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New Powers of the States.

(a) As Instruments of the Constitution.

The States appear in the Commonwealth in more than one capacity. First and foremost, of course, they are the local parts in the composite government of a federation. They are also the foundation upon which one House, and in a sense both Houses, of The Parliament are built. But they are also, in a special sense, the instruments of the Constitution in the formation of the central government. In the chapter on “The Parliament,” various powers and duties incident to constituting that body are imposed upon the Governor and the Legislature of the State; and in all sorts of matters, which must be the subject of some regulation, the laws of the States in their respective territories are applied to the subject matter, or the State Parliament is given power to make laws regarding them, “until The


  ― 284 ―
Parliament otherwise provides.”note In addition to the incidental and auxiliary powers and duties conferred upon the States, or the organs of the State government, by the Constitution, there are some substantive matters in which new powers or duties are conferred upon the States. We have seen under the head of the Legislative power the importance in certain cases of State initiative or concurrence, as a condition of the validity of certain Commonwealth laws. The Constitution also contains important provisions enabling the States to surrender their territory (sections 111, 125), to consent to an alteration of boundaries (section 123), or to the establishment of new States by separation of territory or union of States (124).

One matter affecting The Parliament is regarded as essentially of local concern, and is left to the regulation of the State Parliament altogether (section 9). Without the co-operation of the States Governments at the outset, the central government could not be set to work.

(b) As Delegates of the Commonwealth Government.

The Commonwealth laws bind the State Courts; and we have seen that the Constitution enables The Parliament to constitute the State Courts its instruments for the administration of justice. Whether, and to what extent, the Commonwealth Parliament may delegate legislative power to The Parliament of the States, is a question not free from doubt; it may not be of great practical importance, since comparatively few of the Commonwealth powers of legislation are exclusive. The Commonwealth Government is organized on the executive side, and is not dependent on the States; but the State Executive may, if the State Governments agree, be used as the instrument of the Commonwealth. In the United States, from the establishment of the Constitution, the federal government has been in the habit of


  ― 285 ―
using, with the consent of the States, their officers, institutions, and tribunals as its agents. That use has not been deemed a violation of any principle, or as in any manner derogating from the sovereign authority of the federal government, but as a matter of convenience and a great saving of expense.note The Constitution of the Commonwealth itself indicates one matter of executive government, in which the State is to be the auxiliary of the Commonwealth. By section 120 it is enacted, that “every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and The Parliament of the Commonwealth may make laws to give effect to this provision.”

The chapter of the Constitution on Finance and Trade deals with the rights and duties of the States considered as political entities, so far as their economic relation with each other and the Commonwealth are concerned. The chapter on the States deals with their respective relations of political power and governmental duty. In general, the Commonwealth Constitution, like that of the United States, treats the individual rather than the State as the subject upon whom the fundamental law is binding. In these two chapters, however, the “national” element recedes, and the “federal” note predominates.

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