Constitution, this particular matter is provided for favourably to the power of the State, by § 113, whereby "all fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the States as if such liquids had been produced in the State." That the State may, as a precautionary measure against social evils, exclude convicts, harlots, paupers, idiots, and lunatics, is now generally admitted in the United States. But as the measure is one of self-defence, arising only from vital necessity for its exercise, it must not be carried beyond the scope of that necessity.1 This necessity can hardly be said to exist in respect to the entrance of Asiatics or to the admission of illiterate persons, the cloak under which laws regulating the admission of aliens are commonly hidden. A Victorian law, prohibiting the admission of Chinese from New South Wales, unquestionably restricts freedom of intercourse among the States, which is prima facie contrary to section 92. It would seem that, though such a law is genuinely aimed at preserving the peace and good order and the moral health of the State, in such matters the Court must take "short views" of policy, and must hold it to be void by reason of its immediate purpose.2

While the domestic order of the States is a matter for the States themselves, they are, like the States in America, entitled to call on the Federal Government for protection against "domestic violence"; and against "invasion" the Federal Government is bound to protect them without any request (sec. 119). But it is not to be forgotten, that in the United States it has been laid down, that there is a "peace of the United States," which enables the Federal Government to take all steps which it may think fit, and which its courts may support, to protect the instruments and agencies of the Government,

1 The Passenger Cases, 7 Howard 283, per Grier, J.; Henderson v. New York and Chy Lung v. Freeman, 92 U.S. 275.

3

2 See the Liquor Prohibition Case (1896), A.C. 348.

3 In re Neagle, 135 U.S. 1 ; and see in re Debs. (1894), 158 U.S. 564.

and to secure the due observance of its laws. In the Commonwealth, the terms, which grant its powers to the Parliament, enable it to make laws for the "peace, order, and good government of the Commonwealth" in respect to the matters committed to it, and it is safe to infer that it will have powers at least as extensive as those of the Federal Government in the United States. The functions of the Commonwealth Government are so farreaching and its agencies and instrumentalities so many, that internal disorders on any large scale could hardly leave the peace, order, and good government of the Commonwealth unaffected in regard to them. In such a case the Commonwealth Government would intervene upon its own initiative.

LAWS IN RESPECT OF RELIGION.

Section 116 contains a restriction upon the power of the Commonwealth, which is not very aptly placed in the chapter on "The States." It provides that "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."

The last provision no doubt imposes a restraint on power, and the prohibition of laws "for establishing any religion" possibly prevents appropriations in aid of religious bodies. In 1899, an attempt was made, under a similar provision in the United States Constitution, to prevent the execution of an agreement with the Providence Hospital at Washington, a body incorporated by Act of Congress, whereby that body was to receive certain sums of money voted by Congress for providing an isolating building. It was contended that, as the institution was governed and maintained by Roman Catholics, this was aid to a sectarian institution and was a law respecting an establishment of religion. There was no suggestion that the benefits of the hospital were confined to any

sect, and the Court held, that the fact that the hospital was controlled by a sect was immaterial in the case of a body which had been incorporated, so long as the management was in accordance with the constitution of the body. The grant, therefore, was held to be lawful.1 In the Mormon case, where the provisions against prohibition of the free exercise of any religion was relied on, the Court held that "a person's religious belief could not be accepted as a justification for his committing an overt act made criminal by the law of the land." The words or for imposing any religious observance" are new. The Convention was informed that, on the strength of a decision of the Supreme Court that the United States were a Christian people, Congress passed a law closing the Chicago Exhibition on Sunday, "simply on the ground that Sunday was a Christian day." It was represented, that the words in the preamble of the Commonwealth Constitution, "humbly relying on the blessing of Almighty God," might give some support to similar attempts in Australia, and accordingly words were inserted to meet the danger. The words may have unlooked-for effects. If "Sunday closing" is a "religious observance," can the Commonwealth close the Custom House on Sunday, or refuse a clearance to vessels on Sundays, Good Friday, and Christmas Day?

SAVING OF STATE LAWS.

Sec. 108. "Every law in force in a colony which has become or becomes a State, and relating to any matter within the powers of The Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State, and until provision is made in that behalf by The Parliament of the Commonwealth, the Parliament of the State shall have such power of alteration and repeal in respect of any such law as the Parliament of the colony had until the colony became a State."

1 Bradfield v. Roberts (1889), 175 U.S. 291.

2 United States v. Reynolds (1878), 98 U.S. 145.

This section may be compared with the common provision in the Constitution Acts of the Colonies, saving existing laws until altered or repealed by the new legislature (e.g. Constitution Act of Victoria, 1855, section xl.).

The effect of the Constitution upon certain existing laws of the States has already been referred to in considering the powers of the State Parliament in regard to Taxation, and the provisions of section 117. The important words in section 108 are "subject to this Constitution," and sections 114, 115, 117, and 118 make, or may make, certain existing laws of the State of no effect.

In general, State laws will remain in force after the establishment of the Commonwealth, even though they relate to matters which are within the exclusive power of the Commonwealth Parliament. The various services which are taken over by the Commonwealth, and which by section 52 are in the exclusive power of the Parliament, are taken over with the State laws thereon: otherwise, there could be no administration or control by the Commonwealth Executive, for some of them must, and all of them may, be transferred before the Commonwealth Parliament has had the opportunity to provide for them. But the power of the State Parliament to repeal or vary the laws saved is, like the saving of these laws, "subject to this Constitution." It is submitted that, where the Constitution has declared that the Commonwealth Parliament shall have "exclusive power to make laws," the State Parliament cannot alter or repeal the laws in force, though The Parliament of the Commonwealth has made "no provision in that behalf." The power of the Parliament of the Colony, before such colony became a State, to alter or repeal such laws included the power to supplement them and to substitute others for them. If that power is preserved, what is the exclusive power of the Commonwealth Parliament ?

CHAPTER XIX.

NEW STATES AND TERRITORIES.

THE Commonwealth of Australia starts on its career in circumstances different from those of the United States or of the Dominion of Canada, in that its territory is coterminous with the territory of the States, and that the partition of the Continent amongst the members of the Union leaves no part of it outside the federal system. Some of the colonies, however, are of unwieldy size and possess a vast unsettled territory, and it has been seen, in the History of Federation, that the re-adjustment of territory has been mooted from time to time. Thus, with eyes on Western Australia and South Australia, it has been suggested, that such colonies should consent to a partition, which would place their unsettled and distant territory in the hands of a central government for the benefit of all Australia. Again, in the Colony of Queensland, separate and conflicting interests have been developed, and have produced political conditions, which are believed to require a division of that Colony into two or three Colonies. The re-adjustment of the boundaries of New South Wales and Victoria so as to include the Riverina in the latter colony, the erection of a new Riverina colony, and the claims of aggrieved areas for separation from an unsympathetic capital, are among the political murmurings. In a country as yet so sparsely settled as Australia, it is improbable that the present political divisions are final.