The same appealable amount is fixed with regard to the Supreme Court of Victoria by Order in Council of 9th June, 1860; with regard to the Supreme Court of Queensland by Order in Council of 30th June, 1860; with regard to the Supreme Court of South Australia by Order in Council of 10th May, 1860; with regard to the Supreme Court of Western Australia by Order in Council of 11th October, 1861; with regard to the Supreme Court of New Zealand by Order in Council of 9th June, 1860. With regard to the Supreme Court of Tasmania the appealable amount is, by Order in Council of 4th March, 1851, fixed in similar terms at £1000 sterling. (See, for particulars of these several Orders in Council, Macpherson, Privy Council, Appendix.)

To cases within these Orders in Council, therefore, the power to make exceptions, and so exclude an appeal from the Supreme Court of a State to the High Court, will not apply. That is to say, the Federal Parliament cannot exclude appeals from final judgments of the Supreme Courts of the States for matters in issue of the value of £500, or where any property or civil right of the value of £500 is involved (or, in the case of Tasmania, £1000). But the Parliament may exclude or allow an appeal as to all interlocutory orders, or as to final judgments where the amount involved is less than the appealable amount, or in criminal and other cases where no property, or civil right having a money value, is involved.

The limitation on the power of Parliament to prescribe exceptions and regulations applies only to the specified appeals from the Supreme Courts of States. Consequently the excepting power is unlimited with regard to appeals (1) from Justices exercising the original jurisdiction of the High Court; (2) from other federal courts, or courts exercising federal jurisdiction; (3) from State Courts (other than the Supreme Courts) from which an appeal lies to the Queen in Council; (4) from the Inter-State Commission; and (5) from the Supreme Courts of the States, in matters in which, at the establishment of the Constitution, an appeal did not lie to the Queen in Council. With regard to such appeals the appellate jurisdiction is, in the words of Burgess, "very much at the mercy of the Legislature."

$ 301. "To Hear and Determine Appeals."

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An appeal is a proceeding taken to test the decision of a court, and rectify it if erroneous, by submitting it to a higher Court. The use of the word in this sense is comparatively modern. In English law an appeal formerly meant an appeal of felony," or criminal accusation (Norman-Fr. appel, from appeler, to accuse), whilst the terms used for what is now known as appellate jurisdiction were "error" or rehearing" as the case might be. The modern use of the word "appeal” seems to have been introduced into the temporal courts from the ecclesiastical courts, and to be derived directly from the Latin appellare. (See Sweet, Law Dictionary; Wharton, Law Lexicon, subt it." Appeal.")

The word is used without limitation of any kind, and leaves the whole question of the mode of appeal and the procedure on appeal to be regulated by the Parliament. It clearly includes appeals on matters of fact as well as on matters of law. This would be clear from general usage in any case, but is placed beyond doubt by subs. iii., which with regard to appeals from the Inter-State Commission imposes the limitation that the appeal shall be “as to questions of law only," implying that the appeals mentioned in the other sub-sections may be as to questions of fact as well as law.

The essential attribute of an appeal is that it is a judicial proceeding for the purpose of revising a judicial proceeding.

"The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted in and acted upon by some other court, whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and indeed in any form in which the Legislature may choose to

prescribe; but still, the substance must exist before the form can be applied to it. To operate at all, then, under the Constitution of the United States, it is not sufficient that there has been a decision by some officer or department of the United States; it must be by one clothed with judicial authority, and acting in a judicial capacity. A power, therefore, conferred by Congress on the Supreme Court, to issue a mandamus to public officers of the United States generally, is not warranted by the Constitution; for it is in effect, under such circumstances, an exercise of original jurisdiction. But where the object is to revise a judicial proceeding, the mode is wholly immaterial; and a writ of habeas corpus, or mandamus, a writ of error, or an appeal, may be used, as the Legislature may prescribe.

"The most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin, and removes a cause, entirely subjecting the fact, as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter in suits at common law tried by a jury.” (Story, Comm. §§ 1761-2.);

§ 302. "From all Judgments, Decrees, Orders, and

Sentences.'

These four words, "judgments, decrees, orders, and sentences," are taken from the Imperial Act, 7 and 8 Vic. c. 69, sec. 1 (which extends the right of appealing to the Privy Council), and from the Orders in Council made thereunder. They are all words which may be used in a general sense, to overlap one another, or in a more limited sense, in contrast to one another. Their cumulative use in this Constitution makes it unnecessary, as a matter of constitutional interpretation, to construe them distributively; but in order to ascertain the combined scope of the words it will be convenient to examine their individual meanings.

court.

"Judgment," in its widest sense, means any judicial determination, or decision of a Under the former practice of the English Superior Courts, the word was usually applied to decisions of the Common Law Courts, the word decree" being generally used in the Courts of Chancery. As contrasted with an "order," or direction on matters outside the record, a judgment is a decision pronounced on matters contained in the record. (Stroud, Judicial Dictionary, sub. tit. “Judgment" and "Order.") In criminal proceedings, "judgment" means the sentence of the Court on the verdict, or on the prisoner's plea of guilty. Judgments may be either interlocutory—i.e., given upon some intermediate proceeding, and not finally determining or completing the suit or action; or final-i.e., putting an end to the suit or action by awarding or refusing to award redress.

"Decree" is the word generally used as equivalent to "judgment" in courts of equitable jurisdiction, and other jurisdictions where the procedure of courts of equity is adopted. A decree, like a judgment, may be either final or interlocutory.

"Order," generally speaking, means, any direction or command of a court; but it is commonly used, in opposition to "judgment" or "decree," to describe orders on interlocutory applications.

"Sentence," in its widest sense, means any judicial determination, but is most commonly used in connection with criminal proceedings, to denote the judgment of the court in a criminal trial upon the verdict of the jury or upon the prisoner's plea of guilty. For further definitions of all these terms, see Wharton's Law Lexicon, Stroud's Judicial Dictionary, and Sweet's Law Dictionary.

The four words taken together are clearly wide enough to include every judicial decision, final or interlocutory, in every jurisdiction, civil or criminal.

$303. "Of any Justice or Justices Exercising the Original Jurisdiction of the High Court."

Under sec. 79 the federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes, and presumably most of the original jurisdiction of the High Court will be made exercisable by a single Justice, sitting with or without a jury. (See Note, Juries, § 291, supra.) But whether the original jurisdiction is exercised by one Justice or more, there will be-subject to the excepting and regulating power of Parliament-an appeal to the High Court in its appellate jurisdiction. The excepting and regulating power in this respect (see Note, § 300, supra) is unlimited; so that Parliament may make it competent for the High Court to deal finally with any class of matters in the first instance.

$304. "Of any other Federal Court, or Court Exercising Federal Jurisdiction."

"Federal Courts" (see sec. 71) are those created by the Parliament; while "courts exercising federal jurisdiction" comprise those State courts, not created by the Parliament, which the Parliament has invested with federal jurisdiction.

Appeals from these courts are subject to the unlimited excepting and regulating power of the Parliament. (See Note, § 300, supra.)

§ 305. "Of the Supreme Court of any State."

These are the words which make the High Court not merely a federal court of appeal, but a national court of appeal of general and unlimited jurisdiction. Appeals from any Justice or Justices of the High Court itself in its original jurisdiction, and from other federal courts or courts of federal jurisdiction, can, of necessity, only arise in the specific cases where original jurisdiction is granted by the Constitution, or may be conferred by the Parliament; but appeals from the Supreme Courts of the States extend to all cases, without regard to the subject matter or the character of the parties.

The excepting and regulating power of Parliament extends to appeals from the Supreme Courts of the States, but subject to a special limitation (see Note, § 300, supra) which gives the High Court a constitutional right to entertain appeals in all cases where there is now an appeal as of right to the Queen in Council. Thus the position of the High Court, not only as the "guardian of the Constitution," but as a general court of appeal for Australia, is constitutionally secured.

This section confers a new right of appeal, and a new jurisdiction, but it does not take away the existing right of appeal from the Supreme Courts of the States direct to the Privy Council. The latter right therefore remains in force; and accordingly the High Court, though a general court of appeal for Australia, is not the sole court of appeal. (See Note, § 299, supra.)

The words "judgments" &c. "of the Supreme Court of any State" are not necessarily restricted to judgments of the Full Court," or Court sitting Banco; they may apply to orders of the Court made by a single Judge. There may thus be in some cases an alternative right of appeal from the decision of Judge in a Court of first instance either to the "Full Court" of the State or direct to the High Court. A similar alternative appeal existed, before the establishment of the Constitution, from a Judge of the Supreme Court of N.S. W. or Victoria, sitting in Equity, either to the "Full Court" or to the Privy Council. (See Note, § 299, supra.)

$306. "Or of Any Other Court of Any State," &c.

The only court, other than the Supreme Court of a State, from which at the establishment of the Constitution an appeal lies to the Privy Council, seems to be the "Local Court of Appeal" in South Australia-an anomalous tribunal to which an

appeal lies from the Supreme Court of South Australia, and from which an appeal lies to the Privy Council. This Court was established by Act No. 31 of 1855-6, sec. 14, and consists of the Governor and all the members of the Executive Council except the Attorney-General. It has practically fallen into desuetude, but as it still exists, the right of appeal from it to the Privy Council was preserved.

"I propose this amendment merely because of the condition of things in our own colony, in which there is another Court of Appeal from which an appeal now lies to the Privy Council, an intermediate Court of Appeal which is seldom availed of, but which exists." (Mr. Symon, Conv. Deb., Melb., p. 332.)

The Imperial Act 7 and 8 Vic. c. 69 provides (sec. 1) "That it shall be competent for Her Majesty, by any order or orders to be from time to time for that purpose made with the advice of Her Privy Council, to provide for the admission of any appeal or appeals to Her Majesty in Council from any judgments, sentences, decrees, or orders of any court of justice within any British colony or possession abroad, although such court shall not be a court of error or a court of appeal within such colony or possession."

The orders made under this Act with respect to Australian colonies seem all to have been limited to appeals "from any final judgment, decree, order, or sentence of the Supreme Court" of a colony (see § 300, supra).

§ 307. "Of the Inter-State Commission, but as to

Questions of Law Only."

The Inter-State Commission is to have "such powers of adjudication and administration as the Parliament deems necessary' for executing and maintaining the constitutional provisions and federal laws relating to trade and commerce.

(See Notes to sec. 101.) So far as it is invested with powers of adjudication it will be in effect a part of the federal judiciary; and to prevent any exception being made to that uniform interpretation of the law which it is the aim of the Constitution to ensure, an appeal from its decisions on questions of law is given to the High Court. On the other hand, the questions of fact which it will have to investigate are left to the final decision of the Commission.

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LAW AND FACT.-The precise definition of "questions of law," and of its antithesis "questions of fact," is not easy; for though the distinction between the two is broad and fundamental, there is a region of "mixed questions" which partake of the nature of both. Broadly speaking, a question of law is the question whether there is a rule of law which governs certain ascertained circumstances; a question of fact is the question whether, in any particular case, those circumstances exist. (See Sweet, Dictionary of Law, sub. tit. Fact.") The distinction, in English law, has been chiefly worked out in defining the respective functions of the judge and the jury; the recognized principle being that questions of law are to be decided by the judge, questions of fact by the jury. In the case of the Inter-State Commission the position is somewhat different; the Commission is itself both Judge and Jury in the first instance; but its decisions as a jury are final, whilst its decisions as a judge are subject to review. It is conceived, however, that this difference is immaterial, so far as the distinction between "law" and "fact" is concerned, and that the phrase "question of law" in this section has precisely the same signification as it has in the general law of evidence. For general discussions on this subject, see Taylor on Evidence, § 26; Best on Evidence, §§ 80-82.

The admissibility of evidence is a question of law. (Taylor, § 23; Best, § 80.) How far the Inter-State Commission, sitting as a judicial tribunal, will be bound by the strict rules of evidence, is a matter of procedure to be determined by the Federal Parliament; but, whatever rules of evidence may be prescribed, it would seem that an infringement of those rules, by the wrongful acceptance of inadmissible evidence, or rejection of admissible evidence, would be a good ground of appeal.

On the other hand, the weight or value of evidence is a question, not of law, but of fact. (Taylor, § 25 A; Best, § 80.) Where there is a conflict of evidence, it is the duty of the jury to balance the evidence of the opposing witnesses, and to decide what the facts of the case really are. The restriction of the right of appeal to "questions of law only" prevents any decision of the Commission from being reviewed on the ground that it is against the weight of evidence.

The question whether there is any evidence on which a verdict can properly be given in favour of the party on whom the burden of proof lies-or, as it is sometimes put, upon which a jury could as reasonable men find such a verdict —is a question of law. (Taylor, § 25 A; Best, § 82.) "Whether there be any evidence, is a question for the Judge. Whether sufficient evidence, is for the jury." (Per Bullen, J., Carpenter's Co. v. Hayward, 1 Dougl. 375.) These propositions are perfectly consistent, though their application may be difficult. The determination whether there is any evidence upon which a verdict could reasonably be founded does not involve a balancing of the weight of evidence; on the contrary, it assumes that full weight must be given to the evidence of the party-that the facts alleged by him are true; and it is for the court, and not the jury, to say whether, on that assumption, there is reasonable justification for a finding.

"As the decisions of tribunals on questions of fact ought to be based on reasonable evidence, and when the facts are undisputed, the decision as to what is reasonable is matter of law, and consequently within the province of the court-it follows that it is the duty of the court to determine whether, assuming all the facts proved by the party on whom the burden of proof lies to be true, there is any evidence on which the jury could properly-i.e., without acting unreasonably in the eye of the law-decide in his favour.” (Best, § 82.)

The most important application of these principles is in connection with the duty cast on the Inter-State Commission (sec. 102) of deciding whether the facts which may be proved before it constitute a preference or discrimination," or whether a preference or discrimination is "undue and unreasonable, or unjust to any State," or whether "due regard" has been had to the financial responsibilties of a State. All these are "mixed cases," which it is rather hard-apart from authority-to classify as either questions of law or questions of fact.

"If the question be whether a certain party had probable cause for doing an act, or whether he has done an act within a reasonable time, or with due diligence, it is difficult to say whether the definition of what constitutes probable cause, reasonable time, or due diligence, be for the judge or jury, and specious arguments will not be wanting in favour of the claims of either party. On the one hand, it may be said that these terms are as capable of judicial interpretation as the words 'conversion' or asportation,' which must be clearly explained by the Judge; while on the other hand it may be urged that they seem rather addressed to the practical experience of practical men, than to the legal knowledge of the lawyer; that, being terms of degree, their meaning is subject to indefinite fluctuation, according to the varying circumstances of each particular case, and that consequently they defy all attempts to compress them within exact a priori definitions." (Taylor on Ev. § 26.)

The authorities as to whether the reasonableness of conduct, under any given circumstances, is a question for the court or the jury, are somewhat conflicting; but the guiding principle seems to be that if the question is one on which the court is likely to be more competent than the jury to form an opinion, it will be treated as a question of law; and vice versa. Thus in an action for malicious prosecution, the question whether, on the fact proved, there was probable cause for prosecution is a question for the judge — who is assumed to be a more competent judge of the question than a jury. So, as we have seen, the question whether there is reasonable evidence is a question for the judge. On the other hand, in most actions, the reasonableness of the belief on which the defendant has acted is a question for the jury. Questions of reasonable timeexcept in cases, such as the dishonour of a bill, where precise rules have been adopted as to what is reasonable-are usually left to the jury; as are also questions of reasonable skill or care, due diligence, and gross negligence. (Taylor on Evidence, §§ 26-38.)