wealth an appeal lies from such Supreme Court to the Queen in Council.

Until the Parliament otherwise provides, the conditions of and restrictions on appeals309 to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

UNITED STATES.-The judicial power shall extend to all cases in law and equity arising under this Constitution. the laws of the United States, and treaties made, or which shall be made, under their authority [to all cases affecting ambassadors, other public Ministers, and consuls]; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies [between two or more States; between a State and citizens of another State]; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between [a State, or] the citizens thereof, and foreign States, citizens, or subjects.

[In all cases affecting ambassadors, other public Ministers, or consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction.] In all the other cases before mentioned. the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. Const., Art. III., sec. 2.

HISTORICAL NOTE.-A General Court of Appeal for Australia was included in the earliest schemes of Federation, from 1849 downwards (see pp. 85, 91, 94, supra). The Federal Council Act of 1885, however, did not provide for the establishment of a federal Court of Appeal.

In 1870 a Royal Commission was appointed by the Government of Victoria to consider and report upon the expediency of inviting the co-operation of the Australian colonies to provide for intercolonial legislation on various matters and "to establish a court of appeal." The Commission consisted of Messrs. J. J. Casey (Chairman), Francis Murphy, Jas. A. McPherson, C. Gavan Duffy, J. Macgregor, G. B. Kerferd, G. P. Smith, T. H. Fellows, and George Higinbotham. In April, 1871, the Commission brought up a first Report, which was signed by only seven of the Commissioners--Mr. Fellows being out of the colony, and Mr. Higinbotham having refused to act. The part of this report which deals with the establishment of a court of appeal contains the following passages :

"Considerations of grave importance suggest the expediency, if not the necessity, that a Court of Appeal, formed of Colonial judges, should be established for the Australasian colonies. The cost and delay occasioned by appeals to the Privy Council would be removed. Judges conversant with colonial life, manners, and laws would adjudicate on matters presenting peculiar and distinct features-the result of colonial habits, industries, and trade. The decisions of the various Supreme Courts of the colonies upon purely colonial affairs would thereby be brought into harmony, and uniformity of law be thus encouraged, to the great advantage of commerce. The first effective step towards the union and consolidation of the colonies would thus, it is thought, be consummated. We recommend that a Court of Appeal for Australasia be formed, consisting of one judge from each colony, and that the Court should sit in each colony successively, or at such places as may be determined upon as occasion required; and that the quorum be regulated in proportion to the number of colonies that appointed judges.”

"Another question arises as to how far the Court of Appeal is to be one of final determination, excluding the appeal to Her Majesty in Council. We deem it advisable to leave to the Legislature of each colony to determine that question for itself, by empowering the colonies to enact suitable laws providing the cases in and the terms upon which an appeal may be had to the Queen." (Parl. Papers [Vic.], 1871, vol. ii. p. 711.)

To the report was appended the draft of an "Australasian Legislation Bill" to be passed by the Imperial Parliament, providing for intercolonial legislation on several subjects, and for the establishment of a Court of Appeal on the lines indicated. The part of the report dealing with the Court of Appeal was submitted by Lord Kimberley (Secretary of State for the Colonies) to the Lord President of the Privy Council. The reply of the President is contained in a letter from the Registrar of the Privy Council, dated 20th July, 1871, which, after dealing with the Commission's criticisms of the existing appellate system, concludes as follows::

"The appellate jurisdiction of Her Majesty in Council exists for the benefit of the colonies, and not for that of the mother country; but it is impossible to overlook the fact that this jurisdiction is a part of the prerogative which has been exercised for the benefit of the colonies from the date of the earliest settlements of this country, and that it is still a powerful link between the colonies and the Crown of Great Britain. It secures to every subject of Her Majesty throughout the Empire his right to claim redress from the Throne; it provides a remedy in certain cases not falling within the jurisdiction of ordinary Courts of Justice; it removes causes from the influence of local prepossessions; it affords the means of maintaining the uniformity of the law of England in those colonies which derive the great body of their law from Great Britain; and it enables suitors, if they think fit, to obtain a decision in the last resort from the highest judicial authority and legal capacity existing in the metropolis.

"The power of establishing or remodelling the Colonial Courts of Justice is vested by the 28 and 29 Victoria in the colonial legislatures; and it is undoubtedly desirable that the colonial Courts of Justice should be so constituted as to inspire confidence in their decisions, and to give rise to very few ulterior appeals. That is in fact the case with the Superior Courts of Westminster Hall; and the small number of appeals from the Australian courts is the best testimony to the excellence of those courts also. But the controlling power of the Highest Court of Appeal is not without influence and value, even when it is not directly resorted to. Its power, though dormant, is not unfelt by any Judge in the Empire, because he knows that his proceedings may be made the subject of appeal to it.

"But it by no means follows as a necessary consequence of the powers vested in the colonial Legislatures by the 28 and 29 Victoria that laws should be enacted which would control the exercise of the prerogative of the Crown in the exercise of its Supreme Appellate Jurisdiction."

Sydney Convention, 1891.--The clause as introduced and passed without discussion in 1891 was substantially identical with this section, with the exception of the provision for an appeal from the Inter-State Commission-a body not provided for by the Bill of 1891.

Adelaide Session, 1897.-At the Adelaide session the clause was introduced in practically the same form, with two additions. After "appeals," the words "both as to law and fact" were inserted; and a proviso was added that "no fact tried by a jury shall be otherwise re-examined in the High Court than according to the rules of the common law." (See U.S. Constitution, Amend. vii.) But in Committee Mr. Wise, who was responsible for these additions, moved their omission as being unnecessary, and they were struck out. (Conv. Deb., Adel., pp. 967-8.)

Melbourne Session, 1898.—(See Debates, pp. 322-47, 1885-94, 2276-2325, 2419-22, 2453-6. A great part of the debate on this section turned on the question of appeals to the Privy Council; for which see Historica! Note to next section.) The general key to the long and complicated debates on this and the following section, and to the numerous amendments suggested, made, and reconsidered, may be found in a short statement of the dilemma that had to be grappled with. Everyone wanted a federal court of appeal ; everyone did not wish to abolish the appeal to the Privy Council; and yet no one wished to multiply appeals. The cumulative right of appeal, first to the High Court and then to the Privy Council, would increase the delay and the cost of litigation. The alternative right of appeal, either to the High Court or the Privy Council, would leave two final tribunals. The opinions of the Convention wavered as one or other aspect of this difficulty became more prominent.

A suggestion of the Parliament of New South Wales, that the High Court should only have jurisdiction to hear appeals "where the parties consent," was negatived, as practically destroying the appellate jurisdiction of the Court; though in the course of the debate, which discussed the relative merits of the High Court and the Privy Council, opinions in favour of an alternative right were expressed. (Conv. Deb., Melb., 31; and see Historical Note to next section.)

pp. 322

The omission of the power of Parliament to make "exceptions" to the appellate jurisdiction of the High Court was twice proposed: first by Mr. Glynn (Debates, Melb., Fp. 331-2), and afterwards by Mr. Barton (pp. 1885-94), on the ground that it gave

Parliament too wide and absolute a discretion to cut down the right of appeal. On the other hand, it was argued that to take away the power of exception would go too far, by giving an absolute right of appeal in every trumpery case; and the amendment was accordingly negatived on both occasions. Finally, Mr. Glynn proposed and carried a compromise to the effect that nothing in the section should be construed to prevent the High Court from hearing appeals from the Supreme Court of a State in cases where there now exists a right of appeal from such Supreme Court to the Privy Council. (Debates, pp. 2323-5.) This was ultimately redrafted into the second paragraph of the clause.

Before the Bill was reported a first time, the Drafting Committee, in accordance with an understanding with the Convention, added an appellate jurisdiction from judgments "of the Inter-State Commission." This caused considerable debate in Committee (pp. 2276-2325). Sir George Turner and Mr. Isaacs, who thought that the questions to be decided by the Commission were political rather than judicial, complained that this gave the control of Inter-State Commerce entirely to the High Court, which was not a tribunal with a suitable knowledge of the questions which would arise. On the other hand it was pointed out that it would not do to make the Commission an irresponsible tribunal, altogether above the Constitution. Mr. Glynn maintained that in the United States the Inter-State Commission was administrative only, not judicial, and that it ought to be the same here. Sir George Turner's amendment to omit the words was negatived; but with a view to meeting his objections the appeal was limited to "questions of law only."

After the referendum of 1898, both Houses of the New South Wales Parliament included among their suggested amendments a proposal that the mode of appeal from the Supreme Courts of the States should be made uniform, namely, the appeal should either be to the Privy Council or to the High Court, but not, as at present, indiscriminately to either." The Premier's Conference of 1899, however, declined to recommend any such amendment. (See pp, 217, 220, supra).

Imperial Parliament, 1900.—In the Bill as introduced into the Imperial Parliament, when Clause 74 was omitted, the last paragraph of Clause 73 was detached and placed as new Clause 74. In a schedule of amendments circulated at the time of the second reading, Mr. Chamberlain proposed to insert, after "final and conclusive," the words "unless the Queen grants special leave to appeal in accordance with section 74;” to restore the last paragraph; and to insert a new Clause 74 allowing an appeal, in questions as to the limits of constitutional powers, by consent of the Executive Governments concerned. (See Hist. Note to sec. 74.) In Committee, however, as part of the final arrangement, this clause was restored to the shape in which it was passed by the Convention.

$299. "Shall Have Jurisdiction."

"Jurisdiction is a content of the judicial power; it is in fact the power of a Court to entertain an action, suit, or other proceeding.

This section confers upon the High Court a general appellate jurisdiction in all matters decided by the State Courts of last resort, by other federal courts, by Judges of the High Court itself in the exercise of the original jurisdiction of the Court, and (on matters of law only) by the Inter-State Commission. The original jurisdiction of the High Court is limited to matters in which the subject matter of the suit, or the character of the parties, fall under certain specified heads; but the appellate jurisdiction has no such limits. It extends (subject to the excepting and regulating power of the Parliament) not only to all decisions of courts of original federal jurisdiction, but also to all decisions of the Supreme Courts of the States, irrespective of whether the subjectmatter of the suit, or the character of the parties, would have brought it within the original jurisdiction of the federal courts. In other words (see § 288, supra) the High Court is not merely a federal, but also a national court of appeal; it occupies the

provincial as well as the federal sphere, and is the apex of the judicial systems of the States, as well as of the judicial system of the Commonwealth.

The jurisdiction of the High Court as a court of appeal from the State Courts is, however, not exclusive. The Constitution grants a new right of appeal from the State Courts to the High Court; but it does not take away the existing right of appeal from the State Courts to the Privy Council, which therefore remains unimpaired (see Note, § 305, infra). Parties to cases decided by the Supreme Court of a State have therefore an alternative right of appeal either to the Privy Council direct or to the High Court.

A similar alternative right of appeal has for some time existed in New South Wales —and formerly existed in Victoria also—from a single judge, sitting in the equitable jurisdiction of the Supreme Court, either to the Supreme Court in Banco or direct to the Queen in Council. (See Equity Act, 1880 [N.S.W.], secs. 70, 79; Dean v. Dawson, 9 N.S. W. L. R. Eq. 27; 15 Vic. No. 10 [Vic.]; 19 Vic. No. 13 [Vic.], sec. 5; Garden Gully e. MeLister, 1 App. Ca. 39; Davis r. Reg., 1 V.L. R. Eq. 33; Woolley r. Ironstone Hill Lead Co., 1 V.L.R. Eq. 237.) Under the Supreme Court Act, 1890 (Vic.) this right of appeal from a single judge of the Supreme Court in Victoria does not now exist. (Australian Smelting Co. r. British Broken Hill Propr. Co., 23 V. L. R. 643 ; 20 A. L. T. 46).

$300.

"With Such Exceptions and Subject to Such Regulations."

EXCEPTIONS AND REGULATIONS.-The power to prescribe "exceptions" is the power to limit the jurisdiction by excluding specified cases or classes of cases from it. The power to prescribe “regulations" is the power to regulate the mode in which the jurisdiction shall be exercised. These words give the Parliament power to prescribe both exceptions and regulations. Apart altogether from this section, a power to prescribe regulations is clearly conferred by section 51-xxxix., which empowers the Parliament to make laws with respect to “Matters incidental to the execution of any power vested by this Constitution in ... the Federal Judicature."

The whole appellate jurisdiction is conferred by the Constitution itself, without the need of any intervention by the Parliament. In the absence of any statute prescribing exceptions or regulations, the jurisdiction exists without exception or regulation. This construction, which accords with principle, is now settled with regard to similar words in the United States Constitution. (Durousseau r. United States, 6 Cranch 307; Kent, i. 325; Story, § 1773.) In an earlier decision, however (Wiscart r. Dauchy, 3 Dallas, 321), the Supreme Court considered that its whole appellate jurisdiction depended upon the regulations of Congress, as that jurisdiction was given by the Constitution in a qualitied manner. "The Supreme Court was to have appellate jurisdiction, * with such exceptions and under such regulations as Congress should make;' and if Congress had not provided any rule to regulate the proceedings on appeal, the Court could not exercise an appellate jurisdiction." (Kent, i. 324) The early Judiciary Acts proceeded on this mistaken principle, and purported to confer jurisdiction affirmatively; but those Acts are now construed not as giving jurisdiction, but as making exceptions by implying a negation of jurisdiction in every case where jurisdiction does not purport to be athrmatively given.

LIMITATION OF EXCEPTING AND REGULATING POWER.—Except as regards appeals from the Supreme Courts of the States in the matters defined in the second paragraph of the section, the power to except and regulate is-as it is in the United Statesabsolute and ualimited.

"This power of the Legislature over the judiciary is a most serious one. It places the appellate power of the court very nearly at the mercy of the legislature. The legislature has made use of this power in the passage of the several Ju liliary Acts, and I do not knew that it can be said to have a used it. It seems to me, however, an munecessary surrender of the independence of the courts to require that things which

can be better accomplished by the rules of court shall wait upon the pleasure, or, possibly, caprice of the legislature.' (Burgess, Pol. Sci. ii. 331.)

"The Constitution, further, expressly confers upon the Congress the power to regulate the appeal and removal of causes from the Courts of the States, and from the inferior courts of the general government, to the Supreme Court. This is also a discretionary power in the Congress. There is no doubt that Congress is under a stronger moral obligation to act when its action is necessary for the completion and regulation of the government machinery than when it has to deal with questions of policy merely, or even of individual rights; but it is placed under no stronger legal obligations. By inaction it may thus defeat many of the fundamental purposes of the Constitution without any redress, except such as may be secured at the elections." (Burgess, Pol. Sci. ii. 158.)

prevent

The Convention (see Historical Note, supra) took the view that the Parliament ought not to be able to deprive the High Court of an appellate jurisdiction equal to that now exercised by the Privy Council; that no exception or regulation should ". the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council."

The strict language of the Constitution seems to refer rather to the right of the High Court to hear and determine appeals, than to the right of the party to have his appeal heard. The Constitution does not expressly forbid the Parliament to prescribe certain exceptions, but declares that exceptions prescribed shall not prevent the High Court from exercising jurisdiction. It may perhaps be argued that an exception of this kind, if prescribed, might be effective to cut down a party's absolute right of appeal, though it would clearly be void so far as it purported to cut down the right of the High Court to hear the appeal, if it thought fit. And it might also be argued that this construction would not be inconsistent with the object of the provision, which aims, not at securing an absolute right of appeal, but at making the jurisdiction of the High Court, within defined limits, independent of Parliamentary interference. It does not seem, however, that this distinction was present to the minds of the framers of the Constitution.

The reference to matters" in which at the time of the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council" makes it necessary to ascertain and define those matters.

It is conceived that the provision refers only to those cases in which, at the establishment of the Commonwealth, an appeal may be brought as a matter of right. The Queen has a prerogative right (see § 310, infra) to review the decisions of all colonial courts, civil and criminal, unless this prerogative has been annulled by charter or statute; but to construe the above provision of the Constitution as extending to this prerogative right of appeal would make it include every decision of the Supreme Courts of the States, and would therefore make the words "in any matter in which an appeal lies," &c., mere surplusage.

"An appeal cannot be brought as a matter of right unless the value of the matter actually in dispute in the appeal be such as has been fixed by law for the particular tribunal from which the appeal is brought.” (Macpherson, Privy Council, p. 1.) The appealable amount for appeals from the Supreme Courts has been fixed by Orders in Council made at different times.

From the Supreme Court of New South Wales, by Order in Council of 13th November, 1850, any party may appeal to the Queen in Council from any final judgment, decree, order, or sentence of the Supreme Court, "in case any such judgment, decree, order, or sentence shall be given or pronounced for or in respect of any sum or matter in issue above the amount or value of £500 sterling, or in case such judgment, decree, order, or sentence shall involve directly or indirectly any claim, demand, or question, to or respecting property or any civil right, amounting to or of the value of £500 sterling.."