(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 (oλireía) there are three departments (μópia), 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 (7ò Bovdevóμevov) about public affairs; the second is that which has to do with the offices ; and the third is the judicial part

(Tò dikáčov).” (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

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 GovernorGeneral 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

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.)

CHAPTER I.-THE PARLIAMENT1.

§ 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 Parlia ment. See I. Comm., c. 2, p. 147, and the notes thereof." (Tomlins's British LawTitle, 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 Anglia.' (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 revolu tionary 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

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, Unterwalden, 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, Etolian 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.

52

1. The legislative power of the Commonwealth shall be vested in a Federal Parliament, 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. 1.. 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

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. 94the 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.

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