Executive Canada. Australia. Responsible This analysis is quoted here subject to what has been said in the chapter on "Powers of the Central Government ", in order to define clearly the exact extent of the executive power of the Commonwealth which is conferred upon the Governor-General, as representing the Queen, by Sec. 61 of the Australian Constitution. As has already been stated in the chapter on "The GovernorGeneral," the Queen's representative both in Canada and Australia is assisted in the performance of certain of his executive duties by a Council. In Canada this Council is called the "Privy Council," and is constituted by Sec. II of the British North America Act : "There shall be a Council to aid and advise in the government of Canada, to be styled the Queen's Privy Council for Canada; and the persons who are to be members of that Council shall be from time to time chosen and summoned by the Governor-General and sworn in as Privy Councillors, and members thereof may be from time to time removed by the Governor-General.” Sec. 62 of the Australian Constitution is almost identical in its terms: There shall be a Federal Executive Council to advise the Governor General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as the Executive Councillors, and shall hold office during his pleasure." In both Canada and Australia the system of responsible government prevails. In Canada the British custom has been followed, and both the responsibility and power of the Ministers of the Crown is established, not by express enactment of the Constitution, but by recognisd constitutional practice. In the Constitution of Australia, on the other hand, a remarkable departure from the British custom is made. Sec. 64 provides that: "The Governor-General may appoint officers to administer such Departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth. After the first General Election no Minister of State shall hold office for a longer period than three months unless he is, or becomes, a Senator or a member of the House of Representatives." This Section crystallises into a definite enactment the traditional constitutional practice of Great Britain and her Colonies. Messrs. Quick and Garran* give an interesting resume of the Convention debates which led to the express mention in the Constitution of "the Queen's Ministers of State for the Commonwealth.” Those reasons are fairly summed up in the following extract from a speech made by Mr. Deakin to the Sydney Convention of 1891 : Complete as is the skeleton of Constitutional Government which the Hon. Member, Sir S. Griffith, has given us in these clauses, I maintain that it is, after all, only a skeleton, and that the life which is implied by its being administered by rseponsible Ministers has yet to be imparted to it. We do not desire to introduce words which might seem to claim for Australia royal prerogatives, but we do wish to introduce words claiming all the prerogatives of the Crown directly relating to Australia. What we say is that these clauses as they stand do not with sufficient distinctness make that claim,and that *Aun. Const. Aust. Comm., pp. 709-711. we should seize every opportunity of placing points of this importance beyond all dispute, that we should embody in these clauses the claim of Ministers of the Commonwealth to exercise all the prerogatives of the Crown which may be necessary in the interests of the Commonwealth." The following comment by Messrs. Quick and Garran puts the resultant position very concisely : "The object of the words [Queen's Ministers of State for the Commonweath] is to secure a formal recognition of the authority of the Ministers of the Commonwealth individually and collectively. But they do more than that; they formally recognise, not indeed every phase or feature of what is currently known as Responsible Government,' but the existence of a body something like a Cabinet within the Executive Council-a Committee whose members are individually Ministers of Departments and, collectively, 'the Queen's Ministers of State for the Commonwealth.' It may, however, reasonably be doubted whether the insertion of definite words recognising responsible government in a written Constitution may not have the effect of limiting, whilst it defines, the very wide and undefined powers which constitutional practice has conferred upon Ministers in Great Britain and in Canada and other Colonies. Thus Messrs. Quick and Garran suggest that a strict interpretation of the words of Sec. 64 might precludǝ the appointment of a Federal Minister without portfolio as a member of the Federal Cabinet in Australia.* *The Composition and Powers of the Swiss Federal Executive are described in Appendix D. Functions of CHAPTER X. FUNCTIONS OF A CENTRAL JUDICATURE. "The importance of the establishment of a judicial department in the National Government [says Story in the remarkable four Sections of his Commentaries on the Constitution of the United States-Secs. 1574-1577--in which he defines the importance of the Central Judicature] has been already incidentally discussed under other heads. The want of it constituted one of the vital defects of the Confederation. And every Government must in its essence be unsafe and unfit for a free people where such a department does not exist, with powers co-extensive with those of the legislative department. Where there is no judicial department to interpret, pronounce and execute the law, to decide controversies and to enforce rights, the Government must either perish by its own imbecility, or the other departments of Government must usurp powers, for the purpose of commanding obedience, to the destruction of liberty. The will of those who govern will become, under such circumstances, absolute and despotic; and it is wholly immaterial whether power is vested in a single tyrant or in an assembly of tyrants. No remark is better founded in human experience than that of Montesquieu that there is no liberty if the judiciary power be not separated from the legislative and executive powers.' And it is no less true that personal security and private property rest entirely upon the wisdom and the stability of the Courts of Justice. . "In the National Government the power is equally as important as in the State Governments. The laws and treaties, and even the Constitution, of the United States would become a dead letter without it. Indeed, in a complicated Government like ours, where there is an assemblage of republics combined under a common head, the necessity of some controlling judicial power to ascertain and enforce the powers of the Union, is, if possible, still more striking. The laws of the whole would otherwise be in continual danger of being contravened by the laws of the parts. Even if there were no danger of collision between the laws and powers of the Union and those of the States, it is utterly impossible that, without some superintending judicial establishment, there could be any uniform administration or interpretation of them. "Two ends, then, of paramount importance, and fundamental to a free government, are proposed to be obtained by the establishment of a national judiciary. The first is a due execution of the powers of the Government; and the second is a uniformity in the interpretation and operation of those powers and of the laws enacted in pursuance of them. The power of interpreting the laws involves necessarily the function to ascertain whether they are conformable to the Constitution or not; and, if not so conformable, to declare them void and inoperative. As the Constitution is the supreme law of the land, in à conflict between that and the laws either of Congress or of the States it becomes the duty of the Judiciary to follow that only which is of paramount obligation. This results from the very theory of a republican constitution of government; for otherwise the acts of the Legislature and Executive would in effect become supreme and uncontrollable, notwithstanding any prohibitions or limitations contained in the Constitution; and usurpations of the most unequivocal and dangerous character might be assumed, without any remedy within the reach of the citizens. The people would thus be at the mercy of their rulers in the State and the National Governments; and an omnipotence would practically exist, like that claimed for the British Parliament. The universal sense of America has decided that, in the last resort, the Judiciary must decide upon the constitutionality of the acts and laws of the general and State Governments, so far as they are capable of being made the subject of judicial controversy. It follows that when they are subjected to the cognizance of the Judiciary its judgments must be conclusive; for otherwise they may be disregarded and the acts of the Legislature and Executive enjoy a secure and irresistible triumph. To the people at large, therefore, such an institution is peculiarly valuable; and it ought to be eminently cherished by them. On its firm and independent structure they may repose with safety, while they perceive in it a faculty, which is only set in motion when applied to; but which, when thus brought into action, must proceed with competent power if required to correct the error or subdue the oppression of the other branches of the Government. Fortunately, too, for the people, the functions of the Judiciary, in deciding on Constitutional questions, is not one which it is at liberty to decline. Whilst it is not bound to take jurisdiction if it should not, it is equally true that it must take jurisdiction if it should. It cannot, as the Legislature may, avoid a measure because it approaches the confines of the Constitution. It cannot pass it by because it is doubtful. With whatever doubt, with whatever difficulties a case may be attended, it must decide it when it arises in judgment. It has no more right to decline the exercise of a jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution." In this dignified and convincing exposition of the principles which Functions underlie the functions of a Central Judicature, Story insists on three summarized. main points; that the functions themselves are two-fold in their nature, involving both that of deciding whether the powers of the Union or State Governments are being exercised in conformity with the provisions of the Constitution, and that of securing uniformity Source of in the exercise of the eonstitutional powers of the Union and State Governments; that the decision of the Central Judicature, when once given, must be absolute, and beyond question; and that the Central Judicature is bound to give its decision on any point within its competence when called upon to do so, and only then. In considering how far the principles thus stated are applicable to the Central Judicature of a Union of British Colonies, under the supreme authority of the British Crown, there are several important points to be insisted upon. I. The ultimate Repository of Power in Great Britain, the United It will have been noticed that Story, in the passage quoted above, specially makes a distinction between "the omnipotence claimed for the British Parliament" and the limited power of the Legislature United States. of the United States. The distinction is fundamental. In the Union of British United States the people is sovereign in fact as well as in theory. The Constitution is the deliberate expression of the will of the people. From the Constitution the power of the three departments of Government-the Legislature, the Executive, and the Judiciaryis divided. And as the Constitution itself is subject to the will of the people and can be altered by the people, under conditions which have been deliberately accepted by them; so the relative powers of either the Legislature, Executive or Judiciary can be altered or re-adjusted. In Great Britain, on the other hand, the Constitution is unwritten and the power of the State is reposed in the Sovereign and Parliament acting together. The power of Legislature, Executive and Judiciary is founded, not on the terms of the Constitution, but on the theory of delegation by the Sovereign. There can thus be no question in Great Britain of the Judiciary declaring a law passed by the Legislature and assented to by the Sovereign to be unconstitutional; whereas in the United States it is as has already been shown-one of the primary functions of the Judicature to declare whether a law passed by the Legislature is Constitutional or not. The Constitution of a Union of British Colonies stands mid-way between the two. In so far as it is the deliberate expression of the desire of a number of separate Colonies to be united under one Central Government, and in so far as it expresses that desire in a written form, it approximates to the nature of the Constitution of the United States. In so far, however, as it depends for its ultimate validity upon the assent of the Legislature and Sovereign of Great Britain, acting in concert; and in so far as it can only be altered with their consent, it approximates to the Constitution of Great Britain. The real nature of such a Constitution of a union of British Colonies can perhaps be best expressed by drawing a distinction between the actual and theoretical power of sanctioning or altering such a Constitution. In theory, that power is wholly vested in the Legislature and Sovereign of Great Britain acting together. In practice, the theoretical power is only exercised when |