and a comparative study of their widely different institutions, has done much to clear away doubts and difficulties. In this work only a brief note can be devoted to this vast subject.

Before attempting any definition of sovereignty, it is advisable to call attention to the necessity of avoiding confusion between three distinct uses of the word:—(1) Legal sovereignty—as when we speak of the sovereignty of the British Parliament; (2) political sovereignty—as when we speak of the sovereignty of the people; (3) titular sovereignty—as when we speak of the sovereignty of the Queen. As the primary meaning of the word is the legal one, it is best to begin from that standpoint.




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(1.) LEGAL SOVEREIGNTY.—Sovereignty, then, is an attribute, and the most essential attribute, of a State—that is, of an independent political community. It is defined by Burgess (Pol. Science, I. 52) as “original, absolute, unlimited, universal power over the individual subject and over all associations of subjects.” The legal sovereign is that person, or determinate body of persons, which possesses, in a State, a power which in point of law is absolute and unlimited. Such a body is the British Parliament; such a body are the electors of the United States organized under the Constitutional provision for the amendment of the Constitution. Legally speaking, such a body of persons is the State itself; the State is the sovereign, and the sovereign is the State.

Corresponding to this view of legal sovereignty as power, we may define political sovereignty as the will which lies behind the power. Political sovereignty is thus also an attribute of the State; it is the corporate will—or what Rousseau called the “general will”—of the community. And from this definition of political sovereignty as the “general will” of the community, we may in turn deduce legal sovereignty as the legal expression, or embodiment, or manifestation, of that will.

Sovereignty, therefore, resides in the State, but it is principally manifested through the Government, its creature. Every competent organ of government, legislative, judicial, or executive—Parliaments, courts, constitutional assemblies, electorates in their legislative capacity, Kings, Presidents, Governors, Executive Councils—are organs through which the sovereign power is exercised. In one sense the aggregate of these bodies within a State, as exercising the sum-total of sovereign power, may be considered as depositaries of sovereignty; but in another and a truer sense sovereignty is located in the ultimate legislative organ—the supreme organic unity which in the last resort controls all the others.

Can sovereignty be legally limited? The above definitions negative the possibility; but they are not universally concurred in. The historical school point to communities in which no sovereign can be discovered; and Dicey (Law of the Constitution, p. 135) fails to see why it should be inconceivable that the framers of a Constitution should have deliberately omitted to provide means of altering it. Most writers, however, agree that sovereignty cannot be limited even by a direct prohibition in the fundamental instrument, but that such a prohibition is inconsistent with the very conception of a State, and must be disregarded. (See Burgess, Pol. Science, I. pp. 51-2; W. W. Willoughby, The Nature of the State, p. 214.)

True political science seems to point to the conclusion that sovereignty is incapable of legal limitation, either from without or within. A sovereign body cannot be legally controlled by another body, for then that which controls would be sovereign. Nor can it be legally controlled by a prohibition, express or implied, in a written document; for then the written document would be sovereign—though it can have neither will nor power. Either the organization which framed the Constitution can be legally convoked again—in which case it is the sovereign; or it cannot—in which case its prohibition, directed against the State, is without sanction and without effect.

As sovereignty is incapable of legal limitation from without, so it is unable to bind itself. With a sovereign there is no such thing as “irrevocable laws.” The sovereign power which makes a law can alter or repeal it. It is true that sometimes a sovereign body may pass a law and declare it to be so sacred and organic that it shall last for ever, such as the Act for the union of England and Scotland. Such a declaration of intention or policy would have great weight with, but could not legally bind, succeeding Parliaments. As a matter of fact that Act of Union has already been amended in certain particulars, which were originally declared to be fundamental and unchangeable conditions of the union. So the Act for the union of Great Britain and Ireland has been amended by the disestablishment of the Irish Church.

Influences on Sovereignty.—But although there can be no legal control or limitation of the sovereign authority, there are many practical and effective influences


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at work in every well-ordered society, which prevents the sovereign power from being exercised with unrestricted, reckless, and irresponsible omnipotence, and which tend to chasten and temper, if not curtail, the exercise of supreme authority, whether it be vested in an absolute monarch, or in a king in parliament, or in a complex body such as a three-fourth majority of the Legislatures of the United States. Among those influences some are internal, to be found in the character, organization, and historical antecedents of the sovereign person or body; but the most powerful are the external surroundings and circumstances which guide and direct the mode of calling into action the sovereign will, such as the right of petition for redress of grievances; the right of public criticism; the right of the public to combine and remonstrate against oppression and wrong-doing, and above all the knowledge possessed by sovereign rulers that if they persist, for any protracted period, in attempting to govern contrary to reason and justice, and contrary to the wishes, interests, and instincts of the bulk of their people, they will lose popular support, encounter popular resistance, and run the risk of rebellion and revolution; as actually happened in England during the reign of James II. These moderating forces, proceeding from the environments of a sovereign, or of a sovereign body, tend no doubt to reduce the dogma of unrestricted, uncontrolled sovereignty to a legal fiction. Legally the Sultan of Turkey could abolish Mohammedanism and introduce Christianity into his dominions, but he would not and dare not do so. Legally the Czar of Russia could revoke the edict for the emancipation of the serfs, but he would not and dare not do so. Legally the Queen in the British Parliament could tax the Colonies, as was done in the reign of George III., but they would not dream of such a policy, much less attempt it. Similarly, two-thirds of Congress could propose, and three-fourths of the legislatures of the States could ratify, a constitutional law re-establishing slavery in America. But the moral influences to which legal sovereignty is subject, emanating from considerations of expediency, justice, and humanity, would frown down and destroy any such proposals.

Formal Restraints.—Important among the internal restraints upon sovereignty are those which relate to the legal organization and structure of the sovereign body. Just as the sovereign body may be restrained by its moral character and environments, so it may be restrained by its legally determined structure or procedure. Thus there is a formal restraint on the sovereignty of the British Parliament in the necessity for the concurrence of Queen, Lords, and Commons. There is a formal, and most effectual, restraint on the sovereign amending power of the United States in the requirement of ratification by three-fourths of the States. There is a formal restraint on the quasi-sovereignty of the Commonwealth in the requirement of ratification by a majority of the people and also by a majority of the States—and also, in some cases, by every State affected. These formal restraints are, strictly speaking, restraints on the mode of exercise of sovereignty, not on the sovereignty itself. Nevertheless, they may attain any degree of stringency, from requiring the concurrence of special majorities, to requiring the complete unanimity of every member of a complex body. Thus the formal limitation may amount practically to an almost absolute prohibition of amendment; and the sovereign power may be, as the American sovereign is, “a despot hard to rouse,” “a monarch who slumbers and sleeps.” (Dicey, Law of the Constitution, p. 137; and see Sidgwick, Elements of Politics, Appendix.)

(2.) POLITICAL SOVEREIGNTY.—Political sovereignty has been incidentally defined in our discussion of legal sovereignty. As a legal conception, a sovereign is one whose commands, whether just or unjust, wise or unwise, politic or impolitic, the courts will enforce. With political sovereignty the courts have nothing to do. They cannot recognize the “general will” of the political sovereign, but only the manifestation of that will as declared by the legal sovereign.

“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,


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in strict accuracy, independently of the King and the Peers, the body in which sovereign power is vested. For, as things now stand, the will of the electorate, and certainly of the electorate in combination with the Lords and the Crown, is sure ultimately to prevail on all subjects to be determined by the British Government. The matter indeed may be carried a little further, and we may assert that the arrangements of the Constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country. But this is a political, not a legal fact. The electors can in the long run always enforce their will. But the Courts will take no notice of the will of the electors.” (Dicey's Law of the Constitution, p. 66.)

“Adopting the language of most of the writers who have treated of the British Constitution, I commonly suppose that the present parliament, or the parliament for the time being, is possessed of the sovereignty; or I commonly suppose that the King and the Lords, with the members of the Commons' house, form a tripartite body which is sovereign or supreme. But, speaking accurately, the members of the Commons' house are merely trustees for the body by which they are elected and appointed; and, consequently, the sovereignty always resides in the King and the Peers, with the electoral body of the Commons. That a trust is imposed by the party delegating, and that the party representing engages to discharge the trust, seems to be imported by the correlative expressions ‘delegation’ and ‘representation.’ It were absurd to suppose that the delegating empowers the representative party to defeat or abandon any of the purposes for which the latter is appointed; to suppose, for example, that the Commons empower their representatives in Parliament to relinquish their share in the sovereignty to the King and the Lords.” (Austin's Jurisprudence, vol. I., p. 253.)

It is quite true, as Dicey, in another passage, points out, that no English judge ever conceded, or under the present Constitution could concede, that Parliament in any legal sense is a trustee for the electors. Equally, as a matter of law, some jurists have contended that the Queen is the supreme administrator and supreme legislator, acting by and with the advice of ministers in matters of administration, and by and with the advice and consent of Parliament in matters of legislation. That is true in theory and as a constitutional form. Legal fictions are useful and potent solvents in the transformation of ideas. The legal sovereignty of Parliament is undoubted; but the sovereignty of Parliament, a principle of transcendent force and importance which superseded the sovereignty of royalty, is in reality, if not in name, rapidly tending to become a fiction, like that of regal sovereignty, which for a time it supplanted; it is gradually giving way before the idea of the sovereignty of the electoral body, or the sovereignty of the people represented by the electors. At present the idea of political sovereignty is prominent. Men commonly speak to-day in the language of politics, rather than in the language of jurisprudence. And the tendency to confuse legal and political sovereignty is increased by the fact that in some countries—for instance, Switzerland, and even the United States—the two are to a great extent identical. Wherever the ultimate legal sovereign is not a representative, but a constituent body—wherever the people themselves enact the supreme law—the political sovereign and the legal sovereign are the same. For good or for evil, the movement in favour of the Referendum—which finds a place in this Constitution as a means for the alteration of the organic law—tends in this direction.

(3.) TITULAR SOVEREIGNTY.—“This term is used to designate the king, or queen, of the United Kingdom; often also in the phrase ‘Our Sovereign Lord the King,’ or ‘Our Sovereign Lady the Queen,’ in Acts of Parliament and proclamations. There is implied in it the theory that the king is the possessor of sovereignty, or the powers of supreme government, as a monarch, in the strictest sense of jurists and constitutional writers; and in that sense it has long ceased to be a correct designation. The king is neither ‘sovereign’ nor ‘monarch,’ but, this notwithstanding, he hardly is mentioned oftener by his appropriate title of ‘king’ than by those inappropriate and affected names.” (Austin's Jurisprudence, Campbell's ed., Note, p. 242.)

DELEGATED SOVEREIGNTY.—In all the constitutional Acts passed by the British Parliament conferring the right of self-government on British colonies, it is expressed or implied that the sovereignty is vested in the Queen. This form of expression is in accordance with traditional theory and usage, and it has been continued as a matter of courtesy, notwithstanding the fact that the form is at variance with the reality and the substance; as elsewhere pointed out (Note, § 11) the Queen shares with the Houses of


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the British Parliament in the sovereignty of the British Empire. The office of legislation, like the judicial and executive functions of sovereignty, may be delegated by the sovereign principal to subordinate persons or bodies, such as colonial governors and colonial parliaments. Within the limits of their constitutional Acts and charters, such governors and parliaments may exercise all the ordinary authority of a sovereign, in the same way as the Queen in the British Parliament, subject only to the same moral checks and restraints which have been already enumerated. (Dicey, Law of the Constitution, p. 95.)

The constitutional Acts of the colonies of Great Britain are illustrations of this delegation of sovereign power. Most of these colonies possess Statutory Constitutions, conferring on their respective legislature, together with the Queen, represented by a governor, authority to legislate for the peace, order, and welfare of the people within their respective territories. The Constitution of the Dominion of Canada is a conspicuous example of this delegation. The Constitution of the Australian Commonwealth is an even more notable instance of the same process. But colonies, dominions, or commonwealths, having such a system of government, substantially free and practically independent, are still subject to the original sovereign body, the Queen in the British Parliament. That power, though dormant, is not extinguished or abandoned by the delegation. There is merely an implied compact not to interfere with those communities as long as they govern themselves according to the terms of their respective Constitutions. (Markby's Elements of Law, pp. 3, 4, 20.)

Proclamation of Commonwealth.

3. It shall be lawful for the Queen, with the advice of the Privy Council22, to declare by Proclamation24 that, on and after a day therein appointed25, not being later than one year after the passing of this Act23, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united26 in a Federal Commonwealth27 under the name of the Commonwealth of Australia. But the Queen may, at any time after the Proclamation, appoint a Governor-General28 for the Commonwealth.

CANADA.—It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a day therein appointed, not being more than six months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be one Dominion under the name of Canada; and on and after that day those three Provinces shall form and be one Dominion under that name accordingly.—B.N.A. Act, sec. 3.

HISTORICAL NOTE.—Clause 3 of the Commonwealth Bill of 1891 was as follows:—

“It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a day therein appointed, not being later than six months after the passing of this Act, the colonies of [here name the Colonies which have adopted the Constitution] … shall be united in one Federal Commonwealth under the Constitution hereby established, and under the name of the Commonwealth of Australia; and on and after that day the said colonies shall be united in one Federal Commonwealth under that name.” (Conv. Deb., Syd. [1891], p. 557.)

At the Adelaide Session, the clause was introduced in the same form, except that it was provided that the colonies “shall be united in a Federal Constitution under the name of the Commonwealth of Australia, and on and after that day the Commonwealth shall be established under that name.” On the motion of Mr. Isaacs, the clause was amended to read that “the people of” the colonies should be united. A further amendment by


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Mr. Isaacs that they should be united “by”—not “in”—a Federal Constitution, was negatived. (Conv. Deb., Adel., pp. 620–1.) At the Sydney session, on Mr. O'Connor's motion, “one year” was substituted for “six months.” (Conv. Deb., Syd. [1897], pp. 227–8.)

At the Melbourne session, a proposal by Mr. Symon, to omit “the Commonwealth of,” was negatived by 21 votes to 19 (Conv. Deb., Melb., pp. 1746–50); and after the second report the same amendment, again moved by Mr. Symon, was negatived by 25 votes to 18. Mr. Reid proposed to add words enabling the Queen, at any time after the proclamation, to appoint a Governor-General, who might, before the Commonwealth was established, summon members of the Federal Executive Council and appoint other necessary officers; but Mr. Barton thought this went too far, and suggested the words: —“The Queen may, at any time after the making of the proclamation, appoint a Governor-General for the Commonwealth.” This was agreed to. (Conv. Deb., Melb., pp. 1920–2.) Drafting amendments were made after the fourth report.

In the Imperial Parliament, the names of the federating colonies were filled in, with the provision for including Western Australia in the Proclamation if the Queen were satisfied that the people of Western Australia had agreed to the Constitution. (See Historical Introduction, p. 242, supra.)

§ 22. “Privy Council.”

This body was originally one of the most important councils of the Crown, variously called the Concilium Regis, the Ordinary Council, the Continual Council, and the Secret or Privy Council (Privatum Concilium). It acquired the last-named designation during the reign of Henry VI. (1422–1461). It was a council of confidential advisers, who were in constant attendance upon the king and assisted him in the decision of all questions of public policy and in the administration of the business of the kingdom. It represented the unity of the executive government. It consisted of nobles and other eminent persons in whom the king had confidence. Sir Edward Coke described it as an honourable and revered assembly of the king (4 Institutes, 53). Lord Hale described it as the Concilium in concilio, referring to the fact that the members of that council, being peers, were also members of the Magnum Concilium for which, in consultation with the king, they prepared the business. It was foreshadowed in the reign of Henry III. and assumed a definite organization during the long period covered by the successive reigns of the three Edwards. It was one of the three groups into which the Magnum Concilium was originally divided and which afterwards became fused into the House of Lords. These groups were—(1) The Lords Spiritual; (2) the Lords Temporal; and (3) the official and bureaucratic element immediately associated with the king in the government of the realm. (Gneist, English Const., pp. 349–351.)

In the middle ages the number of members of the Privy Council was limited to about fifteen. During the reign of Henry IV. (1401) the Council was composed of nine peers, three bishops, six knights and one untitled person. During the reign of Charles II. (1660–1685) the number of members had so increased as to make the body unwieldy “and unfit for the secrecy and dispatch which are necessary in many great affairs.” A plan of reconstruction proposed by Sir William Temple was adopted. According to this the number of Privy Councillors was restricted to thirty, of whom fifteen were to be ministers and principal officers of state, and the remaining fifteen included ten lords and five commoners chosen by the king. During the same reign the germ of the modern Cabinet appeared in the custom which then began of consulting only a select or confidential committee of the Council in reference to important parliamentary and executive business. After that reign the numerical strength of the Privy Council, notwithstanding Temple's plan, went on increasing. At the present time there is practically no limit to the number of persons who may be appointed members of the Council. There are now more than 200 Privy Councillors who may be classified as


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follows:—(1) Members of the Royal Family and noblemen of the highest rank; (2) statesmen who hold or have held high political office; (3) the Speaker and members of the diplomatic service who have attained the rank of ambassadors; (4) great officers of state departments on their retirement after long and distinguished service; (5) the Lord Chancellor and other judges of the superior courts; (6) ecclesiastical dignitaries; (7) the Commander-in-Chief and the Master-General of the Ordnances; (8) colonial ministers who have rendered conspicuous service to the Empire. These eminent personages are styled collectively “The Lords and others of Her Majesty's Most Honourable Privy Council,” and they are each entitled to be addressed as “The Right Honourable.” In modern practice this numerical and talented complexity of the Council has not been found inconvenient, as no Privy Councillors, except those occupying for the time being official positions, political or judicial, are summoned to advise the Crown, either in matters of state or in matters of law. (Stephen's Comm., 4th ed., vol. 2, p. 467.)

THE POLITICAL COMMITTEE.—The true Privy Council of the present day, and the one referred to in the above clause, is the Cabinet. The Cabinet has been defined as the political committee of the Privy Council, especially organized for the purpose of advising the Crown, directing all public departments, and deciding all important questions of administration, subject only to the approval of the House of Commons. (Hearn's Government of England, p. 197.)

THE JUDICIAL COMMITTEE.—In Colonial causes the Privy Council had, from time immemorial, both original and appellate jurisdiction.

“Whenever a question arises between two provinces out of the realm as concerning the extent of their charters and the like, the King in his Council exercises original jurisdiction therein, upon the principles of feudal sovereignty. And so, likewise, when any person claims an island or a province, in the nature of a feudal principality, by grant from the King or his ancestors, the determination of that right belongs to the sovereign in council; as was the case of the Earl of Derby, with regard to the Isle of Man, in the reign of Queen Elizabeth; and the Earl of Cardigan and others, as representatives of the Duke of Montague, with relation to the Island of St. Vincent, in 1764. And to the same supreme tribunal there is, besides, in causes of a certain amount, an appeal in the last resort from the sentence of every court of justice throughout the colonies and dependencies of the realm. Practically, however, all the judicial authority of the privy council is now exercised by a committee of privy councillors, called the Judicial Committee of the Privy Council, who hear the allegations and proofs, and make their report to Her Majesty in council, by whom the judgment is finally given.” (Stephen's Comm., 4th ed., vol. 2, p. 470–1.)

The statutory jurisdiction of the Privy Council was first regulated in 1833 by the Act 3 and 4 William IV. c. 41, passed for the better administration of justice in the judicial branch of the Council. Under that law the Judicial Committee of the Council was definitely constituted. This tribunal was composed of the Lord President for the time being of the Council, the Lord Chancellor, and such Privy Councillors as held or had held office as Lord Keeper of the Great Seal, Chief Justice or judge of the Court of Queen's Bench or Common Pleas, Chief Baron or Baron of the Court of Exchequer, the Master of the Rolls, the Vice-Chancellor, the Judges of the Prerogative and Admiralty Courts, and the Chief Judge of the Court in Bankruptcy. This Act was amended and extended by 6 and 7 Vic. c. 38 (1843); 7 and 8 Vic. c. 69 (1844); 14 and 15 Vic. c. 83 (1851); 44 and 45 Vic. c. 3 (1881); 50 and 51 Vic. c. 70 (1887); which contain a variety of regulations prescribing the manner of conducting appeals from the colonies. At common law, since modified by statue, the Privy Council had jurisdiction to entertain appeals from the Lord Chancellor in matters of lunacy and idiocy, and in appeals from the ecclesiastical and maritime courts, and in matters of patent and copyright. See note, “Appeal to Queen in Council,” § 310, infra.

THE ERECTION OF THE COMMONWEALTH.—Three distinct stages in the erection of the Commonwealth are contemplated by this clause:—(1) The passing of the Imperial Act, (2) the issue of the Queen's proclamation appointing a day within one year after the passing of the Act, (3) the day when the people of the concurring colonies are


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united. These events and successive stages are not chronologically narrated in the clause. It will be conducive to clearness to consider them in the order of time in which they occur.

§ 23. “The Passing of this Act.”

Before the Act 33 Geo. III. c. 13 (1793) every Act in which no particular time of commencement was specified operated and took effect from the first day of that session of Parliament in which it was passed. (Panter v. Attorney-General, 6 Brown's Cases in Parliament, 486.) An Act which was to take effect from and after the passing of the Act operated by legal relation from the first day of the session. (Latless v. Holmes, 4 T.R. 660.) But now, by 33 Geo. III. c. 13, where the commencement of an Act is not provided for in the Act, the date endorsed on the Act, stating when it has passed and received the Royal assent, is the date of its commencement. The Royal assent may be given during the course of the session, in which the two Houses of Parliament concur in it, or at the end of the session. The practice is to endorse on the first page of the Act, immediately after the introductory title, the date of the Royal assent. The Royal assent to an Imperial Act is given by the Queen in person or by commission; if by commission it is only given to such bills as may be specified in the schedule thereto.

This Act received the Royal assent on 9th July, 1900, which day is therefore the date of “the passing of this Act.” But, although that date marks the commencement of the Act, the Commonwealth is not established, nor does the Constitution take effect, until the Queen has made a proclamation under the Act and the day fixed by that proclamation for the establishment of the Commonwealth has arrived. The only immediate consequences of the passing of the Act were—(1) That the Queen in Council was empowered to issue a proclamation appointing a day, not later than one year after the passing of the Act for the establishment of the Commonwealth (see § 24, “Proclamation”), and (2) that the Parliaments of the several colonies might proceed to pass preliminary electoral laws and to make arrangements for the election of the first Federal Parliament. In the Canadian Constitution it is expressly provided that the “subsequent provisions” are not to commence or have affect until after the day appointed in the Queen's proclamation for the establishment of the union.

§ 24. “Proclamation.”

A royal proclamation is a formal announcement of an executive Act; such as a summons to or dissolution or prorogation of Parliament; a declaration of peace or war; an admonition to the people to keep the law or a notification of enforcement of the provisions of a statute, the operation of which is left to the discretion of the Queen in Council. The object of a royal proclamation is only to make known the existing law or declare its enforcement; it can neither make or unmake the law. (Ex p. Chavasse, re Grazebrook, 34 L. J. Bk., 17.) A proclamation is a resolution of the Queen in Council, which, as we have already seen, means the Cabinet. The document by which it is promulgated passes under the Great Seal. (Anson, Law and Custom of the Constitution, Vol. II., p. 45.) It is announced through the official Government Gazette.

The proclamation referred to in this clause is one which it is in the discretion of the Queen, acting on constitutional advice, to issue subject only to the condition that the date fixed therein must be not later than one year after the passing of the Act.

§ 25. “A Day therein Appointed.”

Where an Imperial Act of Parliament is expressed to come into operation on a particular day, it is construed as coming into operation immediately on the expiration of the previous day. Thus if the day appointed is the 1st January, the day begins at midnight, marking the end of 31st December. (Tomlinson v. Bullock, 4 Q.B.D. 230.) This principle will apply to the day appointed in the Queen's proclamation. An expression


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of time in an Imperial Act, in the case of Great Britain, means Greenwich mean time. Definition of Time Act, 1880 (43 and 44 Vic., c. 9); Interpretation Act, 1889 (52 and 53 Vic., c. 63). On the day appointed by the proclamation, the following events are declared to happen, viz.:—

  • (1.) The people of the colonies are united.
  • (2.) The Commonwealth is established.
  • (3.) The Constitution takes effect.
  • (4.) The electoral and other procedure laws passed by the Parliaments of the federating colonies between “the passing of the Act” and “the day appointed” come into operation.

§ 26. “The People … shall be United.”

The formative words in this clause are more forcible, striking, and significant than those of the corresponding parts of the Constitutions of the United States and of Canada; they indicate the fundamental principle of the whole plan of government, which is neither a loose confederacy nor a complete unification, but a union of the people considered as citizens of various communities whose individuality remains unimpaired, except to the extent to which they make transfers to the Commonwealth. In the Constitution of the United States a union of the people of the States is referred to in the preamble, and there only, in the form of a recital that the people have ordained and established the Constitution in order to form a more perfect union. In the body of the Constitution it is nowhere stated that the people of the States are or shall be united. This was one of the ambiguities of the American instrument which helped to give rise to the doctrine of nullification and secession, and, at last, to the Civil War. (See § 6, “Nullification and Secession.”)

In the Canadian Constitution nothing is said about the union of the people; it is provided that on the day appointed in the Queen's proclamation “the provinces … shall form and be one Dominion;” the people are ignored; the corporate entities of the union alone are specified as its component parts. The individual human units, the vital forces, the population of the provinces, are not even remotely alluded to. The vagueness of one and the deficiency of the other Constitution have not been allowed to disfigure the design of the Constitution of the Commonwealth. The union of the people of the colonies is doubly asserted and assured; first in the preamble, where it is recited that “the people have agreed to unite,” and secondly in this clause, in which it is emphatically stated with mandatory force that on the day appointed they “shall be united.”

WESTERN AUSTRALIA.—The condition necessary for the establishment of Western Australia as an Original State—that the Queen should be “satisfied that the people of Western Australia have agreed thereto”—was fulfilled by the affirmative vote in that colony on the Constitution, followed by addresses to the Queen passed by both Houses of the West Australian Parliament. (See Historical Introduction, p. 250, supra.)

§ 27. “In a Federal Commonwealth.”

The word “federal” occurs fifteen times in the Act, exclusive of references to the Federal Council of Australasia Act, 1885:—

  • (1.) Federal Commonwealth, Preamble and Clause 3.
  • (2.) Federal Parliament, sec. 1.
  • (3.) Federal Executive Council, secs. 62, 63, 64.
  • (4.) Federal Supreme Court, sec. 71.
  • (5.) Federal Courts, sec. 71.
  • (6.) Federal Court, secs. 73—ii.; 77—i. and ii.
  • (7.) Federal Jurisdiction, secs. 71, 73—ii., 77—iii., and 79.

The Federal idea, therefore, pervades and largely dominates the structure of the newly-created community, its parliamentary executive and judiciary departments.


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“Federal” generally means “having the attributes of a Federation.” By usage, however, the term Federal has acquired several distinct and separate meanings, and is capable of as many different applications. In this Act, for example, the term Federal is used first in the preamble, and next in clause 3, as qualitative of the Commonwealth, considered as a political community or state; in various sections of the Constitution it is employed as descriptive of the organs of the central government. This use, in an Act of Parliament, of one term in reference to two conceptions so entirely different as state and government, is illustrative of the evolution of ideas associated with Federalism. In the history of Federation the word seems to have passed through several distinct stages or phases, each characterized by a peculiar use and meaning. At the present time the several shades of thought which the word, according to usage and authority, is capable of connoting are often blended and confused. These meanings may be here roughly generalized as a preliminary to a separate analysis:—

  • (1.) As descriptive of a union of States, linked together in one political system.
  • (2.) As descriptive of the new State formed by such a union.
  • (3.) As descriptive of a dual system of government, central and provincial.
  • (4.) As descriptive of the central governing organs in such a dual system of government.

The first, and oldest, of these meanings directs attention emphatically to the preservation of the identity of the States; the second implies a division of sovereignty— a State composed of States; the third asserts that the duality is a matter of government, not of sovereignty; whilst the fourth asserts nothing, but is merely a convenient form of nomenclature.

(1.) A UNION OF STATES.—The primary and fundamental meaning of a federation (from the Latin fœdus, a league, a treaty, a compact; akin to fides, faith) is its capacity and intention to link together a number of co-equal societies or States, so as to form one common political system and to regulate and co-ordinate their relations to one another; in other words a Federation is a union of States, subject to the preservation of state entity and state individuality within defined limits. Such a union as that of the United States called into existence a central government to deal with the general affairs of the union, but there was some discussion and doubt among publicists whether, as its resultant, it established a new State. The phrase “federal union,” or the abstract noun “Federation,” described the bond of union between the “United States,” but was silent as to whether the States so united formed a single composite State. It was contended that the union fell short of the attributes of a perfect State; that the original sovereignty of the component States remained unimpaired except to the extent of the power transferred to the union—a doctrine which was the battle ground of parties in America for many years before the Civil War. This was the sense in which the word “federal” is used in the Federalist, and in the early constitutional history of the United States.

(2.) A FEDERAL STATE.—In a secondary sense, the word “federal” is applied to the composite state, or political community, formed by a federal union of States. It thus describes, not the bond of union between the federating States, but the new State resulting from that bond. It implies that the union has created a new State, without destroying the old States; that the duality is in the essence of the State itself that there is a divided sovereignty, and a double citizenship. This is the sense in which Freeman, Dicey, and Bryce speak of a “Federal State;” and it is the sense in which the phrase “a Federal Commonwealth” is used in this section and in the preamble. The word “Federation,” which was primarily synonymous with the abstract “federal union,” is now frequently used as synonym for the concrete “Federal State.”

(3.) A DUAL SYSTEM OF GOVERNMENT.—In recent years it has been argued that the word “federal” is inappropriately and inexactly used when applied to a State or


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community; that there is no such thing as a federal State; that if there is a State at all it must be a national State; that any political union short of the principal attribute of statehood and nationhood, viz: sovereignty, is a mere Confederacy; and that “federal” can only be legitimately used as descriptive of the partition and distribution of powers which is peculiar to a federal system. Federal, it is said, is properly applied to denote a dual but co-ordinate system of government, under one Constitution and subject to a common sovereignty, in which one State employs two separate and largely independent governmental organizations in the work of government; the whole governing system, central and general, as well as provincial and local, constituting the federal government; the central and general government being one branch, and the provincial and local governments forming the other branch of the governing organization. (Burgess, Political Sci., I., p. 79; II., p. 18.) Hence, according to this view, the expression “Federal Government” means not the central and general government alone, not the provincial and local governments alone, but the governing system, central and general, as well as provincial and local, as parts of one whole government under one Constitution.

(4.) CENTRAL GOVERNMENT OF A DUAL SYSTEM.—The term “federal” is often used as descriptive of the organs of the central and general government, such as the Federal Parliament, the Federal Executive, and the Federal Supreme Court. In this sense the word is in common use in the United States as synonymous with national. This use of the word has no important bearing on federal history or theory.

FEDERAL AND CONFEDERATE.—But in whichever of the above meanings the adjective “federal” is used, in modern usage it is distinguishable from the adjective “confederate.” “Federal” is used of a type of union, or government, or State, in which the general and local governments are co-ordinate within their respective spheres, and both act directly on the citizens. “Confederate” is applied to a type of union, or government, known as a confederacy, in which the central government is incomplete— usually having only legislative powers—and its laws and ordinances are directed to the States, not to the citizens. Such a union is little more than a league or treaty between independent States, and does not create a new State, nor even, in the complete sense of the word, a new government; but merely provides a representative organization for the purpose of promulgating decrees and making requisitions upon the members of the league. It has no power to enforce its decrees or requisitions. This was the fundamental infirmity of the Confederacy of the United States which existed before the adoption of the Federal Constitution.

FEDERAL AND NATIONAL.—The word “national” is frequently used in contrast with the word “federal;” but the distinction between the two varies greatly according to the meaning in which the word “federal” is used. A discussion of the two words may be best introduced by a reference to American usage.

United States.—In the Convention which framed the Constitution of the United States. the resolutions adopted after full discussion showed that it was intended to prepare a national plan of union and a national plan of government. In order, however, to conciliate opposition and to avoid arousing the prejudices and fears of small States, the use of the word “national” was eschewed. The word “federal” occurs in several of the constitutional resolutions adopted by the Convention, and such expressions as “perfect union,” “within this union,” “laws of the union,” “United States,” are to be found in the Constitution; yet strange to say the word “federal” does not appear in any part of the document, although it is generally recognized that that Constitution is the model of all modern federal governments.

From its adoption until the great Civil War, judicial, political and academical writers usually abstained from employing the word “national” and substituted for it “federal.” (Foster's Commentaries, vol. I., p. 91.) Since the Civil War the expression “National Government” has come into general use in the United States. “We still ordinarily speak of federal practice in the federal courts. But as appears by the congressional


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resolution quoted at the beginning of this section, as well as in the debates in the Convention, the phrase ‘federal’ is not inconsistent with ‘national.’ ” (Id., p. 92.)

Canada.—In the Preamble to the British North America Act, 1867, it is recited that the provinces have expressed their desire to be “federally united in one Dominion under the Crown.” This is the only passage in that Constitution in which there is any express allusion to the Federal idea.

DIFFERENT MEANINGS.—The words “federal” and “national,” therefore, may be used either as mutually exclusive, or as partially overlapping. The first meaning of “federal,” given above, either excludes or at least ignores any national element in federalism; it was the sense in which the word was used by the authors of the Federalist and by early American writers before the truly national character of the American Union was fully recognized and avowed. In that sense, therefore, “federal” denotes the organic relation of the States to the Union; whilst a community is described as national in so far as its tendency is to unite individuals in one political State, and as its government exercises direct power over individuals.

On the other hand, the second and third meanings recognize a national element in federalism itself; they affirm a duality, either of sovereign power or of government, and recognize that national organization in matters of national concern is as much a part of federalism as provincial organization in matters of provincial concern. This is the more modern scope of the word, and accords not only with later English and American usage, but with current usage in Australia. In this sense, the word national, when used in contrast with federal, refers only to the extension of the national element into the provincial area. In order to make clear these distinct conceptions of the scope of federalism, we proceed to analyse the federal and national elements in the Constitution, according to both definitions; first adopting the primary meaning of federal as describing a linking together of States, and then adopting the newer meaning as describing a dual system of government.

(1.) FEDERAL AND NATIONAL ELEMENTS: PRIMARY SENSE.—Using “federal” in its primary sense, the general difference between the federal and national elements of the Constitution of the Commonwealth may be thus defined. Those provisions are federal which recognize the States as distinct but co-equal societies, uniting them as parts of, but not completely consolidated and absorbed in, the Commonwealth; which regard the people as inhabitants of States, separate and independent, within their respective spheres; which guarantee the preservation of State territory and State autonomy within defined limits; which undertake to protect every State against foreign invasion and domestic violence; which secure certain specific political rights to the States; which impose certain obligations and prohibitions on the States; and which require the assent of the States, considered as separate entities, to all the legislation of the Commonwealth. Those provisions are national which unite the people of the Commonwealth as individual units and constitute them members of a common political group, without reference to the State in which they reside; which secure to the residents of all the States equality of rights without disability or discrimination throughout the Commonwealth—or what in America is called a “common citizenship;” which regard the people as the principal source of supreme authority within the Commonwealth requiring their representation in a special legislative chamber charged with certain dominant powers; and above all which provide that the laws of the Commonwealth shall operate directly upon, and demand personal obedience from, the people in their personal and private capacities, and which provide special tribunals maintained by the Commonwealth for the interpretation and enforcement of its laws.

The combined operation of the federal and national principles of the Constitution is illustrated in the manner in which it was prepared, viz., by a Convention in which the people of each colony were equally represented; and in the method by which it was afterwards submitted to the people of each colony for ratification or rejection. The


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Federal Convention was not a body composed of delegates elected by the people of Australia, as individuals, forming one entire community. The people of four colonies, voting as provincial citizens, elected their representatives to the Convention to take part in the framing of the Constitution. The people of six colonies, voting as provincial citizens, subsequently ratified the Constitution. On the other hand, there is, in part, a recognition of the national principle, by the Constitution being founded on the will of the people, and not on the mandate of the provincial legislatures. The manner in which the Constitution was submitted to the authority of the people is strongly suggestive of a consolidating and nationalizing tendency. (Wilson in the Pennsylvania Convention; Elliot's Debates, 2nd ed., vol. II., p. 461.) It is obvious that the colonial legislatures were not constitutionally entitled to surrender to the proposed Commonwealth part of the legislative powers vested in them by Imperial Acts, and that not even the Imperial Parliament would be disposed to revolutionize the Constitution of the Australian colonies, without being assured by the strongest possible evidence and the best available demonstration, that the people of those colonies had freely and voluntarily agreed to the reform and readjustment of the system under which they had lived so long.

There is, at the same time, a conspicuous recognition of the federal principle in the fact that the people of each colony voted for or against the Constitution as provincial voters, a majority being required in each colony to carry the Constitution in that colony. As, in the ratification of the Constitution of the United States, each State convention acted and claimed to act only for and in the name of the people of that State (Foster's Commentaries, vol. I., p. 95); so, in the ratification of the Constitution of the Commonwealth, there was an independent referendum in each colony, in order to ascertain and give legal voice to the will of the people of that colony, without regard to the will of the people of the other colonies. The Constitution was, therefore, not adopted by the people of the Commonwealth, that was to be, voting en masse or at large or in their aggregate capacity, but by the people of the future States voting in each State as inhabitants thereof. The Constitution was framed by a combined power exercised by the people of each colony; in the first instance through their representatives in the Convention, limited in their sanctions, and in the last resort by the people of each colony voting at the referendum held in each colony. Had the Constitution emanated from the people, regardless of their provincial distribution, and had the colonies been referred to and used merely as convenient electoral districts by which the public expression could be ascertained, the popular vote throughout the union would have been the only rule for its adoption. (Madison, in The Federalist, No. xxxix., pp. 237 and 238; Foster's Commentaries, vol. I., p. 106.) If a general vote had been accepted as the test, the Constitution would have been triumphantly adopted on 3rd June, 1898, when the voting was—

     
YES ... ... ...  216,332 
NOES ... ... ...  107,497 
Majority ... ...  108,835 

The vote of the people, however, was limited to the respective States in which they resided, and in some cases artificial statutory majorities were required, so that there was an expression of popular suffrage and State sanction united in the method in which the adoption of the Constitution was secured. (See the judgment of Mr. Justice McLean in Worcester v. Georgia, 6 Peters, 515–569; see also Ware v. Hylton, 3 Dallas, 199, Chisholm v. Georgia, 2 Dallas, 419.)

Federal Structure of the Commonwealth.—The Commonwealth as a political society has been created by the union of the States and the people thereof. That the States are united is proved by the words in clause 6, which provide that the States are “parts of the Commonwealth;” that they are welded into the very structure and essence of the Commonwealth; that they are inseparable from it and as enduring and indestructible as the Commonwealth itself; forming the buttress and support of the entire constitutional


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fabric. This is a federal feature which peculiarly illustrates the original and primary meaning of the term, as importing a corporate union. The Commonwealth, however, is not constituted merely by a union of States; it is something more than that; it is also a union of people.

Federal Structure of the Parliament.—As the Commonwealth itself is partly federal and partly national in its structure, so also is its central legislative organ the Parliament. Each original State is equally represented in the Senate; the right of State representation is embedded in the Constitution and does not depend on inference or implication. The Senate derives its power from the States, as political and coordinate societies, represented according to the rule of equality. (Madison, in The Federalist, No. xxxix., pp. 237–8.) In this manner the States become interwoven and inwrought into the very essence and substance of the Commonwealth, constituting the corporate units of the partnership as distinguished from its personal units, the people. Thus the Commonwealth is buttressed by the States and vitalized by the people.

National Structure of the Parliament.—The House of Representatives is the national branch of the Federal Parliament, in which the people of the Commonwealth are represented in proportion to their numbers. This great Chamber will give direct expression and force to the national principle. As such, its operation and tendency will be in the direction of unification and consolidation of the people into one integrated whole, irrespective of State boundaries, State rights, or State interests. If there were only two chambers in which the people were represented in proportion to their numbers, this would undoubtedly have tended towards the establishment of a unified form of government, in which the States, as political entities, would have been absolutely unrecognized, and would have been liable, in the course of time, to effacement. The Convention was entrusted with no such duty; under the Enabling Acts, by which it was called into existence, its mandate was to draft a Constitution in which the federal, as well as the national elements, were recognized.

State Rights—Federal.—The sections which guarantee equal representation in the Senate and a minimum representation in the House of Representatives; which enable the Governors of States to issue writs for the election of Senators and to certify their election to the Governor-General; which require the Governor of a State concerned to be notified of vacancies in the Senate; which continue State Constitutions except so far as they are inconsistent with the Constitution of the Commonwealth and its laws; which continue the power of State Parliaments except to the extent to which it has been withdrawn from them or vested in the Commonwealth; which continue State laws in force until provisions inconsistent therewith are legally made by the Federal Parliament; which preserve to each State the right to have direct communication with the Queen on all State questions; are examples of State rights secured by provisions of a Federal character.

State Inhibitions—Federal.—Of a similarly Federal character, although imposing disabilities, instead of conferring rights, are various sections forbidding the States from granting bonuses and bounties for trade purposes after a certain time; from making railway rates which operate as preferences and discriminations; from raising or maintaining naval and military forces; and from coining money.

Nationalism in the Executive.—The Executive government created by the Swiss Constitution is a peculiar blend of the federal and national elements. In its mode of election by the Federal Assembly, composed of the National Council and Council of States, sitting and voting together in joint session, the Swiss executive is the choice of a blended body in which the majority of the nation is likely to predominate; but the restriction that not more than one member of the executive can be chosen from the same canton renders the executive largely federal in its composition and spirit. The executive of the United States is likewise partly federal and partly national in its


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formation. The immediate election of the President is vested in the people; but the people do not vote en masse, but in groups as States; votes are allotted to them in a compound ratio which considers them partly as distinct and co-equal societies, and partly as unequal members of the same society. In a certain event the election is made by that branch of the legislature which consists of the National representatives; but in so choosing the President the votes are taken by States, the representation from each State having one vote; in this way they again act as so many distinct and co-equal bodies politic. It thus appears that the executive government of the United States is of a mixed character, presenting at least as many federal as national features. (Madison, in The Federalist, No. xxxix., pp. 237–8; Foster's Comm., I., p. 106.)

The Executive of the Commonwealth is, in the Constitution, styled a “Federal Executive.” There is reason to believe that the word federal is there used in a sense approximating to “National,” already explained as one of the several meanings of the term. In the appointment and composition of the executive of the Commonwealth no hard and fast rules are laid down. Nominally the ministers of the Commonwealth will be chosen and appointed by the Governor-General; but his choice will be, in practice, confined to those statesmen who are able to command the confidence and secure the support of the House of Representatives, and who at the same time will be able to maintain the harmony and co-operation of the two Houses in the work of carrying on the business of the country.

Nationalism in the Judicial System.—The Constitution is National so far as it makes the laws of the Commonwealth binding on the people, Courts and Judges of every State; so far as the High Court has jurisdiction (sec. 73—ii.) to hear and determine appeals from State courts on questions of State laws; so far as the High Court has original jurisdiction (sec. 75) in certain classes of matters; so far as the Parliament has power to make laws (sec. 76) conferring original jurisdiction on the High Court in certain other classes of matters; so far as the Federal Parliament has power (sec. 77 iii.) to nationalize State courts by investing them with Federal jurisdiction.

Federalism in the Judicial System.—The Constitution is federal so far as it preserves the operation of State laws, not inconsistent with Commonwealth laws; so far as the State courts have exclusively original and primary jurisdiction to entertain matters in which State laws are involved; so far as it provides that the trial, on indictment, of an offence against any law of the Commonwealth shall be held in the State where the offence was committed (sec. 80).

Amendment—Federal and National.—“If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the Convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by States, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character.” (Madison, in The Federalist, No. xxxix., p. 237–8; Foster's Comm., I., p. 106.)

Composite Character of the Constitution.—In the primary sense of the word “federal,” therefore, the Constitution of the Commonwealth is a remarkable compound of the federal and national elements. It is not wholly National, it is not wholly Federal, but a compound of both. In the sources from which the ordinary powers of government are drawn, people and States, it is partly federal and partly national; in


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the operation of its laws on individuals it is national and not federal; in the appointment and tenure of its Executive it is national and not federal; in the wide jurisdiction of its judiciary it is more national than federal; in its guarantee of State rights it is federal; in its imposition of disabilities on States it is federal; and finally in the authoritative mode of carrying amendments by requiring a majority of all votes, as well as majorities of the people voting in the majority of States, it is partly federal and partly national. (Madison, in The Federalist, No. xxxix.; Lodge's ed., p. 239.)

(2.) FEDERAL AND NATIONAL: NEWER SENSE.—We may now analyse the federal and national elements of the Constitution in the more modern sense; describing as federal those features in which the structure of the central organs of government, and the distribution of powers between the central and local governments, recognize the duality of national and provincial interests; and describing as national those features in which this duality of interest is not recognized.

Structure of the Federal Parliament.—The structure of the two Houses of Parliament is completely federal—the House of Representatives embodying the national aspect, and the Senate the provincial aspect, of the federal duality. But in the exclusive powers of the House of Representatives with regard to the initiation and amendment of money bills there is a predominating national element; and this is still further emphasized in the “deadlock clause” (sec. 57), which is designed to ensure that a decisive and determined majority in the national chamber shall be able to overcome the resistance of a majority in the provincial chamber.

Structure of the Federal Executive and Judiciary.—The other two departments show, in their composition, no sign of the federal duality. It has indeed been argued that the political necessity of securing the assent of both Houses to government legislation will place the Executive practically under a double control; but even if this were so, it would affect legislative policy rather than the execution of the laws. In fact, so far as the structure of the organs of government goes, the federal element has its stronghold in the legislative organ. In the making of laws, even within the sphere entrusted to the national legislature, it was felt that provincial interests should be represented; but the execution and interpretation of those laws, when made, was recognized to be a national matter alone.

Powers of the Federal Parliament.—It is in the distribution of legislative powers between the Federal Parliament and the State Parliaments that the fundamentally federal basis of the Constitution is most apparent; yet even here there is a distinct predominance of the national element. Looking down the sub-sections of sec. 51, we find that in many of them the principle of duality is expressly recognized, and the exclusive domestic jurisdiction of the States expressly reserved. For instance, the trade and commerce power is confined to inter-State and foreign trade and commerce, and it is hedged in (Chap. IV.) with a number of minute restrictions to prevent injustice or discrimination as between States. The federal power of imposing taxation and granting bounties is similiarly hedged about with conditions for the protection of the States. In sub-sec. x., the power over fisheries is confined to waters beyond territorial limits—the territorial rights of the States being thus reserved. In sub-secs. xiii. and xiv., the powers as to Banking and Insurance also contain a reservation of State rights. In sub-sec. xxxv., power to deal with conciliation and arbitration is only given in the case of inter-State industrial disputes, and so on. In all these cases, the duality of interest is recognized in the very gift of the power to the Federal Parliament, and the distribution of power is thus essentially federal. But in most of the sub-sections this nice analysis is not found. The advantages of uniform legislation, especially in matters relating to commerce, have prevailed over the sentiment of local independence; and we find that if a subject has, on the whole, a national aspect, it is handed over unconditionally to the national legislature. Thus posts and telegraphs, defences, quarantine, currency, weights and measures, bills of exchange and promissory notes, bankruptcy and insolvency, copyrights, patents, and trade-marks, naturalization and aliens, trading


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and financial corporations, marriage and divorce, and other subjects, are made unconditionally national. No State reserves any rights with respect to its internal posts and telegraphs, or of marriages between its own citizens; on all these subjects the distinction between internal and inter-State jurisdiction is abolished. These subjects are not federalized. but nationalized—or at least, the power to nationalize them is given to the Federal Parliament.

Powers of the Federal Executive.—The executive power is of course co-extensive with the legislative power. It extends to the execution of the laws made by the Parliament. Consequently it combines federal and national features in exactly the same way.

Powers of the Federal Judiciary.—The original jurisdiction of the federal courts is based entirely on the dual principal of distribution of powers. It embraces at the outset five classes of matters, of a specially federal character, and can only be extended by the Parliament to four other classes of matters of a federal character. In all other matters the original jurisdiction of the State courts is exclusive.

The appellate jurisdiction of the High Court, on the other hand, is completely national—and is in fact the most national element in the whole Constitution. It extends —subject only to partial limitation by the Federal Parliament—to cases of every description decided by the Supreme Courts of the States, whether of federal concern or not. The High Court is, in fact, not a federal court of appeal, but a national court of appeal.

The Amending Power.—Lastly, with regard to the power of amendment, the Constitution is federal. In the initiation of amendments the dual principle is recognized in the power given to either House—the House representing the Nation, or the House representing the States—to submit a proposal to the Referendum. And at the Referendum, the dual principle is further recognized by the power of veto given both to a majority of the people and to a majority of the States.

Composite Character of the Constitution.—It thus appears that even according to the more modern meaning of the word “federal”—which recognizes the national as well as the provincial elements of federalism—the Constitution may be described as partly federal and partly national. That is to say, it contains not only those national elements which appertain to a pure Federation, but also some further national elements which appertain rather to a Unification. This is especially the case with regard to the wide extent of some of its legislative powers, and with regard to the unlimited appellate jurisdiction of the High Court.

THE EVOLUTION Of NATIONALISM.—Whilst the life of the Commonwealth will begin with a clear differentiation of function and status, as between it and its corporate units, the States, it does not follow that the outlines and objects of that differentiation will be distinctly and permanently preserved. There will be, at the outset, a clear demarcation of spheres, a clear delimitation of powers separating the Central Government from the State Governments; but the initial law must not be regarded as expressing a relationship as unchanging as the laws of the Medes and Persians. The Constitution will be capable of change and evolution, arising from the altered conditions of the people whom it is designed to govern. It will be a living organism, animated and dominated by the pulsations of vital forces inherent in every community. It must not be considered as expressing finality in form or principle. If it attempted to restrict the potentialities of future growth and expansion, it would stand self-condemned, as antagonistic to reason, and blind to the lessons and experience of the past. It does not do so. For some years the national principles may be weak or dormant—the occasion may not arise to call them into marked activity. Nations are made only by great occasions, not by paper constitutions. But the energy will be there, and in the fulness of time, when the opportunity comes, the nation will arise like a bridegroom coming forth from his chamber, like a strong man to run a race. This change will not


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necessarily imply any conflict with the States, because the people of the States, who are also the people of the nation, will throb with the new life, and will be disposed to yield to the irresistible pressure of nationhood. In the adaptability of the Constitution, and (should need arise) in the power of amending the Constitution—the facilities for which are far greater than in the United States—there is ample room for the growth and development of such tendencies as may assert themselves in the present or the distant future of the Commonwealth. The Constitution will come into operation under the fair and well-distributed influence of two forces. One of those forces will be the centralizing attraction of the Commonwealth, and its tendency to detract from the power and dignity of its corporate units the States. The other will be the centrifuga disposition of the States. They will desire to retain their constitutional status unimpaired—to assert State rights and State interests in the Senate—to subordinate Commonwealth policy, and restrict encroachment and invasion by the Central Government on the provincial spheres. In this struggle and competition for supremacy it would, without the aid and enlightenment of experience in other countries, be difficult to conjecture whether in the end the State or the national principle would conquer. Securely entrenched in the Senate behind the ramparts of equal representation, it might be argued that the States would in the end “boss” the Federal legislative machine, and either clog it altogether, or mould its decrees to suit the views of a majority of States, regardless of the interests of the people of the Commonwealth as a whole.

That, however, has not been the experience of the Federal Republic of the United States of America, from which we have copied the principle of equal State representation and the recognition of the States as integral parts of the Federal Union. Mr. Bryce says that—except during the slavery struggle, when the Senate happened to be under the control of the slave-holders, and when it asserted State rights and State sovereignty —the Senate has never been the stronghold of small States, for American politics have never turned on the antagonism between two sets of Commonwealths, but rather on the conflicts of parties. The national spirit which was growing as a silent force, after a long battle with the doctrine of State sovereignty, eventually emerged safely and soared victoriously over all opposition. The latent ambiguity in that Constitution as to whether the United States formed a compact dissoluble at will, or whether it was an indestructible union of indestructible States, was for ever swept away by the Civil War; it was that ambiguity alone which gave rise to the doctrine of secession and nullification which caused the war. After the war there yet remained the question whether the national element would, as a silent force, acting without any express amendment, prove more potent and assertive than the State element.

A few years before 1889, when Mr. Bryce published his book, the American Protestant-Episcopal Church, at its annual Convention, introduced, among the short sentence prayers, one suggested by an eminent New England divine, in these words:— “O Lord, bless our nation.” Next day the prayer was brought up for re-consideration, when so many objections were raised by the laity to the word nation as importing a recognition of national unity that it was dropped, and instead there were adopted the words, “O Lord, bless the United States.” (Amer. Comm., I., p. 12.)

THE TRUE IDEAL Of FEDERALISM.—The drift of the development of the American Constitution is indicated in the following extracts from an essay entitled “The Ideal American Commonwealth,” written by Dr. Burgess and published in the “Political Science Quarterly Review,” vol. 10:—

“I do not think that it need be feared that the doctrine of the sovereignty of the several states will again seriously threaten this development. The Civil War fixed the principle of our polity, that the nation alone is the sovereign, that the nation alone is the real state. We do still hear, indeed, the phrase ‘sovereignty of the states within their respective spheres:’ but this only signifies that we have not yet invented the new forms of expression to fit the new order of things. All that we can now mean by the old phrase is: that realm of autonomy reserved to the states by the sovereignty of the nation declared through the constitution” (pp. 408, 410).




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“The language of the constitution of 1787 may be construed, and I think should be construed, as changing a confederacy of sovereignties into a national state with federal government, that is with a system of government in which the powers are distributed by the national constitution, either expressly or impliedly, specifically or generally, between two sets of government organs, largely independent of each other. Yet, on the other hand, it may be construed with much show of logic as having simply substituted the people of the several states for their legislatures, that is for the organic bodies in the confederate constitution of 1781. … But I think this theory is now wholly erroneous. It will not fit facts of our history since 1860. Those facts can be explained only upon the theory that federalism with us now means a national state, with two sets of governmental organs, largely independent of each other, but each deriving its powers and authorities ultimately from a common source, namely, the sovereignty of the nation. And this conception of a governmental system I claim to be purely an American product. It is, however, the true ideal of federalism, and all other nations must, I believe, ultimately come to it. It reconciles the imperialism of the Romans, the local autonomy of the Greeks, and the individual liberty of the Teutons, and preserves what is genuine and enduring in each.” (Id. 416.)

§ 28. “Appoint a Governor-General.”

“Formerly each colonial governor was appointed by special letters-patent under the Great Seal which defined his tenure of office and the scope of his powers and duties. As the preparation and issue of these formal and authoritative instruments usually takes considerable time, it became the practice, prior to the year 1875, to issue a minor commission, under the royal sign-manual and signet, to a newly appointed governor, empowering him, meanwhile, to act under the commission and instructions given to his predecessor in office. But doubts having been raised in certain cases, whether these minor commissions effectually authorized the holder to perform all the duties and functions appertaining to his office, it was in 1875 deemed expedient by Her Majesty's government, under the advice of the law officers of the Crown, to issue, on behalf of each colony of the empire, letters-patent constituting permanently the office of governor therein; and providing that all future incumbents of this office should be appointed by special commission under the royal sign-manual and signet to fulfil the duties of the same, under the general authority and directions of the letters-patent aforesaid, and of the permanent instructions to be issued in connection therewith. But before introducing this change, a circular despatch, dated October 20, 1875, was addressed to all colonial governors, enclosing a copy of the proposed new forms and inviting suggestions to be submitted by the governor, after consultation with his responsible ministers, for such alterations as might appear to them to be specially advisable in the case of the particular colony.” (Todd's Parliamentary Government in the Colonies, p. 77–8.)

The results of the interchange of views between the Colonial Secretary, Earl Carnarvon, and the government of the Dominion of Canada, was that it was resolved to make a considerable modification in the manner of constituting the office of the Queen's representative in British Colonies and possessions, and in the manner of filling the office and instructing the incumbent of the office in the method of discharging his duties. It was decided to constitute the office in each colony and possession by letters-patent under the Great Seal of the United Kingdom, so drawn as to be of general application to future incumbents of the office and to make permanent provision for the execution of its duties. Accompanying the letters-patent instituting the office there was to be a code of instructions passed under the royal sign-manual and signet, addressed to the governor for the time being or in his absence to the officer administering the government. Appointments were to be made to the governorship as vacancies arose by a commission under the royal sign-manual and signet. At the instance of the Government of the Dominion, alterations were made in the instructions accompanying the letters-patent constituting the office of Governor-General of Canada.

The principal mandates in the old instructions were these:—(1) Relating to the exercise of the prerogative of mercy by the Governor with or without the advice of his ministers, (2) giving directions concerning the meetings of the Executive or Privy Council, (3) authorizing the Governor in certain contingencies to act in opposition to the advice of his ministers, and (4) prescribing the classes of Bills to be reserved for Imperial consideration.




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The new practice was not inaugurated in Canada, nor were the alterations in the instructions promulgated, until the Marquis of Lorne was appointed to the office of Governor-General of Canada, in succession to Lord Dufferin, when three new instruments were drawn up, viz. :—Letters-patent, dated 5th October, 1878; instructions bearing even date; and Lord Lorne's commission, bearing date 7th October, 1878.

Commencement of Act.

4. The Commonwealth shall be established29, and the Constitution of the Commonwealth shall take effect30, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws31, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

UNITED STATES.—The Ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.—Const., Art. VII. CANADA.—The subsequent Provisions of this Act shall, unless it is otherwise expressed or implied, commence and have effect on and after the Union, that is to say, on and after the day appointed for the Union taking effect in the Queen's Proclamation; and in the same Provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act. —B.N.A. Act, sec. 4.

HISTORICAL NOTE.—Clause 4 of the Commonwealth Bill of 1891 was as follows:—

“Unless where it is otherwise expressed or implied, this Act shall commence and have effect on and from the day so appointed in the Queen's proclamation; and the name ‘The Commonwealth of Australia’ or ‘The Commonwealth’ shall be taken to mean the Commonwealth of Australia as constituted under this Act.”

This clause, with the omission of the second word “where,” was adopted at the Adelaide Session, 1897. Mr. Carruthers suggested that the introductory words were vague; and Mr. Kingston proposed to substitute “Except in regard to section 3, which shall come into operation at the passing of the Act.” This was negatived. (Conv. Deb., Adel., pp. 621–5.) At the Sydney Session, following the suggestions of the Legislatures of New South Wales and Tasmania, the words “unless it is otherwise expressed or implied, this Act” were omitted, and the words “The Constitution of the Commonwealth” were substituted. A provision was then added that “The Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had been established at the passing of this Act.” (Conv. Deb., Syd. [1897], pp. 228–31.) At the Melbourne Session, verbal amendments were made before the first report and after the fourth report.

§ 29. “Shall be Established.”

Clause 3 says that the people of the Commonwealth shall be united on and after the day appointed in the Queen's Proclamation. Clause 4 contains a detailed enumeration and elaboration of the legal results of the Union so accomplished. The first immediate and necessary result is that the Commonwealth is established. The constitutional definition of the Commonwealth will be analysed later on. Meanwhile, attention may be drawn to the significance of the word “Established.” The same verb is used in the preamble to the constitution of the United States, where it is recited that in order to form a more perfect union the people “do ordain and establish this Constitution.”

The word “Established” is used in the enacting passages of several State Constitutions, such as those of Pennsylvania, Vermont, and Massachusetts. (See § 17, “Commonwealth,” supra.) In some of the constitutional Acts passed by the British


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Parliament authorizing the formation of colonies, the words “erect” and “establish” are used as synonymous terms. The Act 9 Geo. IV. c. 83, sec. 1 (1828), provided that it should be lawful for the King by charters or letters patent under the Great Seal to “erect and establish” courts of judicature in New South Wales and Van Diemen's Land. The Act 3 and 4 Vic. c. 62, sec. 2 (1840), authorized the Queen by letters patent to “erect” into a separate colony or colonies any islands being dependencies of the colony of New South Wales; and by section 3, in case Her Majesty should establish any such new colony or colonies, Legislative Councils might be “established” therein.

The Act 5 and 6 Vic. c. 76, sec. 51, enabled the Queen by letters patent to erect into a separate colony or colonies any territories of the colony of New South Wales lying northward of 26° south latitude. By section 34 of 13 and 14 Vic., c. 59, that provision was amended so as to enable the Queen to detach territories of New South Wales lying northward of 30° of south latitude and to “erect” them into a separate colony or colonies or to include the same in any colony or colonies to be “established” under 3 and 4 Vic. c. 62, sec. 2.

In the first section of the notable Act 13 and 14 Vic. c. 59, the provision occurs that the territories comprised in the district of Port Phillip should be “erected” into and thenceforth form a separate colony to be known as the colony of Victoria. In the second section of the same Act the words occur “that upon the issuing of such writs for the first election of members of the Legislative Council of the said colony of Victoria such colony shall be deemed to be established.” From these precedents it appears that the word “Established” is the one commonly used to denote the creation of a new State or community.

§ 30. “Shall take Effect.”

Another consequence and necessary incident of the Union is that the Constitution shall on the day so appointed “take effect” or come into operation. Here we reach the third and final stage in the progress of political organization contemplated by the Act. It clearly appears that the Constitution is something distinct from the Commonwealth. The Commonwealth is the community united by the Imperial Act. The Constitution provides the necessary machinery for the government of that community so as to secure its continuity, safety and development. The provision of Clause 3 that the Queen may appoint a Governor-General for the Commonwealth at any time after the issue of the Proclamation, and before the actual establishment of the Commonwealth and before the Constitution “takes effect,” is somewhat incongruous and looks like an interpolation out of harmony with the sequence of the other initiatory stages. It enables the Queen to appoint a Governor-General, not for an actual existent Commonwealth, not to fill an office created by a constitution actually in force, but for the Commonwealth that is to be, and in order to fill an office that does not yet exist.

§ 31. “May make any such Laws.”

At any time after the passing of the Act, and therefore before as well as after the day appointed by the Proclamation, the Parliament of each of the federating colonies may proceed to exercise certain powers intended by the Constitution to be conferred upon them. The Constitution, by which these powers are defined, does not take effect until the day appointed by the Proclamation. In anticipation of that day the Act authorizes the Parliaments to exercise the powers referred to, but the laws when passed in the exercise of those powers do not come into force until the arrival of the day appointed by the Proclamation. Turning to the Constitution we find that the laws referred to by this clause comprise the following:—

  • (1.) Laws prescribing the method of choosing the Senators for a State.— Sec. 9.



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  • (2.) Laws for determining the times and places of election of Senators for a State.—Sec. 10.
  • (3.) Laws for determining the divisions in each State for which Members of the House of Representatives may be chosen, and the number of Members to be chosen for each division.—Sec. 29.
  • (4.) Laws of the Parliament of Queensland for determining the divisions in that State for which Senators may be chosen, and the number of Senators to be chosen for each division.—Sec. 7.

Operation of the Constitution and Laws.

5. This Act32, and all laws33 made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people34 of every State and of every part of the Commonwealth35, notwithstanding anything in the laws of any State36; and the laws of the Commonwealth37 shall be in force on all British ships38, the Queen's ships of war excepted40, whose first port of clearance39 and whose port of destination are in the Commonwealth.

UNITED STATES.—This Constitution, and the Laws of the United States which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding.—Const. Art. VI., sec. 2. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.—Amendment x. SWITZERLAND.—The Cantons are sovereign, so far as their sovereignty is not limited by the Federal Constitution; and, as such, they exercise all the rights which are not delegated to the federal government.—Const., Art. 3. GERMANY.— .. and the laws of the Empire shall take precedence of those of each individual State.—Const., Art. 2.

HISTORICAL NOTE.—Clause 7 of the Commonwealth Bill of 1891 was as follows :—

“The Constitution established by this Act, and all laws made by the Parliament of the Commonwealth in pursuance of the powers conferred by the Constitution, and all treaties made by the Commonwealth, shall, according to their tenor, be binding, on the courts, judges, and people of every State, and of every part of the Commonwealth, anything in the laws of any State to the contrary notwithstanding; and the laws and treaties of the Commonwealth shall be in force on board of all British ships whose last port of clearance or whose port of destination is in the Commonwealth.”

This clause was based in part upon sec. 20 of the Federal Council of Australasia Act, 1885 (48 and 49 Vic. c. 60), which was as follows:—

“All Acts of the Council, on being assented to in manner hereinbefore provided, shall have the force of law in all Her Majesty's possessions in Australasia in respect to which this Act is in operation, or in the several colonies to which they shall extend, as the case may be, and on board of all British ships, other than Her Majesty's ships of war, whose last port of clearance or port of destination is in any such possession or colony.”

The provision as to British ships in the Federal Council Act was not included in the draft of that Act framed at the Sydney Conference in 1883, but was inserted by the Imperial draftsmen.

At the Sydney Convention, 1891, there was some discussion as to this provision. (Conv. Deb., Syd., 1891, pp. 558–60.) At the Adelaide session, 1897, the clause as adopted in 1891 was introduced verbatim. The provision as to British ships was again discussed. It was thought to be much too wide, and was even criticized as “sheer nonsense,” but being sanctioned by the Federal Council Act, it was not altered. (Conv. Deb., Adel., pp. 626–8.) At the Sydney session, a suggestion by the Legislative


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Council of New South Wales, to omit the words “and treaties made by the Commonwealth,” was agreed to. Mr. Reid moved to omit the whole provision as to British ships; but this was thought to be going too far, and he withdrew it. The words “and treaties” were omitted; the words “excepting Her Majesty's ships and vessels of war” were inserted; and the final words were altered to read: “whose first port of clearance and whose port of destination are in the Commonwealth.” (Conv. Deb., Syd., 1897, pp. 239–53) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.

When the Commonwealth Bill was first under the consideration of the Imperial Government in England, it was proposed by the Law Officers of the Crown that this clause should be amended by omitting the words “in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth,” and by adding the words: “and the Laws of the Commonwealth shall be Colonial laws within the meaning of the Colonial Laws Validity Act, 1865.” (See House of Coms. Pap., May, 1900, p. 19; Historical Introduction, p. 229, supra.) In the Bill as introduced into the House of Commons the clause was restored to the shape in which it was originally passed by the Convention, with the addition of a new paragraph relating to the prerogative of appeal, which was afterwards omitted in Committee. (See Historical Introduction, pp. 242, 248, supra.)

§ 32. “This Act.”

The expression “This Act” occurs in Clauses 1, 2, 3, 4, 5, 6, and 8. The Act consists of Clauses 1 to 9 inclusive, and Clause 9 enacts the Constitution; so that the Constitution is unquestionably a part of the Act. In the Commonwealth Bill as introduced into the Imperial Parliament, the Constitution was, at the suggestion of the Crown Law Officers, annexed as a schedule to the Bill; but in Committee the original form of the Bill was restored. (See Hist. Note to Clause 2.) In the construction of the words “This Act” the question will ever be open to argument as to whether the preamble is part of the Act and to what extent it may be used to explain, enlarge, or contract the meaning of words in the Constitution. (See Note § 2 “Preamble.”)

§ 33. “And all Laws.”

No difficulty is suggested by the words, “and all laws made by the Parliament of the Commonwealth under the Constitution.” The words “under the Constitution” are words of limitation and qualification. They are equivalent to the words in the corresponding section of the Constitution of the United States “in pursuance thereof.” Supra. Not all enactments purporting to be laws made by the Parliament are binding; but laws made under, in pursuance of, and within the authority conferred by the Constitution, and those only, are binding on the courts, judges, and people. A law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights, it imposes no duties; it affords no protection. (Norton v. Shelby County, 118 U.S. 425; see note § 447 “Power of the Parliament of a Colony.”) The Act itself is binding without limitation or qualification because it is passed by the sovereign Parliament, but the laws passed by the Parliament of the Commonwealth, a subordinate Parliament, must be within the limits of the delegation of powers or they will be null and void. To be valid and binding they must be within the domain of jurisdiction mapped out and delimited in express terms, or by necessary implication, in the Constitution itself. What is not so granted to the Parliament of the Commonwealth is denied to it. What is not so granted is either reserved to the States, as expressed in their respective Constitutions, or remains vested but dormant in the people of the Commonwealth. The possible area of enlargement of Commonwealth power, by an amendment of the Constitution, will be considered under Chapter VIII.

“Every legislative assembly existing under a federal constitution is merely a subordinate law-making body, whose laws are of the nature of by-laws, valid whilst within the authority conferred upon it by the constitution, but invalid or unconstitutional if


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they go beyond the limits of such authority. There is an apparent absurdity in comparing the legislature of the United States to an English railway company or a school board, but the comparison is just. Congress can, within the limits of its legal powers, pass laws which bind every man throughout the United States. The Great Eastern Railway Company can, in like manner, pass laws which bind every man throughout the British dominions. A law passed by Congress which is in excess of its legal powers, as contravening the Constitution, is invalid; a law passed by the Great Eastern Railway Company in excess of the powers given by Act of Parliament, or, in other words, by the legal constitution of the company, is also invalid; a law passed by Congress is called an ‘Act’ of Congress, and if ultra vires is described as ‘unconstitutional;’ a law passed by the Great Eastern Railway Company is called a ‘by-law,’ and if ultra vires is called, not ‘unconstitutional,’ but ‘invalid.’ Differences, however, of words must not conceal from us essential similarity in things. Acts of Congress, or of the Legislative Assembly of New York or of Massachusetts, are at bottom simply ‘by-laws,’ depending for their validity upon their being within the powers given to Congress or to the State legislatures by the Constitution. The by-laws of the Great Eastern Railway Company, imposing fines upon passengers who travel over their line without a ticket, are laws, but they are laws depending for their validity upon their being within the powers conferred upon the company by Act of Parliament, i.e., by the company's constitution. Congress and the Great Eastern Railway Company are in truth each of them nothing more than subordinate law-making bodies.” (Dicey's Law of the Constitution, p. 137.)

“Every Act of Congress, and every Act of the legislatures of the States, and every part of the Constitution of any State, which are repugnant to the Constitution of the United States, are necessarily void. This is a clear and settled principle of (our) constitutional jurisprudence.” (Kent's Commentaries, I., p. 314.)

“The legal duty therefore of every judge, whether he act as a judge of the State of New York or as a judge of the Supreme Court of the United States, is clear. He is bound to treat as void every legislative act, whether proceeding from Congress or from the State legislatures, which is inconsistent with the Constitution of the United States. His duty is as clear as that of an English judge called upon to determine the validity of a by-law made by the Great Eastern Railway Company or any other Railway Company. The American judge must in giving judgment obey the terms of the Constitution, just as his English brother must in giving judgment obey every Act of Parliament bearing on the case.” (Dicey, Law of the Constitution, p. 146.)

In Canada the Dominion Parliament has power to make laws in relation to all matters not coming within the classes of subjects exclusively assigned to the legislatures of the Provinces.

“There exists, however, one marked distinction in principle between the Constitution of the United States and the Constitution of the Canadian Dominion. The Constitution of the United States in substance reserves to the separate States all powers not expressly conferred upon the national government. The Canadian Constitution in substance confers upon the Dominion government all powers are not assigned exclusively to the Provinces. In this matter the Swiss Constitution follows that of the United States.” (Dicey, Law of the Const., p. 139.)

This characteristic of the Canadian Constitution tends greatly to strengthen the power of the Dominion at the expense of the Provinces, and so helps, in common with other features, to make it approximate to a unitarian rather than a federal form.

THE COLONIAL LAWS VALIDITY ACT.—A detailed reference may be here appropriately made to a subject which was not specifically discussed during the progress of the Commonwealth Bill through the Federal Convention, but which was raised by the Law Officers of the Imperial Government whilst the Bill was under consideration in England, namely, the applicability of the Colonial Laws Validity Act, 1865, to the Constitution of the Commonwealth. Can the Federal Parliament, legislating in reference to subjects assigned to it, enact laws repugnant to Imperial legislation applicable to the colonies, in force at the establishment of the Commonwealth, or passed subsequently?

It was a rule of common law that a colonial legislature was subordinate to the English and afterwards to the British Parliament; that it could not pass laws in conflict with the laws of England expressly applicable to the colonies. This rule was confirmed by Statute. It was declared by sec.9 of 7 and 8 Wm. III. c. 22 (1696) that all laws, by-laws, usages, and customs which should be in practice in any of the American plantations, repugnant to any law made or to be made in the Kingdom, “so far as such laws


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shall relate to and mention the said plantations,” were null and void. (Supra, p. 1.) This section was subsequently re-enacted, in substantially the same words, by 3 and 4 Wm. IV. c. 59, sec. 56 (1833). The commissions and instructions of colonial governors used to require that ordinances passed by the Governor in Council should not be repugnant to the law of England.

The extent of this prohibition was very uncertain, and doubts frequently arose as to what constituted a repugnancy. See, for instance, the Imperial Act, I Wm. IV. c. 20 (1831) passed to remove doubts which had arisen in Lower Canada. A vague limitation was even supposed to exist, that the laws of a Crown colony must not be repugnant to the common law. (See Tarring, Law relating to Colonies, 2nd ed., 144; Stephen, Hist. of Crim. Law, ii., 58.)

This vague and sweeping rule of invalidity was ultimately superseded by the Colonial Laws Validity Act, 28 and 29 Vic. c. 63. Sec. 2 of that Act declares that any colonial law which is in any respect repugnant to an Act of the Imperial Parliament extending to the colony (which is defined to mean “applicable to such colony by the express words or necessary intendment of any Act of Parliament”) or repugnant to any order or regulation made under any such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be absolutely void. Sec. 3 provides that no colonial law shall be void on the ground of repugnancy to the law of England unless it is repugnant to some such Act of Parliament, order, or regulation as aforesaid.

When this Act was passed, it was not regarded as a curtailment of legislative power in the colonies; it took away no power previously enjoyed; it was, in fact, looked upon as one of the charters of colonial legislative independence, next in importance to the famous Declaratory Act, 18 Geo. III. c. 12, in which the British Parliament, profiting by the lessons of the American rebellion, renounced its intention to again tax the colonies. It removed all doubts as to the powers of colonial Legislatures to alter or repeal the general mass of English law, such as the law of primogeniture, inheritance, &c., not made operative, by Statute, throughout the Empire. The Colonial Laws Validity Act was, therefore, an enabling Act, not a restrictive or disabling Act. This proposition may be best illustrated and confirmed by a reference to authorities.

The Imperial Copyright Act 5 and 6 Vic. c. 45 (1842) is by express words declared to extend “to every part of the British dominions.” In the celebrated copyright case of Low v Routledge, L.R. 1 Ch. 42 (1865), it was contended that the Imperial Act was not in force in Canada, because Canada had a representative Legislature of its own, and was not directly governed by legislation from England; that consequently it was not included in the general words of the Act. This contention was not sustained. In delivering the judgment of the Court of Appeal, Lord Justice Turner said the Imperial Copyright Act was in force in Canada; and consequently rights acquired under an Imperial Act in force throughout the Empire could not be affected by the law of a colony inconsistent therewith. This case was decided in 1865, before the passing of the Colonial Laws Validity Act.

Shortly after the grant of a new constitution and responsible government to Victoria, the Parliament of that colony passed an Act, No. 8, to amend the law of evidence. It purported to repeal the provisions of the Imperial Acts, 54 Geo. III. c. 15, 5 and 6 Will. IV. c. 62, and 14 and 15 Vic. c. 99, s. 11, so far as they applied to Victoria. The Secretary of State for the Colonies afterwards drew attention to the fact that it was beyond the competence of a colonial Legislature to repeal an Imperial Act applicable to the colonies. An Act was then passed by the British Parliament repealing the Acts of Geo. III. and Will. IV. so far as Victoria was concerned, and also enabling the Legislatures of other colonies to repeal those Acts if they thought proper. (22 and 23 Vic. c. 12.) The Victorian Parliament repealed its own Act, No. 8, and passed a new one, in which it was recognized and declared that the section of the Act 14 and 15 Vic. c.


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99, s. 11, which it had abortively attempted to repeal, was in force in Victoria. (Hearn's “Government of England,” 2nd ed., p. 597.)

These two precedents show that even before the passing of the Colonial Laws Validity Act it was recognized in law as well as in practice that a colonial Legislature could not repeal an Imperial Act applicable to the colonies, whether that Act was in force before or came into force after the constitution of such colonial Legislature. That Act limits rather than enlarges the doctrine of repugnancy; it enlarges rather than limits the power of colonial Legislatures (1) by repealing the common law rule that every colonial law repugnant to English law is void, and confining nullity for repugnancy to cases where statutes are expressly intended to apply to the colonies, and (2) by restricting the nullity to the inconsistent provisions only, and not allowing a particular variance to invalidate the whole colonial Act.

Attention may be now drawn to cases which have occurred, and contentions raised, since the passing of the Validity Act. In the case of Smiles v. Belford (1877), 1 Ont. Appeals, 436, the author of the well-known work, “Thrift,” published in England, brought a suit in Canada to restrain the reprint of his work in Canada. The work had been copyrighted in England under 5 and 6 Vic. c. 45 (1842), which we have seen is in force throughout the British dominions, but it had, not been copyrighted in Canada under the Canadian Copyright Act 35 Vic. c. 88. It was argued for the defendant that the Canadian Act repealed the Imperial Act, notwithstanding the Colonial Laws Validity Act. Proudfoot, V.C., overruled this contention. In the Court of Appeal (Ontario), the judges were unanimous in the opinion that the Federal Parliament had no authority to pass any law opposed to statutes which the Imperial Parliament had made applicable to the whole Empire.

In ex parte Renaud, 14 N. Bruns. 273, 2 Cart. 447 (1873), Chief Justice Ritchie referred to the Colonial Laws Validity Act as a clear statutory recognition of the supreme legislative control of the British Parliament over colonial Legislatures. So the same learned judge decided in the City of Fredricton v. The Queen, 3 S.C.R. (Can.) 529 (1880) that the power of legislation conferred on the Dominion Parliament and the provincial Legislatures, respectively, by the British North America Act, 1867, was subject to the sovereignty of the British Parliament.

In the case of the Merchants' Bank of Halifax v. Gillespie, 10 S.C.R. (Can.) 312 (1885), the validity of the Dominion Winding-up Act, 45 Vic. c. 23, which was apparently in conflict with the Imperial Joint Stock Acts of 1862 and 1867, was considered. Justices Strong and Henry expressed the opinion that the Dominion Act would have been ultra vires if it had purported to deal with a company incorporated under English laws, thus supporting the view that the Dominion Parliament had no authority to enact laws repugnant to an Imperial Act extending to Canada, whether such Act was passed before or after the creation of the Dominion. (Lefroy, Leg. Power, p. 210.)

A dictum somewhat in conflict with these decisions, to the effect that the Parliament of Canada had power to pass laws repealing Imperial Acts in force prior to federation and extending to the colonies, was expressed by Draper, C.J., in Regina v. Taylor, 36 Upper Canada Q.B. 183 (1875). But the opinion of that learned judge was based on the special wording of sec. 91 of the B.N.A. Act, which gives the Dominion Parliament “exclusive legislative authority” to make laws in certain cases. The word “exclusive” he considered as meaning exclusive of the British Parliament, and hence it was a renunciation of its right to legislate in matters exclusively assigned to the Canadian Parliament. This dictum, it will be noticed, turns on the word “exclusive,” which does not occur in sec. 51 of the Commonwealth Bill, defining the principal powers of the Federal Parliament. The opinion of Draper, C.J., was seriously doubted by the Ontario Court of Appeal in the later case of Smiles v. Belford, in which Moss, J., said: “I believe his lordship did not deliberately entertain the opinion which these


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expressions have been taken to intend. He simply threw out the suggestion in that direction, but further consideration led him to adopt the view that the Act did not curtail the paramount authority of the Imperial Parliament.” In a British Columbia case, Tai Sing v. Macguire, 1 Brit. Col. (Irving), p. 107 (1878), Gray, J., said: “It was difficult to see the foundation for the conclusion arrived at by Draper, C.J.” In Regina v. College of Physicians, 44 Upper Can. Q. B. 564, 1 Cart., p. 761 (1879), the Court of Queen's Bench of Ontario held that the British Medical Act (1868) applied to Canada, and that the provincial Legislatures could not pass a law repugnant to the Imperial Act, which declared that any person registered thereunder as a duly qualified medical practitioner should be entitled to register and practice in any part of the British dominions.

The Canadian case, Riel v. The Queen, 10 App. Ca. 675 (1885), illustrates the conditions under which a colonial Legislature may alter an Imperial Act operative within the colony. The Amending British North America Act, 34 and 35 Vic. c. 28 (1871), authorized the Parliament of Canada to make laws for the administration, peace, order and good government of any territory not included in a province. In the exercise of this power it passed the Act 43 Vic. No. 25, providing, inter alia, a summary procedure for the trial of criminal offences, including treason, committed in the North-west Territory. This summary trial for treason was alleged to be inconsistent with the Act 7 and 8 Wm. III. c. 3 (1696) and the Hudson's Bay Act, 31 and 32 Vic c. 105 (1868), under which a person charged in the territory with treason was entitled to trial by a judge and jury of twelve men with a right of challenging thirty-five. Riel was convicted under the new law. He applied for leave to appeal to the Privy Council, on the ground that the Parliament of Canada had no authority to abolish, in the North-west Territory, trial by jury in treason cases, and that the local Act was not necessary for the peace, order, and good government of the territory. The Privy Council held that the Canadian Act was properly passed in the exercise of the power conferred by the Imperial Act of 1871, and that the words of that statute authorized the utmost discretion of enactment for the object aimed at, and the widest departure from the criminal procedure as known in England.

On the 27th March, 1889, during a debate in the Canadian Parliament on the constitutionality of the Quebec Jesuits Bill, Sir John Thompson, Minister of Justice, raised for the first time, in the political arena, the doctrine that the Canadian Legislatures, federal and provincial, had legal authority to repeal or amend Imperial Acts passed prior to the B.N.A. Act, 1867, and relating to subjects within the exclusive jurisdiction of those Legislatures. The only relevant legal authority which he cited in support of the doctrine was that of Riel v. The Queen, supra. A reference to the report of that case shows that the validity of the Canadian Act was affirmed because it was authorized by the special and expressed terms of the Imperial Act of 1871.

Sir John Thompson afterwards renewed the same contention in connection with Canadian Copyright Bills; it was not acquiesced in, but strongly objected to by the Imperial law officers, and by at least two Secretaries of State. (Lefroy, Leg. Power, p. 223.)

The result of this review of authority may now be summed up. The great mass of legal decision in Canada and England, and official opinion in England, is to the effect that a colonial representative legislature cannot, even within the jurisdiction assigned to it, repeal or alter an Imperial Act operative throughout the Empire, whether the Act is in force before or passed after the creation of the colonial Legislature; to enable it to amend the terms of Imperial statutes generally in force it must have special and express authority.

These were the principles of Constitutional Government which were no doubt kept in view by the framers of the Commonwealth Bill. It was not thought necessary to declare that the Constitution should be read in conjunction with the Colonial Laws Validity Act. It was assumed, as a matter of course, that that would be done.




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When clause 5 was under consideration in the Sydney Convention an amendment, formulated by the Legislative Council of South Australia, was submitted, adding the words “in addition to the laws of Great Britain,” and making the last part of the clause to read—“in addition to the laws of Great Britain the laws of the Commonwealth shall be in force on all British ships.” The amendment, it was considered, was vague, confusing, and unnecessary. Mr. R. E. O'Connor suggested that the clause might be made clearer by inserting the words “the laws of the Commonwealth in so far as the same are not repugnant to any Imperial Act relating to shipping or navigation.” Mr. Isaacs suggested that even that addition was unnecessary, as the laws of the Commonwealth would be subject to the Imperial laws relating to repugnancy, the Imperial laws being paramount. Mr. O'Connor was of opinion that the Colonial Laws Validity Act would apply only to the legislation of the various States, and that “it would not apply to this Act at all;” but eventually the South Australian amendment was rejected, and Mr. O'Connor did not press his suggestion. (Conv. Deb., Sydney, p. 252.)

When the Bill was sent to England the question was raised, and a doubt expressed by the Law Officers of the Crown as to the application of the Colonial Laws Validity Act to Acts passed by the Federal Parliament. In support of the doubt attention was drawn to Mr. O'Connor's dictum, also to the definition of “colony” and “colonial legislature,” as given in sec. 1 of the Colonial Laws Validity Act, and to the definition of “colony” as given in Clause 6 of the Commonwealth Bill. The Imperial authorities had always held that the Parliament of the Dominion of Canada was “a colonial legislature,” as defined by the said Act; yet it was now submitted that the definition of “colony” in the Commonwealth Bill might raise a doubt whether “the Commonwealth” was a “colony” within the meaning of the Colonial Laws Validity Act, and consequently whether laws passed by the Federal Parliament would be laws passed by “a Colonial Legislature” as defined by that Act. It was, therefore, proposed to remove doubts by adding a paragraph to Clause 6 declaring that “the laws of the Commonwealth shall be Colonial laws within the meaning of the Colonial Laws Validity Act, 1865.” It was pointed out in the first Imperial Memorandum that Mr. O'Connor's dictum showed that there was room for misapprehension, which it was desirable to remove. It was important in the interests of the Commonwealth, as well as of the rest of the Empire, that there should be no doubt as to the validity of Commonwealth laws, or as to the supremacy of Imperial legislation. The Memorandum proceeded to argue that there was room for such misapprehension not only from the language of Clause 6 of the covering clauses, but also from sec. 51, sub-sec. xxxviii., of the Constitution, which conferred on the Commonwealth Parliament “the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution, be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia.” Sub-sec. xxix. of the same section of the Constitution, moreover, empowered the Commonwealth Parliament to legislate in regard to “external affairs,” and, consequently, under these provisions it might be claimed that the Parliament of the Commonwealth had power to pass legislation inconsistent with Imperial legislation dealing with such subjects as those dealt with by the Foreign Enlistment Act. The responsibility to foreign Powers for such legislation would rest, not on Australia, but on the Government of the United Kingdom, as representing the whole Empire; and in the absence of any definition or limitation of the privilege claimed by these provisions for the Commonwealth Parliament, Her Majesty's Government would fail in their duty if they left any room for doubt as to the paramount authority of Imperial legislation. (See House of Com. Pap. May, 1900, p. 23.)

The Australian Delegates maintained that the doubt raised by the Imperial Law Officers was unfounded, and that there was no necessity for any amendment. They were of opinion that the meaning of the Bill was clear, without any such legislative explanation. The doubt expressed by the law advisers of the Crown arose, as they


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explained, from the presence in Clause 6 of the words “Colony shall mean any Colony or Province.” It was submitted that this definition was framed simply for the purpose of clearly including South Australia in the Bill, and could in no wise exclude the definition of “Colony” in the Colonial Laws Validity Act from applying to the Commonwealth in relation to its laws.

“The definition in the Commonwealth Bill arises from the fact that South Australia has from time to time been variously designated in legislation as a Colony and as a Province. For instance, in the Imperial Statutes 4 and 5 Wm. IV. c. 95 and 1 and 2 Vic. c. 60, the designation is ‘Province;’ in 5 and 6 Vic. c. 61 ‘Colony’ and ‘Province’ are both used for the same purpose. In 4 and 5 Vic. c. 13, in 13 and 14 Vic. c. 59, and in all Imperial Acts relating to South Australia since the passage by the local Legislature of the Constitution Act (18 and 19 Vic. No. 2) the term ‘Colony’ is used. But in the Act last mentioned, and in all other local legislation since its passage. South Australia has uniformly been referred to as a ‘Province.’ Apart from legislation, the Letters-patent, Commissions and Instructions, issued in connection with the offices of Governor, Lieutenant-Governor, and Administrator of the Government for South Australia, have all employed the word ‘Colony’ alone to designate that possession, while the Regulations and other official documents under or in consequence of local Acts have as regularly referred to South Australia as a ‘Province.’ It was merely for the purpose of avoiding the constant repetition of the distinction between the words ‘Colony,’ as applied to the other states, and ‘Province,’ as applied to South Australia, that the definition in question was placed in the Bill. Inasmuch as Imperial legislation has so generally referred to South Australia as a Colony, it may be that excessive caution has been used by the draughtsmen in this instance. If after this explanation any doubt remains, the Delegates are of opinion that the real point of objection is in the definition itself as introducing that doubt, and if the definition is unnecessary it would not seem to be convenient to counteract any doubt by amendment elsewhere in the Bill. The Commonwealth appears to the Delegates to be clearly a ‘Colony,’ and the Federal Parliament to be a ‘Legislature’ within the meaning of the Colonial Laws Validity Act, and they cannot think that the larger meaning given to the word ‘Colony’ in Clause VI. to save words, can be held to take away the protection of the Act of 1865 from any law passed by the Federal Parliament. But the Interpretation Act of 1889 (52 and 53 Vic. c. 63) might itself be cited in support of the same contention. That Act prescribes that ‘unless the contrary intention appears, the expression “Colony” in any Act passed since the 1st January, 1890, is to mean any part of Her Majesty's Dominions, exclusive of the British Islands and of British India.’ The Interpretation Act goes on to require that where parts of such Dominions are under both a central and a local legislature, all parts under the Central Legislature shall, for the purposes of the definition, be deemed to be one Colony. It might be argued that this definition secures the application of the Validity Act to Colonial Statutes passed since the end of 1889, and if this be so it would be strange if the occurrence in Clause 6 of the few words quoted were held to deprive the laws of the Parliament of the Commonwealth of Australia of the same protection. It may further be observed that the Constitution of Canada contains no words similar to those proposed to be here inserted, even though that Constitution was enacted prior to 1889; yet it will not be denied that the Colonial Laws Validity Act applies to Dominion Statutes. What then is there which excludes its application to the Statutes of the Commonwealth?” (See House Coms. Pap. May, 1900, pp. 14, 15.)

On the question whether, if an amendment were made, it should be placed in the Covering Clauses or in the Schedule, the Delegates agreed in the opinion that a declaratory enactment of this kind would be looked for rather in the Covering Clauses than in the Schedule. But a separate enactment appeared to be a better vehicle for such a declaration than the measure itself.

The amendment declaring that “the laws of the Commonwealth shall be Colonial laws within the meaning of the Colonial Laws Validity Act, 1865,” appeared in Clause 6 of the Bill introduced into the House of Commons. As a result of subsequent negotiations, however, the Imperial Government decided to omit these words, and also to omit the definition of “colony,” and in Committee this was done. It may be assumed, therefore, that the Crown Law Officers were satisfied that the Colonial Laws Validity Act is applicable to the Constitution as it stands.




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§ 34. “Shall be Binding on the Courts, Judges and People.”

The importance of these words, as indicating one of the fundamental principles of the Constitution, should be specially noted. They make Clause 5 of the Commonwealth Constitution Act substantially similar in scope and intention to article VI. sec. 2 of the Constitution of the United States, supra. Under this clause, the Act, the Constitution, and laws of the Commonwealth made in pursuance of its powers, will be the supreme law of the land, binding on the Courts, Judges, and people of every State, notwithstanding anything to the contrary in the laws of any State. The latter words operate as a rescission of all State laws incompatible with the Act, with the Constitution, and with such laws as may be passed by the Parliament of the Commonwealth in the exercise of its Constitutional rights. Therefore, by this clause, coupled with sections 106 to 109, all the laws of a State, constitutional as well as ordinary, will be in effect repealed so far as they are repugnant to the supreme law. All the laws of any State, so far as not inconsistent with the supreme law, will remain in force until altered by the proper authority.

The pre-eminent significance of this direct action of the federal laws on the Courts, Judges, and people, is that it forms a distinctly national feature of the Constitution and differentiates it from the weakness and imperfection of a confederate system of government. The constitutional value of these words will be better appreciated by comparing this Constitution with the Articles of Confederation of the American States (1781), from which they are absent.

Those articles established a league of States organized in a Congress in which each State had an equal voice. The Congress was endowed with certain legislative powers, but it lacked any means of enforcing obedience to its mandates. Not only was there no federal executive or judiciary worthy of the name, but the laws of the Congress were directed to the States as political entities and not to private individuals. Congress could not pass a single law binding on the Courts, Judges, or people of the States. It could only recommend the States to pass local Acts giving effect to its laws or requisitions. (Fiske, Critical Period of American History, p. 99.) One of the greatest triumphs of the American Constitution (1787) was that it gave expression to the original and noble conception of a dual system of government operating at one and the same time upon the same individuals, harmonious with each other, but each supreme in its own sphere (id. 239). This dual system gave rise to two groups or classes of laws— State laws and Federal laws—both equally binding on individuals and enforceable by appropriate procedure. Thereby the federal principle of the Union of States, which was the basis of the Articles of Confederation, was preserved and conjoined with the national principle that the laws of the Union should be binding on the people of the Union, interpreted by the judges of the Union, and enforced by the Executive of the Union.

“In all communities there must be one supreme power and one only. A confederacy is a mere compact, resting on the good faith of the parties; a national, supreme government must have a complete and compulsive operation.” (Gouverneur Morris, in the Federal Convention, 30th May, 1787. Bancroft's History of the United States, vol. 2, p. 15.)

“In the nature of things punishment cannot be executed on the States collectively; therefore such a government is necessary as can operate directly on individuals.” (George Mason, id., p. 15.)

“ he difference between a federal and a national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities.” (Madison, in The Federalist, xxxix., p. 237, cited Foster on the Constitution, vol. I., p. 106.)

As of the laws of Congress and the Constitution of the United States, so of the laws of the Federal Parliament and the Constitution of the Commonwealth, it may be


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said that their authority extends over the whole territory of the Union, acting upon the States and the people of the States. Whilst the Federal Government is limited in the number of its powers, within the scope of those powers it is supreme. No State Government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any subject which the Constitution has committed to it. (Tennessee v. Davis, 100 U.S. 257.)

§ 35. “And of Every Part of the Commonwealth.”

TERRITORIAL LIMITS.—The Constitution and laws of the Commonwealth are in force within the territorial limits of the Commonwealth. By the law of nations the territorial limits of a country are allowed to extend into every part of the open sea within one marine league from the coast, measured from low water mark. This coastal margin is called “territorial waters,” or the “three-mile limit.” (See Note, Territorial Waters, infra.) By a later part of this clause the Constitution and the laws of the Commonwealth are conceded an extra-territorial force on British ships. (See Note, § 38 “British Ships.”)

But there may be “parts of the Commonwealth” which are not States. The territorial limits of the Commonwealth will not be necessarily co-terminous with the boundaries of the States and their territorial waters added; they will also embrace any other regions, with their adjacent territorial waters, which for the time being may not be included within the boundaries of a State, but which may be acquired by the Commonwealth in any of the ways authorized by the Constitution. Thus the seat of government, when determined by the Parliament and made federal territory, will no longer be part of the State of New South Wales, but will be a part of the Commonwealth. Again, the Queen might place British New Guinea under the control of the Commonwealth; she might detach a part of the vast area of Western Australia from that State and hand it over to the Commonwealth; she might do the same with the Northern Territory of South Australia; Tasmania might agree to surrender King's Island to the Commonwealth. Upon acceptance by the Commonwealth in each of these cases, the territory so surrendered to or placed under the authority of the Commonwealth would even before its erection into a State, or States, become a part of the Commonwealth, and the Constitution and laws of the Commonwealth would be as binding on the people there as on those of a State.

EXTRA-TERRITORIAL OPERATION Of LAWS.—A Colony, Dominion, or Federation, under the British Crown, has no jurisdiction to make laws operative beyond its territorial limits, unless such power is specially granted by Imperial Statute. “In this respect independent States are in the same position, at least with regard to the subjects of other independent States and their property, as those colonies of Great Britain which possess plenary powers of legislation and self-government. Both are restricted as to acts of legislation by territorial limits, those limits being fixed in the one case by an Imperial Statute, and in the other case by the established principles of international law. The first of the three celebrated axioms of Huberus lays down the rule for independent States in distinct terms: ‘Leges cujusque imperii vim habent intra terminos ejusdem reipublicœ omnesque ei subjectos obligant, nec ultra.’ ” (Per Higinbotham, J., in Regina v. Call, ex p. Murphy [1881], 7 V.L.R. [L.], p. 121.)

There are only two provisions in the Constitution Act explicitly relating to the extra-territorial operation of laws. The first is in Clause 5, which makes the laws of the Commonwealth in force on British ships voyaging solely between ports of the Commonwealth (see Note, § 38, “British ships”); the second is in sec. 51 x., which empowers the Federal Parliament to legislate as to “fisheries in Australian waters beyond territorial limits.” The legislative powers given by sec. 51—xxix., as to “external affairs,” and by sec. 51—xxxviii., as to powers previously exercisable by the


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Imperial Parliament or by the Federal Council, do not necessarily imply extra-territorial operation, and it is therefore submitted that they do not sanction any such operation.

“No State can by its laws directly affect, bind, or regulate property beyond its own territory, or control persons who do not reside within it, whether they be nativeborn subjects or not; a different system, which would recognize in each State the power of regulating persons or things beyond its territory, would exclude the equality of rights among different States, and the exclusive sovereignty which belongs to each of them.” (Felix, Droit International Privè, s. 10.)

“The Legislature of a colony may authorize the exclusion from its territory of a person charged with an offence in another colony, or that he be punished unless he leaves the territory, or his detention; but it cannot authorize the sending him in custody out of its territory into another colony.” (Ray v. McMackin, 1 V.L.R. [L.], p. 272.)

“In Phillips v. Eyre, L.R. 6 Q.B., p. 1., it was distinctly enunciated that the superior Courts in England will regard Acts of colonial Legislatures in the same way as they regard Acts of foreign countries legislating with respect to their inhabitants within the limits of their authority. Any attempt to exercise jurisdiction beyond the boundaries of their own territory, domestic or distant, by either one or the other, is treated as being beyond the powers of their Legislatures.” (Per Barry, J., in Ray v. McMackin, 1 V.L.R. [L.], p. 280.)

“On Dec. 17, 1869, the Secretary of State for the Colonies notified the Governor-General of Canada, in regard to certain Acts passed by the Dominion Parliament in the previous session of Parliament, that Her Majesty would not be advised to exercise her power of disallowance with respect thereto; but that he observed that the third section of ‘an Act respecting perjury’ assumed to affix a criminal character to acts committed beyond the limits of the Dominion. ‘As such a provision is beyond the legislative power of the Canadian Parliament,’ the Colonial Secretary requested the Governor-General to bring this point to the notice of his Ministers, with a view to the amendment of the Act in this particular. Accordingly, in the ensuing session of the Dominion Parliament, an Act was passed to correct this error.” (Todd, Parl. Gov. in the Col., p. 145.)

The Criminal Law Amendment Act, 1883. sec. 54, of New South Wales, enacts that “whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years:” It was held by the Privy Council that those words must be intended to apply to persons actually within the jurisdiction of the Legislature, and consequently that the Courts of the colony had no jurisdiction to try the appellant for the offence of bigamy alleged to have been committed in the United States of America. (Macleod v. Att.-Gen. for New South Wales [1891], A.C. 455; Digest of English Case Law, vol. 3, p. 486.)

In the case of Re Victoria Steam Navigation Board, ex parte Allan, decided by the Full Court of Victoria. consisting of Stawell, C.J., and Stephen and Higinbotham, JJ., in 1881, the Court (Higinbotham. J., dissenting) were of the opinion that the Passengers, Harbours, and Navigation Statute, 1865, did not give the Steam Navigation Board any jurisdiction to enquire into charges of incompetency of a master. occurring at Cape Jaffa outside Victorian waters, and that the Imperial Merchant Shipping Act, 1854, sec. 242. sub-sec. 5, and Merchant Shipping Amendment Act, 1862, sec. 23, did not confer on it any extra-territorial jurisdiction. The summons to prohibit the enforcement of the suspension of a master's certificate was allowed, with costs. (Ex parte Allen 7 V.L.R. 248, 3 A.L.T., p. 1.) But now see Merchant Shipping Act, 1894, s. 478.

The British Parliament, being a sovereign legislature, may pass laws binding on its subjects all over the world; but, according to the principles of international law, it ought not to legislate for foreigners out of its dominions and beyond the jurisdiction of the Crown. (Lopez v. Burslem, 4 Moo. P.C., 300: the Zollverein, 1 Swab. Adm., 96.) The British Parliament has not, according to the principles of public law, any authority to legislate for fereign vessels on the high seas or for foreigners beyond the frontiers of the Empire. (Reg. v. Keyn, 2 Ex. D. 220.) Should the British Parliament in violation of those principles attempt to render foreigners subject to its laws with reference to offences committed beyond its territorial limits, it would be incumbent on the Courts of the Empire to enforce those enactments, leaving it to the Imperial Government to settle the question of international law with the governments of the nations concerned. But the laws of the Commonwealth being those of a subordinate and non-sovereign legislature would be examinable by the Courts, and if it appeared that they purported to legislate for matters outside the limits of the Commonwealth they would be pronounced ultra vires and null and void.




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TERRITORIAL WATERS.—Some further explanation of the rule of the “three mile limit” by Mr. Hall may be here added:—

“Of the marginal seas, and enclosed waters, which were regarded at the beginning of the present century as being susceptible of appropriation, the case of the first is the simplest. In claiming its marginal seas as property a state is able to satisfy the condition of valid appropriation, because a narrow belt of water along a coast can be effectively commanded from the coast itself either by guns or by means of a coast-guard. In fact also such a belt is always appropriated, because states reserve to their own subjects the enjoyment of its fisheries, or, in other words. take from it the natural products which it is capable of yielding. It may be added that, unless the right to exercise control were admitted, no sufficient security would exist for the lives and property of the subjects of the state upon land; they would be exposed without recognised means of redress to the intended or accidental effects of violence directed against themselves or other persons of whose nationality, in the absence of a right to pursue and capture, it would often be impossible to get proof, and whose state consequently could not be made responsible for their deeds. Accordingly, on the assumption that any part of the sea is susceptible of appropriation, no serious question can arise as to the existence of property in marginal waters. Their precise extent however is not so certain. Generally their limit is fixed at a marine league from the shore; but this distance was defined by the supposed range of a gun of position, and the effect of the recent increase in the power of artillery has not yet been taken into consideration, either as supplying a new measure of the space over which control may be efficiently exercised, or as enlarging that within which acts of violence way be dangerous to persons and property on shore. It may be doubted, in view of the very diverse opinions which have been held until lately as to the extent to which marginal seas may be appropriated, of the lateness of the time at which much more extensive claims have been fully abandoned, and of the absence of cases in which the breadth of territorial water has come into international question, whether the three mile limit has ever been unequivocally settled; but, in any case, as it has been determined, if determined at all, upon an assumption which has ceased to hold good, it would be pedantry to adhere to the rule in its present form; and perhaps it may be said without impropriety that a state has the right to extend its territorial waters from time to time at its will with the increased range of guns; though it would undoubtedly be more satisfactory that an arrangement upon the subject should be come to by common agreement.” (Hall's International Law, § 41.)

“Bluntschli thinks that, considering the range of modern artillery, the threemile zone is too narrow. Phillimore and Fiore express the same opinion, but think that an alteration can only be made by treaty. It appears to have been suggested by the American government to that of England in 1864 that territorial waters should be considered to extend to a distance of five miles from shore.” (Id.)

§ 36 “The Laws of Any State.”

The laws of the States will comprise the following classes:—

  • (i.) Imperial Acts relating to the Constitution and government of the colonies when they become States:
  • (ii.) Imperial Acts relating to matters of ordinary legislation expressly applicable to the colonies when they become States:
  • (iii.) The Common law so far as applicable and not modified by colonial or State legislation:
  • (iv.) Laws of the realm of England made applicable to some colonies by the general terms of the Act of 9 George IV. c. 83, and not since repealed or amended by colonial legislation:
  • (v.) Acts relating to constitutional matters as well as to matters of ordinary legislation passed by the colonial or State legislatures in the exercise of Statutory authority conferred by Imperial law.

All these laws will remain in full force and effect until they become inconsistent with—(1) The Commonwealth of Australia Constitution Act, or (2) some Act amending the Constitution, or (3) laws to be made thereunder by the Parliament of the Commonwealth. By the Constitution of the colonies their legislatures have power to make laws in and for those colonies respectively in all cases whatsoever. When those


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colonies become States their large powers will by degrees be considerably cut down, although they will be compensated for the loss of direct authority by their representation in the Federal Parliament. The jurisdiction of that Parliament will over-lap and in time will considerably contract the realm of State jurisdiction. As the federal legislation within the area of enumerated powers acquires activity and increases in volume, the State laws within that area will be gradually displaced by federal laws, but until they are so displaced through repugnancy they will retain their original vitality and be binding on the people of their respective States.

§ 37. “The Laws of the Commonwealth.'

This is a more suitable and comprehensive expression than the one which appears at the beginning of this clause, viz., “this Act and all laws made by the Parliament of the Commonwealth.” The laws of the Commonwealth will consist of the following classes:—

  • (I.) The Commonwealth of Australia Constitution Act.
  • (II.) Alterations of the Constitution pursuant to the provisions of Chapter VIII.
  • (III.) Laws made by the Parliament of the Commonwealth under the Constitution.

It will be noticed that the second group of laws as above classified will not be laws made by the Parliament; they may be laws proposed either by one or both of the Federal Chambers, subject to certain conditions, and afterwards approved by the qualified electors of the Commonwealth and assented to by the Governor-General or by the Queen.

§ 38. “British Ships.”

The rights, duties, and liabilities of British ships whilst at home or abroad have been settled by a long series of legal decisions interpreting and enforcing the common law, as well as by the codified provisions of the Merchant Shipping Act, 1894, some parts of which are in force throughout the British empire. One of the fundamental principles of British shipping law is that British merchant ships sailing upon the high seas are considered parts of the territory of the British empire and come within the rule of extra-territoriality. It is a principle of the Common Law and of the law of nations that a ship on the high seas is a part of the territory of the State to which she belongs, and therefore an English ship is deemed to be a part of England. (Per Blackburn, J., Marshall v. Murgatroyd, L.R. 6 Q.B.31.)

Klüber says “that upon the ocean every ship is considered extra-territorial in regard to all foreign nations. A merchant vessel ought to be considered as a floating colony of its State.” (Droit des Gens, part 2, Tit. 1, c. 2, § 299.)

Hall and other writers on international law describe Klüber's theory as a fiction, but they all agree that a ship at sea should be subject to the jurisdiction of the State under whose flag she sails; that such a doctrine is most reasonable and advantageous; and that if ships were amenable to no tribunal the sea would become a place where every crime might be committed with impunity. (Twiss' Law of Nations in Time of War, p. 172.) A merchant vessel in non-territorial waters is therefore subject to the sovereignty of that country only to which she belongs, and all acts done on board her whilst on such waters are cognizable only by the courts of her own State unless they be acts of piracy. This rule extends to cases in which, after a crime has been committed by or upon a native of a country other than that to which the ship belongs, she enters a port of that State with the criminal on board. (Hall's International Law, p. 186.) In foreign territorial waters, however, a merchant vessel is under the territorial jurisdiction, and its officers and crew are subject to the local laws prevailing in such waters.

CRIMINAL JURISDICTION ON THE HIGH SEAS.—All persons on board a ship are within the jurisdiction of the nation whose flag the ship flies, in the same manner as if they were within the territory of that nation. The criminal jurisdiction of the Admiralty of


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England extends over British ships, not only on the high seas, but also on rivers below the bridges where the tide ebbs and flows and where great ships go, though at a spot where the municipal authorities of a foreign country might exercise concurrent jurisdiction if invoked. (Per Blackburn, J, in Reg. v. Anderson [1886] L.R. 1 C.C. 161–4.) There will be jurisdiction at common law if a British ship be on the high seas, infra primos pontes, or in a tidal river where great ships come and go. (Reg. v. Armstrong [1875] 13 Cox, C.C. 185.) The offence need not be consummated or wholly completed on board such ship to give jurisdiction (id.) A larceny of bonds was committed by some person unknown on board a British ocean-going merchant ship lying in an open river, moored to the quay at Rotterdam, in Holland, at a distance of 18 miles from the sea, but within the ebb and flow of the tide. A person who afterwards was found in England in possession of the stolen property was there convicted of receiving the bonds. (Reg. v. Carr [1882] 10 Q.B.D. 76.) The surviving crew of an English yacht, cast away in a storm on the high seas, who were obliged to take to an open boat, and who were, they alleged, constrained by hunger to kill and eat a boy, one of their number, were tried in England and found guilty of murder. (Reg. v. Dudley [1884] 14 Q.B.D. 273.) A hulk retaining the general appointments of a ship registered as a British ship, though only used as a floating warehouse, is a British ship. (Reg. v. Armstrong, 13 Cox, C.C. 185.)

JURISDICTION OF COLONIAL COURTS.—The jurisdiction to try persons for offences committed on the high seas, within the jurisdiction of the Admiralty, was in 1849 conferred on colonial courts by the Act 12 and 13 Vic. c. 96, sec. 1. This provides that colonial courts should have the same jurisdiction for trying such offences, and should be empowered to take all such proceedings for bringing persons charged therewith to trial, and for and auxiliary to and consequent upon the trial, as by the law of the colony might have been taken if the offence had been committed upon any waters within the limits of the colony.

LATER IMPERIAL LEGISLATION.—By the Merchant Shipping Act, 1867 (30 and 31 Vic. c. 124, s. 11.) it was enacted that if any British subject commits any offence on board any British ship, or on board any foreign ship to which he does not belong, any court of justice in her Majesty's dominions which would have cognizance of such offence, if committed on board a British ship, within the limits of the ordinary jurisdiction of such court, shall have jurisdiction to hear and determine the case, as if the offence had been so committed.

The Merchant Shipping Act, 1894, sec. 686, re-enacts in substance the provisions of previous legislation giving jurisdiction, in the case of any offence committed by a British subject on board any British ship on the high seas, or in any foreign port or harbour, or by a person not a British subject on board any British ship on the high seas, to any court in her Majesty's dominions within the jurisdiction of which that person is found. Sec. 687 further provides that all offences against property or person committed at any place, either ashore or afloat, out of Her Majesty's dominions by any master, seaman or apprentice who at the time of the offence is, or within three months previously has been employed in any British ship, shall be deemed to be offences of the same nature and liable to the same punishment as if committed within the jurisdiction of the Admiralty of England.

FOREIGNERS ON BRITISH SHIPS.—A foreigner who, whilst on board a British ship upon the high seas, commits an offence against British law, is amenable to such law, and it makes no difference whether he has gone on board voluntarily or has been taken and detained there against his will. (Reg. v. Lopez; Reg. v. Sattler, 27 L.J. M.C. 48.)

A foreigner was convicted of manslaughter on board a British ship in the river Garonne, in France, 35 miles from the sea, but within the ebb and flow of the tide. (Reg. v. Anderson, L.R. 1. C.C. 161.) A foreigner on board a British ship is entitled to the same protection as if he were on English soil. (Reg. v. Leslie, 8 Cox, C.C., 269; 29 L.J. M.C. 97.)




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JURISDICTION OVER FOREIGN SHIPS.—A German vessel, under the command and immediate direction of a German subject, collided with a British steamer navigating the English Channel at a point within two miles and a half from Dover Beach, with the result that the British ship sank and a British subject on board was drowned. The captain of the German ship was tried and found guilty of manslaughter at the Central Criminal Court. It was held by the majority of the Court of Criminal Appeal, that the Central Criminal Court had no jurisdiction to try the case. (Reg. v. Keyn, The Franconia, 2 Ex. D. 63; 46 L.J., M.C. 17.) But now by the Territorial Waters Jurisdiction Act, 1878 (41 and 42 Vic. c. 73 s. 2) an offence committed by any person, whether a British subject or not, on the open sea, within the territorial waters of Her Majesty's dominions, is an offence within the jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried, and punished accordingly. By s. 7 of this Act “Territorial waters of Her Majesty's dominions” means any part of the open sea within one marine league of the coast measured from low water mark.

OWNERSHIP OF BRITISH SHIPS.—Under the provisions of the Merchant Shipping Act, 1894, no person can own a British ship except a natural born or naturalized subject of the Queen, or a denizen by letters of Denization, or a corporate body established under and subject to the law of some part of the British dominions. Every such ship must be registered, and every transfer must be by registered bill of sale. If a ship belonging to British subjects be not registered she is not recognized as a British ship, and is then not entitled to the benefit or protection enjoyed by British ships, or to sail under the British flag, or to assume the British national character.

BRITISH MERCHANT SHIPS AND COLONIAL LAWS.—It will now be convenient to consider some of the obligations and liabilities of British merchant ships in the Territorial waters, under the law as it existed before, and under the law as it will be after the establishment of the Commonwealth. The jurisdiction of colonial legislatures over British ships whilst within the colonial ports, harbours, rivers and adjacent territorial waters, extends to such subjects as the following:—The governance and preservation of ports, the regulation of shipping and navigation, the mooring of vessels, the management of wharves and piers, the organization of marine boards and of courts of marine inquiry, pilots and pilotage, lights and signals, prevention of accidents on ships, inspection of ships, equipment and survey of ships, carriage of dangerous goods, storage of cargoes, misconduct of passengers, misconduct of crew, health and safety of passengers, landing of passengers, investigations respecting casualties, and inquiries into complaints of incompetency and misconduct on the part of mariners.

COLONIAL COURTS TO ENFORCE IMPERIAL SHIPPING LAWS.—By the Merchant Shipping Act, 1854 (17 and 18 Vic. c. 104) and by the amending Merchant Shipping Act, 1862 (25 and 26 Vic. c. 63) legislation was adopted in order to increase the efficiency of, and enlarge the supervision over, the mercantile marine of England. Higher qualifications for mates and masters were exacted, and means were adopted by which incompetency and misconduct might be promptly brought before the Board of Trade, by whom certificates to mates and masters were issued. It was further provided that the legislature of any British possession should be able to make laws for the appointment of a court or tribunal to inquire into charges of incompetency or misconduct on the part of masters and mates of ships, and to cancel or suspend the certificates of offenders subject to the review of the Board of Trade. In 1865 the Victorian Parliament passed the Passengers Harbour and Navigation Act, sec. 77 of which enacted that the Steam Navigation Board should be constituted a court or tribunal authorized to exercise such powers as are mentioned in or conferred by the 242nd section of the Merchant Shipping Act, 1854, and the 23rd section of the Merchant Shipping Act, 1862. Similar Boards were established by other colonial legislatures.

The extra-territorial jurisdiction of Australian courts of inquiry created by local legislation in the exercise of statutory power conferred by the above Imperial Acts


  ― 360 ―
was considered in the case of Re Victoria Steam Navigation Board, ex parte Allan, in which the Supreme Court held that the Victorian Board had no jurisdiction to deal with a master holding a certificate issued by the Board of Trade, on a charge of negligence resulting in a collision off Cape Jaffa, South Australia; that it could only inquire into misconduct which had taken place within the jurisdiction of the Board, viz., within the territorial waters of the colony in which the Board was constituted (3 A.L.T. 1, 7 V.L.R. [L] 248, June, 1881). In consequence of this decision there was a demand for further Imperial legislation enlarging the authority of marine boards, and in August, 1882, the Act (45 and 46 Vic. c. 76) was passed, which is now re-enacted in sec. 478 of the Merchant Shipping Act, 1894 (57 and 58 Vic. c. 60). This section expressly empowers the legislature of any British possession to authorize any court or tribunal to make inquiries as to shipwrecks or other casualties affecting ships, or as to charges of incompetency or misconduct on the part of masters, mates or engineers of ships, in the following cases:—

  • (a) Where a shipwreck or casualty occurs to a British ship on or near the coasts of the British possession or to a British ship in the course of a voyage to a port within the British possession:
  • (b) Where a shipwreck or casualty occurs in any part of the world to a British ship registered in the British possession:
  • (c) Where some of the crew of a British ship which have been wrecked or to which a casualty has occurred, and who are competent witnesses to the facts, are found in the British possession:
  • (d) Where the incompetency or misconduct has occurred on board a British ship on or near the coasts of the British possession, or on board a British ship in the course of a voyage to a port within the British possession:
  • (e) Where the incompetency or misconduct has occurred on board a British ship registered in the British possession:
  • (f) When the master, mate, or engineer of a British ship who is charged with incompetency or misconduct on board that British ship is found in the British possession.

A British ship during its voyage on the high seas from any British port to Australia was, before the establishment of the Commonwealth, and still is, subject solely to British Civil and Criminal Law. Upon its entry into the territorial waters, that is within the three mile limit of any colony, say Western Australia, it still remained subject to British Merchant Shipping Acts, but in addition thereto it became subject to the local laws of Western Australia, Civil and Criminal, including local navigation and shipping regulations, so far as those laws and regulations were not contrary to British Merchant Shipping Acts. On leaving the ports of Western Australia and passing beyond the three mile limit, the British ship ceased to be subject to West Australian laws, and became once more subject only to Imperial laws. Upon the same ship entering the territorial waters of South Australia it, in like manner, came under the local laws of South Australia, Civil and Criminal, including local navigation and shipping regulations, so far as those laws and regulations were not repugnant to the Merchant Shipping Acts. On clearing the ports of Adelaide and resuming its voyage on the high seas, the British ship again came and continued solely under British laws until it reached the Victorian waters, where it once more came under local laws as in the cases of the other colonies mentioned; and so on from one Australian port to another.

Under the Constitution of the Commonwealth British ships will still be under Imperial shipping laws, and local shipping laws not contrary to Imperial laws, but, instead of encountering five or six different sets of local laws relating to navigation and shipping in five or six different Australian ports, they will—when the Federal Parliament has legislated on the subject—find one uniform federal law relating to navigation and shipping operating in every port within the limits of the Commonwealth. In journeying along the high seas between federal ports, and outside the three mile limit, British ships whose first port of clearance is outside the Commonwealth will not be subject to Commonwealth law, but will, as before, remain solely under British law; and British


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ships whose port of destination is outside the Commonwealth will also not be subject to Commonwealth law.

The Parliament of the Commonwealth has, under sections 51 and 98 of the Constitution, power to make laws relating to navigation and shipping. That power is restricted to making laws applicable to the Commonwealth and operative within the three-mile limit all round the ocean boundary of the Commonwealth. In order to make a Commonwealth law applicable to and operative on ships going from one part of the Commonwealth to another, and in so doing passing over the high seas outside the three mile limit, it was necessary to extend the power given by section 98. This is done by clause 5 of the Act; without which the laws of the Commonwealth would only be operative within the three mile limit. By that clause the laws of the Commonwealth are in force on British ships on the high seas outside the three mile limits if they are on a voyage which both begins and ends within the Commonwealth. (Mr. R. E. O'Connor's speech in the Legislative Council of N.S.W., Parliamentary Debates, 1897, p. 3017. Mr. E. Barton's speech in the Legislative Council, N.S.W., idem., p. 3081.)

BRITISH SHIPS WITHIN THE COMMONWEALTH.—Clause 5 provides that the laws of the Commonwealth shall be in force on all British merchant ships whose first port of clearance and whose port of destination are within the Commonwealth. There are two classes of British ships which come within the meaning of this clause: (1) Intercolonial vessels exclusively engaged in the Australian trade; (2) ocean going vessels arriving on the Australian coast and temporarily staying and engaging in trade between the ports of the Commonwealth; in so doing beginning and completing new voyages. For the purposes of this clause, ships which come within the conditions specified will be considered as within the jurisdiction of the Commonwealth from the beginning to the end of their respective voyages, even though during the course of their voyages they travel across the high seas hundreds or even thousands of miles beyond the limits of the Commonwealth. The first port of clearance of a ship bound by the laws of the Commonwealth must be within the Commonwealth, and its port of destination must be within the Commonwealth. The combination of these two conditions is required; they mark the beginning and end of a continuous voyage. For example, a steamer starts from her headquarters—say Melbourne; thence she proceeds to Tasmania, thence to New Zealand, thence to Samoa, thence to Fiji, thence to New Caledonia, thence to Brisbane, thence to Sydney, thence to Melbourne. During the whole of this voyage the laws of the Commonwealth would be in force in such a vessel. In the course of her journey she would traverse regions far beyond the limits of the Commonwealth; yet by the application and extension of the principle of extra-territoriality—described by some jurists as a fiction, though a very useful one—the ship is deemed to be a part of the Commonwealth floating on the high seas.

If it be asked what kinds of Commonwealth laws could reasonably be brought into operation on board a Commonwealth ship sailing a thousand miles away from Australia, attention may be drawn to those laws relating to shipping and navigation which have hitherto been within the competency of the various Australian legislatures, but which under the Commonwealth will be vested in the Federal Parliament Attention may be also drawn to some of the other powers conferred on the Federal Parliament, such as those relating to trade and commerce, weights and measures, fisheries beyond territorial limits, the service and execution of civil and criminal process, and the enforcement of the judgments of the Courts of the States; also immigration and emigration, influx of criminals, external affairs, the relations of the Commonwealth with the isles of the Pacific, and the naval and military defences of the Commonwealth. It might be extremely advisable, and in fact absolutely necessary, that the laws of the Commonwealth, in reference to matters such as these, should follow a Commonwealth ship and operate upon it wherever it went.

PROPOSED IMPERIAL AMENDMENT.—When the Commonwealth Bill was under the consideration of the Imperial Government in March, 1900, the Law Officers of the Crown


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proposed the omission of the words of Clause 5, “in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.” (See Historical Introduction, p. 229, supra.) It was suggested that there was no constitutional, or practical, necessity for the appearance of those words in the Bill. It seemed to be thought that all that was desired was a grant of power to the Commonwealth to control the coasting trade This power, it was pointed out, the Federal Parliament would have under section 736 of the Merchant Shipping Act, 1894, which is not confined in its operation to the coasting trade while in territorial waters. Moreover, the words, “first port of clearance” and “port of destination” in the clause in question were not free from ambiguity, and embarrassing questions might be raised as to the law applicable to a ship clearing from one Australian port for another after coming to Australia from a port in some other part of Her Majesty's dominions.

In reply to this objection the Australian Delegates drew attention to section 20 of the Federal Council Act, 1885 (see supra). It was observed that the provision of Clause 5 of the Draft Bill was much more restricted than that made by the Act of 1885. Under the present measure the provision was made to apply to cases in which a British ship begins and concludes her voyage within the limits of the Commonwealth. But section 20 of the Federal Council Act applied to every British ship which commenced her voyage in any one of the colonies concerned, and also to every British ship which concluded her voyage in any one of them. In the former case the Federal Council Law would apply to a British ship on the whole of her voyage from Australia to a port beyond the Commonwealth; in the latter case to a British ship on the whole of her voyage from any point beyond the Commonwealth to Australia. In the present measure, so wide an application was not for a moment desired to be given to any law of the Commonwealth; yet it was now sought to further restrict, in the hands of a much more competent legislature, a power which 15 years ago the Imperial Parliament did not consider too wide for a much inferior body: a body neither elective nor bi-cameral, and lacking both a responsible executive and a Treasury. Dealing with the suggestion that the matter was sufficiently provided for by section 736 of the Merchant Shipping Act, 1894, the Delegates argued that if that view were correct then the phrase objected to was at worst a redundancy and therefore harmless. Section 736 gave power to the Legislature of any English possession to make laws regulating its coasting trade under certain conditions. It was true that the term “British Possession,” whether as defined in the Act of 1869 or in the Interpretation Act of 1889, which preceded the present Merchant Shipping Act, would include such a Possession as the Commonwealth of Australia, which under the Interpretation Act would be deemed to be one British Possession including all parts under the Central Legislature. The expression “coasting trade” was not defined in any of the Acts cited; it may be taken to include the trade of vessels plying merely between the ports of a Possession within territorial limits. But the provision in the Commonwealth Bill, to which exception had been taken, would apply to such ships, on a voyage solely between two ports of the Commonwealth, even outside the three-mile territorial limit; the beneficial effect therefore would be, that a vessel on such a voyage would not be exposed to the anomaly of being subject to one set of laws at 2 3/4 miles from the coast, and to another set of laws at 3 1/4 miles from the coast. That this should be prevented was surely not too much to ask. Moreover, the provision in the Bill removed a further anomaly by protecting a vessel which passed from the territorial waters of one colony into those of another from being subjected to a change of laws in that very operation, and by applying to her the uniform laws of the Commonwealth during the whole of her passage between Commonwealth ports. While, then, the power was less than that conceded to the Federal Council, and never abused, it was larger than that conceded by the Merchant Shipping Act, but larger only for the most beneficial purposes. The reasonableness of the right claimed appeared the more clearly when it was considered that one of the most useful purposes of the Constitution was the facilitation of trade between the several colonies to


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an extent not hitherto possible, with a clear tendency towards obliterating in respect of commerce those arbitrary lines between colony and colony, which in the past have been productive of so much friction and hindrance. (House of Com. Pap., May 1900, p. 15.)

The Colonial Secretary, in answer to this contention, admitted that the words of section 20 of the Federal Council Act were very wide, perhaps unduly so, and if the powers thereby conferred had been freely exercised he thought grave difficulties would certainly have arisen. The analogy of the Federal Council Act was, however, in his opinion incomplete, inasmuch as it was contemplated that all British possessions in Australia might be represented in the Federal Council, “whereas the operation of this Bill is at present confined to five Australian colonies.” (See House Coms. Pap., May, 1900, p. 24.)

The Imperial Government, however, did not insist in the proposed omission of the words relating to British ships. Although those words were omitted in the first draft of proposed amendments submitted to the Delegates, they were restored in the Bill as actually introduced in the House of Commons. (See House Coms. Paps., May, 1900, p. 19.)

§ 39. “First Port of Clearance.”

If a British vessel began a voyage from any port outside the Commonwealth, then the port whence she started on her voyage would be the “First Port of Clearance,” and consequently she would be exempt from the operation of the clause. If, upon the completion of that voyage by disembarking her passengers and discharging her cargo, she were chartered to carry cargo or passengers from one port of the Commonwealth to another, her first port of clearance on the new voyage, as well as her “port of destination,” would be within the Commonwealth, and she would carry Commonwealth law with her from the beginning to the end of the local voyage.

§ 40. “The Queen's Ships of War.”

Public ships of war are regarded as floating fortresses representing the sovereignty and independence of the country to which they belong. “A ship of war retains its national character with all its incidental privileges and immunities in whatever waters it may go, but if members of the crew leave the ship or its tenders, or its boats, they are liable to the territorial jurisdiction of the country into which they go. Even the captain is not considered to be individually exempt in respect of acts not done in his capacity as agent of his State. In his ship he is protected; he has entire freedom of movement; he is under no obligation to expose himself to the exercise of the jurisdiction of the country in whose ports, harbours, bays, rivers, or other territorial waters he may find himself; if he voluntarily does so he may be fairly expected to take the consequences of his acts.” (Hall's International Law [1895], p. 205.)

Although the extra-territoriality of a public ship does not extend to her officers and men whilst they are on shore in a foreign country, the territorial government often abandons cognizance and waives the punishment of offences committed by a public ship's company on shore to the government to which the ship belongs. (Rivier, Principes du Droit des Gens [1896], 1., 334–51.)

Definitions41.

6. “The Commonwealth” shall mean42 the Commonwealth of Australia as established under this Act43.

“The States”44 shall mean such of the colonies46 of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the Northern Territory of South Australia, as for the time being


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are parts of the Commonwealth45, and such colonies or territories47 as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called “a State.”

“Original States” shall mean such States as are parts of the Commonwealth at its establishment.

HISTORICAL NOTE.—Clause 5 of the Commonwealth Bill of 1891 was as follows:—

“The term ‘The States’ shall be taken to mean such of the existing colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and the Province of South Australia, as for the time being form part of the Commonwealth, and such other States as may hereafter be admitted into the Commonwealth under the Constitution thereof, and each of such colonies so forming part of the Commonwealth shall be hereafter designated a State.”

At the Adelaide session, 1897, the clause was introduced and passed in the same words. (Conv. Deb., Adel., pp. 625–6). At the Sydney session, a suggestion made by the Legislative Council of New South Wales (where it had been originated by Mr. R. E. O'Connor) to define “Original States” and “New States,” was discussed; and ultimately the definition of “Original States” was agreed to. On Mr. Solomon's motion, the words “including the Northern Territory of South Australia” were agreed to. (Conv. Deb., Syd. [1897] pp. 231–9, 986–7.) At the Melbourne session, drafting amendments were made before the first report; and also after the fourth report, when the words “ ‘Colony’ shall mean any colony or province” were added.

In the Bill as introduced in the Imperial Parliament, the following words were added to the definition of Commonwealth:—“and the laws of the Commonwealth shall be colonial laws within the meaning of the Colonial Laws Validity Act, 1865.” In Committee, these words were omitted, and the words “ ‘Colony’ shall mean any colony or province”—which it was thought might raise a doubt as to the application of the Colonial Laws Validity Act—were also omitted. (See pp. 222–248, 351–2, supra.)

§ 41. “Definitions.”

The definitions in the Act are remarkably few, being confined to the words “Commonwealth” and “State”—both old English words which receive by this Act a new technical application—and the phrase “Original States.” Every other word and phrase of the Constitution is left to be construed from its natural meaning and its context.

It is safer to abstain from imposing, with regard to Acts of Parliament, any further canons of construction than those applicable to all documents. (Lamplugh v. Norton, 22 Q.B.D. 452.) When a doubt arises upon the construction of the words of an Act of Parliament, it is the duty of the Court to remove the doubt by deciding it; and when the Court has given its decision, the point can no longer be considered doubtful. (Bell v. Holtby, L.R. 15 Eq. 178.) Acts should be construed according to the intent of Parliament. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves, in such case, best declare the intention of the legislature. (Sussex Peerage, 11 Cl. and F. 86; 8 Jur. 793.) The Court knows nothing of the intention of an Act, except from the words in which it is expressed, applied to the facts existing at the time. (Logan v. Courtown, 20 L J. Ch. 347; Digest of Eng. Ca. L., xiii., p. 1888.) Anyone who contends that a section of an Act of Parliament is not to be read literally, must be able to show one of two things, either that (1) there is some other section which cuts down its meaning, or else (2) that the section itself is repugnant to the general purview of the Act. (Nuth v. Tamplin, 8 Q.B.D. 253. Id. p. 1889.) “I prefer to adhere to the golden rule of construction that the words of a statute are to be read in their ordinary sense, unless the so construing them will lead to some incongruity or manifest absurdity.” (Per Grove, J., Collins v. Welch, 5 C.P.D. at p. 29. Id. p. 1889.) “The more literal construction of a section of a statute ought not to prevail if


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it is opposed to the intentions of the legislature as apparent by the statute, and if the words are sufficiently flexible to admit of some other construction by which that intention will be better effectuated.” (Per Lord Selborne, L.C., Caledonian R. Co. v. North British R. Co., 6 App. Cas. 122; Id. p. 1889.) “No Court is entitled to depart from the intention of the legislature as appearing from the words of the Act because it is thought unreasonable. But when two constructions are open, the Court may adopt the more reasonable of the two.” (Per Lord Blackburn, Rothes v. Kirkcaldy Waterworks Commissioners, 7 App. Cas. 702; Id. p. 1889.)

“If we can fairly construe an Act so as to carry out what must obviously have been the intention of the legislature, although the words may be a little difficult to deal with, and although they may possibly admit of more than one interpretation, we ought, from those general considerations, to adopt the interpretation which will make the law uniform, and will remedy the evil which prevailed in all the cases to which the law can be fairly applied.” (Per Jessel, M.R., Freme v. Clement, 44 L.T. 399, id. p. 1890)

“In order to construe an Act of Parliament, the court is entitled to consider the state of the law at the time it was enacted.” (Per Lord Esher, M.R., Philipps v. Rees, 24 Q.B.D. 17, id. p. 1892.)

It is useless to enter into an inquiry with regard to the history of an enactment, and any supposed defect in former legislation on the subject which it was intended to cure, in cases where the words of an enactment are clear. It is only material to enter into such inquiry where the words of an enactment are ambiguous and capable of two meanings, in order to determine which of the two meanings was intended. (Per Lord Esher, M.R., Reg v. London [Bishop], 24 Q.B.D. 213.) If the words are really and fairly doubtful, then, according to well-known legal principles and principles of common sense, historical investigation may be used for the purpose of clearing away the doubt which the phraseology of the statute creates. (Reg. v. Most, 7 Q.B.D. 251.) The court cannot impute to the legislature, in passing statutes confirming titles created by means of parliamentary powers, ignorance of the transactions which had taken place in exercise of such powers. (Beadon v. King, 22 L.J. Ch. 111, Dig. of Eng. Ca. L. xiii. p. 1892.)

It is the most natural and genuine exposition of a statute to construe one part by another, for that best expresseth the meaning of the makers, and this exposition is ex visceribus actus. (Reg. v. Mallow Union, 12 Ir. C.L.R. 35.) The common law rights of the subject, in respect of the enjoyment of his property, are not to be trenched upon by a statute, unless such intention is shown by clear words or necessary implication. Statutes restrictive of the common law receive a restrictive construction. (Ash v. Abdy, 3 Swans. 664, Dig. of Eng. Ca. L. xiii. p. 1893.)

In construing Acts which infringe on the common law, the state of the law before the passing of the Act must be ascertained to determine how far it is necessary to alter that law, in order to carry out the object of the Act. (Swanton v. Goold, 9 Ir. C.L.R. 234.) A right to demand a poll is a common law incident of all popular elections, and as such cannot be taken away by mere implication which is not necessary for the reasonable construction of a statute. (Per Brett, L.J., Reg. v. Wimbledon Local Board, 8 Q.B.D. 459.) The general law of the country is not altered or controlled by partial legislation, made without any special reference to it. (Denton v. Manners, 27 L.J. Ch. 199; affirmed 27 L.J. Ch. 623, Dig. of Eng Ca. L. xiii. p. 1893.)

As a rule, existing customs or rights are not to be taken away by mere general words in an Act. But, without words especially abrogating them, they may be abrogated by plain directions to do something which is wholly inconsistent with them. And this may be the case though the Act is a private Act, and though the particular custom may have been confirmed, years before, by a verdict in a court of law. (Green v. Reg., 1 App. Cas. 513, id. p 1894.)

“When there are ambiguous expressions in an Act passed one or two centuries ago, it may be legitimate to refer to the construction put upon these expressions throughout a long course of years, by the unanimous consent of all parties interested, as evidencing what must presumably have been the intention of the legislature at that remote period. But I feel bound to construe a recent statute according to its own terms, when these are brought into controversy, and not according to the views which interested parties may have hitherto taken.” (Per Lord Watson, Clyde Navigation Trustees v. Laird, 8 App. Cas. 673, id. p. 1895.)

§ 42. “Shall Mean.”

An interpretation clause is a modern innovation, and frequently does a great deal o harm. (Lindsay v. Cundy, 1 Q.B.D. 348; Reg. v. Boiler Explosion Act Commissioners, (1891), 1 Q.B. 703; Dig Eng. Ca. L. Vol. xiii. p. 1886.)

“But for the interpretation clause, no difficulty as to the construction would have arisen. But I think an interpretation clause should be used for the purpose of interpreting words which are ambiguous or equivocal, and not so as to disturb the


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meaning of such as are plain.” (Reg. v. Pearce, per Lush, J., 5 Q.B.D. 386, 389; Robinson v. Barton-Eccles, 8 App. Cas. 798; id. 1885.)

An interpretation clause in an Act should be understood to define the meaning of the word thereby interpreted, in cases as to which there is nothing else in the Act opposed to or inconsistent with that interpretation. (Midland R. Co. v. Ambergate, Nottingham and Boston and Eastern Junction R. Co., 10 Hare, 359, id. p. 1885)

§ 43. “Commonwealth … as Established Under this Act.”

We have summarized the literary history of the name Commonwealth. (Note § 17, supra.) We now come to the statutory definition of the term. This definition, it will be observed, is a vague and technical one; the dominant words being “as established under this Act.” For the true nature and primary meaning of the expression, the student is required to examine the first six clauses of the Act, which deal with the establishment of the new community. The Commonwealth is not in any way defined or explained by the Constitution itself; that deals only with the governing organization of the Commonwealth.

The first observation to be made is that the Commonwealth should not be confounded with the Constitution or with the Government. The Commonwealth, as a political entity and a political partnership, is outside of and supreme over the Constitution; it is outside of and supreme over the Government provided by that Constitution. The Government of the Commonwealth, consisting of two sets of legislative, executive and judicial departments, central and provincial, does not constitute the community. At the back of the Government lies the amending power—the quasi-sovereign organization of the Commonwealth within the Constitution; at the back of the Commonwealth and the Constitution is the British Parliament, its creator and guardian, whose legal relationship to it requires that the Commonwealth should be described, not as an absolutely sovereign organization, but by some term indicating a degree of subordination to that body. (Burgess, Political Sc., I., p. 57.)

The Commonwealth is established by a clause in the Imperial Act which could operate antecedently to and independently of the Constitution detailed in Clause 9, and of the machinery and procedure therein specified. In other words, the Commonwealth is the legal objective realization of an Australian quasi-Federal State or a quasi-National State, using those phrases in a sense to be hereafter explained. What then, are the essential attributes and characteristics of the Commonwealth “as established by the Act?” These may be thus summarized:—First, its population basis; secondly, its territorial basis; thirdly, its federal principle; fourthly, its Imperial relationship; resulting in the establishment of a united people, upon a defined territory, organized on a federal plan, consistently with the Imperial connection, legally equipped for political action and development.

(1.) POPULATION BASIS.—Clause 3, illustrated by the preamble of the Act, explicitly provides that on the day appointed by the Queen's proclamation the people of the concurring colonies shall be united in a Federal Commonwealth. This union is not founded on force or coercion, but on a consensus of opinion induced by a consciousness of common interests and mutual benefit. The people so agreeing had all the elements of ethnic unity, such as sameness of race, language, literature, history, custom, faith and order of life, combined with the contributing influences of antecedent intercourse and territorial neighbourhood. (Burgess' Political Sc., vol. I., p. 2.)

Hence there were, co-existing with the desire for union, all the conditions and requirements essential for successful and harmonious union. These people, then, formerly living under separate systems of government are, by Clause 3 of the Act, declared to be united in a Federal Commonwealth, and by Clause 4 the Commonwealth is established. If the Act had given no further explanation, and had enumerated no other incidents or attributes of the Commonwealth, it might have been contended that the


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Commonwealth was merely a personal union of the people without any other element of cohesion and organization; but all doubt on that point is removed by important phrases which occur in other clauses.

(2.) TERRITORIAL BASIS.—In Clause 5 a distinction is drawn between the people “of every State” and “of every part of the Commonwealth.” One expression relates to human beings, as residents of States, whilst the other evidently refers to land or country which might not be within a State, but might nevertheless be within the Commonwealth. In the clause now under review the States are defined as such of the colonies as form the union and become “parts of the Commonwealth.” In the Imperial Acts erecting the colonies they are described as territories included within certain geographical boundaries. Hence, if the colonies are parts of the Commonwealth, their territories are by the terms of the definition “parts of the Commonwealth.” These words, therefore, clearly show that the Commonwealth is a territorial community, having the right to conduct its governing operations in, over, and through certain territory, and, when they are read in conjunction with certain sections of the Constitution, it is plain that the Commonwealth has the right of eminent domain which may be exercised in the manner prescribed by the Constitution throughout its confines, when necessary for the execution and enjoyment of the powers conferred by the Constitution. (Kohl v. United States, 91 U.S., 367.) So far the Commonwealth “established under this Act” is a united people, organized within a united territory; the people being the population of the former colonies, and the territory being coincident with the territorial limits of the former colonies in addition to such other territory as may be added to the Commonwealth under section 122. Two other important features of the Commonwealth are, however, discoverable in the actual language of the Act.

(3.) FEDERAL FORM.—The only word in the Act creating the Commonwealth which is at all suggestive of structural design or functional distribution is the word “federal;” it occurs once in the preamble and once in the clause under review, as descriptive of the form and structure of the new community. It is true that it appears in several passages in the constitution, but there it is descriptive of the central governing organs of the community, and not of the community itself. The Commonwealth is declared to be a Federal Commonwealth. The original and fundamental idea implied by “federal” and its various shades of meaning, as used in modern political literature, have been already analysed. (See Note. § 27, “Federal,” supra.)

(4.) IMPERIAL RELATIONSHIP.—By the preamble the Commonwealth is declared to be “Under the Crown;” it is constitutionally a subordinate, and not an independent Sovereign community, or state. But its population is so great, its territory so vast, the obvious scope and intention of the scheme of union are so comprehensive, whilst its political organization is of such a superior type, that it is entitled to a designation which, whilst not conveying the idea of complete sovereignty and independence, will serve to distinguish it from an ordinary provincial society.

QUASI-NATIONAL STATE.—Burgess contends that there is no such thing in political science as a “federal State;” that this adjective is applicable only to the organs of government and the distribution and division of governing powers; that its application to the State itself is due to a confusion of State with Government. (Political Sc., vol. I. p. 165.) What is really meant by such expressions as “Federal State” or “Federal Commonwealth,” technically inaccurate, according to this eminent jurist, is a National State, with a federal government—a dual system of government under common sovereignty. Such a State comprehends a population previously divided into a group of independent States. Certain causes have contributed to a union of this group of States into a single State, and the new State has constructed a government for the general affairs of the whole State, and has left to the old bodies, whose sovereignty it has destroyed, certain residuary powers of government to be exercised by them so long as the new State makes no other disposition. The old States become parts of the Government in the new States, and nothing more. (Political Sc., I. 79.) The Commonwealth


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therefore, may be said to possess nearly all, but not quite all, the characteristics and features of a national State. In order to denote its subordinate relation as an integral part of the British Empire, and not an independent sovereign State, some qualifying adjective or particle is necessary, such as “semi” or “quasi.” We may therefore define the Commonwealth, established by this Act, as a quasi-national State (or semi-national State) composed of a homogeneous and related people of ethnic unity, occupying a fixed territory of geographical unity, bound together by a common Constitution, and organized by that Constitution under a dual system of provincial and central government, each supreme within its own sphere, and each subject to the common Constitution.

SECONDARY MEANING OF “COMMONWEALTH.”—In several sections of the Constitution the term “Commonwealth” is used inartistically to denote the Central Government as contrasted with the Governments of the States, i.e., “The Legislative Power of the Commonwealth,” sec. 1; “the Executive Power of the Commonwealth,” sec. 61; “the Judicial Power of the Commonwealth,” sec. 71. These expressions refer to the Legislative, Executive, and Judicial Powers granted by the Constitution to the various organs of the Central Government. In the American Constitution the term “United States” is sometimes used to describe the Union and sometimes to denote the Central Government of the Union. These are instances of the secondary use and significance of corresponding terms in both Constitutions. The secondary use and meaning of “Commonwealth” must be distinguished from its primary and proper meaning as defined in the constructive clauses of the Imperial Act.

§ 44. “States.”

VARIOUS MEANINGS.—We will first consider the term “State” as popularly understood in English speaking communities, without reference to technical or external relations; secondly, “State” in its international significance; thirdly, “State” in its federal significance; and finally, “Nation” as contrasted with “State.”

Popular Significance—In a popular sense the word “State” is often employed to denote the governing political authority of a country as distinguished from the inhabitants thereof; the mechanism of government; the organism of government as opposed to the persons who have to submit to the rule of the government; the central government, in contradistinction to the local governing authorities and the local governing institutions. Sometimes it is specially used to contrast the secular and political with the ecclesiastical organization of a country. (Ency. of British Law, vol. XI., p. 710.)

International Significance.—“State” has a technical meaning known to international law, according to which it is an organized political entity, having certain recognizable predicates, such as population, territory, independence of other entities like itself, and an organized system of self-government enabling it to determine its own internal organization and development. (Sheldon Amos, The Science of Politics (1883), p. 64.) The modern notion of the State was not brought into clear consciousness till a number of parallel States presented themselves side by side, and each of them by enforcing its own claim against the others manifested to itself and to the world its own personality, independence and integral unity. (Id.) For the purpose of comparison other definitions of “State” are here appended.

“A State is a collective body composed of a multitude of individuals united for their safety and convenience and intended to act as one man. Such a body can be only produced by a political union, by the consent of all persons to submit their own private wills to the will of one man or of one or more assemblies of men to whom the supreme authority is entrusted, and this will of that one man or one or more assemblies of men is, in different States, according to their different constitutions understood to be law.” (Blackstone's Commentaries, I. 52.)

“This description of a State, it will be observed, omits all reference to territoriality and independence of other States; as such it is deficient. Further it is only applicable to States in which the supreme authority is entrusted to the will of one man, or one or more assemblies of men, and is not applicable to a federation in which the ultimate power is reserved to the people. (Judge Wilson's Comments on Blackstone's theory, 2 Dallas, 458.)




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“For all the purposes of international law, a State may be defined to be a people permanently occupying a fixed territory, bound together by common laws, habits, and customs into one body politic, exercising, through the medium of an organized Government, independent sovereignty and control over all persons and things within its boundaries, capable of making peace and war, and of entering into international relations with other communities.” (Phillimore's International Law, I, p 81.)

“By a sovereign State we mean a community, or number of persons permanently organized under a sovereign Government of their own; and by a sovereign Government we mean a Government, however constituted, which exercises the power of making and enforcing law within a community, and is not itself subject to any superior Government. These two factors, the one positive, the other negative, the exercise of power and the absence of superior control, compose the notion of sovereignty, and are essential to it.” (Montague Bernard, Neutrality of Great Britain during the American Civil War.)

“The State is a particular portion of mankind viewed as an organized unit, and its characteristics are the comprehension of individuals within its territory, the exclusiveness of its powers, its permanence and its sovereignty, that is its absolute, unlimited, and universal power over individuals who are its subjects. These constitute the essence of a State.” (Burgess, Political Sc., I., p. 51–2.)

“The State is now the people in sovereign organization. This is an immense advance in the development of the State. It is the beginning of the modern political era. Under its educating influence the consciousness of the State spreads rapidly to the great mass of the population, and the idea of the State becomes completely secularized and popularized. The doctrine that the people, in ultimate sovereign organization, are the State, becomes a formulated principle of the schools, and of political science and literature. The jurists and publicists, and the moral philosophers, lead in the evolution of the idea. The warriors and the priests are assigned to the second place. The sovereign people turn their attention to the perfecting of their own organization. They lay hands upon the royal power. They strip it of its apparent sovereignty, and make it purely office. If it accommodates itself to the position, it is allowed to exist; if not, it is cast aside. At last the State knows itself, and is able to take care of itself. The fictions, the make-shifts, the temporary supports, have done their work, and done it successfully. They are now swept away. The structure stands upon its own foundation. The State, the realization of the universal in man, in sovereign organization over the particular, is at last established—the product of the progressive revelation of the human reason through history.” (Burgess, id., p. 66.)

“A colony is, at the outset, no State. It is local government, with perhaps more or less of local autonomy. It may grow to contain in itself the elements to form a State, and may become a State by revolution, or by peaceable severance from the motherland; but before this, there is one simple State, and after it, there are two simple States, but at no time is there a compound State. If the motherland should so extend its state organization as to include the colony as active participant in the same, the state organization would still be simple; it would only be widened. A larger proportion of the population of such a State would be thereby introduced into the sovereign body. The only change which could be effected in this manner, as to the form of State, would be possibly the advance from monarchy to aristocracy, from aristocracy to democracy. The sovereignty would not be divided between the motherland and the colony, for the sovereignty is and must be a unit. It must be wholly in the motherland or wholly in the motherland and colony, as one consolidated, not compounded, organization.” (Burgess, id., p. 77–8.)

Federal Significance.—The term “State” has also a special meaning applied to a federal system. In federal nomenclature a State is one of a number of communities formerly autonomous and self-governing, such as the States of America, and the States of Germany, which have agreed to transfer a portion of their political power to a union of the States, in the governing operations of which they retain an active share. Internationally such communities have no status as States; they are States only in a titular sense. “The old States become parts of the government in the new State, and nothing more. It is no longer proper to call them States at all. It is in fact only a title of honour, without any corresponding substance.” (Burgess, Political Sc., I., p. 80.) They could, with equal convenience and propriety, be designated by other names, such as the Provinces of Canada, and the Cantons of Switzerland. Blackstone's definition, and all other standard definitions of a State would, of course, be quite inapplicable to those communities called “States” which are merely parts of a federal or national State, using those terms in the same sense previously discussed. A “State,” therefore, in the ordinary sense of a federal constitution, is said to be a political community of free


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citizens, occupying a territory of defined boundaries, and organized with other similar communities, under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States, under a common constitution, that forms the distinct and greater political unit which the American constitution designates as the United States. (Texas v. White, 7 Wall., 721) A State such as one of the United States of America is a body of political co-equals, or units, commonly called “the people,” in whom, as electors, the sovereign and uncontrollable power originally resides, and whose will, as expressed and proclaimed by them in their written Constitution, is their sole organic law and bond of political existence. The United States are a community of such States, politically united only by a federal constitution and general government founded therein. (Bateman, Political and Constitutional Law, p. 21.)

“The States were not ‘sovereigns’ in the sense contended for by some. They did not possess the peculiar features of sovereignty—they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any proposition from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. On the other side, if the union of the States comprises the idea of a confederation, it comprises that also of consolidation. A union of the States is a union of the men composing them, from whence a national character results to the whole. Congress can act alone without the States, they can act (and their acts will be binding) against the instructions of the States. If they declare war, war is de jure declared; captures made in pursuance of it are lawful; no acts of the States can vary the situation, or prevent the judicial consequences. If the States, therefore, retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. If they formed a confederacy in some respects, they formed a nation in others. The Convention could clearly deliberate on and propose any alterations that Congress could have done under the Federal Articles. And could not Congress propose, by virtue of the last article, a change in any article whatever, and as well that relating to the equality of suffrage as any other? He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the States; but thought that much of their power ought to be taken from them.” (Rufus King in the Federal Convention 1788; Elliott's Debates 2nd ed. V., pp. 212–213)

“Some contend that the States are sovereign, when in fact they are only political societies. The States never possessed the essential rights of sovereignty. They were always vested in Congress. Their voting as States in Congress is no evidence of their sovereignty. The State of Maryland voted by counties. Did this make the counties sovereign? The States, at present, are only great corporations, having the power of making by laws, and these are effectual only if they are not contradictory to the general confederation.” (Madison in the Federal Convention; Elliott's Debates 2nd ed. I., p. 461.)

A great controversy went on in America for many years as to whether the States, as integrated in the federal constitution, formed a union of independent commonwealths acting together for the limited purposes of general government, or whether they formed a single sovereign and independent political State composed of the whole mass of the American people. A few years before 1889, when Mr. Bryce published his book, the American Protestant-Episcopal Church at its annual Convention introduced, among the short sentence prayers, one suggested by an eminent New England divine, “O Lord, bless our nation.” Next day the prayer was brought up for reconsideration, when so many objections were raised by the laity to the word nation, as importing a recognition of national unity, that it was dropped, and instead were adopted the words, “O Lord, bless the United States.” Referring to this incident Mr. Bryce says:—

“But it is only the expression, on its sentimental side, of the most striking and pervading characteristic of the political system of the country, the existence of a double government, a double allegiance, a double patriotism. America is a Commonwealth of commonwealths, a Republic of republics, a State which, while one, is nevertheless composed of other States even more essential to its existence than it is to theirs.” (The American Commonwealth, I., p. 12.)

“The acceptance of the Constitution of 1789 made the American people a nation. It turned what had been a League of States into a Federal State, by giving it a National Government, with direct authority over all citizens. But as this national government


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was not to supersede the governments of the States, the problem which the Constitution-makers had to solve was two-fold. They had to create a central government. They had also to determine the relations of this central government to the States as well as to the individual citizen. An exposition of the Constitution and criticism of its working must therefore deal with it in these two aspects; as a system of national government built up of executive powers and legislative bodies, like the monarchy of England or the republic of France, and as a Federal system linking together and regulating the relations of a number of commonwealths which are for certain purposes, but for certain purposes only, subordinated to it.” (Id., p. 29.)

“The government of the United States is federal government. By this I do not mean that the central government alone is a federal government. It is true that this term is generally applied to it, but I think this arises from the mistaken assumption that it is the government of a federal State. I think I have shown that there is no such thing as a federal State; that, in what is usually called the federal system, one State employs two separate and largely independent governmental organizations in the work of government. What I mean, therefore, in the proposition that the government of the United States is federal government, is that the whole governmental system is federal and that the central government is one of two governmental organizations employed by the State.” (Burgess, Political Sc. II., p. 18.)

A CONFEDERACY.—A confederacy is not a State. The members of the confederacy remain separate States. The confederacy has no sovereignty; it is merely a system of government founded on inter-state treaty dissolvable at will.

COMMONWEALTH AND STATES.—As we have already seen, Dr. Burgess contends that there is no such thing as a federal State. A federation, he says, is merely a dual system of government under a common sovereignty. (Political Sc., I., p. 79.) This definition is partly in conflict with that of Professor Dicey, who recognizes the possibility of a federal State, which he defines as a political contrivance intended to reconcile national unity and power with the maintenance of State rights. (Law of the Constitution, p. 131.) It does not agree with that of Mr. Bryce, who in the foregoing passage describes the United States as a Federal State. (American Comm., p. 12.)

From this conflict of literary authority we turn to the Imperial Act constituting the Commonwealth, where we find it described as a Federal Commonwealth, and we may assume that the expression is there used by the framers in either the first or the second of the four meanings already analysed (see Note, § No. 27, “Federal,” supra), viz., as (1) descriptive of a union of States, linked together as co-equal societies, forming one political system, regulated and co-ordinated in their relations to one another by a common Constitution; or (2) as descriptive of the new community formed by such union. In this Act the term “States” is used as descriptive of those co-equal societies.

The Commonwealth, in almost every feature, answers the German expression Bundesstaat or composite State. In this sense it may be described as a single State which is administered by a dual system of government—one set of ruling organs dealing with those matters common to the whole State and another dealing with those relating to the several communities, considered as separate entities. (R. R. Garran, The Coming Commonwealth, p. 17.)

NATION.—As an abstract definition, a Nation may be described as a population of ethnic unity inhabiting a territory of geographic unity. By ethnic unity is meant a population having a common language, a common literature, common traditions and history, common customs, and a common consciousness of rights and wrongs. By geographic unity is meant a territory separated from other territory by natural physical boundaries. The nation, as thus defined, is the nation in perfect and complete existence, and this is hardly as yet anywhere to be found. (Burgess, Political Science, I., p. 2.) Where geographic and ethnic unities coincide, or very nearly coincide, the nation is almost sure to become a State. The nation must pass through many preliminary stages in its development before it reaches the maturity of a political State. (Id. p. 3.)

“Not all nations, however, are endowed with political capacity or great political impulse. Frequently the national genius expends itself in the production of language, art, or religion; frequently it shows itself too feeble to bring even these to any degree of perfection. The highest talent for political organization has been exhibited by the Aryan


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nations and by these unequally. Those of them remaining in the Asiatic home have created no real States; and the European branches manifest great differences of capacity in this respect. The Celt, for instance, has shown almost none; the Greek but little, while the Teuton really dominates the world by his superior political genius. It is therefore not to be assumed that every nation must become a State. The political subjection or attachment of the unpolitical nations to those possessing political endowment appears, if we may judge from history, to be as truly a part of the course of the world's civilization as is the national organization of States. I do not think that Asia and Africa can ever receive political organization in any other way. Of course, in such a state of things, the dominant nation should spare, as far as possible, the language, literature, art, religion and innocent customs of the subject nation; but in law and politics it is referred wholly to its own consciousness of justice and expedience. Lastly, a nation may be divided into two or more States on account of territorial separation — as for example, the English and the North American, the Spanish-Portuguese and the South American — and one of the results of this division will be the development of new and distinct national traits. From these reflections, I trust that it will be manifest to the mind of every reader how very important it is to distinguish clearly the nation, both in word and idea, from the State; preserving to the former its ethnic signification, and using the latter exclusively as a term of law and politics. (Burgess, Political Sc., I., pp. 3–4.)

§ 45. “Parts of the Commonwealth.”

TERRITORIALITY OF THE COMMONWEALTH.—The territorial basis of the Commonwealth has been already briefly referred to. The above words so clearly and emphatically establish this principle, that special attention should be drawn to them at this stage. Grotius, in his celebrated treatise, wrote: “There are commonly two things which are subject to sovereignty (Imperium); first, persons, which alone sometimes suffice, as an army of men, women and children seeking new plantations; secondly, lands, which are called territory.” (De Jure Belli et Pace II, pp. 3 and 4.) The case contemplated by Grotius as presenting the possible condition of a non-territorial sovereignty could scarcely occur in our time. It would be difficult to recognize the existence of a State without its undisputed possession of a defined territory; the only approach to such a phenomenon that might temporarily arise would be a rebel army wandering from place to place and recognized as a belligerent, which is tantamount to being recognized as a State. (Encyc. of the Law of England, Vol. xi. p. 710.) This, however, would be a feeble example of a State. It would have, at best, a precarious existence; its occupation of territory would be shifting, uncertain, and undefined; it would lack that continuity, cohesion, and recognition which are the essential attributes of a State. On the whole, therefore, the dictum of this distinguished jurist, whatever possible application it might have had in his time (1583–1645), may be regarded as untenable in the present age, in which territorial occupation is looked upon as one of the most important factors of the constitution of a true State. The inevitable tendency towards the establishment of territorial sovereignty, as an advance on personal and tribal sovereignty, is an historical fact of great significance. It is thus referred to by Sir Henry Maine:—

“From the moment when a tribal community settles down finally upon a definite space of land, the Land begins to be the basis of society in place of Kinship. The constitution of the Family through actual blood-relationship is of course an observable fact, but, for all groups of men larger than the Family, the Land on which they live tends to become the bond of union between them at the expense of Kinship, ever more and more vaguely conceived. We can trace the development of idea both in the large and now extremely miscellaneous aggregations of men combined in States or Political Communities, and also in the smaller aggregations collected in Village-Communities and Manors, among whom landed property took rise. The barbarian invaders of the Western Roman Empire, though not uninfluenced by former settlements in older homes, brought back to Western Europe a mass of tribal ideas which the Roman dominion had banished from it; but, from the moment of their final occupation of definite territories, a transformation of these ideas began. Some years ago I pointed out (Ancient Law, pp. 103 et seq.) the evidence furnished by the history of International Law that the notion of territorial sovereignty, which is the basis of the International system, and which is inseparably connected with dominion over a definite area of land, very slowly substituted


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itself for the notion of tribal sovereignty. Clear traces of the change are to be seen in the official style of kings Of our own kings, King John was the first who always called himself King of England. (Freeman, ‘Norman Conquest,’ 1, 82, 84.) His predecessors commonly or always called themselves Kings of the English. The style of the king reflected the older tribal sovereignty for a much longer time in France. The title of King of France may no doubt have come into use in the vernacular soon after the accession of the dynasty of Capet, but it is an impressive fact that, even at the time of the Massacre of St Bartholomew, the Kings of France were still in Latin Reges Francorum, and Henry the Fourth only abandoned the designation because it could not be got to fit in conveniently on his coins with the title of King of Navarre, the purely feudal and territorial principality of the Bourbons. (Freeman, loc. cit.) We may bring home to ourselves the transformation of idea in another way. England was once the country which Englishmen inhabited. Englishmen are now the people who inhabit England. The descendants of our forefathers keep up the tradition of kinship by calling themselves men of English race, but they tend steadily to become Americans and Australians. I do not say that the notion of consanguinity is absolutely lost, but it is extremely diluted, and quite subordinated to the newer view of the territorial constitution of nations. The blended ideas are reflected in such an expression as ‘Fatherland,’ which is itself an index to the fact that our thoughts cannot separate national kinship from common country. No doubt it is true that in our day the older conception of national union through consanguinity has seemed to be revived by theories which are sometimes called generally theories of Nationality, and of which particular forms are known to us as Pan-Sclavism and Pan-Teutonism. Such theories are in truth a product of modern philology, and have grown out of the assumption that linguistic affinities prove community of blood. But wherever the political theory of Nationality is distinctly conceived, it amounts to a claim that men of the same race shall be included, not in the same tribal, but in the same territorial sovereignty. We can perceive, from the records of the Hellenic and Latin city-communities, that there, and probably over a great part of the world, the substitution of common territory for common race, as the basis of national union, was slow, and not accomplished without very violent struggles.” (Maine's Early History of Institutions, 72–75.)

§ 46. “Such of the Colonies.”

NEW SOUTH WALES.—The area of this colony, the oldest established of the Australian group, is 306,066 square miles. It is bounded on the east by the Pacific ocean, on the south by the colony of Victoria, on the north by the colony of Queensland, and on the west by the colony of South Australia. Population, 31st Dec., 1899, 1,348,400; public revenue from all sources, 1898–9, £9,572,912. Executive Government at the passing of the Commonwealth of Australia Constitution Act:—Governor and Commander-in-Chief, the Right Honourable William Earl Beauchamp, K.C.M.G.; Lieutenant-Governor, Sir Frederick Matthew Darley, K.C.M.G., C.J. Administration—Premier, Colonial Treasurer, and Minister for Railways, Sir William J. Lyne; Colonial Secretary, the Hon. John See; Secretary for Lands, the Hon. T. H. Hassall; Secretary for Public Works, the Hon. E. W. O'Sullivan; Attorney-General, the Hon. B. R. Wise, Q.C.; Minister for Public Instruction and Industry, the Hon. John Perry; Minister for Justice, the the Hon. W. H. Wood; Secretary for Mines and Agriculture, the Hon. J. L. Fegan; Postmaster-General, the Hon. W. P. Crick; Representative in the Legislative Council, the Hon. F. B. Suttor.

NEW ZEALAND.—There are two principal islands, known as the North and Middle Islands, besides the South or Stewart's Island, and small outlying islands. The group is nearly 1,000 miles long, and 200 miles across at the broadest part. Its coast line extends over 4,000 miles. New Zealand is situated 1,200 miles to the east of the Australian continent. The area of New Zealand is estimated to embrace 104,471 square miles, of which the North Island comprises 44,468 square miles, the Middle Island 58,525, and Stewart's Island 665 square miles. Population, 31st Dec., 1898, 743,463; public revenue, 1898–9, £5,258,228. Executive Government at the passing of the Commonwealth of Australia Constitution Act:—Governor and Commander-in-Chief, the Right Hon. the Earl of Ranfurly, K.C.M.G. Administration—Premier, Treasurer, Commissioner of Trade and Customs, Minister of Labour, Minister of Native Affairs, the Right Hon. R. J. Seddon, P.C.; Colonial Secretary, Postmaster-General, Minister of


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Railways, Industries, and Commerce, the Hon. J. G. Ward; Minister of Lands and Agriculture, Commissioner of Forests, the Hon. J. McKenzie; Commissioner of Stamp Duties and Member representing the Native Races, the Hon. J. Carroll; Minister of Education, Immigration and in charge of Hospitals and Charities, the Hon. W. C. Walker; Minister of Public Works, Marine and Printing Office, the Hon. W. Hall-Jones; Minister for Justice and Defence, the Hon. J. Thompson.

QUEENSLAND.—Queensland comprises the whole north-eastern portion of the Australian continent, including the adjacent islands in the Pacific Ocean and in the Gulf of Carpentaria. The territory is of an estimated area of 668,497 English square miles, with a seaboard of 2,550 miles. Population, 31st Dec., 1899, 482,400; public revenue, 1898–9, £4,174,086. Executive Government at the passing of the Commonwealth of Australia Constitution:—Governor and Commander-in-Chief, the Right Hon. Baron Lamington, K.C.M.G.; Lieutenant-Governor, Sir Samuel W. Griffith, G.C.M.G., C.J. Administration—Premier, Treasurer, and Secretary for Mines, the Hon. Robert Philp; Chief Secretary, the Hon. J. R. Dickson, C.M.G.; Home Secretary, the Hon. J. F. G. Foxton; Attorney-General, the Hon. Arthur Rutledge, Q.C.; Secretary for Public Lands, the Hon. W. B. H. O'Connell; Secretary for Railways and Public Works, the Hon. John Murray; Secretary for Agriculture, the Hon. J. V. Chataway; Postmaster-General and Secretary for Public Instruction, the Hon. J. G. Drake; Ministers without portfolios, the Hon. G. W. Gray and D. H. Dalrymple.

TASMANIA.—The area of the colony is estimated at 26,215 square miles, of which 24,330 square miles form the area of Tasmania proper, the rest constituting that of a number of small islands, in two main groups, the north-east and north-west. Population, 31st Dec., 1899, 182,300; public revenue, 1898–9, £908,223. Executive Government at the passing of the Commonwealth of Australia Constitution Act:—Captain-General and Governor-in-Chief, Viscount Gormanston, K.C.M.G. Administration—Premier and Attorney-General, the Hon. N. E. Lewis; Chief Secretary, the Hon. G. T. Collins; Treasurer, the Hon. B. S. Bird; Minister of Lands, Works, and Mines, the Hon. E. Mulcahy; without portfolio, the Hon. F. W. Piesse.

VICTORIA.—Victoria is bounded on the north and north-east by a straight line drawn from Cape Howe to the nearest source of the river Murray, thence by the course of that river to the eastern boundary of the colony of South Australia, thence by that boundary to the Southern Ocean. It has an area of 87,885 square miles. Population, 31st Dec., 1899, 1,162,900; public revenue, 1898–9, £7,396,943. Executive Government at the passing of the Commonwealth of Australia Constitution Act:—Lieutenant-Governor, the Hon. Sir John Madden, K.C.M.G., C.J. Administration—Premier and Chief Secretary, the Hon. Allan McLean; Treasurer, the Hon. Wm. Shiels; Attorney-General, the Hon. Wm. Hill Irvine; Solicitor-General, the Hon. John M. Davies; Minister of Mines, Water Supply, and Railways, the Hon. Alfred R. Outtrim; Minister of Public Works and Agriculture, the Hon. Geo. Graham; Minister of Lands, the Hon. James McColl; Minister of Education and Trade and Customs, the Hon. Dr. Charles Carty Salmon; Postmaster-General, the Hon. Wm. A. Watt; Minister of Defence and Public Health, the Hon. Donald Melville; without portfolio, the Hon. James Balfour.

SOUTH AUSTRALIA.—The original boundaries of the province, according to the statute of 4 and 5 Will. IV. c. 95, were fixed between 132° and 141° E. long. as its eastern and western boundaries, the 26° of S. lat. as its northern limit and bounded on the south by the Southern Ocean. The boundaries were subsequently extended; under the statute of 24 and 25 Vic. c. 44, a strip of land between 132° and 129° E. long. was added on October 10th, 1861. (Statesman's Year Book, 1899; Webb's Imperial Law, p. 99.) The total area of South Australia proper is 380,070 square miles; and including the Northern Territory it is calculated to amount to 903,690 square miles. Population, 31st Dec., 1899, 370,700; public revenue, 1898–9, £2,731,208. Executive Government at the passing


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of the Commonwealth of Australia Constitution Act:—Governor and Commander-in-Chief, the Right Hon. Baron Tennyson, K.C.M.G.; Lieutenant-Governor, the Right Hon. Sir S. J. Way, Bart., J.C. Administration—Premier and Treasurer, the Hon. F. W. Holder; Chief Secretary, the Hon. G. Jenkins; Attorney-General, the Hon. John H. Gordon; Commissioner of Lands and Minister for Mines, the Hon. L. O'Loughlin; Commissioner of Public Works, the Hon. R. W. Foster; Minister of Education and Agriculture, the Hon. E. L. Batchelor.

NORTHERN TERRITORY.—The Northern Territory of South Australia, formerly known as Alexandra Land, embraces an immense tract of country, and contains an area of about 523,620 square miles. It is bounded on the north by the Indian Ocean—that portion of it known as the Arafura Sea; on the south by the 26th parallel of south latitude, which is the line of demarcation between it and South Australia proper; on the east by the 138th meridian of east longitude, which divides it from Queensland; and on the west by the 129th meridian of east longitude, which separates it from Western Australia. It also comprises all the bays, gulfs, and adjacent islands on its northern coasts. The eastern boundary line of this territory cuts the coast near the mouth of the Wentworth river, on the south-east coast of the Gulf of Carpentaria, and the western boundary near Cape Domett, in Cambridge Gulf. (Aust. Hand Book [1900], p. 390.)

The Home Government originally proposed to annex this territory to Queensland; but, in consequence of the favourable report given by Mr. John M‘Douall Stuart (the explorer) of the country on the northern coast, the South Australian Government petitioned the Home Government for its annexation to South Australia. This request was granted, and by royal letters patent of 6th July, 1863, a “supplementary commission’ was issued extending the boundaries of that colony accordingly. The letters patent recited the provision of the Act (5 and 6 Vic. c. 76, sec. 51), empowering the Queen by letters patent to separate from New South Wales any part of the territory of that colony lying to the northward of 26° south latitude, and to erect the same into a separate colony or colonies (see p. 72, supra). They also recited the Act (24 and 25 Vic. c. 44, sec. 2), which empowered the Queen to annex to any Australian colony any territories which in the exercise of the above powers might have been erected into a separate colony; with a proviso that it should be lawful for the Queen in such letters patent to reserve the power of revoking or altering the same, and also on such revocation to exercise the power again. The letters patent then proceeded to declare that “We have thought fit, in pursuance of the powers so vested in Us, and of all other powers and authorities to Us in that behalf belonging, to annex, and we do hereby annex to Our said colony of South Australia, until We think fit to make other disposition thereof,” so much of the colony of New South Wales as lies to the northward of 26° south latitude, and between 129° and 138° east longitude, together with the bays, gulfs, and adjacent islands; “and we do hereby reserve to Us, Our heirs and successors, full power and authority from time to time to revoke, alter, or amend these Our letters patent, as to Us or them shall seem fit.” (Parl. Papers [S.A.]. 1896, Vol. ii., No. 113.)

WESTERN AUSTRALIA.—As defined by Royal Commission, Western Australia includes all that portion of the continent situated to the westward of 129° E. longitude. The greatest length of this territory from Cape Londonderry in the north to Peak Head (south of King George's Sound) in the south is 1,450 miles, and its breadth from Steep Point near Dirk Hartog's Island, on the west, to the 129th meridian, on the east, about 850 miles. According to the latest computation, the total estimated area of the colony is 975,920 English square miles, including islands. Population 31st December, 1898—168,129; public revenue, 1898–9—£2,478,811. Executive Government at the passing of the Commonwealth of Australia Constitution Act:—Governor and Commander-in-Chief, Lieutenant-Colonel Sir Gerard Smith, K.C.M.G. Administration: Premier and Colonial Treasurer—The Right Hon. Sir John Forrest, P.C., K.C.M.G.; Commissioner of Railways and Director of Public Works—the Hon. F. H. Piesse; Minister for Crown Lands—the Hon. G. Throssell; Minister of Mines—the Hon. H. B. Lefroy; Attorney-General—the


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Hon. R. W. Pennefather; Colonial Secretary—the Hon. G. Randell; without portfolio—the Hon. S. Burt, Q.C.

§ 47. “Colonies or Territories.”

The only “States” at the outset will be the “Original States,” namely, New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania. But under sec. 121 the Federal Parliament may admit or establish new States; and any colonies or territories which are so established as States will thenceforth be included in the definition. Apart from New Zealand and the northern Territory of South Australia, new States are hardly likely to be formed except by the sub-division of existing States.

TERRITORIES.—A description may here be given of the chief Australasian territories which are likely, in time, to become territories of the Commonwealth—though their size or political condition, or both, render it unlikely that any of them will be admitted to the rank of States.

NORFOLK ISLAND.—This island, about five miles in length, and three in breadth, situated 900 miles from the Australian main land, and 1,100 miles from Sydney, was discovered by Captain Cook, on 9th October, 1774. It is said to be one of the most beautiful spots in the Pacific. The inhabitants are governed, since 14th November, 1896, by a Resident Magistrate, and an elective Council of 12 members; they are subject to the instructions of the Governor of New South Wales, who is expected to visit it once during his term of office. Area, 10 square miles; population about 750.

LORD HOWE ISLAND.—This picturesque island, seven miles in length, and about one and half miles in breadth, situated about 400 miles from Sydney, was discovered by Lieutenant Ball, on 14th February, 1788, whilst on a voyage in H.M.S. Supply from Port Jackson to found a Settlement at Norfolk Island. It is administered by the Government of New South Wales, and since 1882, it has been under the jurisdiction of a visiting Magistrate from Sydney. Population, 55.

FIJI.—The Fiji Islands were ceded to the Queen by the Chiefs and people thereof, and the British flag was hoisted on 10th October, 1874. Rotumah was annexed in December, 1880. The islands are ruled by a Governor, assisted by an Executive and a Legislative Council. There are about 80 inhabited islands in the group, containing a total area, including Rotumah, of about 8,000 square miles, and having a population of 121,180; of whom 99,773 are Fijians, and the rest Indians, Polynesians, Rotumans, and Europeans.

NEW GUINEA.—By letters patent, dated 8th June, 1888, British New Guinea was erected into a separate possession, as part of the Queen's dominions. Its area is calculated to include about 86,000 square miles. The territory is at present governed by a local administrator, assisted by an Executive Council; the sum of £15,000 per year being guaranteed by the colonies of Queensland, New South Wales, and Victoria towards the expenses of governing the territory.

Repeal of Federal Council Act. (48 and 49 Vic. c. 60.)

7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia48 and in force at the establishment of the Commonwealth.

Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.




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HISTORICAL NOTE.—Clause 6 of the Commonwealth Bill of 1891 was in almost identical words, and was adopted by the convention of 1897–8 without debate. At the Melbourne session, verbal amendments were made before the first report and after the fourth report.

§ 48. “Laws Passed by the Federal Council.”

The following Acts have been passed by the Federal Council, viz:—

(1.) 49 Vic. No. 1. An Act for shortening the language used in Acts of the Federal Council of Australasia. Cited as “The Federal Council Interpretation Act, 1886.” (Vic. Gov. Gaz., 19 Feb., 1886, p. 396.)

(2.) 49 Vic. No. 2. An Act to facilitate the proof throughout the Federation of Acts of the Federal Council and of the Acts of the Parliaments of the Australasian Colonies, and of Judicial and Official Documents and of the Signatures of certain Public Officers. Cited as “The Federal Council Evidence Act, 1886.” (Vic. Gov. Gaz., 19 Feb., 1886, p. 397.)

(3.) 49 Vic. No. 3. An Act to authorize the service of Civil Process out of the jurisdiction of the colony in which it is issued. Cited as “The Australasian Civil Process Act, 1886.” (Vic. Gov. Gaz., 19 Feb., 1886, p. 397.)

(4.) 49 Vic. No. 4. An Act to make provision for the enforcement within the Federation of judgments of the Supreme Court of the Colonies of the Federation. Cited as “The Australasian Judgments Act, 1886.” (Vic. Gov. Gaz., 19 Feb., 1886, p. 398.)

(5.) 51 Vic. No. 1. An Act to regulate the Pearl Shell and Beche de mer Fisheries in Australasian waters adjacent to the colony of Queensland. Cited as “The Queensland Pearl Shell and Beche de mer Fisheries (extra-territorial) Act, 1888.” Reserved for the Royal assent 20 Jan., 1888, and proclaimed 19 July, 1888. (Vic. Gov. Gaz., 17 Aug., 1888, p. 2576; 31 Aug., 1888, p. 2706; and 7 Sept., 1888, p. 2753.)

(6.) 52 Vic. No. 1. An Act to regulate the Pearl Shell and Beche de mer Fisheries in Australasian waters adjacent to the colony of Western Australia. Cited as “The Western Australian Pearl Shell and Beche de mer Fisheries (extra-territorial) Act of 1889.” Reserved for the Royal assent 4 Feb. 1889, and proclaimed 18 Jan., 1890. (Vic. Gov. Gaz., 31 Jan., 1890, p. 332.)

(7.) 54 Vic. No. 1. An Act to facilitate the recognition in other colonies of Orders and Declarations of the Supreme Court of any colony in matters of Lunacy. Cited as “The Australasian Orders in Lunacy Act, 1891.” (Vic. Gov. Gaz., 17 Feb., 1891, p. 903.)

(7.) 56 Vic. No. 1. An Act to make provision for the Discipline and Government of the Garrisons established at King George's Sound and Thursday Island at the joint expense of the Australian Colonies or some of them (3 Feb., 1893). Cited as “The Federal Garrisons Act, 1893.” (Published in the Vic. Gov. Gaz., 3 March, 1893, p. 1131.)

(8.) 60 Vic. No. 1. An Act to provide for the naturalization within the Australian Colonies, or some of them, of persons of European descent naturalized in any of such colonies (1 Feb., 1897). Cited as “The Australasian Naturalization Act, 1897.” (Vic. Gov. Gaz., 19 March, 1897, pp. 1121–2.)

(9.) 60 Vic. No. 2. An Act to make provisions for the enforcement in certain cases within the Australasian Colonies, or some of them, of Orders of the Supreme Courts of such Colonies for the production of Testamentary Instruments (1 Feb., 1897). Cited as “The Australasian Testamentary Process Act, 1897.” (Vic. Gov. Gaz., 19 March, 1897, p. 1123.)

The colonies represented in the Federal Council were:—Victoria, Queensland, Western Australia, Tasmania, Fiji; and also, for a period of two years (from 10th December, 1888, to 10th December, 1890), South Australia. (See Historical Introduction, p. 114, supra.)




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Application of Colonial Boundaries Act. (58 and 59 Vic. c. 34.)

8. After the passing of this Act the Colonial Boundaries Act, 189549, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.

HISTORICAL NOTE.—At the Melbourne Session of the Convention, after the first report, this clause was proposed by Mr. O'Connor in precisely the form in which it now stands. (Conv. Deb., Melb., pp. 1,826-7.)

§ 49. “Colonial Boundaries Act.”

This is an Act to provide, in certain cases, for the alteration of the boundaries of self-governing colonies. It provides as follows:—

  • (i.) Where the boundaries of a colony have, either before or after the passing of this Act, been altered by Her Majesty the Queen by Order-in-Council or letters-patent, the boundaries as so altered shall be, and be deemed to have been from the date of the alteration, the boundaries of the colony.
  • (ii.) Provided that the consent of a self-governing colony shall be required for the alteration of the boundaries thereof.
  • (iii.) In this Act “self-governing colony” means any of the colonies specified in the schedule to this Act.

SCHEDULE.

SELF-GOVERNING COLONIES

       
Canada.  South Australia.  New Zealand. 
Newfoundland.  Queensland.  Cape of Good Hope. 
New South Wales.  Western Australia.  Natal. 
Victoria.  Tasmania. 

The effect of this clause is to make the Colonial Boundaries Act apply, not to the separate States of the Commonwealth, but to the Commonwealth as a whole—just as it applies to the Dominion of Canada as a whole. In other words, the colonies which become States are in effect struck out of the schedule, and the Commonwealth of Australia is substituted.

The purpose of the Act is to confer general statutory authority on the Queen to alter the boundaries of a self-governing colony, with the consent of that colony, without the necessity of resorting to Imperial legislation in every case.

The reason for repealing the Act, so far as it applied to colonies which become States of the Commonwealth, is that the Constitution itself makes provision for the alteration of the boundaries of States. Sec. 123 provides that the Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of a majority of voters in the State, alter the limits of the State.

Now, therefore, the Colonial Boundaries Act only applies to the alteration of the boundaries of the Commonwealth. Apart altogether from that Act, the Commonwealth has power under section 121 to alter the boundaries of the Commonwealth by admitting new States; and sec. 122 contemplates, and perhaps impliedly gives, the power to accept or acquire new territories.

The first question is—What constitutes the consent of the Commonwealth within the meaning of the Colonial Boundaries Act? The consent of a colony is ordinarily given by its Legislature; and the consent here intended is evidently the consent of the Parliament of the Commonwealth. It may indeed be contended that by the Commonwealth, which is described in the Colonial Boundaries Act, as “a self-governing colony,” is meant the community; and that the consent of the community cannot be given either


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by the Parliament of the Commonwealth or by the Parliaments of the States, or both, but only by the community in quasi-sovereign organization—i.e., by the amending power. This, however, was certainly not the intention of the framers of the Colonial Boundaries Act, or of the Federal Constitution; whatever may be the teachings of political science as to the seat of quasi-sovereignty in the Commonwealth. The consent of Canada under the Colonial Boundaries Act is clearly to be given by the Parliament of Canada; and the consent of the Commonwealth means the consent of the Parliament of the Commonwealth. That is to say, the word “Commonwealth” is used here as in other provisions as referring to the central governing organs of the Commonwealth. (See notes § 17 and § 43 “Commonwealth,” supra.)

Where the alteration of the boundaries of the Commonwealth involves merely territory which is not part of any State, the clause presents no further difficulty; but where it involves the alteration of the limits of a State, it becomes a question whether in addition to the consent of the Parliament of the Commonwealth, the consent of the Parliament and electors of the State is also necessary. The Colonial Boundaries Act, as amended by the Constitution Act, provides that Orders in Council, or letters patent, altering the boundaries of the Commonwealth, shall be valid if made with the consent of the Commonwealth; sec. 123 of the Constitution provides that the Parliament of the Commonwealth may, with the consent of the Parliament and a majority of the electors of a State, alter the limits of the State. The latter section certainly implies that the Parliament of the Commonwealth may not alter the limits of a State without such consent. The question is whether, in consenting to an alteration of boundaries by the Queen, the Parliament can be said to alter the limits of a State. Under sec. 123, the Parliament of the Commonwealth makes the alteration; under the Colonial Boundaries Act, the Queen makes the alteration, and the Parliament of the Commonwealth merely consents. It is certainly open to argument that the consent of the Commonwealth, in such a case, is in effect an alteration of the limits of a State by the Commonwealth, and therefore that the Parliament of the Commonwealth cannot lawfully give such consent without the consent of the Parliament of the State, and the approval of a majority of the electors.

Constitution.

9. The Constitution50 of the Commonwealth shall be as follows:—

THE CONSTITUTION.

This Constitution is divided as follows:—

Chapter I.—The Parliament:

Part I.—General:

Part II.—The Senate:

Part III.—The House of Representatives:

Part IV.—Both Houses of the Parliament:

Part V.—Powers of the Parliament:

Chapter II.—The Executive Government:

Chapter III.—The Judicature:

Chapter IV.—Finance and Trade:

Chapter V.—The States:

Chapter VI.—New States:

Chapter VII.—Miscellaneous:

Chapter VIII.—Alteration of the Constitution:

The Schedule.




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HISTORICAL NOTE.—The division of the Constitution into Chapters and Parts is precisely the same as in the Commonwealth Bill of 1891. At the Adelaide Session, 1897, the wording of the Bill of 1891 was followed exactly. At the Melbourne Session, after the fourth report, a few verbal changes were made—notably the substitution of “Alteration” for “Amendment;” but the mode of division remained unchanged.

In the Bill as introduced into the Imperial Parliament, the clause was altered to read:—“Subject to the foregoing provisions, the Constitution of the Commonwealth shall be as set forth in the schedule to this Act.” The Constitution was appended as a schedule. In Committee, however, the clause was restored to its original shape. (See Hist. Intro., pp. 242, 248, supra.)

§ 50. “The Constitution.”

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

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

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




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

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

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

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

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


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

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

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

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

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

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

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


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

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