Some cases decided by the Supreme Court of the United States of America, under the above section, may be cited in illustration of its working and as showing what cases may be covered by the phrase "criminal process." In Kentucky v. Dennison (24 How. 66), it was ruled that "the words of this article embrace every act forbidden and made punishable by a law of the State, whether treason, felony, or misdemeanour, and give the right to the State where any such crime is committed to demand the fugitive from the Executive of the State to which he has filed." If a person is arrested in one State on an inter-state warrant, charged with having committed a crime in another State, it would appear that the State courts have power by writ of habeas corpus to inquire into the legality of the arrest. (Robb v. Connolly, 111 U.S. 624.) A person arrested upon a requisition warrant may have the legality of his arrest tested by the courts, and to this end the State courts have jurisdiction in habeas corpus. (Roberts v. Reilly, 116 U.S. 80.) It must appear that the crime with which the fugitive stands charged was committed within the State making the demand. This provision, by the obvious import of its terms, has no relation whatsoever to foreign nations, but is confined in its operation to the States of the Union. (Per Mr. Justice Barbour, in Holmes v. Jennison, 14 Pet. 587.)

51. (xxv.) The recognition 209 throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:

HISTORICAL NOTE.-This sub-section was introduced verbatim in the Bill of 1891 and was adopted by the Convention of 1897-8 without debate. (See Historical Note, p. 118.)

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$209.

"Recognition."

As service and execution are the dominant features of the preceding sub-section, so recognition" is the ruling principle of this one. It is founded on Art. IV. sec. 1 of the Constitution of the U.S. of America, which is as follows:-"Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." This sub-section is partly reproduced in a declaratory form in section 118 of the Constitution of the Commonwealth which reads :-"Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public acts and records, and the judicial proceedings, of every State."

Under this power the Parliament may legislate in order to give effect to sec. 118. The Supreme Court of the United States of America, in a series of decisions under a section of that Constitution corresponding to sec. 118 of ours, has decided that a judgment rendered in one State does not carry with it into another State the efficacy of a judgment affecting property or persons to be enforced by direct and immediate execution. In order to give it such force in another State it must be made a judgment there, and it can only be executed there as the laws of the States permit. The record of a judgment in one State, rendered after due notice, is conclusive evidence in the courts of another State, as well as in the courts of the United States, of the matter adjudged. A judgment so recorded differs from judgments recorded in a foreign country, in these respects (1) it is not re-examinable on its merits; (2) it is not impeachable for fraud in obtaining it, if rendered by a court having jurisdiction of the cause and the parties. This provision was not intended to confer any new powers upon the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of other States domestic judgments, to all intents and purposes, but only gave a general validity, faith and credit to their

evidence. The above principles are deduced from cases cited in Baker, A.C., 152. "So I take it," said Mr. Barton, "that the effect of this clause will be to cause the courts of the Commonwealth to take judicial notice of the laws, acts, and records of the States, without the necessity of requiring them to be proved by cumbrous evidence." (Conv. Deb., Adel., p. 1005.)

This sub-section appeared in the Draft Bill of 1891. On the consideration of the sub-section by the Convention of 1891, Mr. (now Sir Richard) Baker asked whether it would include the recognition, in one State, of probate of a will issued in another. "There was," he said, a great deal of unnecessary expense and trouble in the registration of probates and letters of administration issued by one colony in another colony." "I think," said Sir Samuel Griffith, in reply, 'that probate of a will must be regarded as coming under the heading of a judicial proceeding." "This is a clause to enable the Federal Parliament to make a law recognizing a judicial proceeding —that is, probate. But it recognizes the probate for what it purports to be; that is, the proof of the will and the committal of the administration of the property in that State to some person. The committal of the administration of the property in any State is a matter for that State. Another State will recognize the probate; but they do not necessarily commit the administration to the same person. They will recognize the will as far as the judicial proof of it extends and no further." (Conv. Deb., Syd., 1891, p. 686-7.)

At the Adelaide session of the Convention of 1897, when the sub-section was discussed, Mr. Henry Dobson enquired "whether, under it, the courts of the other colonies would take cognizance of the appointment of a Receiver or Trustee of Lunacy or Curator of Intestate Estates; so that upon the registration of the document making the appointment, assets and lands in different colonies can be administered. I want to know whether under this section we can have some such machinery as that under the Probate Acts, where probate granted in one colony is sealed in another colony, whereby the will is practically proved in another colony, so that estates of an intestate or lunatic may be administered under the one authority. If a man dies intestate in one colony, would the administrator or curator be able to register his appointment in another colony and deal with the assets there?" In reply to these enquiries the American cases decided under the corresponding clause were cited by Mr. Barton. It was suggested that this sub-section alone merely meant to refer to the evidence necessary to secure the credit and recognition of laws, public acts, records, and judicial proceedings of the courts of the States, but that, read in conjunction with the preceding sub-section xxiv., referring to "service" and "execution," it might mean something more than mere credit and recognition. It is submitted that under this sub-section provision might be made for the inter-state cognizance of such appointments as those of executor, administrator, curator of intestate estates, and trustee in lunacy, as these appointments are generally made by the courts, and hence come within the category of public acts, records, and judicial proceedings. If such legal representatives obtain a judgment or order in a court of competent jurisdiction, within the State to which the deceased person or the lunatic belonged, they could, aided by appropriate legislation under sub-sec. xxiv., issue process and enforce the same by sale of lands and chattels in another State. (Conv. Deb., Adel., 1897, p. 1005.)

51. (xxvi.) The people of any race210, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws :

HISTORICAL NOTE.-In the Bill of 1891 the following sub-clause was comprised among the exclusive powers of the Federal Parliament :-" The affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorize legislation with respect to the affairs of the aboriginal native race in Australia and the Maori race in New Zealand." (Conv. Deb., Syd., 1891, pp. 701-4.) At the Adelaide session the sub-clause was introduced and passed in substantially the same words. (Conv. Deb., Adel., pp. 830-1.)

At the Melbourne session, a debate occurred on the question whether this power ought to be exclusive, so that the State Parliament, in the absence of Federation, would be unable to make special laws in respect of alien races within their territory. Eventually the sub-clause was omitted, on the understanding that it would be placed among the concurrent powers of the Parliament. (Conv. Deb., Melb., pp. 227-56.) Accordingly before the first report the sub-clause was inserted in its present form.

$ 210. "The People of any Race."

This sub-section does not refer to immigration; that is covered by sub-sec. xxvii. It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localize them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came.

In the Draft Bill of 1891, this sub-section appeared as the first of a group of three subjects, with reference to which the Parliament was assigned exclusive legislative power. It is now placed in the list of powers generally described as concurrent; that is to say, the States may occupy the ground until the Federal authority interferes and displaces them. The sub-section can only exclude the action of State legislation respecting the people of any race," when the Federal Parliament declares, by legislation, that such race is a race 'for whom it is deemed necessary to make special laws.” Before such legislation the State Parliaments will be free to pass laws concerning any part of their resident population, including the people of any particular race, coloured or otherwise, but as soon as the Federal Parliament by legislative intervention has shown that it has dealt with, or contemplates dealing with, the people of a particular race by special laws, the power to discriminate in respect of that race will thenceforth be exclusively vested in it and the State legislatures will be deprived of jurisdiction.

Under the fourteenth amendment of the Constitution of the United States it is enacted that :

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

An ordinance or by-law of the City and County of San Francisco vested in the supervisors the power to grant to or withhold from certain persons within certain limits licenses to conduct laundries. This power was exercised discriminatingly; laundry licenses were granted to Europeans and denied to Chinamen. In the case of Yick Wo r. Hopkins (118 U.S. 356), it was decided that these laws were unconstitutional and void. It was held that the fourteenth amendment is not confined to the protection of citizens. It is applicable alike to all "persons" within the territory, without regard to differences of race, colour, or nationality; and the "equal protection of the laws" is a pledge of

the protection of equal laws. Though the law itself be fair on its face, and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand, so as to practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. (Yick Wo v. Hopkins, 118 U.S. 356, citing Henderson v. Mayor of N. Y., 92 U.S. 259; Chy Lung v. Freeman, 92 U.S. 275; ex parte Virginia, 100 U.S. 339; Neal v. Delaware, 103 U.S. 370; Soon Hing v. Crowley, 113 U.S. 703. Baker, Annot. Const. 220.)

The decision in Yick Wo's case turned, of course, on the special inhibitions of the fourteenth amendment. There is no section in the Constitution of the Commonwealth containing similar inhibitions. On the contrary it would seem that by sub-sec. xxvi. the Federal Parliament will have power to pass special and discriminating laws relating to the people of any race," and that such laws could not be challenged on the ground of unconstitutionality, as was done in Yick Wo v. Hopkins.

211

51. (xxvii.) Immigration and emigration212:

HISTORICAL NOTE. -This sub-section was in the Bill of 1891. (Conv. Deb., Syd., 1891, p. 689.) It was adopted verbatim and without debate by the Convention of 1897-8.

$211. "Immigration."

INTERNATIONAL ASPECT.-It is a recognised canon of international law and intercourse that every sovereign State has a paramount right to exclude from its borders all elements of foreign population which, for any reason, might retard its prosperity or be detrimental to the moral and physical health of its people. (Per Mr. Grover Cleveland, President of the United States of America; message to Congress re Chinese Exclusion Bill, 1st Oct., 1888.)

POLITICAL ASPECT.-Referring to the same subject from an ethnical and political point of view, Dr. Burgess says:—

"Let us suppose the case of a great colonial empire. Its life will depend, of course, upon the intensest nationality in that part of its territory which is the nucleus of the entire organization. It cannot suffer national conflicts to make this their battle ground. The reigning nationality is in perfect right, and pursues, from a scientific point of view, an unassailable policy, when it insists, with unflinching determination, upon ethnical homogeneity here. It should realize this, of course, through the peaceable means of influence and education, if possible. When, however, these shall have been exhausted in vain, then force is justifiable. A State is not only following a sound public policy, but one which is ethnically obligatory upon it, when it protects its nationality against the deleterious influences of foreign immigration. Every State has, of course, a duty to the world. It must contribute its just share to the civilization of the world. In order to discharge this duty, it must open itself, as freely as is consistent with the maintenance of its own existence and just interests, to commerce and intercourse, ingress and egress; but it is under no obligation to the world to go beyond these limits. It cannot be demanded of a State that it sacrifice itself to some higher good. It cannot fulfil its mission in that way. It represents itself the highest good. It is the highest entity. The world has as yet no organization into which a State may merge its existence. The world is as yet only an idea. It can give no passports which a State is bound to accept. The duty of a State to the world is a duty of which the State itself is the highest interpreter. The highest duty of a State is to preserve its own existence, its own healthful growth and development. So long as foreign immigration contributes to these, it is sound policy not only to permit, but to cultivate it. On the other hand, when the national language, customs, and institutions begin to be endangered by immigration, then the time has come for the State to close the gateways partly or wholly, as the case may require, and give itself time to educate the incomers into ethnical harmony with the fundamental principles of its own individual life. It is a most dangerous and reprehensible piece of demagogism to demand that a State shall suffer injury to its own national existence through an unlimited right of ingress; and it is an unendurable piece of deception, conscious or unconscious, when the claim is made from the standpoint of a superior humanity." (Political Sci. I. pp. 42-3.)

LEGAL POINT OF VIEW.-The legal aspect of the subject of political control over immigration was dealt with by the Privy Council in the celebrated case of Chun Teong Toy v. Musgrove (1891), App. Cas., 272, on appeal from the Supreme Court of Victoria, in which it was held that an alien has no legal right, enforceable by action, to enter British territory.

"Their Lordships would observe that the facts appearing on the record raise, quite apart from the statutes referred to, a grave question as to the plaintiff's right to maintain the action. He can only do so if he can establish that an alien has a legal right, enforceable by action, to enter British territory. No authority exists for the proposition that an alien has any such right. Circumstances may occur in which the refusal to permit an alien to land might be such an interference with international comity as would properly give rise to diplomatic remonstrance from the country of which he was a native, but it is quite another thing to assert that an alien excluded from any part of Her Majesty's dominions by the executive government there, can maintain an action in a British Court, and raise such questions as were argued before their Lordships on the present appeal-whether the proper officer for giving or refusing access to the country has been duly authorized by his own colonial government, whether the colonial government has received sufficient delegated authority from the Crown to exercise the authority which the Crown had a right to exercise through the colonial government if properly communicated to it, and whether the Crown has the right without Parliamentary authority to exclude an alien. Their Lordships cannot assent to the proposition that an alien refused permission to enter British territory can, in an action in a British Court, compel the decision of such matters as these, involving delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament, and the relations of this country to her self-governing colonies. When once it is admitted that there is no absolute and unqualified right of action on behalf of an alien refused admission to British territory, their Lordships are of opinion that it would be impossible upon the facts which the demurrer admits for an alien to maintain an action. Their Lordships, therefore, do not think it would be right on the present appeal to express any opinion upon the question which was elaborately discussed in the very learned judgments delivered in the Court below- viz., what rights the executive government of Victoria has, under the constitution conferred upon it, derived from the Crown. It involves important considerations and points of nicety which could only be properly discussed when the several interests concerned were represented, and which may never become of practical importance." (1891, App. Cas. 282.)

For further discussion of the right of the Crown to exclude aliens, see an article on "Alien Legislation and the Prerogative of the Crown," by T. C. Haycraft, Law Quarterly Review, 1894, p. 165; and an article in the Weekly Notes (N.S. W.), 26 Sept., 1891.

RESTRICTIVE IMMIGRATION LAWS. -In 1855 the Legislative Council of the newly erected colony of Victoria led the way in the passage of a number of laws intended to restrict Chinese immigration, which commenced in 1854, when the fame of the gold diggings of Victoria began to attract thousands of Chinamen to that colony. The Victorian Council passed a bill, which was assented to by the Governor, "to make provision for certain immigrants." The substance of the law was that no ship should bring to a Victorian port more passengers, being Chinese immigrants, than in the proportion of one person to every ten tons of the tonnage of such ship, under a penalty of £10 for each passenger in excess of such proportion. On the arrival of a ship in any port of Victoria, with Chinese immigrants on board, the master was required to pay to the Collector of Customs a tax of £10 for every such immigrant. The money so collected was to be invested by the Government to form a fund for the relief, support, and maintenance of such immigrants. Provision was made for the registration of such immigrants, on their arrival in any district or place to which they proceeded. This and other immigration laws were consolidated in 1865.

Similar legislation was adopted in New South Wales in 1861. Her Majesty was not advised to disallow any of these Acts, although the Colonial Secretary remonstrated, and declared "that exceptional legislation, intended to exclude from any part of Her Majesty's dominions the subjects of a State at peace with Her Majesty, is highly objectionable in principle." (Lord Carnarvon's Despatch to Governor Cairns, 27th March, 1877.) Those Acts were subsequently repealed, to the satisfaction, it is said, of