Page:History of Adelaide and vicinity.djvu/678

 ADELAIDE AND VICINITY Notesonthe Constitution of South Australia Definition of the word "unconstitutional" As it will be necessary to frequently use the word unconstitutional, and as that is a word which has different meanings in different parts of the British dominions, it may be as well to now define the sense in which it is used in these notes. The best explanation of its proper meaning in England is given by Professor Hearn, who says : — " Whenever experience and the proved utility of any mode of exercising any discretionary power are such as to raise a reasonable expectation in the public mind that these powers will continue to be so used, any deviation from the customary method which tends to defeat this expectation, and rests mainly on the ground of actual ability to so deviate, is unconstitutional." But, as Professor Dicey shows, the word may have another meaning in the United States and in the self-governing colonies. In those countries, when a law is passed in violation of the provisions of their respective "Constitutions" it is an "unconstitutional law," whilst in Great Britain, where the sovereignty is vested in the Queen in Parliament, any such phrase would be unmeaning. The word will be used in the meaning defined by Professor Hearn. An Act may be illegal and unconstitutional, but it is not necessarily illegal because it is unconstitutional. As an illustration of the English meaning of this word, Lord Glenelg once officially declared " that British Parliamentary legislation on any subject of exclusive local concern to any British colony possessing a representative assembly is, as a general rule, unconstitutional." There can be no doubt of the power of the British Parliament to interfere by legislation in the local concerns of South Australia, but in our meaning of the word it would be unconstitutional for the British Parliament to exercise that power. Theory of government in England by King in Council As our Constitution Act and all its results are grafts on a pre-existing Constitution, and as that pre-existing Constitution — at all events as it existed at the time when this Province was originally " erected " (that is the word used in the first Imperial Act founding South Australia) — was the result of centuries of practice and political evolution in Great Britain, it will be necessary, in order to grasp the fundamental princi])les of our subject, to formulate the theory which underlies the Constitution of Great Britain, especially of that branch of it which refers to the government of colonies acquired by settlement. For a long time after the Norman Conquest, the King in his Great Council called the Parliament (of which the House of Lords is the historical survivor) was, both in theory and in practice, the Sovereign of PLngland. It was then not the duty, but the privilege of the Crown to ask for advice ; and the Great Council of the King was really his adviser and not his dictator. He presided in and over this Council, and with its advice was supposed to perform all the business of the realm — legislative, judicial, and executive. This .system (if it ever really existed in its entirety) must have soon become unworkable, on account of the diversity and multiplicity of the business transacted, and there must have been a tendency in the Great Council to differentiate itself into various committees or sub-committees, each theoretically advising the King in various branches