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§ 443. "Shall be Paid by the Several States."

It would seem that the indemnity, coupled with the direction that the amount shall be paid, is sufficient to create a debt owing by the State to the Commonwealth. The Constitution contains no provision for the recovery of this debt, and the States, apart from legislation, are not suable except by their own consent (§ 338, supra); but it is submitted that a suit by the Commonwealth for payment, being a matter "in which the Commonwealth is a party," is within the judicial power, and therefore that the Federal Parliament may, under sec. 78, make laws conferring rights to proceed against the States in such matters.

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

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

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

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

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

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


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

Saving of Constitutions.

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

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

§ 445. "The Constitution of each State."

In the preparation of the new Constitution the design kept in view was to distribute the delegated sovereignty of the Commonwealth among two groups of governing organs. That delegated sovereignty consisted partly of old powers and partly of new powers. The old powers were those previously granted by the Imperial Parliament to the separate colonies. The new powers were those freshly granted by the Imperial Parliament. The whole of those powers, new and old, constituted the quasi-sovereignty of the Commonwealth. In the process of distribution nearly all the new powers and a proportion of the old powers were vested in the Federal Government, the guiding principle being that those powers, and those powers only, which could be best exercised by a Parliament representing the united people, should be transferred from the States to the Federal Government. This distribution left the States in the full possession and enjoyment of their original institutions and their previously acquired powers, minus

only this deduction and transfer. Thus the States retain their Constitutions, their Parliaments, their Executive and Judicial organizations, subject only to the loss of those powers which by the Federal Constitution are withdrawn from the scope and operation of the State Constitutions and brought within the sphere of the Federal Constitution.

These principles of delimitation and partition were plainly outlined in the preliminary resolutions moved by Sir Henry Parkes, and adopted by the Federal Convention of 1891.


"I, therefore, lay down certain conditions which seem to me imperative as a groundwork of anything we have to do, and I prefer stating that these first four resolutions simply lay down what appear to me the four most important conditions on which we must proceed. First That the powers and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government.' I think it is in the highest degree desirable that we should satisfy the mind of each of the colonies that we have no intention to cripple their powers, to invade their rights, to diminish their authority, except so far as it is absolutely necessary in view of the great end to be accomplished, which, in point of fact, will not be material as diminishing the powers and privileges and rights of the existing colonies. It is therefore proposed by this first condition of mine to satisfy them that neither their territorial rights nor their powers of legislation for the well-being of their own country will be interfered with in any way that can impair the security of those rights, and the efficiency of their legislative powers." (Sir Henry Parkes, Conv. Deb., Syd.. 1891, p. 24.)

In the Adelaide Convention of 1897, a similar resolution was made the basis of the Constitution which was then drawn. It was resolved that the several colonies were not to be touched in any of their powers, privileges, and territories, except where a surrender was necessary to secure uniformity of law and administration in matters of general concern; that, after the establishment of Federation, the inviolability of the territory of each colony should be still preserved, subject to the determination of the people of such colony themselves. (Conv. Deb., Adel., p. 20.)

By the force of the legislative mandate that "the Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth" it may be argued that the Constitutions of the States are incorporated into the new Constitution, and should be read as if they formed parts or chapters of the new Constitution. The whole of the details of State Government and Federal Government may be considered as constituting one grand scheme provided by and elaborated in the Federal Constitution; a scheme in which the new national elements are blended harmoniously with the old provincial elements, thus producing a national plan of government having a Federal structure.

In the pardoning power case of the Attorney-General of Canada v. Attorney-General of Ontario (1892), 19 Ont. Rep. 31, it was argued that the use of the phrase "constitution," in referring to the federal and provincial instruments of government, indicated the existence in the case of the Provinces of the same quality of legislative power, to be exercised in the same way, and with the same degree of latitude, as to methods, means, and facilities for carrying out such legislative power, as in the case of the Dominion. The same word was used to denote the British Constitution, the Constitution of the Dominion, and the Constitutions of the Provinces. In its application to the Provinces it was contended that it could not be used in the sense of an Act for the incorporation of a company, or in the sense of a charter of a municipality; the title showed that it referred to the Constitution of a State, embracing the idea of sovereignty and political organization. (Wheeler, C C., p. 27.)

It was accordingly held in that case that the legislature of a Province could vest in the Lieutenant-Governor thereof the power to commute and remit sentences for offences against the law of the Province, or offences over which the legislative authority of the Province extends, as fully and effectually as the Dominion Parliament could vest a similar authority in the Governor-General in relation to offences against the law of the Dominion. (Lefroy, Leg. Power, p. 39.)

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