was inserted, but suggested that it was to "indicate that the States are sovereign," and are not merely to have Lieutenant-Governors. The clause was agreed to. Clause S was objected to as limiting the powers of the Crown, as an interference with the State Constitutions which was beyond the functions of the Convention, and as encouraging an undesirable system of elected Governors. On the other hand it was urged that the clause was merely enabling, that there should be some such power, and that the objections were imaginary. The clause was carried by votes to 19. (Conv. Ieb, Syd., 1891, pp. 865-77.)

At the Adelaide session the clause providing that there should be State Governors was introduced verbatim, but the clause dealing with their mode of appointment was omitted. In Committee, Dr. Cockburn moved to insert it, as otherwise the appointment of the Governors would practically be with the Federal Exe utive, as in Canada. This amendment would have enabled the Parliament of a State to provide for the election of the Governor, either by the Parliament of the State, or by a mass vote of the people. Mr. Grant suggested the substitution of Lieutenant-Governor,” and Sir John Downer supported Dr. Cockburn, to make it clear that the State Governors are not LieutenantGovernors. The clause was objected to partly on the ground that the Convention had no authority to interfere with the Constitutions of the States, even to make them more easy of amendment than at present; and partly on the ground that the Cause was bot only a power but an invitation to the States to elect their own Governors. On the other hand it was urged that the Constitution practically abolished the necessity for State Governors, or at least altered the character of their office; and that it was the duty of the Convention to empower the States to meet the altered circonstances. Eventually Dr. Coekbarn withdrew his amendment ca the un lerstanding that the clause regaining that "in each State of the Commonwealth there shall be a Governorsbució also be omitted. This was done. Coer. Deh, Ašel, pp. 992-1001.

$451. Governor of a State."

The provisions of this Cestirative relating to the Governoes of States are

Sec. 7, which provides that the names of the senates thosen for each State
shall be certifed by the Governor to the Firemnce-Feceril

Sec. 12, which empowers the Governor of any State to cause vrt to be passed
Sze elections of senaties tie the State.

States may surrender territory.

111. The Parliament of a State may surrender452 any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

HISTORICAL NOTE.-Clause 12, Chap. V. of the Commonwealth Bill of 1891 was in almost identical terms, and was adopted at the Adelaide session in 1897. At the Melbourne session, a suggestion by the Parliament of Tasmania to substitute "its territory" for 'the State" was negatived. (Conv. Deb., Melb., p. 646.) Drafting amendments were made after the fourth report.

$ 452.

"The Parliament of a State may Surrender."

A State, through the legislative action of its Parliament, may surrender any part of its territory to the Commonwealth. The Commonwealth, through the Federal Parliament, may accept the surrendered territory, which thereupon becomes subject to its exclusive jurisdiction.

This provision was contained in the Bill of 1891, and seems to have had reference to two other provisions of that Bill :-namely, Clause 53-ii., Chap. I., which, following the words of the Americal Constitution, gave the Federal Parliament exclusive power with respect to the government of any territory "which may by surrender of any State or States and the acceptance of the Parliament become the seat of Government of the Commonwealth," and the exercise of like authority over all places acquired by the Commonwealth with the consent of a State for public purposes; and Clause 3, Chap. VI., which empowered the Parliament to make laws for the provisional government of any territory surrendered by the State to or accepted by the Commonwealth.

The Bill of 1891 thus contemplated two kinds of territory which the Commonwealth might acquire from a State by surrender and acceptance: namely, (1) territory surrendered to the Federal Government for the special purpose of the seat of Government, or other public purposes; and (2) territory surrendered, to be provisionally administered by the Federal Government until the time should be ripe for its establishment as a new State or States. Between these two kinds of federal territory the American authorities show that there is a fundamental difference. Territory ceded to the "exclusive jurisdiction" of the Federal Government for special purposes cannot be erected by the Federal Government into new States, or given anything but purely municipal powers of selfgovernment. Exclusive jurisdiction does not necessarily mean unlimited jurisdiction; the Federal Government cannot delegate this exclusive power to a local legislature— though it can, by ceding the territory back to the State from which it was obtained, or to some other State, extinguish the exclusive power altogether. (Stoutenburgh v. Hennick, 129 U.S. 141; Burgess, Pol. Sci. II. p, 160; Von Holst, Const. Law, p. 173.) On the other hand, territory ceded to the Federal Government to be organized under a territorial Government may be so organized, and may, in the discretion of the Federal Legislature, be erected into a State. (Burgess, Pol. Sci. II. p. 161.)

The two kinds of territories were clearly contrasted by Marshall, C.J., in Loughborough v. Blake, 5 Wheat. at p. 324, when he distinguished between "a part of the society which is either in a state of infancy, advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained, as is the case with the Territories; or which has voluntarily relinquished the right of representation, and has adopted the whole body of Congress for its legitimate government, as is the case with the District."

Whether this clause was primarily designed to meet the case of the seat of Government, and other places surrendered for public purposes, or whether it was intended to apply to territories generally, there is nothing in the debates to show. Even without this clause, the two other provisions, quoted above, would have clearly implied a power to acquire both kinds of territory; and this clause was probably added to remove any doubt that might exist as to whether the States - not having had, before Federation, the sovereign power of ceding territory-could do so without an express grant of power.

Under the Constitution as it now stands the acquisition of territory for the seat of Government seems to be provided for by sec. 124, and the power to acquire territorial possessions by surrender and acceptance seems sufficiently implied by sec. 122. This section, however, will enable the Commonwealth to acquire territory for special purposes by negotiating with the States, and without the necessity for the exercise of its power of eminent domain under sec. 51-xxxi. Territory thus acquired for special public purposes cannot be erected into a State or granted any but purely municipal powers of self-government; nor can its inhabitants be given any rights which, under the Constitution, belong only to the people of the States. (See authorities cited supra.)

States may levy charges for inspection laws.

112. After uniform duties of customs have been imposed, a State may levy453 on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws 455 of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.

UNITED STATES.- No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce cf all duties and imposts laid by any State on imports or exports shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of the Congress. (Const. Art. I., sec. X. sub-s. 2.

HISTORICAL NOTE.--Clause 13 of Chap. V. of the Commonwealth Bill of 1891 was as follows:

"A State shall not impose any taxes or duties on imports or exports, except such as are necessary for executing the inspection laws of the State; and the net produce of all taxes and duties imposed by a State on imports and exports shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth."

At the Adelaide session, the same provision was adopted, but with the introductory words "After uniform duties of customs have been imposed," and with the substitution of "imposts or charges" for "taxes or duties." At the Melbourne session, a suggestion by the Legislative Council of New South Wales to omit the second part of the clause was negatived. Mr. Isaacs pointed out that, according to American decisions, the prohibition did not apply to inter-state trade, and would not affect the police powers of the States. A question was raised by Mr. Henry whether the clause applied to wharfage rates, and whether marine boards and harbour trusts would be affected. Mr. Barton replied that charges for services were not imposts. Mr. Glynn proposed to add, after "inspection laws of the State," the words (suggested by the Parliament of Tasmania) :-"Or by way of payment for services actually rendered in improvement or maintenance of ports or harbours or in aid of navigation." Mr. Barton thought the amendment dangerous, and it was withdrawn for further consideration. (Conv. Deb.,

Melb., pp. 646-52.) Before the first report, the clause was thrown into the enabling, instead of the prohibitive form—the prohibition being already contained in secs. 90 and 92. After the fourth report the clause was further amended by the addition, after "imports or exports," of the words "or on goods passing into or out of the State."

Sec. 90 provides that after uniform duties have been imposed, the power of the Parliament to impose duties of customs shall be exclusive. That section accordingly prohibits the States from thereafter imposing duties of customs - a term which includes both import and export duties on goods entering or leaving the Commonwealth. (Webster's Internat. Dict.) Sec. 92 further provides that from the same time "trade, commerce, and intercourse among the States . . . shall be absolutely free." That section prohibits the States and the Commonwealth from imposing duties on goods passing from one State to another.

This section reserves to the States, notwithstanding the above provisions, the police power of making charges which may be necessary for executing their inspection laws. Such charges would seem to be both taxes and duties, and might, in the absence of special provision, have been held to be within either or both of the above prohibitions.

The section, however, though it expressly reserves this police power to the States, also makes the exercise of the power subject to control by the Federal Parliament. State laws imposing such charges, even though they may be necessary for executing the inspection laws of the State, may be annulled by the Federal Parliament; and if they are not necessary for that purpose, they are not protected from the prohibitions of secs. 90 and 92.

§ 454. "Imports or Exports."

It was suggested at the Convention (Deb., Melb, p. 647), on the authority of Brown r. Houston, 114 U.S. 622, and Woodruff v. Parham, 8 Wall. 123, that these words did not apply to goods carried from one State to another, but only to goods imported from or exported to foreign countries. On the other hand in Brown v. Maryland, 12 Wheat. 419, Marshall, C.J., in deciding that a charge imposed by the State of Maryland on foreign imports was unconstitutional both as a duty on imports and as a regulation of commerce, said:-" "It may be proper to add that we suppose the principles laid down in this case to apply equally to importations from a sister State." And in Leisy v. Hardin, 135 U.S. 100, Fuller, C.J., quoting these words, said: 'Manifestly this must be so, for the same public policy applied to commerce among the States as to foreign commerce, and not a reason could be assigned for confiding the power over the one which did not conduce to establish the propriety of confiding the power over the other."

In this Constitution the words imports and exports are uniformly used of foreign imports and exports only, and the words "goods passing into or out of the State" are used with reference to inter-state trade. (See secs. 92, 93, 95.)

DEFINITION. The inspection laws of a State are those laws which a State may enact in the exercise of its police powers, providing for the official view, survey, and examination of personal property, the subjects of commerce, in order to determine whether they are in a fit condition for sale according to the commercial usages of the world. (Foster. Port Wardens, 94 U.S. 246.) The examination extends to the quality, form, size, weight, and measurement of articles imported. An inspection, it is held, is something which can be accomplished by looking at, or weighing, or measuring the thing to be inspected, or by applying to it at once some crucial test. When testimony or evidence is to be taken and examined, it is not inspection in any sense