been entrusted to the Queen's servants in the Commonwealth. So far from being novel or revolutionary, this is merely an application of a principle which has always guided the development of the self-governing powers of British colonies.

Except as specially authorized by this section, the High Court is not required to grant, and cannot grant, leave to appeal from its own decisions (see Cushing v. Dupuy, 5 App. Ca. at p. 416).

REFUSAL TO GRANT A CERTIFICATE.-In the cases mentioned in this section, if the High Court refuses to grant a certificate, its decision will be absolutely final. In connection with this subject, one interesting possibility may be referred to The High Court can only grant a certificate when the decision appealed from involves a question of the limits inter se of constitutional powers. It is possible that, on an application for a certificate, the High Court may refuse the certificate on the ground that the question at issue is not of the specified kind, and that the proper course is to apply to the Privy Council for special leave. If the appellant then applies to the Privy Council, it is possible that the Privy Council may differ from the High Court, and hold that the question is a question of the limits inter se of constitutional powers, and that without a certificate from the High Court there can be no appeal. In such a case, though the Privy Council could not set aside the discretionary order of the High Court, the High Court would clearly for the future be bound, as a matter of judicial propriety, to follow the interpretation put upon the section by the Privy Council.

WITHOUT FURTHER LEAVE.-When a certificate has been obtained under this section in respect of a particular "question," an appeal lies to the Privy Council “on the question" without further leave. But if the appellant desires to appeal, not only on the one question, but also on some other question which does not come within the scope of this section, it would seem that he would have to obtain special leave from the Privy Council for such further appeal.

$ 316.

"Shall not impair any Right which the Queen may be pleased to Exercise, by virtue of Her Royal

Prerogative."

The prerogative cannot be affected without express words, so that even if this declaration had been omitted, it would in effect have been read into the section. It was, however, thought advisable to prevent any possibility of it being contended that the words "final and conclusive " in sec. 73 meant conclusive as against the Queen's right to grant special leave of appeal.

For the nature and extent of the prerogative right, apart from the limitations of this section, see notes, § 310, supra. In addition to the specific limitation of the prerogative in the first paragraph, there is a potential limitation in the last words of the section.

APPEALS FROM STATE COURTS TO PRIVY COUNCIL. -This Constitution, whilst giving an alternative right of appeal to the High Court, does not interfere with the existing right of appeal direct from the State Courts to the Privy Council (see Notes, § 299, supra); and therefore there is still an appeal as of right in those cases which come within the terms of the Orders in Council in force in the respective States. This section makes it clear that there is also an appeal "as of grace" by special leave in every case.

It may be taken for granted, however, that appeals as of grace from the State Courts direct to the Privy Council will not be encouraged, and that special leave for such appeals will rarely be granted-at least in cases in which an appeal lies to the High Court. An Australian Court of Appeal having been established, the Privy Council will assuredly be reluctant to grant special leave to appeal from a State Court until the remedies available in Australia have been exhausted. There seem to be very few cases, since the establishment of the Supreme Court of Canada in 1875, in which special leave to

appeal from a provincial Court has been either given or refused. (Theberge v. Laudry, 2 App. Ca. 102; Cushing &. Dupuy, 5 App. Ca. 409; Carter v. Molson, 8 App. Ca. 530; Allan r. Pratt, 13 App. Ca. 780. See Att.-Gen. of Quebec v. Murray, cited Wheeler, Confed. Law of Canada, p. 482. See also remarks by Mr. Symon, Conv. Deb., Melb., p. 2455.) These observations, of course, only apply to cases where special leave to appeal to the Privy Council is needed. The appeal as of right from a State Court to the Privy Council is, as already shown, not interfered with by this Constitution.

Where a decision of the Supreme Court of a State is appealable either to the High Court or to the Privy Council, the choice of tribunal lies with the appellant. It is conceivable that one party to a suit might appeal to the High Court, and another to the Privy Council; but this inconvenience can be remedied by regulation. Even in the absence of regulation, the High Court would presumably have a discretionary power to stay proceedings pending the decision of the Privy Council. In New South Wales, since the Equity Act of 1880, and in Victoria under the Act 19 Vic. No. 13, there has existed a similar alternative right of appeal from the Supreme Court in its Equitable Jurisdiction either to the Full Court or direct to the Privy Council. (See Notes, § 299, supra.)

§ 317.

"Special Leave of Appeal from the High Court to Her Majesty in Council."

"When a party desires to appeal, but cannot do so as of right, he presents a petition to the Queen in Council for leave to appeal, which ought to disclose in the fullest and frankest manner the circumstances under which the leave is sought, and to contain a statement of the proceedings sufficiently full and precise to enable the Committee to form an opinion: the petition is referred to the Privy Council, who advise the Crown as to the propriety of granting or withholding permission." (Macpherson, P.C. Appeals, p. 22; Lyall v. Jardine, 7 Moo. P.C. N.S. 116; L. R. 3 P.C. 318.)

From the Supreme Courts of the States there is (in cases within the Orders in Council) an appeal as of right; but from the High Court there is no appeal whatever except by special leave of the Queen in Council, or by a certificate of the High Court under this section. The prerogative right of the Queen in Council to grant special leave is preserved, subject to the limitations in this section. (See Notes, supra, § 310; infra, $ 318.)

The leading principles according to which leave will be granted or refused have already been indicated. (Notes, § 310, supra.)

§ 318. "The Parliament may make Laws Limiting the Matters in which such Leave may be Asked."

It would seem that apart from this provision, the Federal Parliament, notwithstanding the assent of the Crown, would have been unable to impose any further limitation on the Prerogative; and there is some doubt whether colonial Legislatures generally have such power. In Cushing v. Dupuy, 5 App. Ca. 409, the question of the power of a colonial Legislature to affect prerogative rights was raised, but not decided. In the report of Cuvillier v. Aylwin, in Stuart's R., p. 527, there is a note of Brougham's opinion :- "I am clearly of opinion that no such limitation is valid to bar an appeal to the King in Council. I should greatly doubt if any colonial Act, though allowed by the Crown, if unconfirmed by Act of Parliament (i.e., of the Imperial Parliament) has power to take from the subject this right. But a colonial Act never allowed, can clearly have no effect." The Canadian Parliament, however, passed in 1888 an Act (51 Vic. c. 43) providing that "notwithstanding any royal prerogative" no appeal should lie to the Privy Council in criminal cases. Exception was taken to this by the Imperial authorities, and though it was not disallowed, it seems to be of doubtful

validity. (See Bourinot, Fed. Gov. in Can. p. 68 n.; Wheeler, Confed. Law of Can. p. 34.)

When the Commonwealth Bill was before the Imperial Parliament, the Delegates, in their first memorandum (see p. 231, supra) contended that the Legislatures of the Australian colonies already had power to limit the prerogative right of granting leave of appeal.

"The concluding sentence of the clause, it is conceived, confers on the Commonwealth a right to do that which each State at present has power to do, subject to reservation of the Bill as affecting the prerogative, in accordance with the ordinary vice-regal instructions. See Instructions to Australian Governors, dated July, 1892, Clause viii., paragraph 7, under which the Governor is to reserve for the signification of the royal pleasure any Bill of an extraordinary nature and importance, whereby our Prerogative, or the rights and property of our subjects not residing in the colony, or the trade and shipping of the United Kingdom and its dependencies may be prejudiced.' The framers of the Instructions clearly appear to have considered that the colonies had full rights of legislation in such matters as sec. 7, just quoted, sets forth, subject only to reservation for the royal pleasure; and then only when previous instructions upon the particular Bill had not been obtained through one of the principal Secretaries of State, or when the Bill did not contain a clause suspending its operation until the signification of the royal pleasure. The last sentence of the clause, therefore, seems merely to confer on the Federation that legislative power which has long been possessed by each of the constituent States." (Memo. of Delegates, House of Com. Paper, May, 1900, p. 16.)

The Imperial Government at first objected to this power, but they ultimately acquiesced in the contention of the Delegates. In moving the second reading of the Bill Mr. Chamberlain said :

"The delegates pointed out to us that this right is inherent in the powers of every Parliament in Australia. The Parliament of every single State in Australia has, in its general powers to make laws for the peace, order, and good government of the country, the power, if it pleases, to make laws limiting the right of appeal, and that power is subject to the right of Her Majesty to disallow or to have reserved any Bill dealing with the subject. The delegates contended that as their Constitution specifically refers to the subjects which alone can be treated by the Federal Parliament, it was necessary specifically to mention this subject, or else the Federal Parliament would have less power than the Parliaments of the constituent States. The reasonableness of that we fully acknowledged, but we felt that if we specifically gave this power by the Constitution we might be assumed to be giving away the right of reservation with regard to this subject. It appears to us to be quite possible that hereafter we might be accused of breach of faith if, when the Federal Parliament had legislated, we had reserved a Bill under the powers given to us in another section of the Constitution." (Hans., 21 May, 1900, vol. 83, pp. 762-3.)

This provision expressly confers on the Federal Parliament a power in the widest terms to "limit the matters in which such leave may be asked," and thus, it may be argued, practically to abolish altogether the appeal from the High Court to the Privy Council.

It is to be noted, however, that the power of Parliament to limit the prerogative right only applies to "such leave "-i.e., special leave of appeal from the High Court. The right of appeal from the Courts of the States to the Privy Council—whether as a matter of right or by special leave-cannot be interfered with by the Federal Parliament.

The essence of this provision was contained in an amendment added at Mr. Symon's instance to the words saving the prerogative. Mr. Symon's words were :--" Provided that the right saved is that of granting special leave of appeal, and shall continue only until Parliament otherwise provides." (Conv. Deb., Melb., p. 2325; Historical Note, supra.) In this form it would have given the Federal Parliament an absolute and direct power over the prerogative right to grant leave of appeal. At the final stage the Drafting Committee altered the provision to the form in which it now stands, and a short debate took place on the effect of the words. (Conv. Deb., Melb., pp. 2453-6.\ Mr. Glynn suggested that the clause gave the Parliament power to "abolish appeals" from the High Court to the Privy Council. Mr. Barton explained that the provision gave effect, in a more polite form, to the decision of the Convention. "We cannot give

the Parliament direct power to interfere with the prerogative-at least we do not think it would be right to do so-but we give the Parliament a power to limit the matters in which a subject may petition for leave of appeal. In that respect we carry out Mr. Symon's amendinent. The right to grant special leave to appeal is only to continue until Parliament otherwise provides." The debate then proceeded as follows::

MR. SYMON: "The clause as it stands will probably give effect to what has been the intention of the Drafting Committee throughout. I would suggest, however, to Mr. Barton that he should insert some words in clause 74 after the word matters.' If I may say so, I think this is a more dexterous, and, to use an expression which we have already heard, more mannerly way of putting the power of the Federal Parliament into the clause than before. I would suggest that after the word 'matters' the following words be inserted: If any,' so as to make it clear that the amendment I moved gives this power to the Commonwealth Parliament if they choose to exercise it. They might so limit it as to limit it away altogether. A reader of the clause, who has interest in seeing that the Federal Parliament has this power, might not so readily understand it as it is."

MR. BARTON: "The hon. member means that if Parliament goes on limiting such matters until the end, and there is only one left, it might leave out that one."

MR. SYMON: "I do not say that a lawyer would say that.”

MR. BARTON: "I think that would only occur to a lawyer. I think that there is a reasonable construction which a court will have to put upon these words, and that there will be no difficulty."

MR. KINGSTON: "This will have to be considered by lawyers."

MR. BARTON: "Of course. I have no doubt as to the construction."

It appears therefore that the original decision of the Convention was to empower the Parliament to abolish the prerogative right of granting leave to appeal; that this was afterwards passed in "a more mannerly way" by empowering the Parliament, not to forbid the Queen to grant leave, but to limit the matters in which a subject might ask leave; that Mr. Symon wished to make it read "matters, if any "—to make it clear to the lay mind that the power extended to limiting it away altogether; but that Mr. Barton thought there was no doubt about the construction.

66

The power to "limit the matters" is indeed given in the widest terms; but at the same time the power given is a power to limit, and not to abolish. To limit means to apply a limit to, or set a limit for; to terminate, circumscribe, or restrict, by a limit or limits." (Webster's Internat. Dict.) A limit necessarily implies a content-an area within the limit. It is conceived that a law of the Federal Parliament, purporting to abolish the right of asking for leave in all matters whatever, would be outside the scope of the Constitution. On the other hand, the power to "limit the matters" in which leave might be asked could undoubtedly, if Parliament thought fit, be exercised to such an extent as to leave very little for the prerogative right to operate upon.

The power to "limit matters" may be compared with the power to " prescribe exemptions" in sec. 73 (see Notes, § 310, supra). They both enable a right of appeal to be cut down; but they deal with the subject from opposite standpoints. The power to prescribe exceptions contemplates the definition of the excluded area; whilst the power to limit the matters in which leave may be asked seems rather to contemplate the definition of the included or circumscribed area.

By section 58, any proposed law passed by the Houses of the Federal Parliament may be reserved by the Governor-General for the Queen's assent. By this section, any proposed law limiting the matters in which special leave to appeal may be asked must be so reserved. Even without this express provision, the Governor-General could have safeguarded Imperial interests in this respect by reserving such proposed laws, in the exercise of his discretion, for the signification of Her Majesty's pleasure (see Note,

§ 267 supra). Even should that safeguard prove insufficient, and the Bill be assented to by the Governor-General, the Queen could always, within one year, exercise her power of disallowance the supreme check on the enactment of laws invading the prerogative or affecting Imperial interests (sec. 59). The object of embodying this direction in the Constitution itself was to secure a constitutional recognition of the fact that laws of this kind were matters of special Imperial concern; so that, even if the right of withholding the royal assent, in matters of ordinary federal legislation, should fall into comparative disuse, these particular laws should stand upon a different footing.

(ii.) Affecting consuls or other representatives of other countries322:

(iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party323:

(iv) Between States, or between residents of different States, or between a State and a resident of another State 24:

v.) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth 325 :

the High Court shall have original jurisdiction 326.

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 this 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, and 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.-The corresponding provision framed and adopted without debate by the 1891 Convention was as follows:

"In all cases affecting public ministers, consuls, or other representatives of other countries, and in all cases in which the Commonwealth, or any person suing or being sued on behalf of the Commonwealth, or is a party, or in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth, and in all cases of controversies between States, the Supreme Court of Australia shall have original as well as appellate jurisdiction." (These cases, with others, were also recapitulated in a clause defining the jurisdiction which might be given to other federal courts. See Historical Note, sec. 77.)

As framed in the Adelaide session, the clause was divided into sub-clauses; the word "matters" was used to cover all the sub-clauses, in place of "cases" and