popular sense in instructions being given as to any or all of the powers of the Governor-General. But neither the Instructions nor any other prerogative instrument can limit the powers conferred by Statute, and if the GovernorGeneral should in the exercise of powers conferred on him by the Constitution, designedly or inadvertently act contrary to his Instructions this will not affect the validity of his act; the sole sanction lies in the responsibility of the Governor-General to the Crown. The successive steps taken upon the inauguration of the Commonwealth are interesting as illustrating the relation of the various authorities. By virtue of the Royal Proclamation of September 17, 1900, the federating colonies were united in a Federal Commonwealth on January 1st, 1901; and under section 3 of the Act the Queen had on October 29, 1900, constituted the office of Governor-General and Commander-in-Chief and had appointed the Earl of Hopetoun thereto. On January 1st, 1901, the Royal Proclamation was read at Sydney, and the GovernorGeneral took the prescribed oaths, and thereupon made proclamation that he had assumed the office. The next step was the constitution of the Federal Executive Council, which consisted of nine gentlemen who were to form the first Cabinet. Then the Governor-General proceeded, "with the advice of the Federal Executive Council," to establish the following departments of State, viz.: The Department of External Affairs. The Postmaster-General's Department. Finally the Governor-General appointed seven members of the Federal Executive Council to administer the Departments respectively allotted to them. In accordance with the doctrine of ministerial responsibility, all the notifica1 See Commonwealth of Australia Gazette, No. 1, January 1, 1901. tions of these executive acts were signed by Mr. Edmund Barton, the gentleman who had successfully undertaken the task of forming a Ministry. On the establishment of the Commonwealth the departments of Customs and Excise in each State became transferred to the Commonwealth Government (sec. 69). Under Proclamations of the Governor-General, of Feb. 14th and Feb. 20th respectively, the departments of each State for "Posts, telegraphs, and telephones," and "Naval and military defence," were transferred on March 1st, 1901, Under sec. 70 the Commonwealth Government became invested in the transfer, with all the powers and functions of the States Governments in respect to the departments in question. The other departments referred to in sec. 69 have not yet (May, 1901) been transferred. Note.-The Departments of State are in general sufficiently explained by their titles. The Premier has however explained some of the duties which belong to his own department-the Department of External Affairs and to the Department of Home Affairs. The Minister for External Affairs will have to deal with immigration and emigration, the influx of criminals and the relations with England, communications with the Governor-General and the Home Government, also communications with the various States of the Union, the Executive Council and the officers of the Parliaments; also the railways of the Commonwealth. Some of these duties hardly fit in with the description "External Affairs"; but they mark out the office as one likely to be assumed, as in the first Ministry it has been assumed, by the Premier. The Department for Home Affairs includes public works, the question of the federal capital, the InterState Commission, the Federal elections, public service regulation, oldage pensions, and the acquisition and construction of railways where the States concerned have given their consent.1 1 Speech of the Prime Minister at Maitland on January 17th, 1901. See the Melbourne Age, January 18th. CHAPTER XIV. THE JUDICATURE. THE objects of the national judiciary in the Constitution of the United States-objects of paramount importance and fundamental to free government-are stated by Story to be, first a due execution of the powers of government, and secondly, a uniformity in the interpretation and operation of those powers and of the laws enacted in pursuance of them; and to the attainment of these ends, the national judiciary ought to possess powers co-extensive with those of the legislative department, and must be so organized as to carry into complete effect all the purposes of its establisment.1 These objects are effected in the Commonwealth Constitution. Judicial power is an essential element in government and the administration of law; and in a composite government with its inevitable conflicts, there must be some provision. which shall ensure finality both in enforcement and interpretation of the law. This practically implies a central judicature which shall be supreme, for the Courts of the States, whatever their learning, wisdom, and good faith, however free from all imputation of bias, must nevertheless frequently differ so as to make uniformity impossible, while the mere co-ordination of a federal and state judiciary would simply add to the confusion of authority. In Canada, though the Provinces constitute, organize and maintain the Provincial 1 Story, Constitution of the United States, sections 1576-7. Courts, the Dominion Government appoints, pays and if necessary removes the Judges of the Courts in the Provinces and has established over all a Supreme Court with appellate jurisdiction, and various other Courts for the better administration of the Laws of Canada (British North-America Act, 1867, sec. 101). It must be remembered, too, that the Dominion control over Provincial legislation, and the grant of exclusive powers to each were devised with a view to minimising occasions of conflict. In the Commonwealth, as in the United States, consistently with the principle of State autonomy, the States continue to control their judiciary, and hence it is essential that the Commonwealth powers should be enforced and guarded by an independent judiciary. On the other hand, if the States are to be secure against the intrusion of the Commonwealth organs, it is equally clear that the Commonwealth Judiciary should not be readily subject to the pressure or control of the Commonwealth Legislature or Executive. The Commonwealth Judiciary is not the mere auxiliary of the Parliament and the Executive Government; it has, like them, an independent duty, but only within its own sphere of judicial power, to uphold and maintain the Constitution against all attack, whether from the Commonwealth Executive or Legislature or the State Governments. If we ask, whence comes this duty of the Courts to determine whether the Commonwealth or the State Parliament has exceeded its powers, we shall hardly find an answer in the Constitution itself. Nor shall we find the explanation in the essential nature of the federal principle, or of the "written constitution." In Germany the relation of the Courts to Imperial and State legislation is a matter of dispute; but there is every authority for saying that the Legislature must be the interpreter of its own powers, as it is in France and Belgium where the Constitution affects to bind the Legislature. Conformity to the Constitution in Switzerland is obtained by a method in entire harmony with the political ideas of that country: federal laws are not subject to review in the Courts, but may be challenged by 30,000 citizens or eight Cantons. Cantonal laws, on the other hand, are subject to review in the Federal Courts; but, consistently with the doctrine of the independence of the Legislature in its own sphere, their validity cannot be questioned in the Courts of the Cantons. The system under which the valid exercise of legislative power is treated as a judicial question belongs to the history of the relation of courts of law to public power. In the reign of James the First the Courts succeeded in making good their claim to entertain legal causes, though they involved the prerogatives of the Crown, whether in the nature of property or executive power. Thus they effectually prevented the establishment of any practical distinction in the administration of public and private law; and if, on the one hand, questions of power are treated judicially in suits between individuals, it is not to be forgotten that all justice is with us "public justice," and that the term "private justice" is not known amongst If executive power was thus a subordinate power subject to judicial review, it was by no means clear that legislative power was not subject to the same control, and there were dark hints of Acts of Parliament which had been declared invalid, or at any rate might be so declared. The supremacy of Parliament, however, became unmistakeably established. But there were other legislatures as clearly subordinate. The American Colonies held charters of government from the Crown; and were constantly reminded that they must keep within the terms of the grant. Control by forfeiture of charter, by Act of Parliament, by judicial proceedings, and an ultimate appeal to the Privy Council, whose action might be referred now to one, now to another of its high functions-these were the constitutional checks with which the colonies were familiar. A subordinate legislature being within the experience of all, the Revolution, though it removed some of the external checks, established a form of government which emphasized the subordinate character. us. |