Postal, telegraphic and telephonic departments will not be transferred to the Federal Government at the establishment of the Commonwealth, but on a subsequent date, fixed and proclaimed by the Governor-General, acting on the advice of the Federal Administration. When these important departments are taken over by the Commonwealth, all the property of every kind of each State, used exclusively in connection with them, will become vested in the Commonwealth. The Commonwealth will also be able to acquire any property of each State used, but not exclusively used, in connection with those departments. The Commonwealth will compensate each State for the value of property passing to it under the Constitution, as well as for the value of property partially used in connection with transferred departments which the Federal Government may, in the exercise of its discretion, decide to acquire. The procedure for determining the amount of compensation is detailed in sec. 85. In taking over these valuable assets, the Commonwealth is bound to assume the obligations of each State in connection therewith, current at the date of transfer. (Sec. 85—iv.)

Under the power to establish post-offices and post-roads, the mail operations of the United States are regulated. Postmasters are appointed and their duties prescribed; mail contracts are made and carriers of mails regulated; provisions are made for the Iunishment of depredations on the mail. These powers are incident to the main power. (Sturtevants v. City of Alton, 3 McLean, 393. Baker, Annot. Const. p. 47.)

The powers conferred are not confined to the instrumentalities in use when the Constitution was adopted. Congress, in its exercise, should keep pace with the progress of the country and adapt the regulations to the development of time and circumstances. The powers were conferred for the government of business for all time and under all circumstances. To this end Congress may establish telegraph lines, and in this, is not limited in its operation to such military and post-roads as are on the public domain. (Pensacola Tel. Co. v. Western Union Tel. Co. 96 U.S. 1, id. p. 47.)

The postal power of the United States embraces the regulation of the entire postal system of the country, and enables Congress to designate what shall be carried in the mail and what excluded. A law excluding circulars of lotteries, &c., is a valid exercise of the power. But when any matter is excluded from the mails, Congress cannot forbid its transportation by other means, so as to interfere with the freedom of the press. (Ex parte Jackson, 96 U.S. 727, id. p. 47.)

"We may also class the power of Congress over the postal service with, but not under, the power to regulate commerce with foreign nations and among commonwealths. I say with, but not under, because this power extends to postal communication within a single commonwealth, as well as among the commonwealths and with foreign States, and because the Congress has interpreted its power in this respect as authorizing it not simply to regulate the postal business, but to authorize the administration to do the postal business, and to do it exclusively; i.e., Congress has claimed and exercised the power of establishing a governmental monopoly of the postal business over all governmental postal routes, and, since Congress may declare every route a governmental postal route, the monopoly is complete at the option of the Congress. The Court has ratified the interpretation which Congress has placed upon its power in this respect." (Burgess Political Sc. II. p. 139-40.)

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Again, Congress must not so exaggerate the conception of mail matter as to claim the express business as a governmental monopoly. It cannot prohibit from carriage in other ways than through the United States mail anything which was not regarded as mail matter at the time of the formation of the constitution." (Id. p. 140.)

"Whether, under the power to establish post offices and post roads, the legislature of the United States may make the telegraph a governmental monopoly cannot be regarded as entirely settled, although the Congressional Act of 1866, and the decision of the Supreme Court in the case of The Pensacola Telegraph Company . The Western Union Telegraph Company, seem to indicate that both the Congress and the Court interpret the constitution as vesting this power in Congress." (Id. 140-1.)

51. (vi.) The naval and military defenceles of the Commonwealth and of the several States, and the control of the forces to execute and maintain' 169 the laws of the Commonwealth:

HISTORICAL NOTE. --The war powers of the United States (Art. I. sec. viii. sub-ss. 11-16) are those of a sovereign State, and include the power to declare war. The corresponding provision of the British North America Act is "Militia, Military and Naval Service and Defence" (sec. 91, sub-s. 7).

"Defence" was specified as a federal subject in the Bill attached to Wentworth's Memorial in 1857 (p. 94, supra). By the Federal Council of Australasia Act, 1885, the subject of "general defences" might be referred to the Federal Council. The opportunity for Sir Henry Parkes' action which led to the Sydney Convention of 1891 was Major-General Edwards' report on the necessity for federal defence. In the Commonwealth Bill of 1891 there were two sub-clauses dealing with the matter:-" (6) The military and naval defence of the Commonwealth and the several States, and the calling out of the forces to execute and maintain the laws of the Commonwealth, or of any State or part of the Commonwealth ; (7) Munitions of war." The latter sub-section was added in Committee, at Mr. Fitzgerald's suggestion. (Conv. Deb., Syd, 1891, pp. 683-4.)

At the Adelaide session, 1897, the sub-clause was worded:-"The military and naval defence of the Commonwealth and the several States, and the calling out of the forces to execute and maintain the laws of the Commonwealth." A verbal transposition was made at the Sydney session; and at the Melbourne session, after the fourth report, "control" was substituted for "calling out."

§ 168. "Naval and Military Defence."

In 1858 the military expenditure incurred by the Imperial Government in the various colonies and dependencies of the Crown amounted to nearly £4,000,000 sterling. Towards that large sum the communities for whose defence and safety it was incurred contributed only £380,000. In few of those colonies or dependencies was there any militia established, or any local provision made for defence. In 1859 a Departmental Committee consisting of Sir T. Elliott of the Colonial Office, Mr. Hamilton of the Treasury, and Mr. Godley of the War Office, submitted a report to the Imperial Government on the question of the defence of the colonies, in which the injurious consequences of the old policy of encouraging the colonies to rely solely on the Mother country for protection were pointed out. Not only did it impose an unfair burden on the British taxpayer, but it also retarded the development of the spirit of self-reliance and self-defence in the colonies, and discouraged any effort to share in the responsibility of maintaining intact their free institutions and their national existence. The report led to an important reform, which was inaugurated shortly afterward.

On 4th March, 1862, Mr. Arthur Mills proposed in the House of Commons the following resolution, which was carried unanimously :

"That this House (while fully recognising the claims of all portions of the British Empire to Imperial aid in their protection against perils arising from the consequences of Imperial policy) is of opinion that colonies exercising the rights of self-government ought to undertake the main responsibility of providing for their own internal order and security, and ought to assist in their own external defence."

A fundamental change was brought about by the gradual withdrawal of the Imperial troops, previously scattered throughout every part of the Empire, and by the selfgoverning colonies undertaking the responsibility of their own military defence. (Todd's Parl. Gov. in Col., 1st ed. p. 295.)

In 1873 the Under-Secretary of State for the Colonies was in a position to inform Parliament that the military expenditure in connection with the colonies was only such

as was necessary for Imperial purposes. The barracks, fortifications and landed property used for defence purposes, and the arms and munitions of war in actual use in each colony, were handed over to the local Government, subject only to the condition, that if at any future time troops should be sent to the colony at its request, or in the furtherance of colonial interests, suitable accommodation should be provided for them. (Id. p. 298.)

On the application of the Governments of New South Wales, Victoria, South Australia, and Queensland, the Imperial Government decided in 1876 to instruct MajorGeneral Sir W. F. D. Jervois and Lieutenant-Colonel Scratchley to inspect the existing fortifications, ports, harbours, and coastal defences, of the various Australian colonies, and to advise the local Governments as to the engineering and other means required to place the naval and military defences of Australia in a state of efficiency. In accordance with the recommendations of those distinguished officers, provision was made by the Australian Legislatures for the purchase of war vessels, the erection of forts, and the improvement of harbour defences. (See p. 115, supra.)

At the Colonial Conference held in London in 1887 the representatives of the colonies expressed a desire that the Imperial Government should appoint a military officer of high standing to advise the Australian Governments as to the best method of organizing the local forces in order to secure their joint co-operation in time of need. Accordingly in 1889 Major-General Edwards, R. E., C.B., was sent to Australia to inspect and report upon the defences of the colonies. In his able and elaborate report he pointed out the imperfections of the existing system of defence, which was based on purely local administration with no provision for united action in time of emergency, and he submitted a plan for a uniform system of military organization to be brought into operation throughout Australia. He suggested that the troops of the various colonies might act in the field as a united force under one command whenever required, so that they might be in readiness to be removed to repel invasion at any given point. The following is a summary of General Edwards' proposals:

(1.) Federation of the forces :

(2.) An officer of the rank of Lieutenant-General to be appointed to advise and inspect in time of peace and to command in time of war:

(3.) A uniform system of organization and armament, and a common defence Act:

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(4.) Amalgamation of the permanent forces into a fortress corps":

(5.) A federal military college for the education of the officers :

(6.) The extension of the rifle clubs :

(7.) A uniform gauge for the railways:

(8.) A federal small-arm manufactory, gun wharf and ordnance store.

"In urging the necessity of a federal military college, the general pays a tribute to the Canadian royal military college. He says: Nothing is more necessary for the efficiency of an army than the proper education of its officers, but at present no means exist in Australia to meet this important want. Canada was formerly in the same difficulty before she was federated, and it was only overcome by the establishment of the royal military college at Kingston. Having had personal experience of the officers educated there, I can testify to the excellence of their instruction. In addition to the primary object of the college, the course affords a thoroughly practical, scientific and sound training in all branches essential to a high and general education. The tendency of it has been to cause the students to feel a greater pride in their country, and to look at it from the broad standpoint of Canadians, whose aspirations are not circumscribed by the limits of a municipality. A college such as this would be eminently adapted for the education of the officers of the Australian forces."" (Todd, Par. Gov. in Col. 2nd ed pp. 399-401.)

The Australasian Naval Defence Act, 51 and 52 Vic. c. 32, assented to 20th Dec. 1887, was passed to give legal effect to the terms of a provisional agreement between the Imperial Government and the Governments of the Australasian colonies, subject to parliamentary ratification. (See p. 116, supra.) Under the terms of this compact, the

Admiralty undertook to construct and equip a fleet of five fast cruisers, each of 2575 tons displacement and 7500 horse power, and two torpedo gunboats, on the most approved modern build, each 750 tons and 4500 horse power, for the protection of the floating trade in Australasian waters, and in order to secure the defence of certain ports and coaling stations. Of these vessels, three cruisers and one gunboat were to be kept continually in commission, the remainder to be held in reserve irrespective of the usual strength of Her Majesty's naval force employed at the Australian station. The Act stipulated that these sea-going ships should be furnished by the Imperial Government, the colonies paying 5 per cent. interest annually on the prime cost, such payment not to exceed £35,000 a year; the colonies in addition bearing the actual charges of their maintenance, including retired pay to officers and pensions to men, provided that the annual cost under this head should not exceed £91,000. The ships were to be under the sole control and orders of the naval commander-in-chief on the Australian station, but to be retained within the limits of that station, and only otherwise employed by consent of the colonial governments. The agreement was to become binding between the governments as soon as the colonial legislatures passed special appropriations for the fulfilment of its conditions. For the boundaries of the Australian station, as defined in the Act, see p. 116, supra.

The agreement was ratified in 1887 by similar Acts passed by the various Australian legislatures. It was made for a period of ten years at least, and it could only be terminated then or thereafter upon two years' notice. The ninth annual contribution of £126,000 for cost and maintenance of coastal defence was allotted among the various Australasian colonies, on the basis of population, as follows:

The report of General Edwards, recommending a federation of the naval and military forces, was one of the strongest arguments ever submitted in favour of the political federation of the Australian colonies. Most of the leading statesmen of the day were of opinion that there could be no successful federation for naval and military purposes unless the forces were placed under one command; that there could not be one command except under one government, and one common system of taxation by a representative parliament. These views were expressed with unanswerable force and admirable precision by Sir Henry Parkes in moving the preliminary resolutions on which the Draft Bill of 1891 was founded. "I then come," said the venerable President of the Convention, "to one to which I expect an almost unanimous agreement : That the military and naval defences of Australia shall be entrusted to federal forces, under one command. Whatever our views may be on other points, I think we shall all be agreed upon this: that for the defence of Australasia to be economical, to be efficient, to be equal to the emergency that may arise at any time, it must be of a federal character, and must be under one command. I am seeking to simplify my words as much as possible. I do not mean that the land forces and the naval forces shall be under one commander-in-chief; but that they should be under one kindred command---that the naval officer in command, equally with the military officer, shall be a federal officer, and

amenable to the national government of Australasia. Now these are the conditions which appear to me to be essentially requisite that we should decide in one way or the other-that should be strictly defined by this Convention before we can proceed to construct a bill to confer a constitution." (Conv. Deb., Syd., 1891, p. 25.)

Under the Constitution the Federal Parliament, like the American Congress, has power to raise and maintain an army and a navy; it is charged to take over from the States their naval and military departments, their forces, their fortifications and defence works and buildings, their ships of war, their war materials and armaments (secs. 69 and 85); it may acquire from the States or from private persons landed and other property necessary for naval and military purposes. (Sec. 51-xxxi.) In fact it has full and exclusive authority for the construction of defence works and for the recruitment, organization, and discipline of the whole of the naval and military forces of the Commonwealth; it can do everything in the development of its naval and military system which can be accomplished by legislation, except that it may not assume the functions of the commander-in-chief, which by sec. 68 are vested in the GovernorGeneral as the Queen's representative. (Burgess II. 153-5.)

The States are forbidden to raise or maintain any naval or military forces without the consent of Parliament. (Sec. 114.) The American Courts have gone so far as to express the opinion that the States cannot obstruct or embarrass the power of Congress, in the creation of military forces, by prohibiting the people from keeping or bearing arms. (Presser r. Illinois, 116 U.S. 252.) This inhibition is derived from the power of Congress to construct the whole military organization of the nation. (Burgess II. 151.) The States of the Commonwealth are no doubt similarly inhibited. The military jurisdiction of Congress is subject to one limitation, viz, that army appropriation shall not, at any one time, provide for a longer period than two years. sec. 8, ss. 12.)

(Art. I.,

The Parliament of the Commonwealth is not so hampered in its appropriations. But the plenitude of its naval and mi itary power is, apparently, subject to limitation in the purpose for which it must be used. It could not enter upon naval and military enterprises solely with a view to foreign conquest and aggression; its power is to be used for the defence of the Commonwealth and of the several States, and for the preservation of law and order within its limits. As to the exclusiveness of this power, see notes to sec. 114.

The control of the general government over this subject is plenary and exclusive. It determines how the armies shall be raised, whether by voluntary enlistment or forced draft. the age at which the soldier shall be received the period of service, and the compensation to be allowed. It provides for the rules that shall govern the army, defines military offences, and prescribes punishment; and no State can interfere with the discharge of these national duties by habeas corpus or other proceedings. (Tarble's Case, 13 Wall. 397. Baker, Annot. Const. p. 52.)

The Constitution of the United States empowers Congress to “raise and support armies" a d to "provide and maintain a navy. Independently of the express clause in the Constitution, this must include the power to make all laws which shall be necessary and proper for carrying into effect the foregoing powers." (United States v. Bainbridge, 1 Mason, 71. Id.)

Congress has power to provide for the trial and punishment of military and naval offenders, in the manner practised by civilized nations. (Dynes r. Hoover, 20 How. 65. Id. p. 53.)

The power to maintain a navy authorizes the Federal government to buy or build ships of war to equip them for war, and to despatch them to any part of the globe. (United States r. Rhodes, 1 Abb. [U.S.] 28 – Id.)

A war ship of a friendly foreign nation, while within a port of the Union and demeaning itself in a friendly manner, is not within the ordinary jurisdiction of the federal courts. The Exchange r. McFaddon, 7 Cranch, 116. Id.)