Parliaments. There would thus be imperium in imperio -State Laws enforced by State Courts, Commonwealth Laws enforced by Commonwealth Courts. We have only to look to our own history, even our recent history, to see that such a dual system is conceivable. We remember the separateness of the ecclesiastical and royal courts, the court of admiralty and the courts of common law, the courts of common law and the equitable jurisdiction of the Chancellor, as cases where distinct and often conflicting systems claimed to deal with the same persons and subject. matters within the same territory. Even when the sharpness of conflict was blunted by the acknowledgment of a common superior, the existence of the separate systems was not less a legal fact though its political importance was diminished.

As a measure of caution, then, the Act provides:"V. This Act and all laws made by the Parliament of the Commonwealth under the Constitution shall be binding on the Courts, judges, and people of every State, and of every part of the Commonwealth, nothwithstanding anything in the laws of any State."1

Thus in the causes within their jurisdiction, the Courts of the States are bound to uphold the Constitution and maintain the Commonwealth laws. As this is their duty, they have to determine for themselves whether an Act of the Parliament is in truth a law, whether it is within the powers committed by the Constitution to the Parliament. The interpretation of the Constitution, therefore, is not for the Judiciary of the Commonwealth alone; it falls upon every court throughout the Commonwealth, whatever the authority under which it sits.

Section V. of the Commonwealth Act strikingly resembles the original form of Article VI. in the Constitution of the United States. The draft provided that "legislative Acts of the United States and treaties are the supreme law of the respective States, and bind the judges there as against their own laws."

F

CHAPTER V.

DISTRIBUTION OF POWERS IN THE COMMONWEALTH GOVERNMENT.

THE Constitution follows the plan of the United States Constitution in committing the functions of government -legislative, executive, and judicial-to three separate departments.

"The legislative power of the Commonwealth shall be vested in a Federal Parliament (section 1).

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to" the matters enumerated (sections 51 and 52).

"The executive power of the Commonwealth is vested in the Queen, and is exerciseable by the Governor-General as the Queen's representative, and extends to the execution. and maintenance of this Constitution, and of the laws of the Commonwealth" (section 61).

"The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with federal jurisdiction" (section 71).

The Co-ordination of Powers.--As in the Federal Government of the United States, the departments of the Commonwealth Government are co-ordinate in degree to the extent of the powers delegated to each of them. Each

in the exercise of its powers is independent of the other; but all rightfully done by either is binding on the others. And the Constitution is supreme over all." 1 The three departments of government equally owing their origin to the Constitution and deriving their functions from it, there is no ground for any claim by the Legislature to treat the Executive and the Judiciary as mere auxiliary organs whose sole duty lies in obedience to the mandates of the Legislature. Each of the departments has to interpret the Constitution for itself so far, and so far only, as is necessary for the discharge of its own functions. The Parliament which legislates, the Executive which carries out, and the Court which judges, may each in succession have to interpret the same power. But it may happen that the validity of a particular exercise of power never reaches the Courts for adjudication at all. In the ordinary affairs of life, it is notorious that many things are done without right, that many transactions are carried through which no Court would support, that many wrongs go unremedied and crimes go unpunished. So, in the Commonwealth, many an unconstitutional Act may be passed, and produce all the social and economic effects which would belong to it if it were lawful. The interpretation of the Courts is strictly a judicial act; the Courts act neither as advising the Legislature nor as allowing or disallowing its enactments. In order that the Courts may pass upon an Act of the Legislature, or a matter of executive action, there must be some litigation before them raising the question, and there may never be such litigation. The range of inquiry into the lawfulness of alleged authority which an English Court of Law will undertake is very wide; but it has its limits. It by no means follows that all who suffer damnum by an act in excess of authority can also show injuria; legislative and executive acts alike may be fruitful of consequences which extend beyond the known causes of action, and for which the Courts can offer no remedy. Judge Cooley has said: "The

1Dodge v. Woolsey, 18 How. 381.

common impression undoubtedly is, that in the case of any legislation where the bounds of constitutional authority are disregarded . . . the judiciary is perfectly competent to afford the adequate remedy; that the Act, indeed, must be void, and that any citizen, as well as the judiciary itself, may treat it as void, and refuse obedience. This, however, is far from being the fact." We shall find many provisions in the Constitution which have none but "political" sanctions.

If the matter does become the subject of judicial investigation, the judicial interpretation binds the Legislature only in indirect fashion. The decision becomes an authority, raising a probability ranging, according to many circumstances forming part of the practice of our Courts, from practical certainty on one side to the gravest uncertainty on another, that that Court and other Courts will decide the same question in the same way. The Legislature will be aware of this probability, and will generally refrain from passing Acts which are likely to be ineffective by reason of the refusal of the Courts to enforce them.

The distribution of power between the Commonwealth and State Governments is sanctioned by the power and the duty of the Courts of Commonwealth and State alike to interpret the Constitution, and to refuse recognition to Acts of the Legislature of either encroaching on the sphere of the other.

The question remains whether this duty of interpretation extends to the definition of "legislative power." May the Courts consider whether an Act of the Commonwealth Parliament-we shall see that the question can hardly arise as to an Act of the State Parliament-upon a matter committed to it is an exercise of legislative power in relation to that subject, or is a usurpation of executive or judicial power?

Journal of the Michigan Political Science Association, vol. i., p. 47; cited by Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, p. 9.

The Constitution, we have seen, follows the plan of the Constitution of the United States, a plan which has been adopted also in the Constitution of every one of the American States. In America the separation of powers of the organs of government is uniformly sanctioned by the action of the Courts. The creation of separate departments is treated as an implied prohibition of each from exercising any of the powers that belong to another; and the Courts have constantly to consider not merely whether an Act of the Legislature which is in question deals with a subject committed to the Legislature, but whether the Act is a true exercise of legislative power or an assumption of judicial power. This view did not prevail without some question. In 1798 the Supreme Court of the United States laid it down that "if a government of legislative, executive, and judicial departments were established by a Constitution which imposed no limits on the legislative power, the consequence would invariably be, that whatever the Legislature chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void." And though the doctrine of the separation of powers is now thoroughly established in the American Courts, as an independent principle, the more important cases in which the Courts have called attention to the separation of powers have been decided, not on the implied. prohibition arising from the separation, but upon express restraints imposed on the Legislature by the Constitution, as the prohibition of bills of attainder, and the making of ex post facto laws, and-in the case of States Legislatures. -laws impairing the obligation of contracts, and laws infringing the Fourteenth Amendment. Had not the separation of powers been made, the disposal of executive and judicial duties must have devolved upon the department vested with the general power to make laws. This is in accordance with the opinion expressed in Calder v. Bull, already cited, and Cooper v. Telfair, where Patterson, 1 Per Iredell, J., Calder v. Bull, 3 Dallas, 386. *Cooley, Constitutional Limitations, section 90.

34 Dallas, 19.