Aroney, Nicholas --- "Imagining a Federal Commonwealth: Australian Conceptions of Federalism, 1890-1901" [2002] FedLawRw 10; (2002) 30(2) Federal Law Review 265
[*] Senior Lecturer in Law, The University of Queensland, Australia. I would like to thank the anonymous referee for helpful comments on an earlier draft of this article.
[1] Official Report of the National Australasian Convention Debates, Sydney, 11 March 1891, 243, citing Edward Augustus Freeman, History of Federal Government in Greece and Italy (2nd ed, 1893) 2.
[2] For example, J A O Larsen, Greek Federal States: Their Institutions and History (1968) 3; Max Frenkel, Federal Theory (1986) 97; Sobei Mogi, The Problem of Federalism: A Study in the History of Political Theory (1931), vol I, 290–97.
[3] Freeman is briefly mentioned in John Reynolds, 'A I Clark's American Sympathies and his Influence on Australian Federation' (1958) 32 Australian Law Journal 62, 64; F M Neasey, 'Andrew Inglis Clark Senior and Australian Federation' (1969) 15(2) Australian Journal of Politics and History 1, 9; S R Davis, The Federal Principle: A Journey through Time in Quest of a Meaning (1978) ch 2; James Thomson, 'Andrew Inglis Clark and Australian Constitutional Law' in Marcus Haward and James Warden (eds), An Australian Democrat: The Life, Work and Consequences of Andrew Inglis Clark (1995) 59.
[4] H A Cronne, 'Edward Augustus Freeman, 1823–1892' (1943) 28 History 78, describes him as 'the Erasmus of the nineteenth–century reformation in English historiography'. Freeman's reputation was established by his monumental The History of the Norman Conquest of England, its Causes and its Results (1867–1879) 6 vols.
[5] Convention Debates, above n 1 243; cf Andrew Inglis Clark, Australian Federation (Confidential) (1891) 13. John Alexander Cockburn considered Freeman an 'authority' on federalism: Official Report of the National Australasian Convention Debates, Adelaide, 30 March 1897, 346. Isaac Isaacs called Freeman a 'great authority': Convention Debates, Adelaide, 13 April 1897, 544.
[6] Robert Garran, The Coming Commonwealth: An Australian Handbook of Federal Government (1897) 13–21, 39–54; John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901, reprinted 1995) 4, 333; Richard Chaffey Baker, The Executive in a Federation (1897) 13; Thomas Just, Leading Facts Connected with Federation Compiled for the Information of the Tasmanian Delegates to the Australasian Federal Convention 1891, on the Order of the Government of Tasmania (1891) 110–12.
[7] Edward Augustus Freeman, The Growth of the English Constitution from Earliest Times (3rd ed, 1898), cited at Convention Debates, above n 5, 31 March 1897, 388.
[8] See, eg, Convention Debates, above n 5, 24 March 1897, 73 (Patrick Glynn), 26 March 1897, 180 (Isaac Isaacs), 29 March 1897, 244 (Sir Philip Fysh), 30 March 1897, 316 (John Gordon), 30 March 1897, 346 (John Cockburn), 31 March 1897, 388, (Edmund Barton), 31 March 1897, 391 (Edmund Barton), 31 March 1897, 391, (Isaac Isaacs), 13 April 1897, 544 (Isaac Isaacs), 15 April 1897, 663–4 (Patrick Glynn); Official Record of the National Australasian Convention Debates, Sydney, 10 September 1897, 292–5 (Josiah Symon), 10 September 1897, 348 (Henry Higgins), 16 September 1897, 673 (John Cockburn), 17 September 1897, 793 (Sir Philip Fysh).
[9] James Bryce, The American Commonwealth (1889); Quick and Garran, above n 6; W Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910, reprinted 1997). See J A La Nauze, The Making of the Australian Constitution (1974); James Warden, Federal Theory and the Formation of the Australian Constitution (PhD Thesis, Australian National University, 1990).
[10] Cf John Wright, 'The Nature of the Australian Constitution: The Limitations of the Institutional and Revisionist Approaches' (2000) 28 Federal Law Review 345, 363.
[11] See Nicholas Aroney, 'A Commonwealth of Commonwealths: Late Nineteenth Century Conceptions of Federalism and their Impact on Australian Federation, 1890–1901' forthcoming, Journal of Legal History. Other studies include Brian Galligan, A Federal Republic: Australia's Constitutional System of Government (1995); Warden, above n 9. For a preliminary evaluation of the way in which federal ideas were actually embodied in the Constitution, also see Nicholas Aroney, 'Federal Representation and the Framers of the Australian Constitution', in G A Moens (ed), Constitutional and International Law Perspectives: Achievements and Challenges (2000).
[12] See the Australian Constitutions Act (No 2) 1850 13 & 14 Vict 1, c 59 and the discussion in W G McMinn, A Constitutional History of Australia (1979) chs 2–3; A C V Melbourne, Early Constitutional Development in Australia (1963) pt V, ch VI and 443–5; R D Lumb, The Constitutions of the Australian States (5th ed, 1992) chs 1–2, 4.
[13] Official Record of the Debates of the Australasian Federation Conference, Melbourne, 10 February 1890,10.
[14] Convention Debates, above n 1, 31–2; cf Samuel Walker Griffith, Notes on Australian Federation: Its Nature and Probable Effects (1896) 6–7, 10.
[15] See La Nauze, above n 9. Indeed, the several Enabling Acts passed by the colonial legislatures establishing the federal conventions stipulated that the Constitution must be federal in form.
[16] C M H Clark (ed), Select Documents in Australian History 1851–1900 (1955) 443.
[17] Baron de Montesquieu, The Spirit of the Laws, (Thomas Nugent trans, first published 1750, 1949 ed), vol I, bk IX, ch 1, 183–4; Alexis de Tocqueville, Democracy in America, (Henri Reeve trans, first published 1835–40, 1946 ed), pt I, ch VIII, 103–9.
[18] Freeman, above n 1, 1–3, 7–8.
[19] Eg, Joseph Story, Commentaries on the Constitution of the United States with a Preliminary Review of the Constitutional History of the Colonies and States before the Adoption of the Constitution (5th ed, 1891), ch XLV.
[20] British North America Act 1867, 30 & 31 Vict 1, c 3. On the state of Canada midway through the nineteenth century, see L P Lucas (ed), Lord Durham's Report, 3 vols (1912).
[21] Bryce, above n 9; A V Dicey, Introduction to the Study of the Law of the Constitution (5th ed, 1897). See also J G Bourinot, A Manual of the Constitutional History of Canada (1888); F O Adams, and C D Cunningham, The Swiss Confederation (1889).
[22] Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas (1861); Freeman, above n 1; Otto von Gierke, The Development of Political Theory, (B Freyd, trans first published 1880, 1939 ed) [trans of Johannes Althusius und die Entwicklung der Naturrechtlichen Staatstheorien]; James Bryce, The Holy Roman Empire (4th ed, 1895).
[23] On Althusius and federalism, see C J Friedrich, 'Introduction' in Johannes Althusius, Politica Methodice Digesta (F S Carney trans, first published 1603, 1964 ed); T O Hueglin, Early Modern Concepts for a Late Modern World: Althusius on Community and Federalism (1999).
[24] Jefferson to Cabell, cited in Story, above n 19, 200; David Hume, 'The Idea of the Perfect Commonwealth' in T H Green and T H Grose (eds), David Hume: The Philosophical Works (1882) 480–93; P–J Proudhon, The Principle of Federation (R Vernon trans, first published 1863, 1979 ed).
[25] Gierke, above n 22; James Bryce, Studies in History and Jurisprudence, 2 vols (1901), vol II, 84–5; Frederic William Maitland, 'Translator's Introduction', in Otto von Gierke, Political Theories of the Middle Age (Federic William Maitland trans, first published 1900, 1968 ed) xxvi, n 1.
[26] Cf the contemporary bibliographies in Just, above n 6, 110–14; Richard Chaffey Baker, A Manual of Reference to Authorities for the use of the Members of the National Australasian Convention which will assemble at Sydney on March 2, 1891, for the Purpose of Drafting a Constitution for the Dominion of Australia (1891) 7–8; John Quick, A Digest of Federal Constitutions (1896) 5–6. Compare also the recent bibliographies in La Nauze, above n 9, 355–61; Gregory Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (1986) 253; L F Crisp, (John Hart (ed)), Federation Fathers, (1990) 400–435; Helen Irving, To Constitute a Nation: A Cultural History of Australia's Constitution (1997) 240–43 and George Winterton, et al, Australian Federal Constitutional Law (1999) 906–10.
[27] See E M Hunt, American Precedents in Australian Federation (1963); Owen Dixon, Jesting Pilate and Other Papers and Addresses (1965); Galligan, above n 11; Warden, above n 9; Geoffrey Sawer, Modern Federalism (1969); La Nauze, above n 9, 18–20, 23–4, 273.
[28] For references, see the bibliographies in n 26 above.
[29] For references, again see the bibliographies in n 26 above.
[30] Compare La Nauze, above n 9, 275. Many others could, of course, be added to this list, such as Kingston, O'Connor, Symon, Wise, Glynn and Forrest. But in most, if not all respects, their particular views and contributions are sufficiently represented by those listed in the text.
[31] See also Aroney, above n 11, and compare the references in n 26 above.
[32] For detailed references and a fuller discussion of these works, see Aroney, above n 11.
[33] See, eg, James Madison, Federalist No 9 in Clinton Rossiter (ed), The Federalist Papers (1961); William Blackstone, Commentaries on the Laws of England (1765), vol I, 48–9; Chisholm v Georgia, 2 US [1793] USSC 2; (2 Dall) 419, 453–7, (1793), McCulloch v Maryland, 17 US [1819] USSC 5; (4 Wheat) 316 402–5 (1819); John C Calhoun, A Discourse on the Constitution and Government of the United States (1853).
[34] Bryce, above n 9, vol I, 12–15, 332.
[35] Bryce, above n 25, vol II, 105.
[36] Freeman, above n 1, 8–13, 69, 77–8, 156, citing J K Bluntschli, The Theory of the State, (D G Ritchie, P E Matheson and R Lodge trans, 1885 ed) 252–3.
[37] Georg Jellinek, Die Lehre von den Staatenverbindungen (1882). Other important nineteenth century German scholars are discussed in Mogi, above n 2, pt III.
[38] See Dicey, above n 21, 135, 141, emphasis added.
[39] John William Burgess, Political Science and Comparative Constitutional Law, 2 vols (1890).
[40] Ibid, vol I, 90, 107, 142–5, 151–4; vol II, 49, 115. The latter explanation was cited in Quick and Garran, above n 6, 415–6.
[41] See, further, Samuel Walker Griffith, above n 14; Some Conditions of Australian Federation (1896); Samuel Walker Griffith, Notes on the Draft Federal Constitution Framed by the Adelaide Convention of 1897: A Paper Presented to the Government of Queensland (1897): Samuel Walker Griffith, Australian Federation and the Draft Commonwealth Bill: A Paper Read before the Members of the Queensland Federation League (1899); Charles Cameron Kingston, The Democratic Element in Australian Federation (1897); Howard Willoughby, Australian Federation: Its Aims and Its Possibilities: With a Digest of the Proposed Constitution, Official Statistics, and a Review of the National Convention (1891); Moore, above n 9; Bernhard Ringrose Wise, The Commonwealth of Australia (1909); Bernhard Ringrose Wise, The Making of the Australian Commonwealth 1889–1890: A Stage in the Growth of the Empire (1913); Alfred Deakin, The Federal Story: The Inner History of the Federal Cause (1944); on Griffith, see Nicholas Aroney, 'Sir Samuel Griffith's Vision of Australian Federalism', in Michael White and Aladin Rahemtula (eds), Sir Samuel Griffith The Law and the Constitution (forthcoming).
[42] La Nauze, above n 9, 23. On Inglis Clark, see Part II (B) below.
[43] Just, above n 6, 83–103, 110–14.
[44] Ibid 33. On Just's use of The Federalist, see ibid, 33–4, 37–8, 44, 49–7. Peter Onuf, 'Reflections on the Founding: Constitutional Historiography in Bicentennial Perspective' (1989) 46 William and Mary Quarterly 341, 365, warns that The Federalist had only limited impact on the debate over the ratification of the US Constitution. But, of course, the work soon took on a significance much greater than its contemporary influence.
[45] Ibid 35–7, reproducing John Dunmore Lang, The Coming Event, or Freedom and Independence for the Seven United Provinces of Australia (1870). See also Charles Gavan Duffy, My Life in Two Hemispheres (1898) 145–7; Quick and Garran, above n 6, 92.
[46] Ibid 34, 38–41.
[47] Montesquieu, above n 17, vol I, bk IX, para 1, as cited in Alexander Hamilton, Federalist No 9 in Clinton Rossiter (ed), The Federalist Papers (1961), in turn as cited in Just, above n 6, 37.
[48] Hamilton, above n 47.
[49] Despite Hamilton's personal preference for a fully consolidated national government, he was at pains in the Federalist Papers to present the distinctively federal features of the proposed Constitution so as to avoid the criticisms of anti-federalists that the Constitution was not genuinely 'federal'.
[50] Madison, above n 33. Madison addressed the same question in more 'nationalistic' terms in Federalist No 51, but later affirmed his analysis in No 39. On Madison's (shifting) views, see Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996).
[51] Madison, above n 33, 243–4, as cited by Just, above n 6, 38.
[52] Ibid.
[53] Ibid.
[54] Ibid.
[55] Ibid.
[56] Madison used the terms 'as understood by the objectors'; he did not address 'the accuracy of the distinction' between 'federal' and 'national': ibid 243.
[57] Compare Daniel Elazar, Exploring Federalism (1991) 38–64, who distinguishes 'common markets', 'consociational unions', 'legislative unions', 'constitutionally decentralized unitary states', 'federations', 'confederations', 'federacy', 'associated states', 'leagues' and 'foralistic arrangements'.
[58] For similar modern analyses, see Kenneth Wheare, Federal Government (1967) 1; Maurice Vile, The Structure of American Federalism (1961) 1; Carl Friedrich, Trends of Federalism in Theory and Practice (1968) ch 2; Sawer, above n 27, ch 1.
[59] Madison, above n 33, 243–6.
[60] Story, above n 19, vol I, 518–9.
[61] Official Record of the Debates of the Australasian Federation Convention, Melbourne 11 February 1890, 131-8 (John Cockburn); Convention Debates, above n 8, 10 September 1897, 325–6 (Bernhard Wise), 10 September 1897, 340 (Edmund Barton). That in the Federal Convention at Philadelphia in 1787 Hamilton and Madison had in fact argued against equality of representation for the States is not apparent from Just's presentation of their views. See also Hunt, above n 27, 108; Warden, above n 9, 28–33.
[62] Quick and Garran, above n 6, 336–40.
[63] Just, above n 6, 58–83 (emphasis added).
[64] La Nauze, above n 9, 24. The other draft was by Charles Kingston.
[65] See ibid.
[66] Inglis Clark, above n 5. Inglis Clark's draft is reproduced in Reynolds, above n 3.
[67] Ibid 1.
[68] Ibid 2–6.
[69] Ibid 6.
[70] Ibid 5–7, citing E A Freeman, 'Presidential Government' in Historical Essays, First Series (4th ed, 1886).
[71] Andrew Inglis Clark, Studies in Australian Constitutional Law (1901, reprinted 1997) 3. Inglis Clark also gave significant weight to the judgments of John Marshall, Chief Justice of the United States Supreme Court, 1801–1835.
[72] Ibid 4–13, 359, 369–70. The argument was not dissimilar to Calhoun, above n 33. Compare Garran, above n 6, 132. Clark even argued that ordinary Commonwealth laws should be passed only with a majority of Senators in a majority of States: Michael Roe, 'The Federation Divide Among Australia's Liberal Idealists: Contexts for Clark' in Haward and Warden (eds), An Australian Democrat: The Life, Work and Consequences of Andrew Inglis Clark (1995) 95.
[73] Baker, above n 6; Baker, above n 26; Richard Chaffey Baker, Federation (1897). See La Nauze, above n 9, 23; Mark McKenna, 'Sir Richard Chaffey Baker—the Senate's First Republican' in The Constitution Makers (1997); R van den Hoorn, 'Richard Chaffey Baker: A South Australian Conservative and the Federal Conventions of 1891 and 1897–8' (1980) 7 Journal of the Historical Society of South Australia 24.
[74] Baker, above n 26, 5, 7–8, 19.
[75] Ibid 26; cf Baker, above n 73, 12.
[76] Baker, above n 26, ch 17.
[77] Ibid 59–66. See James Kent, Commentaries on American Law (7th ed, 1851), vol I, 231.
[78] Ibid 43–6.
[79] Ibid, Preface of May 1, 1891 (entitled 'First Preface', apparently incorrectly).
[80] Ibid 33; Baker, above n 73, 3.
[81] Baker, above n 73, 3–5, 10, 19.
[82] Baker, above n 26, 31, citing Bluntschli, above n 36. Samuel Griffith, above n 14, 5, also adopted Bluntschli's approach.
[83] Baker, above n 6, 3, 11. Adams and Cunningham, above n 21, 273–4, had praised the Swiss executive system. See also Baker, above n 73, 19.
[84] Ibid 5–8. In the late nineteenth century, the formally centralist features of the Canadian Constitution seemed to outweigh the inherently pluralistic nature of Canadian society and the emergent interpretations of the Privy Council that were enhancing the independence and powers of the Canadian Provinces vis-à-vis the Dominion.
[85] Ibid 12, 17–9, citing Bryce, above n 9, vol I, 155–60 and, apparently, Alpheus Todd, Parliamentary Government in the British Colonies (1880).
[86] Baker, above n 73, 17–8.
[87] See Convention Debates, above n 5, 23 March 1897 28–31, (Sir Richard Baker), 24 March 1897, 66 (Sir Edward Braddon), 26 March 1897 (Frederick Holder), 26 March 1897, 184–5 (John Quick), 26 March 1897, 193–5 (Henry Dobson), 29 March 1897, 211–4 (Sir John Downer), 29 March 1897, 247 (Sir John Forrest), 30 March 1897, 307 (Matthew Clarke), 30 March 1897, 315 (James Walker and John Gordon), 30 March 1897, 324 (John Gordon), 30 March 1897, 330 (William Trenwith), 30 March 1897, 334 (William Frenwith), 30 March 1897, 345 (John Cockburn).
[88] Garran, above n 6; Quick, above n 26.
[89] Garran, above n 6, 15–6; cf Quick, above n 26, 10–14.
[90] Garran, above n 6, 23–4.
[91] Ibid 80, cf 15–6, 65–6, 75–6, relying on Dicey, above n 21.
[92] Quick and Garran, above n 6. See also Quick, above n 26; John Quick, Legislative Powers of the Commonwealth and the States of Australia with Proposed Amendments (1919); Robert Garran, Prosper the Commonwealth (1958).
[93] Geoffrey Sawer, 'Foreword', Quick and Garran, above n 6, v.
[94] See Quick and Garran, above n 6, 285–7, 292–4, 311–7, 324–8, 332–42, 368–72, 380–83, citing Hobbes, Locke, Rousseau, Blackstone, Jefferson, Madison, Wilson, Marshall, Calhoun, Foster, Willoughby, Story, Burgess, Maine, Freeman, Bryce, Bentham, Austin, Dicey, and others.
[95] Ibid, 1–5. Quick and Garran would almost certainly have been drawing on Freeman, above n 1.
[96] Ibid 9–11. The 'superiority' of the British Empire was a recurrent theme.
[97] Ibid 11–18. On the latter, see Donald Lutz, Colonial Origins of the American Constitution: A Documentary History (1998).
[98] Quick and Garran, above n 6, 305–8.
[99] See ibid 300–303, 327–8.
[100] Quick, above n 26, 10.
[101] Quick and Garran, above n 6, 325.
[102] Burgess, above n 39, vol I, 52.
[103] Quick and Garran, above n 6, 325.
[104] Ibid 324–8, citing Burgess, above n 39, vol I, 51–2; Westel Woodbury Willoughby, An Examination of the Nature of the State: A Study in Political Philosophy (1896) 214; Dicey, above n 21, 66, 137; John Austin, Lectures on Jurisprudence (5th ed, 1911), vol I, 253. An earlier edition of Austin was of course cited.
[105] See Australasian Federation Enabling Act 1895 (NSW); Australasian Federation Enabling Act (South Australia) 1895 (SA); Australasian Federation Enabling Act 1896 (Vic); Australasian Federation Enabling Act (Tasmania) 1896 (Tas); Australasian Federation Enabling Act 1896 (WA).
[106] Ibid 285–7, 290–92 (calling him 'John Wilson').
[107] Ibid 325, 993. See Burgess, above n 39, vol I, 90, 107, 142–5, 151–4 and vol II, 49, 115; Austin, above n 104, vol I, 253; Willoughby, above n 104, 214.
[108] Quick and Garran, above n 6, 326. They were aware that Dicey had not proposed a universal theory of sovereignty; they also noted that the 'historical school' of jurisprudence had pointed to 'communities in which no sovereign can be discovered': ibid, 325.
[109] Ibid 332, 371, citing Garran, above n 6, 17–8.
[110] Quick and Garran, above n 6, 292. Warden, above n 9, 105, argues that Quick and Garran falsely attributed the Virginia Resolutions to Jefferson so that Madison would not be associated with the compact theory.
[111] They therefore interpreted the amending process solely as a matter of Diceyan rigidity, ignoring the federal structure of the amending process: Quick and Garran, above n 6, 314–7; but see 988–95, discussed below.
[112] Ibid 333.
[113] Ibid.
[114] Ibid 333–4 citing Burgess, above n 39, vol I, 79; vol II, 18, and mentioning The Federalist, Freeman, Dicey and Bryce, without specific reference. Quick and Garran also distinguished a fourth sense in which 'federal' was 'descriptive of the organs of the central and general government.'
[115] Quick and Garran, above n 6, 334.
[116] Bryce, above n 9, vol I, 12, 15, cited in Quick and Garran, above n 6, 370.
[117] Quick and Garran, above n 6, 371, summarising Dicey, above n 21. But see Robert Garran, Cambridge History of the British Empire (1933), vol 7, pt I, 459.
[118] Ibid 371, summarising Burgess, above n 39.
[119] Quick and Garran, above n 6, 335–6.
[120] Ibid 336.
[121] Ibid, citing Madison, above n 33.
[122] See Quick and Garran, above n 6, 339–40.
[123] See ibid 417, citing Convention Debates, above n 5, 23 March 1897, 21–3 (Edmund Barton). However, Quick and Garran also contrasted the 'partly federal, partly national' character of the Swiss and American federal executives with the more 'national' system of responsible government in Australia.
[124] Quick and Garran, above n 6, 336–7.
[125] Ibid 335–42, citing John William Burgess, 'The Ideal American Commonwealth' (1895) 10 Political Science Quarterly 404. See also Quick and Garran, above n 6, 988.
[126] Quick and Garran, above n 6, 992, citing Burgess, above n 39.
[127] Quick and Garran, above n 6, 335, 341–2.
[128] Ibid 380, citing Burgess, above n 39. Thus the two 'tensions' in their thought noted earlier may well have been resolved in their commitment to Imperial sovereignty. At ibid 380, having said that the Constitution derives from the ultimate sovereignty of the Imperial Parliament, they remarked that the Constitution partitions 'the totality of quasi–sovereign powers delegated to the Commonwealth, as well as providing for a future development and expansion of those powers.' The approach is clearly shown in a diagram at ibid 928.
[129] Ibid 340–42.
[130] La Nauze, above n 9, 102, 120, described Higgins as 'an obstinate individualist radical', yet 'learned and courteous' and 'heard with attention while he argued a hopeless case'.
[131] Crisp, above n 26, 173, who also discussed other radical nationalists, such as George Dibbs, A B Piddington, Tom Price and George Reid.
[132] Henry Bournes Higgins, Essays and Addresses on the Australian Commonwealth Bill (1900) 9–10, 13, 44, 60, 72–3, 109, 111, 123, citing H J Ford, The Rise and Growth of American Politics: A Sketch of Constitutional Development (1898); see also, Walter Bagehot, The English Constitution (1872); Dicey, above n 21 (4th ed, 1893), 135; Freeman, above n 1, 2; Burgess, above n 39, vol I, 151–3; John Locke, Two Treatises of Government (1690, republished 1992), §96.
[133] Higgins, above n 132, 52, 85, 104, 111, 115, citing Burgess, above n 39, vol I, 151–3; vol II, 49; Ford, above n 132.
[134] Higgins, above n 132, 100, 128.
[135] Although see ibid 73.
[136] Convention Debates,above n 5, 26 March 1897, 171–8 (Isaac Isaacs), 15 April 1897, 660 (Isaac Isaacs), Convention Debates, above n 8, 10 September 1897, 303-13. Cf Isaac Isaacs, Australian Democracy and our Constitutional System (1939) 33–4.
[137] Official Report of the National Australasian Convention Debates, Melbourne 9 February 1898, 716, 718–722 (Isaacs), 735 (Reid). Isaacs relied on Burgess, above n 39, vol I, 137; Goldwin Smith and other authors: see Convention Debates, Melbourne (1898) 722.
[138] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.
[139] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, 142. Cf D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91.
[140] Isaacs, above n 136; see Crisp, above n 26, ch 4.
[141] See Andrew Inglis Clark, 'Federal Government. The Commonwealth of Australia No2' in Scott Bennett (ed), The Making of the Commonwealth (1971) 101.
[142] The agreement of the States might be expressed through elected conventions in each State (as in the United States) or through referenda held in each State (as happened in Australia).
[143] Conference Debates, above n 13, 11 February 1890, 131-8 (John Cockburn) Convention Debates, above n 8, 10 September 1897, 325–6 (Bernhard Wise), 10 September 1847, 340 (Edmund Barton).
[144] Space does not permit a full elaboration, but see, eg, Garran, above n 6, 184; Convention Debates, above n 1, 8 April 1891, 884-5 (Duncan Gillies), 8 April 1891, 893-4 John Cockburn), 8 April 1891, 894 (Sir Samuel Griffith); Convention Debates, above n 5, 25 March 1897, 105–110 (Bernhard Wise), 31 March 1897, 388 (Edmund Barton), 15 April 1897, 656 (John Quick); Convention Debates, above n 8, 9 September 1897, 259-60 (Henry Higgins), 13 September 1897, 411-12 (Matthew Clarke); Convention Debates, above n 137, 9 February 1898, 772 (Edmund Barton).
[145] Moore, above n 9, 67–8. Quick and Garran, above n 6, 332, similarly observed that '[t]he Federal idea ... pervades and largely dominates the structure of the newly-created community, its Parliamentary executive and judiciary departments.' See also Frederic Maitland, 'The Crown as Corporation' (1901) 17 Law Quarterly Review 131, 144.