validity of the authority under which acts are done, whether that authority is the Crown, a subordinate legislature, or any whatsoever save the Imperial Parliament.

THE TERRITORY OF THE COMMONWEALTH.

This expression may be used with different meanings. First, we have seen that the Commonwealth is a territorial community; and its territory is the sum of the territories of its parts. The territory of every State therefore is territory of the Commonwealth. But there are parts of the Commonwealth which, not forming part of any State (Act, sections v. and vi.; Constitution, section 127), stand outside the main principle of federal government, and these are distinguished by the expression "territory of the Commonwealth" from the "territory of the States." Such parts of the Commonwealth outside the State organization include:

1. Territory of a State surrendered by the State Parliament, thereby becoming subject to the exclusive jurisdiction of the Commonwealth (sections 111 and 122).

2. Territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth (section 122).

3. By section 52 (1), the seat of government and all places acquired by the Commonwealth for public purposes are subject to the legislative power of the Commonwealth exclusively; and in the view taken in the United States, the exclusive power of legislation in the Federal Government, where it exists over any territory, carries with it exclusive jurisdiction in all respects, so that the territory in question ceases wholly to be in the power of a State.1

By section 125, the seat of government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred 1 Commonwealth v. Clary, 8 Mass. 72; United States v. Cornell, 2 Mason,

miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.

A third meaning with which the expression "territory of the Commonwealth" may be used, is in relation to property in the land and not governmental power. Nowhere is it more necessary than in communities in the economic condition of the United States, Canada, and Australia to appreciate the distinction between government and property. The vast areas of public and unappropriated lands form one of the most constant subjects of legislation and absorb the attention of one of the largest departments of administration. In the United States and in Canada the Courts have been called on again and again, in dealings between the central and the local power, to determine whether the transaction was one of cession or grant, of public power or private right.1

Section 125 is a typical case of difficulty. The terms employed-" granted to or acquired by," "vested in and belong to "—are words of property rather than of jurisdiction; and it is open to question whether the section deals with government and jurisdiction at all, whether the exclusive power of the Commonwealth over the territory in question does not come from § 52 (1) alone. The last clause in § 125, which declares that such portion of the territory as consists of Crown lands shall be granted without any payment therefor, clearly designates a right of property. It seems reasonable to conclude that the first clause in the section at any rate embraces property, and that the words "or acquired by" point to acquisition by purchase of lands other than Crown lands either by voluntary dealing or by the exercise of compulsory powers under § 51 (xxxi.).

1 Canada, cf. St. Catharine's Milling and Lumber Coy. v. Reg. (1888), L.R. 14, A.C. 46; Att. Gen. of Ontario v. Att. Gen. of Dominion (1898), A.C. 700; etc. United States, Corfield v. Coryell (1825), 4 Wash., C.C. 371; Fort Leavenworth v. Lowe, 114 U.S. 525.

UNION UNDER THE CROWN.

The recital in the preamble is no mere expression of loyalty, but is a statement of fact to which the most important legal incidents attach. The Crown establishes the Commonwealth, is a part of the Federal Parliament, is the depositary of the executive power of the Commonwealth, and retains the power (subject to limitations to be considered) of entertaining appeals in Council. So much is provided in the Act itself; but the Act does not exhaust the relations of the Crown to the Commonwealth. The prerogative runs there as in other dominions of the Crown; and in analogy to the practice whereby in the United Kingdom the prerogative secures the people against an abuse of power by the instruments of government, so in the colonies the prerogative is no reservation of personal enjoyment or profit to the Crown, nor even to any great extent of power to the Imperial Government, but is an instrument for increasing and effectuating the powers of self-government. While the paramount power of the Imperial Parliament emphasizes the dependent condition of the colonies, the unity of the Empire is manifested in the omnipresence and indivisibility of the Crown. Save in the rare cases in which, for the purpose of suit in their own Courts, colonies have made an exception by statute, the Colonial Governments, like the Government of the United Kingdom, have no corporate existence save in the Crown. For this reason, the governments of the colonies, though not sovereign, have in all parts of the Empire that immunity from suit which belongs to the Crown. A claim by the Crown in right of any part of its Dominions can be prosecuted, not merely in that part of the Empire which is immediately concerned, but in any Court which, according to ordinary principles, has jurisdiction of the cause; and the adjustment of interests as between the different parts of the Empire is in

1 Sloman v. Governor and Government of New Zealand, L. R. 1, C.P.D.

general not a matter for the consideration of the Court.1 The indivisibility of the Crown is peculiarly manifested by the position of the Attorney General. The Crown appears in Court in any part of the British Dominions by the law officer for that part; and it is immaterial that the particular interest involved is imperial, local, or touches some other part of the dominions of the Crown. The Attorney General for a colony, like the Attorney General for England, represents the Crown and holds office under the Crown. In 1879 the House of Commons adopted the report of a Select Committee, supported by past and present Law Officers of the Crown, to the effect that by acceptance of the office of Attorney General for Victoria, Sir Bryan O'Loghlen, member for County Clare, had vacated his seat in the House.2

The establishment of the Commonwealth in no way affects the participation of the Crown in the government of the States; the principles which governed the relations of the colonies to the Crown will govern them as States. Notwithstanding the emphatic declaration of the Constitution (section 2), that the "Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth," the Crown is represented in the States Governments by the State Governor, or other administrator of the Government. Even in Canada the existence of the Dominion Government does not sever the connexion between the Crown and the provinces so as to make the government of the Dominion the only government of the Queen in North America, and reduce the provincial governments to the rank of municipal institutions; the several provincial governments remain as Governments of the Queen within the limits prescribed by the British North America Act, 1867.3

1 See in re Bateman's Trusts, L. R. 15, Eq. 355; in re Oriental Bank Corporation, ex parte The Crown (1884), 28 Ch. Div. 643; Monk v. Ouimet (Canada), 1874, 19 L.C.J. 71. But see also A.G. for Ontario v. Mercer, L.R. 8, A.C. 767; and St. Catharine's Milling and Lumber Coy. v. Reg. (1888), 14 A.C. 46.

2 Hansard's Debatex, 1879, vol. 245, p. 1104.

3 Maritime Bank of Canada v. New Brunswick Receiver General (1892), A.C. 437.

CHAPTER IV.

"THE CONSTITUTION" OF THE COMMONWEALTH.

CONTENTS OF THE CONSTITUTION.

1

A CONSTITUTION in the modern sense is a fundamental law or instrument of government. It consists mainly of: 1. The frame of government, which creates and provides for the continuance of the legislative, executive and judicial organs, and defines their powers and relations to each other;

2. An enumeration of rights of the citizens or classes of citizens against the government which may vary from the enunciation of a few general principles which are rather counsels of perfection than practical restraints, to the most minute provisions on all sorts of matters rigorously binding the organs of government; and

3. Provisions for amendment.

It will also contain a number of arrangements which are provisional and temporary merely, but are necessary to start the machine upon its work.

The constitution of a state formed by the union of states is a more complicated matter. We do some violence to the idea of contract when we regard an ordinary constitution. either as a compact of the citizens or a compact between the citizens and their government; but we need neither

For the history of the term "Constitution," see The English Constitution, by Jesse Macy, cap. xlvii.