Short Title.

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1. This Act1 may be cited as the Commonwealth 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.)

$ 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, 1985; Clause 8 applies the "Colonial Boundaries Act, 1895," to the Commonwealth; Clause 9 contains the Constitution of the 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 associa tion 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

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

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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.

Act IV. Sc. I.

SICINIUS.-Your Coriolanus, sir, is not much missed,

"Love's Labour Lost,"

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,

'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 governIn his work on Civil Government, published after the Restoration, John Locke,

ment.

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.)

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.

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