can be conceived more difficult than that of deciding whether or not the condition of the Article has been satisfied. The view taken in the Memorandum of the Delegates is that the prerogative of granting leave to appeal to the Privy Council from the Supreme Courts of the several Colonies is unaffected, and that Article 74 only applies to appeals from the High Court of the Commonwealth. This is very doubtful, and is only one of the many difficult question of construction which would arise upon this Article. The Article appears to have been framed under the impression that the only appeal from the Supreme Courts of the Colonies was to be to the High Court of the Commonwealth, and its effect upon the right of Her Majesty to grant leave to appeal to the Privy Council from the Judgments of Supreme Courts of the Colonies is problematical. || If, however, the view taken by the Delegates on this point be correct, the result will be that in a Constitutional case a litigant defeated in the Supreme Court of a State might appeal at his option either to the High Court of the Commonwealth or to the Privy Council. The successful party might prefer the latter, but would have no choice. || Again, if the Delegates' view as to the construction of the Article is correct in the case of a decision by a Superior Court with which neither litigant is satisfied, there may be cross appeals, one by one party to the High Court, and the other by the other party to the Privy Council. The decisions of both of these Courts may be final, and if they happen to disagree, it is difficult to see what will be the consequence. || Further, under Article 74, it would in many cases be possible for a litigant to present a Petition to the Queen in Council for special leave to appeal, on the ground either that the question at issue did not involve the interpretation of the Constitution, or that public interests were involved, and on this Petition there would be a preliminary argument on either or both of these points. || To pass this Article in its present form would be to introduce confusion. and uncertainty in a matter in which it is desirable above all others that there should be clearness and certainty. The difficulty of construing it forms an insuperable obstacle to its adoption by the Imperial Parliament without modification or some overriding clause in the Bill to control its operation. || But there are other and graver objections to the Article. From the proceedings of the Convention, it would appear to have originated to some extent in objections to the present constitution and working of the Judicial Committee of the Privy Council. The administration of justice by that Tribunal has been, on the whole, such as to command the confidence of the Empire. || But appart from this consideration, the time is specially inopportune for any proposal to curtail Staatsarchiv LXIX. 11 its jurisdiction. Proposals are under consideration for securing a permanent and effective representation of the great Colonies on the Judicial Committee, and for amalgamating the Judicial Commitee with the House of Lords, so as to constitute a Court of Appeal from the whole British Empire. It would be very unfortunate if Australia should choose this moment to take from the Imperial Tribunal the cognizance of the class of cases of greatest importance, and often of greatest difficulty. Article 74 proposes to withdraw from the Queen in Council matters involving the interpretation of the Constitution. It is precisely on questions of this kind that the Queen in Council has been able to render most valuable service to the administration of law in the Colonies, and questions of this kind, which may sometimes involve a good deal of local feeling, are the last that should be withdrawn from a Tribunal of appeal with regard to which there could not be even a suspiciou of prepossession. Questions as to the constitution of the Commonwealth or of a State may be such as to raise a great deal of public excitement as to the definition of the boundaries between the powers of the Commonwealth Parliament and the powers of the State Parliaments. It can hardly be satisfactory to the people of Australia that in such cases, however important and farreaching in their consequences, the decision of the High Court should be absolutely final. Before long the necessity for altering the Constitution in this respect would be felt, and it is better that the Constitution should be enacted in such a form as to render unnecessary the somewhat elaborate proceedings which would be required to amend it. But it must be further observed that matters involving the interpretation of the Constitution may raise questions of the utmost gravity, not only between the Commonwealth and the separate States, but also as between the Commonwealth and the States on the one hand, and other parts of Her Majesty's dominions or foreign countries on the other. Among the matters on which the Parliament may make laws for the Government of the Commonwealth is comprised (Article 51, paragraph 10) fisheries in Australian waters beyond territorial limits. The interpretation to be but on the Constitution in this matter may most seriously affect British vessels, and particulary vessels from New Zealand. Grave questions may arise as to what fisheries beyond territorial limits are to be deemed to be Australian fisheries, and as to the class or classes of persons on whom the laws of the Commonwealth as to this matter will be binding. It is hardly reasonable to expect that inhabitants of other parts of the Empire should be finally concluded in such matters by the decision of the Australian Court. Another head on which the Parliament of the Commonwealth has power to legislate is that of external affairs (Article 51, paragraph 29). As has already been pointed out, a law might be passed by the Parliament of Australia with reference to the subject of foreign enlistment. The consequences of such legislation might involve the Empire in difficulties with foreign Powers. It is not reasonable to withdraw from the Imperial Tribunal the right of deciding whether a measure of this class is or is not invalid as being in contravention of Imperial legislation, or as to its true construction. The legislation of the Parliament of the Commonwealth may affect British shipping coming from the United Kingdom or British processions. The Merchant Shipping Act, 1894, makes (sections 735-736) special provision for legislation in a British possession with regard to vessels there registered, and with regard to the coasting trade in British possessions. Having regard to the interests which may be affected by legislation under this head, it appears essential that there should be the possibility of an appeal to the Queen in Council. || The question of the right of appeal must also be looked at from the point of view of the very large class of persons interested in Australian securities, or Australian undertakings, who are domiciled in the United Kingdom. Nothing could be more prejudicial to Australia than to diminish the security felt by capitalists who desire to invest their money there. One element in the security which at present exists is, that there is the possibility of an ultimate appeal to the Queen in Council, and there is very strong feeling against its abolition. Cases affecting the rights of such persons may often involve questions of the interpretation of the Constitution. But, apart from this consideration, the last sentence of Article 74 of the Constitution provides in express terms that the Parliament of the Commonwealth may make laws limiting the matters in respect of which leave may be asked to appeal. So that it is evident that the possibility of appeal in certain cases left by Article 74 as it now stands may be indefinitely curtailed in the future. A brief examination of the history of Article 74 may be desirable before proceeding to discuss the arguments of the Delegates against its amendment. || In the draft of the Constitution prepared at the Adelaide meeting of the Federal Convention the Article was as follows:,,No appeal shall be allowed to the Queen in Council from any Court of any State, or from the High Court or any other Federal Court, except that the Queen may in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of her dominions are concerned, grant leave to appeal to the Queen in Council from the High Court." || The meaning of this Article was explained in the discussion on the 20th April, - 1897, by Mr. Higgins, who was a member of the Judiciary Commitee, as follows: I feel a misapprehension has grown up that we are trying to do something new. The object of this clause is simply to stereotype in the Act what has already existed in Canada, where there is a general right of appeal reserved to Her Majesty's in Council on a decision of the Privy Council; but that right of appeal is not allowed unless the cases are of public interest. Therefore the effect of clause 73 is simply to put in plain English what is the law now in Canada.“ || Mr. Barton endorsed this explanation, saying: „That is the whole purpose and object of the clause; my honourable friend has saved me the trouble of explaining it." || The phrase „public interest" was used by Mr. Higgins as defining the class of cases in which special leave is granted to appeal from a decision of the Supreme Court of Canada. The rules laid down by the Privy Council as regards such appeals are set forth in the case of Prince v. Gagnon (8 App., Cas. 103): ||,,Their Lordships are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal to Her Majesty in Council from the Supreme Court of the Dominion, save where the case is of gravity, involving matter of public interest, or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character." || The language of the Article then under consideration hardly carried out the purpose with which it had been framed, as explained to the Convention by Mr. Higgins and Mr. Barton, namely, that it was only intended to stereotype and fix, in regard to the High Court of Australia, the practice of the Privy Council, as declared by that body itself, in regard to the Supreme Court of the Dominion of Canada; but their declarations are conclusive, as showing the sense in which the Article was adopted by the Convention at the sitting of the 20th April, 1897. || All that Her Majesty's Government desire upon this point is that effect should be given to the expressed intention of the framers of the clause, that it should embody the practice of the Privy Council upon Canadian appeals. After the Bill had been settled at Adelaide, it was discussed at length by the several Parliaments of the Federating Colonies, and several amendments were proposed in favour of extending the right of appeal as left in the Adelaide draft, but none apparently in favour of further restriction. The question was not discussed at the Sydney meeting, nor until January 1898, when an effort was made by those members who were in favour of the appeal to obtain the insertion of a provision saving the prerogative. The attempt was defeated by 22 votes against 14. The question was again brought up on |