judicial power has been commonly, and perhaps necessarily, associated with certain offices; and that this power is exerciseable under the United States by the like officers, though they are not protected under the terms of the Constitution. It has been said that the Constitution, in speaking of courts and judges, means "those who exercise all the regular and permanent duties which belong to a court in the ordinary popular signification of the terms.1 The Justices of the Peace under the authority of the United States, exercising duties partly judicial and partly executive and ministerial, are not regarded as "courts" within the Constitution. There are in fact many officers who are called on, in the ordinary course of their duties, to discharge functions which blend the judicial and administrative, as masters, chief clerks, and some other officers of court. These officers will not be within the Constitutional provision. The same may be said of the Inter-State Commission and of courts martial, administering military law over persons in the defence forces of the Commonwealth. Of courts martial of the United States, Winthrop 2 says, that "although their legal sanction is no less than that of the federal courts, being equally with these authorized by the Constitution, they are, unlike these, not a portion of the judiciary of the United States, and are thus not included among the 'inferior courts' which Congress may from time to time establish." . . . . Not belonging to the judicial branch of the Government, it follows that courts martial must appertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as commanderin-chief, to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives.3 1 Sergeant on the Constitution, cit. Story, sec. 1634, n. * Winthrop's Military Law, pp. 52 and 53, cited Thayer's Constitutional Cases, p. 2339. See also ante, on the Inter-State Commission. CHAPTER XVIII. THE STATES. The In an earlier chapter, it is remarked, that one of the difficulties, which beset political science and constitutional law, is the use of the same term in different senses. fact of such use must be acknowledged; and Story, in his chapter on the Interpretation of the Constitution of the United States, warns us against men of ingenious and subtle minds "who seek for symmetry and harmony in language." The term "State" in the Constitution of the United States is used in various senses. It "sometimes means the separate sections of territory occupied by the political society within each; sometimes the particular government established by those societies; sometimes those societies as organized into those particular governments; and, lastly, sometimes the people composing these political societies in their highest sovereign capacity." 1 In like manner, the Commonwealth Constitution uses the term sometimes of territory (e.g. sections 80, 92, 125), sometimes of the political society, sometimes of the government of the political society or some appropriate organ thereof; and if it does not refer to the people of the political society “in their highest sovereign capacity," it appears in some cases to describe the people of the society as an economic unit (e.g. sections 51 (2), 99). It happens more than once, that, in the 1 Madison's Virginia Report, 1800, cited by Story on the Constitution, sections 454 and 208, n. same section, the term is used in different senses; and there is room for not a little doubt in some cases as to the meaning of the term-e.g. in section 99 "preference to any State," and section 102 "preference or discrimination is undue or unreasonable or unjust to any State." In general it may be noted, that, when the Constitution saves powers or grants powers or imposes positive duties, it specifically refers to the organ of State Government, which has hitherto exercised, or is intended to exercise, the power or perform the duty in question; and when it withdraws an accustomed power, or imposes a prohibition, it uses the term "State" as comprising all possible sources of action.1 As the State Commonwealth is a Federal Commonwealth, it is impossible to advance a step in the consideration of the Constitution without meeting the States. It is true of the Commonwealth as of the United States, that "the Constitution in all its provisions looks to an indestructible Union composed of indestructible States." 2 NEW POWERS OF THE STATES. (a) As Instruments of the Constitution. The States appear in the Commonwealth in more than one capacity. First and foremost, of course, they are the local parts in the composite government of a federation. They are also the foundation upon which one House, and in a sense both Houses, of The Parliament are built. But they are also, in a special sense, the instruments of the Constitution in the formation of the central government. In the chapter on "The Parliament," various powers and duties incident to constituting that body are imposed upon the Governor and the Legislature of the State; and in all sorts of matters, which must be the subject of some regulation, the laws of the States in their respective territories are applied to the subject matter, or the State Parliament is given power to make laws regarding them, "until The 'Not always, however. For example, sections 112, 118, 120. Parliament otherwise provides."1 In addition to the incidental and auxiliary powers and duties conferred upon the States, or the organs of the State government, by the Constitution, there are some substantive matters in which new powers or duties are conferred upon the States. We have seen under the head of the Legislative power the importance in certain cases of State initiative or concurrence, as a condition of the validity of certain Commonwealth laws. The Constitution also contains important provisions enabling the States to surrender their territory (sections 111, 125), to consent to an alteration of boundaries (section 123), or to the establishment of new States by separation of territory or union of States (124). One matter affecting The Parliament is regarded as essentially of local concern, and is left to the regulation of the State Parliament altogether (section 9). Without the co-operation of the States Governments at the outset, the central government could not be set to work. (b) As Delegates of the Commonwealth Government. The Commonwealth laws bind the State Courts; and we have seen that the Constitution enables The Parliament to constitute the State Courts its instruments for the administration of justice. Whether, and to what extent, the Commonwealth Parliament may delegate legislative power to The Parliament of the States, is a question not free from doubt; it may not be of great practical importance, since comparatively few of the Commonwealth powers of legislation are exclusive. The Commonwealth Government is organized on the executive side, and is not dependent on the States; but the State Executive may, if the State Governments agree, be used as the instrument of the Commonwealth. In the United States, from the establishment of the Constitution, the federal government has been in the habit of The power of the States, and the application of its laws in such cases, seem strictly limited by the words "until The Parliament otherwise provides." If The Parliament provides and then repeals its law without making further provision, it is apprehended that there is no power in the State to supply the defect of authority. using, with the consent of the States, their officers, institutions, and tribunals as its agents. That use has not been deemed a violation of any principle, or as in any manner derogating from the sovereign authority of the federal government, but as a matter of convenience and a great saving of expense.1 The Constitution of the Commonwealth itself indicates one matter of executive government, in which the State is to be the auxiliary of the Commonwealth. By section 120 it is enacted, that "every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and The Parliament of the Commonwealth may make laws to give effect to this provision." The The chapter of the Constitution on Finance and Trade deals with the rights and duties of the States considered as political entities, so far as their economic relation with each other and the Commonwealth are concerned. chapter on the States deals with their respective relations of political power and governmental duty. In general, the Commonwealth Constitution, like that of the United States, treats the individual rather than the State as the subject upon whom the fundamental law is binding. In these two chapters, however, the "national" element recedes, and the "federal" note predominates. THE STATES CONSTITUTIONS. By section 106, "The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State." By section 107, "Every power of the Parliament of a Colony, which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in The Parliament of the Commonwealth or withdrawn from the 1 U.S. v. Jones, 109, U.S., 513, 519. |