previous
next

I. Commentaries on the Constitution of the Commonwealth of Australia.




  ― 281 ―

1. Title and Preamble

An Act1 to constitute the Commonwealth of Australia.

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

§ 1. “An Act.”

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

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

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

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

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

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

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

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

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

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

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


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

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

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

Preamble.

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

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

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




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

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

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

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

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

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


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

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

§ 2. “Whereas.”

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

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

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


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

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

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

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

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

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

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

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

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

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

§ 3. “The People.”

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

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

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


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

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

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

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

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

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

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


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

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

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

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


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

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

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

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


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

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

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


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

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

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

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

§ 5. “Have Agreed.”

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

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


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

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


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

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

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

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

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

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

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


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

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

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

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

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

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


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

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

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

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

§ 7. “Under the Crown.”

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




  ― 295 ―

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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




  ― 298 ―

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

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

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

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

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


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

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

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

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




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

§ 9. “Under the Constitution.”

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


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

§ 10. “Hereby Established.”

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

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

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

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

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


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

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

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

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

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


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

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

§ 12. “Of the Lords Spiritual.”

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

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

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


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

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

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

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

§ 13. “And Temporal.”

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


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

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

§ 14. “And Commons.”

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

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

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




  ― 306 ―

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

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

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

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

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

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


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

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

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

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

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

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


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

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

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

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

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


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

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

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

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


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

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

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

Short Title

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

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

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




  ― 311 ―

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


  ― 312 ―
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,


  ― 313 ―
‘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,


  ― 314 ―
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.




  ― 315 ―

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


  ― 316 ―
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


  ― 317 ―
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.



  •   ― 318 ―
  • (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.



    •   ― 319 ―
    • (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.




  ― 320 ―

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—


  ― 321 ―
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.-


  ― 322 ―
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.



  •   ― 323 ―
  • (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


  ― 324 ―
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.




  ― 325 ―

(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


  ― 326 ―
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,


  ― 327 ―
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


  ― 328 ―
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


  ― 329 ―
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


  ― 330 ―
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


  ― 331 ―
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


  ― 332 ―
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.


  ― 333 ―
“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


  ― 334 ―
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


  ― 335 ―
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


  ― 336 ―
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


  ― 337 ―
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


  ― 338 ―
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


  ― 339 ―
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


  ― 340 ―
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


  ― 341 ―
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).




  ― 342 ―

“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.




  ― 343 ―

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


  ― 344 ―
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.



  •   ― 345 ―
  • (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


  ― 346 ―
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


  ― 347 ―
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


  ― 348 ―
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.


  ― 349 ―
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


  ― 350 ―
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.




  ― 351 ―

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


  ― 352 ―
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.




  ― 353 ―

§ 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


  ― 354 ―
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


  ― 355 ―
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.




  ― 356 ―

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


  ― 357 ―
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


  ― 358 ―
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.)




  ― 359 ―

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


  ― 361 ―
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


  ― 362 ―
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


  ― 363 ―
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


  ― 364 ―
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


  ― 365 ―
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


  ― 366 ―
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


  ― 367 ―
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


  ― 368 ―
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.)




  ― 369 ―

“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


  ― 370 ―
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


  ― 371 ―
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


  ― 372 ―
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


  ― 373 ―
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


  ― 374 ―
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


  ― 375 ―
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


  ― 376 ―
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.




  ― 377 ―

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.)




  ― 378 ―

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


  ― 379 ―
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.




  ― 380 ―

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—




  ― 381 ―
  • (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


  ― 382 ―
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


  ― 383 ―
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.)

3. The Parliament

51

§ 51. “Parliament.”

ORIGIN.—This word, which, Bagehot says, is descriptive of the greatest inquiring, discussing, and legislative machine the world has ever known, “the great engine of popular instruction and political controversy,” is derived from the Old English, Parlement; French, Parlement, Parler, to speak; Low Latin, Parliamentum—a parleying, a discussion, a conference; hence a formal conference on public affairs; an assembly of representatives of a nation. (Webster's Internat. Dictionary.) Freedom of speech is the essence of political representation, and without it a national council could not exist.

“The word (which was at first applied to general assemblies of the States under Louis VII. in France, about A.D. 1150) was not used in England until the reign of Hen. III., and the first mention of it, in our statute law, is in the preamble to stat. Westm. I., 3 Ed. I., A.D. 1272. When therefore it is said that Parliaments met before that era, it is by a license of speech, considering every national assembly as a Parliament. See I. Comm., c. 2, p. 147, and the notes thereof.” (Tomlins's British Law—Title, Parliament.)

“In 21 Henry III. the King finds himself, in consequence of pressing money embarrassments, again compelled to make a solemn confirmation of the charter, in which once more the clauses relating to the estates are omitted. Shortly afterwards, as had happened just one hundred years previously in France, the name ‘parliamentum’ occurs for the first time (Chron., Dunst., 1244; Matth., Paris, 1246), and, curiously enough, Henry III. himself, in a writ addressed to the Sheriff of Northampton, designates with this term the assembly which originated the Magna Charta: ‘Parliamentum Runemede, quod fuit inter Dom. Joh., Regem patrem nostrum et barones suos Anglice.’ (Rot Claus., 28 Hen. III.) The name ‘parliament’ now occurs more frequently, but does not supplant the more indefinite terms concilium, colloquium, &c.” (Gneist, English Constitution, p. 261.)

PRECURSORS AND PROTOTYPES.—The Parliament of the Commonwealth is not an original invention in any of its leading principles. It has its roots deep in the past. It has been built on lines suggested by the best available models of its kind. Its framers did not venture to indulge in any new fangled experiments; they resisted every temptation to leave the beaten tract of precedent and experience, or to hanker after revolutionary ideals. In constructing a legislative machine for the new community they believed that they would most successfully perform their work by utilizing and adapting the materials to be found in the British, American, and Canadian Constitutions, with such developments and improvements as might be justified by reason and expediency. Of them and their work it may be said, as of the authors of the Constitution of the United States and of their work—

“They had a profound disbelief in theory and knew better than to commit the folly of breaking with the past. They were not seduced by the French fallacy that a new system of Government could be ordered like a new suit of clothes. They would as soon have thought of ordering a suit of flesh and skin. It is only on the roaring loom of time that the stuff is woven for such vesture of their thought and experience as they were meditating.” (Mr. Lowell's Address on Democracy, Oct. 6, 1884.)

“They had neither the rashness nor the capacity necessary for constructing a Constitution, a priori. There is wonderfully little genuine inventiveness in the world, and perhaps least of all has been shown in the sphere of political institutions. These men, practical politicians who knew how infinitely difficult a business government is, desired no bold experiments. They preferred, so far as circumstances permitted, to walk in the old paths, to follow methods which experience had tested. Accordingly they started from the system on which their own colonial governments, and afterwards their State governments, had been conducted. This system bore a general resemblance to the British


  ― 384 ―
Constitution; and in so far it may with truth be said that the British Constitution became a model for the new national government.” (Bryce's American Comm., I., p. 31.)

“There were other precursors of the federal government; but the men who framed it followed the lead of no theoretical writer of their own or preceding times. They harboured no desire of revolution, no craving after untried experiments. They wrought from the elements which were at hand, and shaped them to meet the new exigencies which had arisen. The least possible reference was made by them to abstract doctrines; they moulded their design by a creative power of their own, but nothing was introduced that did not already exist, or was not a natural development of a well-known principle. The materials for building the American constitution were the gifts of the ages.” (Bancroft, Constitution of the U.S, II, p. 322.)

“In the constant remaking of the constitutions of Europe, South America, and even Asia, Africa, and the Pacific islands, they should teach statesmen the pitfalls to avoid and the paths to seek for the permanent security of both liberty and property. These can be found only by an exhaustive study of the precedents which are landmarks of the progress of the development of the Constitution of the United States, before as well as since its adoption. They lead from the forests of Germany in the time of Tacitus, over the island of Runnymede and the rock at Plymouth, beyond the apple-tree at Appomatox into the old Senate Chamber at Washington, where Chief Justice Fuller sits with his associates. They were the result of conflicts with the sword, the pen, and the tongue, in the field, the press, the senate, and the court. Amongst their builders are enrolled the names of Simon de Montfort, Coke, Eliot, Hampden, Lilburne, Milton, Shaftesbury, Locke, Wilkes, Jefferson, Hamilton, Marshall, Webster, and Lincoln. They present the spectacle of the struggles of a people to obtain civil and religious liberty for themselves, to extend them to those of another and despised race, and now to combine them with the rights to ungoverned labour and complete security for private property.” (Foster's Comm., I., p. 2.)

“The form of government which prevails usually in primitive communities comprises a king or chief, a senate or gathering of elders or selectmen with whom he consults, and a public assembly of all freemen with the right of suffrage, who decide questions of importance, whether legislative, executive, or judicial, which are submitted to them. This naturally arose from the councils of war, where the general, after consulting the more experienced, took the sense of the whole body of warriors before an important enterprise. Such a legislative assemblage of the whole people may still be seen once a year on the Tynwald in the Isle of Man, in the Swiss cantons of Uri, Unter-walden, Glarus, and Appenzell; and more frequently in the town meetings in New England and the Western States. In Switzerland the voters still follow the early custom of attending armed. Of such a character were the federal assemblies of the Achaian, Ætolian and Lycian Leagues, which each citizen had a right to attend, although they voted by cities. They were manifestly impracticable when a government was spread over an extensive territory, and to the lack of representative institutions has been ascribed the loss of liberty in Greece and Rome. The senates of these confederations seem to have been composed of the present and former magistrates of the different cities, who acted rather as ambassadors than legislators, and voted by cities, each having an equal voice regardless of differences in wealth and population.” (Id., p. 307-8.)

Part I.—General.

Legislative Power.

1. The legislative power52 of the Commonwealth shall be vested in a Federal Parliament53, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called “The Parliament,” or “The Parliament of the Commonwealth.”

UNITED STATES.—All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.—Const., Art. I., sec. 1. CANADA.—There shall be one Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.—B.N.A. Act, 1867, sec. 17.

HISTORICAL NOTE.—The clause in the Commonwealth Bill of 1891 was in substantially the same form. The clause as introduced at the Adelaide session, 1897, substituted “States Assembly” for “Senate,” but in Committee, on Mr. Walker's


  ― 385 ―
motion, the name “Senate” was restored. (Conv. Deb., Adel., pp. 480-2.) Mr. Higgins proposed “National Assembly” in place of “House of Representatives,” and Mr. Symon proposed “House of Commons,” but both suggestions were negatived. (Conv. Deb., Adel., pp. 483, 628-9, 1189.) At the Sydney session, suggestions of the Legislative Council of New South Wales, to omit “Federal” and to substitute “House of Assembly” for “House of Representatives,” were negatived. (Conv. Deb., Syd. [1897], p. 253.) At the Melbourne session, after the fourth report, “power” was substituted for “powers.”

§ 52. “Legislative Power.”

Legislation consists in the making of laws. It is contrasted with the Executive power, whose office is to enforce the law, and with the Judicial power which deals with the interpretation and application of the law in particular cases. “The legislative power of the Commonwealth,” referred to in this section, means the legislative power in respect of matters limited and defined in the Constitution; or, in the words of the corresponding section of the United States Constitution, it means “the legislative power herein granted.” The legislative power so granted and vested in the Federal Parliament does not exhaust the whole of the quasi-sovereign authority of the Commonwealth. A residuum of power continues vested in the States. What is not granted to the federal government and what is not possessed by the States is reserved to the people of the Commonwealth, and may at any time be brought into action by the provision for amendment of the Constitution of the Commonwealth. By the process of amendment further legislative power may be assigned to the Federal Parliament. That Parliament will possess only such authority as is expressly, or by necessary implication, conferred upon it by the Constitution, as it stands, or by amendments which may hereafter be incorporated into and become part of the Constitution.

The power of the Federal Parliament can only be found by searching through the federal constitutional instrument. It has no scrap or particle of authority except such as can be discovered or inferred somewhere within the document. A general enumeration of the legislative powers of the Parliament is given in section 51 of the Constitution. That, however, is not the only section in which legislative power is conferred. Numerous sections may be referred to, in which law-making authority is embedded. Thus every section beginning with the words or containing the words “until the parliament otherwise provides” contains a grant of legislative power. Other sections not so plainly identifiable are of the same effect; such as sec. 27—the Parliament may alter the number of members of the House of Representatives; Chapter III.—the Parliament may create inferior federal courts and make other judiciary arrangements; sec. 94—the Parliament may distribute the surplus revenue; sec. 102—the Parliament may forbid preferences and discriminations by States; sec. 104—the Parliament may take over the public debts of the States; Chapter VI.—The Parliament may admit new States, govern territories, and alter the limits of States with the consent thereof.

§ 53. “Federal Parliament.”

THE QUEEN.—The Federal Parliament consists of the Queen, the Senate, and the House of Representatives This is a statutory recognition of the Queen as a constituent part of Parliament. In the British Constitution, and in most of the colonial constitutions, the King or Queen for the time being has up to the present been recognized in form and in theory, at least, as the principal legislator, if not the sole legislator, acting by and with the consent of the parliamentary bodies. For over three hundred years every Act of Parliament passed in England has begun with the well-known formula “Be it enacted by the King's (Queen's) most excellent Majesty by and with the advice and consent,” &c. In the Australian Constitutional Acts, 5 and 6 Vic. c. 76, and 13 and 14 Vic. c. 59, the legislative power was vested in the Governor by and with the advice and consent of the Legislative Council, &c. In the subsequent constitutions of the self-governing


  ― 386 ―
Australian colonies (1855) the power of legislation was conferred upon the Queen “by and with the advice and consent of the said Council and Assembly.” In the Constitution of the Commonwealth the old fiction that the occupant of the throne was the principal legislator, as expressed in the above formula, has been disregarded; and the ancient enacting words will hereafter be replaced by words more in harmony with the practice and reality of constitutional government. The Queen, instead of being represented as the principal or sole legislator, is now plainly stated to be one of the co-ordinate constituents of the Parliament. Consequently, federal legislation will begin with such mandatory words as “Be it enacted by the Queen, the Senate, and the House of Representatives,” or, “Be it enacted by the Parliament of the Commonwealth of Australia.”

It would not be correct to say that the Queen's share in the exercise of federal legislative authority will be altogether formal and nominal. As regards matters of purely Australian policy, no doubt the Governor-General, as representative of the Queen, will be guided by the advice of the federal administration, as to whether he should, in the Queen's name, assent to a proposed law passed by both Houses. But if he has reason to believe that any proposed law comes within a class of bills to which, in his discretion as the Queen's representative, he ought not to assent, he will reserve the proposed law for the Queen's pleasure. A Bill so reserved will not have any force unless and until it receives the Queen's assent within two years from the day on which it was presented to the Governor-General (sec. 60). If the Governor-General assents to a proposed law in the Queen's name, and the Imperial Government find that it is contrary to an Imperial Act applicable to the Commonwealth, or that it is in excess of the legislative power possessed by the Federal Parliament, or that it is inconsistent with Her Majesty's treaty obligations, Her Majesty may be advised to disallow such law, within one year from the Governor-General's assent. (Secs. 58 and 59.)

“The right of the Crown, as the supreme executive authority of the empire, to control all legislation which is enacted in the name of the Crown, in any part of the Queen's dominion, is self-evident and unquestionable. In the mother country, the personal and direct exercise of this prerogative has fallen into disuse. But eminent statesmen, irrespective of party, and who represent the ideas of our own day, have concurred in asserting that it is a fundamental error to suppose that the power of the Crown to reject laws has consequently ceased to exist.' The authority of the Crown, as a constituent part of the legislative body, still remains; although, since the establishment of parliamentary government, the prerogative has been constitutionally exercised in a different way. But, in respect to the colonies, the royal veto upon legislation has always been an active and not a dormant power. The reason of this is obvious. A colony is but a part of the empire, occupying a subordinate position in the realm. No colonial legislative body is competent to pass a law which is at variance with, or repugnant to, any Imperial statute which extends in its operation to the particular colony. Neither may a colonial legislature exceed the bounds of its assigned jurisdiction, or limited powers. Should such an excess of authority be assumed, it becomes the duty of the Crown to veto, or disallow, the illegal or unconstitutional enactment. This duty should be fulfilled by the Crown, without reference to the conclusions arrived at in respect to the legality of a particular enactment, by any legal tribunal. It would be no adequate protection to the public, against erroneous and unlawful legislation on the part of a colonial legislature, that a decision of a court of law had pronounced the same to be ultra vires. An appeal might be taken against this decision, and the question carried to a higher court. Pending its ultimate determination, the public interests might suffer. Therefore, whenever it is clear to the advisers of the Crown that there has been an unlawful exercise of power by a legislative body, it becomes their duty to recommend that the royal prerogative should be invoked to annul the same.” (Todd, 1st ed., pp. 125-6; 2nd ed., p. 155.)

THE BICAMERAL SYSTEM.—The Senate and the House of Representatives compose the two Chambers, according to what is generally described as the Bicameral System. Apart from the philosophical and practical arguments in favour of a two-chambered legislature as against a single-chambered legislature, a political union on the federal plan could not have been accomplished without the constitution of two Houses to represent the composite elements of the union




  ― 387 ―

“Theory and practice both proclaim that in a single House there is danger of a legislative despotism.” (James Wilson, in the American Federal Convention, 16th June, 1787.)

“We may say that modern constitutional law has settled firmly upon the bicameral system in the legislature, with substantial parity of powers in the two Houses, except in dealing with the budget; and that, in the control of the finances, a larger privilege is regularly confided to the more popular House, i.e., the House least removed in its origin from universal suffrage and direct election.” (Burgess, Political Sc., II., p. 106.)

“A single body of men is a ways in danger of adopting hasty and one-sided views, of accepting facts upon insufficient tests, of being satisfied with incomplete generalizations, and of mistaking happy phrases for sound principles. Two legislative bodies do not always escape these crude and one-sided processes and results, but they are far more likely to do so than is a single body. There is a sort of natural and healthy rivalry between the two bodies, which causes each to subject the measures proceeding from the other to a careful scrutiny, and a destructive criticism, even though the same party may be in a majority in both. In this conflict of views between the two houses lies, in fact, the only safe-guard against hasty and ill-digested legislation when the same party is in majority in both houses. A disagreement between the majorities in such a case is far more likely, also, to lead to a deeper generalization of principle than when the struggle is between the majority and the minority in each house; since the majority in each house will be much more inclined to look into the real merits of the question in the former than in the latter instance, and will come to a decision far more independent of partizanship.” (Burgess, Political Sc., II., pp. 106-7.)

“The necessity of a double, independent deliberation is thus the fundamental principle of the bicameral system in the construction of the legislature. A legislature of one chamber inclines too much to radicalism. One of three chambers or more would incline too much to conservatism. The true mean between conservatism and progress, and therefore the true interpretation of the common consciousness at each particular moment, will be best secured by the legislature of two chambers. There is another reason for this system, which, though less philosophic, is fully as practical. It is that two chambers are necessary to preserve the balance of power between the legislative and executive departments. The single-chamber legislature tends to subject the executive to its will. It then introduces into the administration a confusion which degenerates into anarchy. The necessity of the state then produces the military executive, who subjects the legislature to himself. History so often presents these events in this sequence, that we cannot refrain from connecting them as cause and effect. The two chambers, on the other hand, are a support in the first place to the executive power, and therefore in the second place to the legislature. By preventing legislative usurpation in the beginning, the bicameral legislature avoids executive usurpation in the end.” (Id., p. 107.)

Governor-General.

2. A Governor-General54 appointed by the Queen shall be Her Majesty's Representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure55, but subject to this Constitution, such powers and functions of the Queen56 as Her Majesty may be pleased to assign to him.

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

“The Queen may, from time to time, appoint a Governor-General, who shall be Her Majesty's representative in the Commonwealth, and who shall have and may exercise in the Commonwealth during the Queen's pleasure, and subject to the provisions of this Constitution, such powers and functions as the Queen may think fit to assign to him.”

In Committee, Sir George Grey proposed to make the clause read “There shall be a Governor-General,” with the intention of making the Governor-General elective. This, after debate, was negatived by 35 votes to 3. Mr. Baker proposed to insert, after “functions,” the words “as are contained in Schedule B hereto, and such other powers and functions as are not inconsistent therewith.” He urged that the clause, as it stood.


  ― 388 ―
made the royal instructions part of the Constitutional law of the Commonwealth; and though he was not prepared at present to define the powers of the Governor-General, he wished to affirm the principle that they should be contained in the Constitution. Mr. Deakin and Dr. Cockburn thought that the best means of securing Mr. Baker's object would be to state on the face of the Constitution that the Governor-General should always act on the advice of his Ministers. Mr. Wrixon thought that if they were careful, in the Executive Chapter, to thoroughly establish responsible Government, they might let this clause go. Mr. Baker finally withdrew his amendment. (Conv. Deb., Syd. [1891] pp. 560-78.)

At the Adelaide session, 1897, the clause was introduced in the same words, except that the powers exercisable by the Governor-General were defined to be “such powers and functions of the Queen as Her Majesty may think fit to assign to him.” Mr. Glynn, lest these words might revive dormant or dead prerogatives, moved to add “and capable of being constitutionally exercised as part of the prerogative of the Crown.” This was negatived. (Conv. Deb., Adel., p. 629.)

At the Sydney session, Mr. Reid suggested that the clause be postponed. Mr. Barton agreed, saying “Some question may arise about the clause, which I do not like to indicate at present; but the Committee may take my word for it that it will be wise to postpone it now.” (Conv. Deb., Syd. [1897] pp. 253-4.) Subsequently, as a drafting amendment, the clause was altered to read:—“A Governor-General appointed by the Queen shall be,” &c. After the fourth report, the words “the provisions of” were omitted.

§ 54. “A Governor-General.”

“The governor of a colony constitutes the only political link connecting the colony with the mother country. So far as regards the internal administration of his government, he is merely a constitutional sovereign acting through his advisers; interfering with their policy or their patronage, if at all, only as a friend and impartial councillor. But whenever any question is agitated touching the interests of the mother country—such, for instance, as the imposition of customs duties, or the public defence—his functions as an independent officer are called at once into play. He must see that the mother country receives no detriment. In this duty he cannot count on aid from his advisers: they will consult the interests either of the colony or of their own popularity; he may often have to act in opposition to them, either by interposing his veto on enactments or by referring those enactments for the decision of the home government. But for these purposes the constitution furnishes him with no public officers to assist him in council or execution, or to share his responsibility. The home government looks to him alone.” (Merivale's Lectures on Colonization, 1861, p. 649.)

“Under responsible government a Governor becomes the image, in little, of a constitutional king, introducing measures to the legislature, conducting the executive, distributing patronage, in name only, while all these functions are in reality performed by his councillors. And it is a common supposition that his office is consequently become one of parade and sentiment only. There cannot be a greater error. The functions of a colonial Governor under responsible government are (occasionally) arduous and difficult in the extreme. Even in the domestic politics of the colony, his influence as a mediator between extreme parties and controller of extreme resolutions, as an independent and dispassionate adviser, is far from inconsiderable, however cautiously it may be exercised. But the really onerous part of his duty consists in watching that portion of colonial politics which touches on the connection with the mother country. Here he has to reconcile, as well as he can, his double function as governor responsible to the Crown, and as a constitutional head of an executive controlled by his advisers. He has to watch and control, as best he may, those attempted infringements of the recognized principles of the connection which carelessness or ignorance, or deliberate intention, or mere love of popularity, may from time to time originate. And this duty, of peculiar nicety, he must perform alone … His responsible ministers may (and probably will) entertain views quite different from his own. And the temptation to surround himself with a camarilla of special advisers, distinct from those ministers, is one which a governor must carefully resist. It may, therefore, be readily inferred, that to execute the office well requires no common abilities, and I must add that the occasion has called forth these abilities.” (Id., p. 666.)




  ― 389 ―

“The office of Governor tends to become—in the most emphatic sense of the term—the link which connects the mother country and the colony, and his influence the means by which harmony of action between the local and Imperial authorities is to be preserved. From his independent and impartial position, the opinion of a Governor must needs have great weight in the colonial councils; while he is free to constitute himself, in an especial manner, the patron of those larger and higher interests—as of education, and of moral and material progress in all its branches—which, unlike the contests of party, unite, instead of dividing, the members of the body-politic.” (Lord Elgin [1854], cited Todd's Parl. Gov. in Col., p. 809, 2nd ed.)

“The Governor-General of Canada is the representative of the Queen, and the highest authority in a dominion vast in extent, occupied by several millions of people, comprising within itself various provinces recently brought together which can only knit into a mature and lasting whole by wise and conciliatory administration. Nor is the position insulated. The Governor-General is continually called upon to act on questions affecting international relations with the United States. The person who discharges such exalted functions ought to possess not only sound judgment and wide experience, but also an established public reputation. He should be qualified both to exercise a moderating influence among the different provinces composing the union, and also to bear weight in his relations with the British minister at Washington and with the authorities of the great neighbouring republic.” (Despatch by the Duke of Buckingham, Secretary of State for the Colonies [1868], explaining the reasons of the Imperial Government for advising the Queen to refuse assent to a bill passed by the Dominion Parliament to reduce the salary of the Governor-General. Cited, Todd, p. 810, 2nd ed.)

§ 55. “During the Queen's Pleasure.”

“Colonial Governors invariably hold office during the pleasure of the Crown; but their period of service in a colony is usually limited to six years from the assumption of their duties therein; although, at the discretion of the Crown, a Governor may be re-appointed for a further term. The rule which limits the term of service of a Governor to six years was established principally for the purpose of ensuring in Governors the utmost impartiality of conduct, by disconnecting them from fixed relations with the colony over which they are appointed to preside. It was first made applicable to all British colonies by a circular despatch from Mr. Secretary Huskisson, issued in May, 1828, as follows:—‘It shall for the future be understood that, at the expiration of six years, a Governor of a colony shall, as a matter of course, retire from his government, unless there should be some special reasons for retaining him there; and that the way should thus be opened for the employment of others, who may have claims to the notice of His Majesty's government.”’ (Todd, 2nd ed., pp. 122-3.)

§ 56. “Powers and Functions of the Queen.”

Section 2 of the Constitution is the same in substance as section 2 ch. I. of the Commonwealth Bill of 1891. When it was first proposed in 1891, strong exception was taken to it and other sections relating to the Governor-General on the ground that they would confer extraordinary and enormous powers on the Governor-General, far in excess of any authority previously conferred on any governor in these colonies. Subsequent discussion showed that this contention was untenable.

During the progress of Provincial Government in the Australian colonies, two propositions have been suggested as explaining the position and attributes of the Governor of a Constitutional colony. One proposition has been that the Governor, as the Representative of the Queen, is vested with authority defined and limited, partly by the statute law establishing the Queen's Government in the colony, partly by the letters patent constituting the office of Governor, partly by the commission appointing him to the office, and finally by the royal instructions communicated to him by the Seeretary of State on behalf of Her Majesty. (Anson's Law and Custom of the Constitution, vol. ii., p. 260.) The other view has been that the Governor of a colony, in which the system known as Responsible Government exists, is a local constitutional ruler, vested with authority defined or necessarily implied by the statute law establishing the Queen's Government in the colony, and vested thereby with all the prerogatives of the Crown reasonably necessary for the exercise of the proper functions of government; that the responsible ministers of such a colony possess, by virtue of that law, the power


  ― 390 ―
to advise the representative of the Crown to do any act which it would be competent for the legislature of the colony to sanction, and which ordinarily is, or under special circumstances may become, reasonably necessary to its existence as a body constituted by law, or for the proper exercise of the functions which it is intended to execute. (Per Higinbotham, C.J., in Ah Toy v. Musgrove [1888], 14 V.L.R. p 295-6.) A similar contention was raised in the year in which that case was decided in Victoria by the Government of Ontario, to the effect that the Lieutenant-Governor of the Province was entitled, virtute officii, to exercise all the prerogatives of the Crown incident to executive authority in matters over which the provincial legislature had jurisdiction, in the same manner as, and to the same extent that the Governor-General was entitled, virtute officii, to exercise all prerogatives incident to executive authority in matters within the jurisdiction of the Dominion Parliament. (Ontario Sess. Pap., 1888, No. 37, pp. 20-2.) The same doctrine was mooted in the Canadian courts on the hearing of the pardoning power case. (Attorney-General of Canada v. Attorney-General of Ontario, 22 Ont. Rep. 222; 19 Ont. App. Rep. 31. Cited, A. H. F. Lefroy, Law Quarterly Review, July, 1899, p. 283.)

In the construction of the powers and functions of the Governor-General of the Commonwealth no such difficulties and ambiguities as were discussed in Ah Toy v. Musgrove need arise. The principal and most important of his powers and functions, legislative as well as executive, are expressly conferred on him by the terms of the Constitution itself. Among these may be mentioned: the appointment of the times for holding the Sessions of Parliament; the prorogation of the Parliament; the dissolution of the House of Representatives (sec. 4); the dissolution of the Senate and of the House of Representatives simultaneously (sec. 57); the convening of a joint sitting of the members of the Senate and of the House of Representatives (sec. 57); the assent in the name of the Queen to Bills passed by the Federal Houses; the withholding of the Queen's assent to such Bills; the reservation of Bills for the Queen's pleasure; the recommendation of amendments to be made in Bills (sec. 58); the exercise of the Executive power of the Commonwealth (sec. 61); the appointment of political officers to administer departments of state of the Commonwealth (sec. 64); the command of the naval and military forces of the Commonwealth (sec. 68); and generally, “in respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony” (sec. 70). These are powers and functions vested in the Governor-General by statute, to be exercised by him in accordance with the recognized principles of Responsible Government. The point to emphasize is, that they are legislative and executive powers and functions conferred on the Governor-General, not by Royal authority, but by statutory authority. (See Note § 60.)

The section now under consideration authorizes the Governor-General to exercise such powers and functions as Her Majesty may be pleased to assign to him. These powers and functions, however, must not be confused with the statutory authority and statutory duties to which reference has been made, relating to the Government of the Commonwealth, expressly specified in and expressly conferred on the Governor-General by the Constitution. The powers and functions contemplated by this section relate either to matters subordinate and ancillary to the statutory authority and statutory duties enumerated in the Constitution, or to matters connected with the Royal prerogative (that body of powers, rights, and privileges, belonging to the Crown at common law, such as the prerogative of mercy), or to authority vested in the Crown by Imperial statute law, other than the law creating the Constitution of the Commonwealth. Some of these powers and functions are of a formal character; some of them are purely ceremonial; others import the exercise of sovereign authority in matters of Imperial interests. The nature of some of the prerogative as well as formal and ceremonial power sreferred to, may be gathered from the extracts from letters patent and commissions relating to the office of Governor, which will be found further on. Among examples of powers relating to


  ― 391 ―
matters of Imperial interests the following may be suggested: the observance of the relations during peace, or in time of war, of foreign States to Great Britain, so far as they may be affected by the indirect relations of such foreign States to the Commonwealth; the treaty rights and obligations of the Crown; the treatment of belligerent and neutral ships in the waters of the Commonwealth in times of war; the control of Her Majesty's Imperial naval and military forces within the limits of the Commonwealth. (Higinbotham, C.J., in Ah Toy v. Musgrove [1888], 14 V.L.R., 380.)

RESPONSIBILITY OF GOVERNORS.—Reference may here be made to two leading cases in which the powers, privileges, and immunities of colonial Governors were considered. In Mostyn v. Fabrigas, [1775], 1 Cowp. 161-172, 2 W. Bl. 929, Lord Mansfield held that a Governor of a colony is in the nature of a Viceroy. This dictum, however, has not been generally acquiesced in, and it is now understood that Mostyn v. Fabrigas simply decided that Governor Mostyn was liable to be sued in England for personal wrongs done by him, whilst he was Governor of Minorca. In the case of Musgrave v. Pulido [1879], 5 App. Cas. 102, Pulido, the charterer of a schooner, sued Sir Anthony Musgrave, the Governor of Jamaica, to recover damages from him for an alleged act of trespass committed by him in seizing and detaining the schooner at Kingston. The defendant pleaded to the jurisdiction of the Court, in effect alleging that he was Captain-General and Governor-in-Chief of the island of Jamaica, and that the acts complained of were done by him as Governor of the island, and in the exercise of his reasonable discretion as such. The plea did not aver, even generally, that the seizure of the plaintiff's ship was an act which the defendant was empowered to do as Governor, nor even that it was an act of state. It was held that a Governor of a colony (in ordinary cases) cannot be regarded as Viceroy; nor can it be assumed that he possesses general sovereign power. His authority is derived from his commission, and is limited to the powers thereby expressly or impliedly entrusted to him. It is within the province of municipal courts to determine whether any exercise of power by a Governor is within the limits of his authority, and, therefore, an act of state. On these grounds it was decided that the plea was not a sufficient answer to the action.

MODE OF APPOINTMENT.—The constitutional position of the Governor-General, as a component of the Executive Government of the Commonwealth, will be considered in detail in our notes to Chapter II. (§ 271). Under this section allusion can appropriately be made (1) to the practice which originally prevailed in connection with the creation of the office of Colonial Governor; the method of appointment to such office, and the assignment of official powers and functions of a stereotyped character to the holder of the office for the time being; and (2) to the changes which, in recent years, have been made in the direction of emancipating the Governor from the restraint and embarrassment of antiquated instructions, and enabling him to act as a constitutional ruler, in accordance with the recognized principles of Responsible Government.

Colonial Governors were formerly appointed by letters patent, under the Great Seal, which defined the scope of their powers, duties, and functions. Pending the preparation of the authorative instruments it was the practice, before 1875, to issue a minor commission under the Royal Sign Manual and Signet, to a new Governor, authorizing him to act under the commission and instructions given to his predecessor in the same office. The validity of this practice having been doubted, the Imperial Government decided in 1875 to abandon it, and thereafter, as soon as practicable, to make permanent provision by letters patent under the Great Seal in every colony of the empire for the constitution of the office of Governor therein, and it was further decided to fill the office as it became vacant, by appointment to be made, by special commission, under the Royal Sign Manual and Signet, which commission should recite the letters patent, and direct the appointee to fulfil the duties of the office according to the permanent instructions issued in connection therewith. (Todd, Parl. Gov. in Col., 2nd ed., p. 109.) There are therefore, now, three important documents associated with the office of Governor:—




  ― 392 ―
  • (1.) The Letters-Patent.
  • (2.) The Commission.
  • (3.) The Instructions.

The Letters Patent.—By the letters-patent constituting the office of Governor in each colony, the powers and duties of the Governor were formerly defined as follows:—

  • (i.) To do and to execute all things that belong to the said command and the trust reposed in him according to the Letters-patent, Commission and Instructions.
  • (ii.) To keep and use the Public Seal of the Colony.
  • (iii.) To appoint an Executive Council.
  • (iv.) To make and execute grants of land according to law.
  • (v.) To appoint Judges, Commissioners, Justices, Ministers, and other officers.
  • (vi.) To grant a pardon to any offender who has committed a crime and to remit fines and forfeitures.
  • (vii.) To remove or suspend from office any person upon sufficient cause appearing.
  • (viii.) To summon, prorogue, or dissolve any legislative body established within the colony.
  • (ix.) To grant licenses for marriages, letters of administration, probate of wills, and to deal with the custody and management of idiots, lunatics, and their estates.
  • (x.) To appoint a deputy to act in his occasional absence from the colony.
  • (xi.) Before entering on the duties of his office to cause his commission to be read and published, and to take the Oath of Allegiance and the usual oath for the due execution of the office of governor and for the due and impartial administration of justice.

The Commission.—This document contains the appointment to the office constituted by the letters-patent, and the usual form of it is as follows:—

Draft of a Commission passed under the Royal Sign Manual and Signet, ..... to be Governor and Commander-in-Chief of the Colony of ..... and its Dependencies.

Dated ..... VICTORIA R.

VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, Empress of India: To Our trusty and well-beloved.........

Greeting:

We do by this Our Commission under Our Sign Manual and Signet appoint you, the said ....., until Our further pleasure shall be signified, to be Our Governor and Commander-in-Chief in and over Our Colony of .....and its Dependencies during Our Will and pleasure, with all and singular the powers and authorities granted to the Governor of Our said Colony in Our Letters-patent under the Great Seal of Our United Kingdom of Great Britain and Ireland constituting the Office of Governor, bearing date at Westminster, the.....day of.....in the.....year of Our Reign, which said powers and authorities We do hereby authorize you to exercise and perform, according to such Orders and Instructions as Our said Governor for the time being hath already or may hereafter receive from Us. And for so doing this shall be your Warrant.




  ― 393 ―

And We do hereby command all and singular Our Officers, Ministers, and loving subjects in Our said Colony and its Dependencies, and all others whom it may concern, to take notice hereof, and to give their ready obedience accordingly. Given at Our Court at Windsor, this.....day of.....in the.....year of Our Reign.

By Her Majesty's Command.

The Instructions.—The powers and functions of the governor partially enumerated in the letters-patent were formerly more fully detailed in the Instructions, and may be summarized as follows:—

  • (i.) To administer the oath of allegiance to persons holding office or place of trust.
  • (ii.) To communicate these instructions to the Executive Council of the Colony.
  • (iii.) To summon the Executive Council for the despatch of business.
  • (iv.) To preside at the meetings of the Executive Council.
  • (v.) To see that a full and exact record is kept of the votes and proceedings of the Executive Council.
  • (vi.) To consult the Executive Council in all cases, excepting in cases where the Queen's service would sustain material prejudice by consulting the Council, or when the matters to be decided should be too unimportant to require their advice or too urgent to admit of their advice being given within the time available; provided that in such urgent cases he should inform the Executive Council, as soon as possible, of the measures adopted.
  • (vii.) To act in opposition to the advice which may in any case be given by the Executive Council, provided that in such case he should fully report to the Secretary of State for the Colonies any such proceeding, with the grounds and reasons thereof.
  • (viii.) To transmit to the Secretary of State for the Colonies twice in each year a copy of the minutes of the Council for the preceding half-year.
  • (ix.) To assent to or dissent from or reserve for the Queen's pleasure such bills as may be passed by the colonial parliament subject to certain rules—
    • (a) That each different matter be provided for by a different law without intermixing different matters in the same Act having no relation to one another.
    • (b) That no clauses be inserted in an Act foreign to the title of such Act.
    • (c) That no perpetual clause be made part of any temporary law.
  • (x.) To reserve for the Queen's pleasure bills dealing with the following:—
    • (a) Divorce.
    • (b) Grants to the Governor.
    • (c) Bills affecting the currency.
    • (d) Bills imposing differential duties other than as allowed by the Australian Colonies Duties Act, 1873.
    • (e) Bills apparently inconsistent with treaty obligations.
    • (f) Bills interfering with the discipline of the land and sea forces of the Colony.
    • (g) Bills of an extraordinary nature and importance prejudicially affecting—(1) The Royal prerogative, or (2) the rights and property of British subjects not residing in the Colony, or (3) the trade and shipping of the United Kingdom and its Dependencies.
    • (h) Bills containing provisions to which the Royal assent has been once refused.
  • (xi.) To transmit abstracts of all laws assented to by the Governor or reserved for the Queen's pleasure, with explanatory observations.
  • (xii.) To transmit fair copies of the journals and minutes of the proceedings of both Houses of Parliament “which you are to require from the clerks or other proper officer in that behalf.”



  •   ― 394 ―
  • (xiii.) After reciting the Commission authorizing and empowering a Governor to grant a pardon to any offender the instructions formerly proceeded as follows:—
“Now, we do hereby direct and enjoin you to call upon the judge presiding at the trial of any offender who may from time to time be condemned to suffer death by the sentence of any court within our said colony, to make to you a written report of the case of such offender, and such report of the said judge shall by you be taken into consideration at the first meeting thereafter which may be conveniently held of our said Executive Council, where the said judge shall be specially summoned to attend, and you shall not pardon or reprieve any such offender as aforesaid unless it shall appear to you expedient so to do upon receiving the advice of our Executive Council therein, but in all such cases you are to decide either to extend or to withhold a pardon or reprieve, according to your own deliberate judgment, whether the members of our said Executive Council concur therein or otherwise; entering, nevertheless, on the minutes of the said Council a minute of your reasons at length, in case you should decide any such question in opposition to the judgment of the majority of the members thereof.”
  • (xiv.) To promote religion and education among the native inhabitants of the colony, and to protect them from violence and injustice.
  • (xv.) Not on any pretence whatever to quit the colony without having first obtained official leave from the Queen.

The new practice above referred to (p. 391) was framed to meet the views of Canada, but was first brought into operation in February, 1877, on the occasion of the appointment of Sir H. Bartle Frere to the office of Governor and Commander-in-Chief of the Cape of Good Hope, and it was followed in April, 1877, on the appointment of Sir W. F. D. Jervois as Governor and Commander-in-Chief of South Australia. The instructions accompanying the letters-patent in each of these cases were, in the main, an embodiment of the instructions previously issued for the guidance of Governors, no alteration in substance then being made. Indeed, they were practically the same in effect as those issued to the Governor of New South Wales in the year 1829, when that colony ceased to be a military settlement, and acquired a rudimentary form of civil government. A comparison of the instructions issued to Australian Governors up to the year 1887, with the commission and instructions issued to Sir Charles A. Fitzroy as Governor-in-Chief of New South Wales in the year 1850, would show that no substantial alteration had been made during that interval of 37 years. (Chief Justice Higinbotham's letter to Sir Henry Holland, 28 Feb., 1887; Professor Morris, Memoir of George Higinbotham, p. 211.)

For some time previous to the initiation of the new practice, the Government of the Dominion of Canada had been in communication with the Secretary of State for the Colonies on the subject of an alteration in the terms of the royal instructions.

“It was contended by Mr. Blake on behalf of the Dominion that the peculiar position of Canada, in relation to the mother country, entitled her to special consideration, and that the existing forms, while they might be eminently suited to other colonies, were inapplicable and objectionable in her case. For Canada is not merely a colony or province of the empire, she is also a Dominion, composed of seven provinces federally united under an imperial charter or Act of Parliament, which expressly recites that her constitution is to be similar in principle to that of the United Kingdom.” (Todd, Parl. Gov. in the Col., 2nd ed., p. 110.)

“As a foundation principle, necessary to be asserted and maintained in any instrument which might be issued for the purpose of defining the powers of a Governor-General in Canada, Mr. Blake contended that it ought to be clearly understood that, ‘as a rule, the governor does and must act through the agency (and upon the advice) of ministers; and ministers must be responsible for such action;’ save ‘only in the rare instances in which owing to the existence of substantial Imperial as distinguished from Canadian interests, it is considered that full freedom of action is not vested in the Canadian people.”’ (Id., p. 111.)

“Mr. Blake's contention, ‘that there is no dependency of the British Crown which is entitled to so full an application of the principles of constitutional freedom as the Dominion of Canada,’ was admitted to be correct by her Majesty's Government; and


  ― 395 ―
the official instruments made use of, in the appointment, on the 7th October, 1878, of the Marquis of Lorne to be Governor-General of Canada, clearly indicate, in their substantial omissions, as well as in their positive directions, the larger measure of self-government thenceforth conceded to the new Dominion. This increase of power, to be exercised by the government and Parliament of Canada, was not merely relatively greater than that now enjoyed by other colonies of the empire, but absolutely more than had been previously intrusted to Canada itself, during the administration of any former Governor-General.” (Id., p. 116.)

The Canadian Letters-Patent.—By letters-patent, 5th October, 1878, the office of Governor-General of Canada was formally constituted, and the Governor-General was thereby authorized and commanded by the Queen:—

  • (i.) To do and to execute all things that belong to the said command and the trust reposed in him according to the Letters-patent, Commission and Instructions.
  • (ii.) To keep and use the Public Seal of the Colony.
  • (iii.) To appoint an Executive Council.
  • (iv.) To remove or suspend from office any person holding any office under the Crown in Canada, so far as the same may lawfully be done.
  • (v.) To exercise all powers lawfully belonging to the Crown in respect of the summoning, proroguing, or dissolving the parliament of Canada.
  • (vi.) To appoint any person or persons, jointly or severally, to be his deputy or deputies within any part of Canada, to exercise such of the powers or functions of the Governor-General as he may please to assign to him or them.

The Canadian Commission.—On 7th October, 1878, the Marquis of Lorne was appointed by Royal Commission to be the Governor-General of Canada. This Commission recited the letters-patent aforesaid and conferred the office upon Lord Lorne with all the powers and authorities belonging to it, according to such orders and instructions as have already been, or may hereafter be, communicated to him from the sovereign; and commanded “all and singular our officers, ministers, and loving subjects in our said Dominion, and all others whom it may concern, to take due notice hereof, and give their ready obedience accordingly.” (Todd, 2nd ed., p. 122.)

The Canadian Instructions.—The Royal Instructions accompanying the letters-patent constituting the office of Governor-General of Canada recited the letters-patent aforesaid and enjoined the Governor-General for the time being:—

  • (i.) To cause his commission to be read and published in the presence of the Chief Justice or other judge of the Supreme Court, and of the members of the Dominion Privy Council, and to be duly sworn upon entering upon the duties of his office.
  • (ii.) To administer, or cause to be administered, the necessary oaths to all persons who shall hold any office or place of trust in the Dominion.
  • (iii.) To communicate these and any other instructions he may receive to the Dominion Privy Council.
  • (iv.) To transmit to the Imperial Government copies of all laws assented to by him in the Queen's name, or reserved for signification of the Royal pleasure; with suitable explanatory observations and copies of the journals and proceedings of the Parliament of the Dominion.
  • (v.) When any crime has been committed for which any offender might be tried within the Dominion, “to grant a pardon to any accomplice, not being the actual perpetrator of such crime, who shall give such information as shall lead to the conviction of the principal offender; and, further, to grant any offender convicted of any crime, in any court, or before any judge, justice, or magistrate, within our said Dominion, a pardon, either


      ― 396 ―
    free or subject to lawful conditions, or any respite of the execution of the sentence of any such offender, for such period as to our said Governor-General may seem fit, and to remit any fines, penalties, or forfeitures which may become due, or payable to us. Provided always, that our said Governor-General shall not in any case, except where the offence has been of a political nature, make it a condition of any pardon or remission of sentence that the offender shall be banished from, or shall absent himself from, our said Dominion. And we do hereby direct and enjoin that our said Governor-General shall not pardon or reprieve any such offender without first receiving, in capital cases, the advice of the Privy Council for our said Dominion, and in other cases, the advice of one, at least, of his ministers, and in any case in which such pardon or reprieve might directly effect the interests of the empire, or of any country or place beyond the jurisdiction of the government of our said Dominion, our said Governor-General shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration, in conjunction with such advice as aforesaid.”
  • (vi.) Not to quit the Dominion without leave first obtained.

It will be seen that the Canadian Instructions differed in several material respects from those which were, at that time, applicable to other self-governing colonies, in which the old instructions remained unaltered for several years longer. One of the most prominent critics, and certainly the most uncompromising assailant, of the old instructions, was the Hon. Geo. Higinbotham, once Attorney-General of Victoria, and subsequently Chief Justice of that colony. In a letter, dated 28th February, 1887, addressed by him to the Right Hon. Sir Henry T. Holland, then Secretary of State for the Colonies, Chief Justice Higinbotham expressed and summarized the views which he had long held concerning the unconstitutionality of some of these instructions.

“The radical vice of the Governor's letters patent, commission and instructions, both public and private, appears to me to be this—that they studiously and persistently refuse to take note of the fundamental change made in the public laws of the Australian colonies by the Constitution Acts of 1854-5. In particular, they pretend to confer powers and authorities which have been already conferred with others by the Constitution Statutes; they decline to recognize the dual character of the Governor, and applying a misleading title to the advisers of the Governor in one of his two characters, they affect to ignore altogether the existence of responsible government. I will refer to particular clauses which present the most striking illustrations of a violation in these respects of constitutional law.

“Clause II. of the letters patent.—‘We do hereby authorize, empower, and command our said Governor and Commander-in-Chief (hereinafter called the Governor) to do and excute all things that belong to his said office, according to the tenor of these our letters patent, and of such commission as may be issued to him under our sign manual and signet, and according to such instructions as may from time to time be given to him under our sign manual and signet, or by our order in our Privy Council, or by us through one of our principal Secretaries of State, and to such laws as are now or shall hereafter be in force in the colony.’

“This purports to grant, subject to limitations, certain authorities and powers already vested in the Governor by the Constitution Statute. The grant is, in my opinion, void, and the limitations and the commands founded thereon are also void and illegal.

“Clause VI. of instructions.—‘In the exercise of the powers and authorities granted to the Governor by our said letters patent, he shall in all cases consult with the Executive Council, excepting only in cases which are of such a nature that, in his judgment, our service would sustain material prejudice by consulting the said Council thereupon, or when the matters to be decided are too unimportant to require their advice, or too urgent to admit of their advice being given by the time within which it may necessary for him to act in respect to any such matters—in all such urgent cases, he


  ― 397 ―
shall, at the earliest practical period, communicate to the said Council the measures which he may so have adopted, with the reasons thereof.’

“This is an instruction which a Governor does not, and cannot obey. The Executive Council, in the proper sense of this expression, has never been convened in Victoria. Like the Privy Council, it could not be convened, except by the direction of the Victorian Premier. If by the words ‘Executive Council,’ the ‘Cabinet’ is intended to be referred to, this instruction is unmeaning and void. It is, doubtless, the duty of the representative of the Sovereign to consult his advisers, and it is their duty to advise him in all matters connected with local affairs, but the duty in neither case springs from this royal instruction. If it be intended to direct the Governor to consult his advisers in matters connected with his duty as an officer of the Imperial Government, this is an indirect instruction, offensive in form and without either legal authority or means of enforcement, to Her Majesty's Ministers to do something which they are not required by their duty as Ministers of the Crown to do.

“Clause VII. of instructions.—‘A Governor may act in the exercise of the powers and authorities granted to him by our said letters patent in opposition to the advice given to him by the members of the Executive Council, if he shall in any case deem it right to do so, but in any such case he shall fully report the matter to us by the first convenient opportunity, with the grounds and reasons of his action.’

“I think that this instruction can only be characterized as a distinct denial of the fundamental principle of the existing public law of Victoria. As a direct instigation to Her Majesty's representative to violate that law, it offers a grave indignity and conveys an unmistakable menace to him and to his advisers, who are here and elsewhere misnamed the Executive Council.

“Clause XI. of instructions.—‘Whenever any offender shall have been condemned to suffer death by the sentence of any court, the Governor shall call upon the judge who presided at the trial to make to him a written report of the case of such offender, and shall cause such report to be taken into consideration at the first meeting thereafter which may be conveniently held of the Executive Council, and he may cause the said judge to be specially summoned to attend at such meeting and to produce his notes thereat. The Governor shall not pardon or reprieve any such offender unless it shall appear to him expedient so to do upon receiving the advice of the said Executive Council thereon; but in all such cases he is to decide either to extend or to withhold a pardon or a reprieve according to his own deliberate judgment, whether the members of the Executive Council concur therein or otherwise; entering nevertheless on the minutes of the said Executive Council a minute of his reasons at length in case he should decide such action in opposition to the judgment of the majority of members thereof.’

“This instruction presents a glaring instance of not less flagrant illegality. The prerogative of mercy is a prerogative essentially necessary to the administration of criminal law. The exercise of it in Victoria is therefore a matter in which the representative of the Crown can and ought to act solely upon the advice of his responsible advisers, and neither the Crown nor the Crown's Imperial advisers are legally competent to dictate or advise upon his action. By this instruction the Governor is personally ordered to call upon the judge to make to him a written report—an order which, if it were conveyed otherwise than through and by the advice of the Minister, it would be, I conceive, the duty of the judge to refuse to comply with. The Governor is further required to decide ‘either to extend or to withhold a pardon or a reprieve, according to his own deliberate judgment, whether the members of the Executive Council concur therein or otherwise.’ This unjust and cruel as well as illegal order is not obeyed, and could not be obeyed by any Governor in the only cases to which it could apply. It has been attempted to excuse this instruction on the ground that it is virtually obsolete, yet on two separate occasions long subsequent to the passing of the Australian Constitution Acts, the Colonial Office has expressed its approval of this instruction, and has repeated the injunction to the Governor to obey it.

“Clauses VIII. and X. of instructions.—VIII. ‘In the execution of such powers as are vested in the Governor by law for assenting to or dissenting from or of reserving for the signification of our pleasure, bills which have been passed by the Legislature of the


  ― 398 ―
colony, he shall take care as far as may be practicable that in the passing of all laws each different matter be provided for by a different law without intermixing in one and the same law such things as have no proper relation to each other; and that no clause be inserted in or annexed to any law which shall be foreign to what the title of such law imports, and that no perpetual clause be part of any temporary law.’ X. ‘The Governor is to take care that all laws assented to in our name or reserved for the signification of our pleasure thereon, shall, when transmitted by him, be fairly abstracted in the margins, and be accompanied, in such cases as may seem to him necessary, with such explanatory observations as may be required to exhibit the reasons and occasions for proposing such laws; and shall also transmit fair copies of the journals and minutes of the proceedings of the legislative bodies of the colony, which he is to require from the clerks or other proper officers in that behalf of the said legislative bodies.’

“These clauses are not illegal because they relate to the reservation of bills for the signification of Her Majesty's pleasure. I refer to them only as showing the almost contemptuous disrespect and want of consideration displayed by the Colonial Office towards Australian Parliaments and Imperial officers in Australia. To order a Governor to take care that in the passing of all laws each different matter shall be provided for by a different law may at one time have been proper and not unnecessary. Addressed, as the order indirectly is, to Legislatures consisting of two Houses of Parliament like the Legislative Council and the Legislative Assembly of the various Australian colonies, it is an insult to all of those bodies. And it has proved on one occasion, at least, a cause of actual embarrassment to Her Majesty's Government in Victoria. When the Governor is ordered to require from the clerks in Parliament fair copies of the journals and minutes of the proceedings of the Legislative bodies, he is humiliated by being needlessly instructed to make a requirement which, if disputed, he could not enforce, and for the fulfilment of which he is in any and in every case indebted to the aid—which is, of course, never withheld—of a Minister of the Crown.”

One of the immediate results of this important letter was that Sir Henry Holland, afterwards Lord Knutsford, consulted the Imperial law officers with reference to the points so forcibly raised by the Chief Justice, and in July, 1888, he re-drafted the instructions with a view of meeting many of the points brought under his notice and of bringing the instructions more into conformity with the existing state of things. Lord Knutsford went out of office in 1892, and one of his last official acts was the promulgation of the re-drafted royal instructions for the guidance of colonial governors. Referring to this important event, Professor Morris writes:—

“The improvement was enormous. For the first time Responsible Government is recognized. For the first time the Governor is instructed to accept the advice of his ministers, whereas all earlier editions seem to imply that he is to be careful about accepting such advice and ready to oppose them.” (Professor Morris, Memoir of George Higinbotham, p. 202.)

“The measure of the victory with respect to Downing Street is to be found in the altered instructions. The Home law officers told Lord Knutsford that it was not illegal for governors to correspond with the Colonial Office; but the tone of that office is not now the tone of Mr. Cardwell, nor of the Duke of Buckingham, but rather this ‘involves no question calling for the intervention of the Imperial Government; it is not one on which it seems to me incumbent to express an opinion.’ Contrast the instructions to Sir Charles Darling, signed ‘V. Rg.,’ of June 23rd, 1863, with those published in the Victoria Government Gazette of September 2nd, 1892, signed, July 9th of that year, ‘V. R. I.’ The difference is enormous. The Victorian newspapers of that September commented on the change, and praised the wisdom of the Colonial Office in making it; but no one remembered the Victorian politician whose persistent efforts were at last successful. That number of the Gazette was published only four months before his death.” (Id. p. 229.)

The New Instructions.—The re-drafted instructions, approved by Her Majesty on the advice of Lord Knutsford, contained a complete recognition of the principle of responsible government, in form as well as in practice, in all self-governing colonies. All the old and obsolete provisions which were really only applicable to Crown colonies, and particularly those complained of by Chief Justice Higinbotham, were now eliminated. As portions of these new instructions will be the basis of the “powers and functions of


  ― 399 ―
the Queen” which may be assigned by Her Majesty to the Governor-General under sec. 2 of this constitution, they may be here appropriately inserted:—

  • “(i.) In these Our Instructions, unless inconsistent with the context, the term ‘the Governor’ shall include every person for the time being administering the Government of the Colony, and the term ‘the Executive Council’ shall mean the members of Our Executive Council for the Colony who are for the time being the responsible advisers of the Governor.
  • (ii.) The Governor may, whenever he thinks fit, require any person in the public service to take the Oath of Allegiance, together with such other Oath or Oaths as may from time to time be prescribed by any Law in force in the Colony. The Governor is to administer such Oaths or cause them to be administered by some Public Officer of the Colony.
  • (iii.) The Governor shall forthwith communicate these Our Instructions to the Executive Council, and likewise all such others, from time to time, as he shall find convenient for Our Service to impart to them.
  • (iv.) The Governor shall attend and preside at the meetings of the Executive Council, unless prevented by some necessary or reasonable cause, and in his absence such member as may be appointed by him in that behalf, or in the absence of such member the senior member of the Executive Council actually present shall preside; the seniority of the members of the said Council being regulated according to the order of their respective appointments as members thereof.
  • (v.) The Executive Council shall not proceed to the despatch of business unless duly summoned by authority of the Governor, nor unless two members at the least (exclusive of the Governor or of the member presiding) be present and assisting throughout the whole of the meetings at which any such business shall be despatched.
  • (vi.) In the execution of the powers and authorities vested in him, the Governor shall be guided by the advice of the Executive Council, but if in any case he shall see sufficient cause to dissent from the opinion of the said Council he may act in the exercise of his said powers and authorities in opposition to the opinion of the Council, reporting the matter to Us without delay, with the reasons for his so acting. In any such case it shall be competent to any member of the said Council to require that there be recorded upon the Minutes of the Council the grounds of any advice or opinion that he may give upon the question.
  • (vii.) The Governor shall not, except in the cases hereunder mentioned, assent in Our name to any Bill of any of the following classes:—
    • (1.) Any Bill for the divorce of persons joined together in holy matrimony.
    • (2.) Any Bill whereby any grant of land or money, or other donation or gratuity, may be made to himself.
    • (3.) Any Bill affecting the currency of the Colony.
    • (4.) Any Bill imposing differential duties (other than as allowed by the Australian Colonies' Duties Act, 1873).
    • (5.) Any Bill the provisions of which shall appear inconsistent with obligations imposed upon Us by Treaty.
    • (6.) Any Bill interfering with the discipline or control of Our forces in the Colony by land or sea.
    • (7.) Any Bill of an extraordinary nature and importance, whereby Our prerogative or the rights and property of Our subjects not residing in the Colony, or the trade and shipping of the United Kingdom and its Dependencies, may be prejudiced.
    • (8.) Any Bill containing provisions to which Our assent has been once refused, or which has been disallowed by Us. Unless he shall have previously obtained Our Instructions upon such Bill, through one of Our Principal Secretaries of State, or unless such Bill shall contain a clause suspending the operation of such Bill until the signification in the Colony of Our pleasure thereupon, or unless the Governor shall have satisfied himself that an urgent necessity exists requiring that such Bill be brought into immediate operation, in which case he is authorized to assent in Our name to such Bill, unless the same shall be repugnant to the law of England, or inconsistent with any obligations imposed upon Us by Treaty. But he is to transmit to Us by the earliest opportunity the Bill so assented to, together with his reasons for assenting thereto.



  •   ― 400 ―
  • (viii.) The Governor shall not pardon or reprieve any offender without first receiving in capital cases the advice of the Executive Council, and in other cases the advice of one, at least, of his Ministers; and in any case in which such pardon or reprieve might directly affect the interests of our empire, or of any country or place beyond the jurisdiction of the Government of the colony, the Governor shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid.
  • (ix.) All commissions granted by the Governor to any persons to be Judges, Justices of the Peace, or other officers shall, unless otherwise provided by the law, be granted during pleasure only.
  • (x.) The Governor shall not quit the colony without having first obtained leave from us for so doing under our Sign Manual and Signet, or through one of our principal Secretaries of State, except for the purpose of visiting the Governor of any neighbouring colony for periods not exceeding one month at any one time, nor exceeding in the aggregate one month for every year's service in the colony.
  • (xi.) The temporary absence of the Governor for any period not exceeding one month shall not, if he have previously informed the Executive Council, in writing, of his intended absence, and if he have duly appointed a Deputy in accordance with our said letters-patent, be deemed a departure from the colony within the meaning of the said letters-patent.

V.R.I.”

Special Instructions.—Every colonial governor, after his appointment to office, is subject to the control of the Crown, as an Imperial officer. In addition to the permanent and general instructions which he receives in connection with his commission, he may, from time to time, be charged with any further instructions, special or general, which the Crown may lawfully communicate to him under particular circumstances. The medium of communication between the sovereign and her representative in any British colony is the Secretary of State. (Todd, 2nd ed., p. 122.)

In the absence of special appointment, the governor of a British possession is also ex-officio Vice-Admiral thereof. (26 and 27 Vic. c. 24, sec. 3, and 30 and 31 Vic. c. 45, s. 4; repealed and re-enacted by the Colonial Courts of Admiralty Act, 1890, 53 and 54 Vic. c. 27, s. 10.)

Salary of Governor-General.

3. There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor-General57, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds.

The salary of a Governor-General shall not be altered during his continuance in office.

UNITED STATES.—The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.—Const. (Art. II. sec. 1, 7). SWITZERLAND.—The President of the Confederation and the other members of the Federal Council receive an annual salary from the Federal Treasury.—Const. (Art. 99). CANADA.—Unless altered by the Parliament of Canada, the salary of the Governor-General shall be ten thousand pounds sterling money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada, and the same shall form the third charge thereon.—B.N.A. Act, 1867, sec. 105.

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

“The annual salary of the Governor-General shall be fixed by the Parliament from time to time, but shall not be less than ten thousand pounds, and shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth. The salary of a Governor-General shall not be diminished during his continuance in office.”




  ― 401 ―

In Committee, Sir Harry Atkinson moved the omission of the words “but shall not be less than £10,000;” but after discussion he withdrew the amendment. Sir John Bray moved to omit “but shall not be less than,” and insert “and until so fixed shall be.” This was negatived by 24 votes to 12. An amendment by Sir George Grey, to substitute “altered” for “diminished,” was also negatived. (Conv. Deb., Syd. [1891], pp. 578-85.)

At the Adelaide session, 1897, the clause was introduced as follows:—“The annual salary of the Governor-General shall be ten thousand pounds, and shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth.” In Committee, on the motion of Mr. Higgins, the words “Until the Parliament otherwise provides” were prefixed. An amendment by Mr. Howe, to substitute “seven” for “ten,” was negatived. On Mr. Barton's motion, the second paragraph was added. (Conv. Deb., Melb., pp. 629-33.)

At the Sydney session, suggestions by the Legislative Assembly and Legislative Council of South Australia, to reduce the salary to £7,000 and £8,000 respectively, were negatived, as was also an amendment by Mr. Glynn to omit the second paragraph. (Conv. Deb., Syd. [1897], p. 254.) Drafting amendments to the first paragraph brought it into its present shape.

§ 57. “Salary of the Governor-General.”

“On May 22, 1868, at the close of the first session of Parliament of the new Dominion of Canada, an Act passed by the Senate and House of Commons ‘to fix the salary of the Governor-General’ was reserved for the consideration of Her Majesty's pleasure thereon. It was proposed, by this Act, to reduce the salary of the Governor-General from £10,000, at which rate it had been fixed by the Imperial Act of Union, in 1867 (subject to alteration by the Parliament of Canada), to £6,500. But on July 30, 1868, the Secretary of State for the Colonies notified Lord Monck (the Governor-General) that while it was ‘with reluctance, and only on serious occasions, that the Queen's government can advise Her Majesty to withhold the royal sanction from a bill which has passed two branches of the Canadian Parliament,’ yet that a regard for the interests of Canada, and a well-founded apprehension that a reduction in the salary of the Governor which would place the office, as far as salary is a standard of recognition, in the third class among colonial governments, obliged Her Majesty's Government to advise that this bill should not be permitted to become law. In accordance with the opinions entertained by the Imperial Government on this subject, and with the right to legislate thereon, which was expressly conferred upon the Parliament of Canada by the 105th section of the British North America Act, the Dominion Parliament, in 1869, re enacted, by their own authority, the clause of the Imperial statute which fixed the salary of the Governor-General at £10,000 sterling, the same to be payable out of the consolidated revenue of Canada. This Act was necessarily reserved, under the royal instructions; but it received the assent of Her Majesty in council on August 7, 1869. From this date, no further attempt has been made to reduce the salary of the Governor-General.” (Todd, Parl. Gov. in the Col., 2nd ed., p. 177.)

“The present compensation of the President of the United States, as fixed by statute, is $50,000 per annum, together with the use, as a residence, of the executive mansion, and of the furniture and effects kept therein.” (Burgess, Political Sc., II. p. 244.)

“I think we might trust the Federal Parliament with fixing the amount, and then, of course, there will be an after-clause that the salary of no Governor-General is to be changed during his term of office. That is only fair. But we might trust the Federal Parliament with saying from time to time how much salary should be paid to the Governor-General.” (Mr. H. B. Higgins, Conv. Deb., Adel. [1897], p. 629.)

“I beg to say that the object of the Constitutional Committee was to lift this question of the salary of the Governor-General above that incessant nagging and criticism which has given rise to some of the most discreditable episodes in our political life. We have had in our various Parliaments all sorts of questions as to the value of a Governor, or the value of our connection with the British Crown, with a view to diminish his salary. The Governor-General is the only constitutional link we have between the mother-country and ourselves, and £10,000 is not too small a sum; indeed, everyone will admit that it is a fair salary. This is the salary of the President of the United States, and the object of the Constitutional Committee was to lift the office of the Governor-General, and the person himself, above the attacks to which I have referred—attacks which are made by persons who either despise the British Crown, or wish to subvert the


  ― 402 ―
position of the Governor-General. Under cover of these arguments, attacks are made upon the individuals who represent the Queen in the different colonies. As the Governor-General is to be a visible link between the British empire and ourselves, we should place him beyond the possibility of any trafficking being indulged in about the question of salary.” (Mr. G. H. Reid, id., p. 629.)

“I feel as strongly as Mr. Reid does the undesirability of frequent attacks upon the Governor, or his salary, or his perquisites, or anything else that belongs to him; but I am afraid that liability to attack would not be at all lessened if people were disposed to make it by inserting this provision for a fixed salary. My own inclination is that the reverse would be the case, because if people were disposed to cast unpleasant aspersions upon the Governor-General they would be more likely to do so if they could not relieve any antagonistic feeling they had by reducing his salary or that of his successors. There is a great deal of human nature in man, and if people, however fair they might wish to be, felt they could not gratify in any other way the criticism they may wish to indulge in, they would indulge in it with a great deal more acerbity if they could not touch the salary of the Governor-General or his successor. We may very fairly leave it with the Federal Parliament we are going to constitute, and the men who will compose this Senate and House of Representatives, to deal fairly and honourably with the Governor-General and his salary.” (Mr. J. H. Symon, id., p. 630.)

Provisions relating to Governor-General.

4. The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint58 to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office59 during his administration of the Government of the Commonwealth.

CANADA.—The provisions of this Act referring to the Governor-General extend and apply to the Governor-General for the time being of Canada, or other the Chief Executive Officer or Administrator for the time being carrying on the Government of Canada on behalf and in the name of the Queen, by whatever title he is designated.—B.N.A. Act, 1867, sec. 10.

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

“The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being or other the Chief Executive Officer or Administrator of the Government of the Commonwealth, by whatever title he is designated.”

At the Adelaide session, 1897, the clause was introduced as follows:—

“The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such other person as the Queen may appoint to be the Chief Executive Officer or Administrator of the Government of the Commonwealth; but no such person shall be entitled to receive any salary in respect of any other office under the Crown during his administration of the Government of the Commonwealth.”

In Committee the words “under the Crown” were omitted, and “from the Commonwealth” inserted after “salary.” (Conv. Deb., Adel., pp. 633-5) At the Melbourne session, drafting amendments were made after the fourth report.

§ 58. “Such Person as the Queen may Appoint.”

These words refer to the appointment of an acting Governor-General or Administrator of the Government of the Commonwealth, appointed under commission by the Queen. This officer, when so appointed, is authorized to exercise all the powers and functions of the Governor-General. He is not to be confused with the Deputy Governor-General, provided for by sec. 126. A Deputy Governor-General can only be appointed


  ― 403 ―
by the Governor-General himself under the authority of the Queen, and can only exercise such powers and functions as are assigned to him by the Governor-General, subject to any limitations imposed by the Queen; and the appointment of a Deputy does not affect the exercise by the Governor-General himself of those powers. (See sec. 126.)

“During the temporary absence of a Governor from his colony, it was formerly the general practice for the Crown, by a dormant commission under the sign-manual, to empower the Chief Justice or senior judge therein to act as administrator of the government; but difficulties having sometimes arisen in carrying out an arrangement of this kind, it is not now invariably resorted to, at least, in the first instance. Instead of this provision to supply the place of an absent Governor, it is now customary either to appoint a Lieutenant-Governor or Administrator of the Government under the royal sign-manual; or else that the senior officer for the time being of Her Majesty's regular troops in the colony shall be empowered to act in this capacity. But where no such provision has been made, it is usual and appropriate for the Chief Justice or senior judge to be authorized to act as Administrator of the Government, in the event of the death, incapacity, removal or departure from the Government of the Governor and (if there be such an officer) of the Lieutenant-Governor of the colony.” (Todd, Parl. Gov. in the Col., 2nd ed. p. 123.)

§ 59. “Salary … in Respect of any other Office.”

At the Adelaide session of the Convention, a section was inserted in Chapter III. providing that no person holding any judicial office should be appointed to or be capable of holding the office of Governor-General, Lieutenant-Governor, Chief Executive Officer, or Administrator of the Government. (Adel. Bill, sec. 80; Conv. Deb. Adel. pp. 1174-6) At the Melbourne session, this section was eliminated on the ground that it contained an undue limitation of the prerogative of the Crown, and that it might prejudically restrict the choice of the Crown in the appointment of an Administrator of the Government for the time being. The Queen has now, therefore, unfettered discretion in the selection and appointment of an Administrator of the Federal Government; he may be an Imperial officer; he may be an officer of the Commonwealth, such as President of the Senate or a Judge of the High Court; he may be a Governor of a State or other State officer; or he may not occupy any official position whatever at the time of his appointment. No qualification or disqualification for the office is prescribed, the Queen's choice, in conformity with the advice of her Imperial Ministers, being considered a sufficient guarantee for the appointment of a suitable and acceptable Federal Administrator, as well as for that of Governor-General himself. No mention is made in this section of the salary to be paid to the Administrator for his services in that capacity. It may be assumed that he will be paid out of the £10,000 per year payable to the Queen out of the consolidated fund of the Commonwealth for the maintenance of the Governor-Generalship, and that the amount will be apportioned in some manner satisfactory to the Imperial Government. There is, however, a distinct provision that no person acting as Administrator shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth. This inhibition will prevent a Federal Judge, should he be appointed Administrator, or the President of the Senate, should he be so appointed, from receiving the salary annexed to those respective offices during his administration of the Government. But should the Governor of a State or other State officer be so appointed, it will be competent for him to receive the salary of his State office as well as the salary for the Federal office.




  ― 404 ―

Sessions of Parliament. Prorogation and dissolution. Summoning Parliament. First Session.

5. The Governor-General may appoint such times60 for holding the sessions of the Parliament61 as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue62 the Parliament, and may in like manner dissolve63 the House of Representatives.

After any general election the Parliament shall be summoned64 to meet not later than thirty days after the day appointed for the return of the writs65.

The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth.

UNITED STATES.—The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. —Const., Art. I., sec. 4, subs. 2. CANADA.—The Parliament of Canada shall be called together not later than six months after the union.—B.N.A. Act, 1867, sec. 19.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, the first and third paragraphs of this section were contained, in almost identical words, in Clause 6 of Chap. I.; whilst the substance of the second paragraph was added to clause 42 in Committee, on the motion of Sir John Bray. (Conv. Deb., Syd. [1891], pp. 585, 643-62.)

At the Adelaide session, the same provisions were introduced almost verbatim. (Conv. Deb., Adel., p. 635.) At the Sydney session, the question of dissolving the Senate was raised, and the clause was postponed till the deadlock question had been settled. (Conv. Deb., Syd. [1897], pp. 254-6, 987.)

At the Melbourne session, drafting amendments were made before the first report and after the fourth report; the second paragraph being brought up from the “Duration of House of Representatives” clause (sec. 28).

§ 60. “May Appoint such Times.”

This is the first section in the Constitution in which a specific power to perform executive acts is vested in the Governor-General. It will be noticed that the section states that the Governor-General may perform these acts, and there is no reference to his so acting by the advice of the Federal Executive Council. The powers conferred on the Governor-General by this, and other sections similarly worded, may be here summarized for the purpose of comparing them with other powers conferred on the Governor-General in Council.

STATUTORY POWERS OF THE GOVERNOR-GENERAL.—The Governor-General may appoint the times for the holding the sessions of Parliament (sec. 5).

The Governor-General may prorogue Parliament (sec. 5).

The Governor-General may dissolve the House of Representatives (sec. 5).

The Governor-General shall notify to the Governor of a State interested the happening of a vacancy in the Senate (sec. 21).

The Governor-General may recommend to Parliament the appropriation of revenue or money (sec. 56).

The Governor-General may dissolve the Senate and the House of Representatives simultaneously (sec. 57).




  ― 405 ―

The Governor-General may convene a joint sitting of members of both Houses (sec. 57.)

The Governor-General may assent in the Queen's name to a proposed law, or withhold assent, or reserve the law for the Queen's pleasure (sec. 58).

The Governor-General may recommend to Parliament amendments in proposed laws (sec. 58.)

The Governor-General may exercise, as the Queen's representative, the executive power of the Commonwealth (sec. 61).

The Governor-General shall choose and summon members of the Federal Executive Council, and may dismiss them (sec. 62).

The Governor-General may appoint officers to administer departments of State, and may dismiss them (sec. 64).

The Governor-General may, in the absence of Parliamentary provision, direct what offices shall be held by Ministers of State (sec. 65).

The Governor-General as the Queen's representative has the command-in-chief of the naval and military forces (sec. 68).

The Governor-General may proclaim dates when certain departments shall be transferred to the Commonwealth (sec. 69).

The Governor-General may, “in respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth,” exercise all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony (sec. 70).

STATUTORY POWERS OF THE GOVERNOR-GENERAL IN COUNCIL.—On the other hand there are numerous sections in which authority to do executive acts is vested expressly in the Governor-General in Council, thus:—

The Governor-General in Council may issue writs for general elections of the House of Representatives (sec. 32).

The Governor-General in Council may issue writs for elections to fill vacancies in the House of Representatives (sec. 33).

The Governor-General in Council may establish departments of State (sec. 64).

The Governor-General in Council may appoint and remove all officers except Ministers of State (sec. 67).

The Governor-General in Council may exercise, “in respect of matters which under this Constitution pass to the Executive Government of the Commonwealth,” all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony with the advice of his Executive Council (sec. 70).

The Governor-General in Council shall appoint the Justices of the High Court, and may appoint Justices of other Federal Courts (sec. 72).

The Governor-General in Council may, on addresses from both Houses, remove Justices of the High Court and of other Federal Courts (sec. 72).

The Governor-General in Council may draw money from the Federal Treasury and expend the same until the first meeting of the Parliament (sec. 83).

The Governor-General in Council may appoint members of the Inter-State Commission (sec. 103).

The Governor-General in Council may, on addresses from both Houses, remove members of the Inter-State Commission (sec. 103).

MODE OF EXERCISING THESE POWERS.—Without anticipating our general comments on the Executive Government of the Commonwealth, which naturally appear under the heading of Chapter II. (note § 271) it may be advisable here to make a preliminary observation in explanation of the two groups of executive powers, so classified.




  ― 406 ―

The first group includes powers which properly or historically belong to the prerogatives of the Crown, and survive as parts of the prerogative; hence they are vested in the Governor-General, as the Queen's representative. The second group includes powers either of purely statutory origin or which have, by statute or custom, been detached from the prerogative; and they can, therefore, without any constitutional impropriety, be declared to be vested in the Governor-General in Council. But all those powers which involve the performance of executive acts, whether parts of the prerogative or the creatures of statute, will, in accordance with constitutional practice, as developed by the system known as responsible government, be performed by the Governor-General, by and with the advice of the Federal Executive Council. (See Note § 275.) If the section now under review had been made to read “the Governor-General in Council may appoint such times for holding the sessions of the Parliament,” &c., the words “in Council” would have been an invasion of the Royal prerogative; because it is invariably recognized as a prerogative of the Crown to summon, prorogue and dissolve Parliament. The words would moreover have been mere surplusage; nothing would have been gained, since parliamentary government has well established the principle that the Crown can perform no executive act, except on the advice of some minister responsible to Parliament. Hence the power nominally placed in the hands of the Governor-General is really granted to the people through their representatives in Parliament. Whilst, therefore, in this Constitution some executive powers are, in technical phraseology, and in accordance with venerable customs, vested in the Governor-General, and others in the Governor-General in Council, they are all substantially in pari materia, on the same footing, and, in the ultimate resort, can only be exercised according to the will of the people.

“There are certain prerogative rights which have been long demitted or got rid of by statute or by other practice—generally by statute—and in any statute drafted the words “in Council” are inserted. There are certain other prerogative rights which, not having been the subject of such demission, as it is sometimes called, I believe, not having been given up in any way, apparently, are not so described in a statute. There are certain prerogative rights—this was all gone into at Adelaide, and decided by the Convention according to the contention I am advocating—which are not described in a statute as rights of the Governor in Council, simply because no statute has ever dealt with them, and because they belong to that part of the prerogative which has never been nominally given up by the Crown. Of such is the power to summon and dissolve Parliament, to which no one who understood these matters would dream of adding the words ‘in Council.’ But yet these rights can never be exercised without the advice of a responsible Minister, and