United States.

Extradition treaties are carried into effect by Orders in Council under the Imperial Extradition Acts, 1870 and 1873; international arrangements as to Copyright by Orders in Council under the International Copyright Acts. (See Note, § 214, supra.)

"The responsibility of determining what is the true construction of a treaty, made by Her Majesty with any foreign power, must remain with the Imperial Government, who can alone decide how far Great Britain should insist upon the strict enforcement of treaty rights, whatever opinions may be entertained upon the subject in any colony especially concerned therein." (Todd, Parl. Gov. in Colonies, p. 272.)

"On the other hand, the legislature in any colony is free to determine whether or not to pass laws necessary to give effect to a treaty entered into between the Imperial Government and any foreign power, but in which such colony has a direct interest." (Ib. p. 275.)

The power of making laws to give effect to treaties, so far as they concern the Commonwealth, must be deemed to be included in sec. 51-xxix.-" External affairs." The sub-section as originally framed was "External affairs and treaties," but at the Melbourne Convention (Debates, p. 30) the last words were struck out-apparently lest they should be construed as involving a claim of power to make treaties. The words "external affairs" are, however, wide enough to confer on the Federal Parliament the legislative power proper to a colonial legislature in respect of treaties. Compare sec. 132 of the B.N.A. Act, which gives the Parliament and Government of Canada “all powers necessary or proper for performing the obligations of Canada or of any Province thereof as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries." Under that section it was held that the (Imperial) Extradition Act, 1870, applied to Canada, and was not inconsistent with the section; and that the (Canadian) Extradition Act, 1869, must be read with it. (Exp. Charles Worms, 22 Lower Can. Jur. 109.)

CASES ARISING under Treaties.-When a treaty has been duly carried into effect by legislative or executive authority, legal rights and liabilities may arise under it which may be the subject of judicial cognizance, and the treaty itself may become the subject of judicial interpretation. For instances in which treaties have thus been interpreted by the courts, see cases cited in Phillimore Intern. Law, ii. 125 (2nd Ed.). Also Exp. Marks, 15 N.S. W. L.R. 159; 10 W.N. 224; Exp. Rouanet, 15 N.S. W. L.R. 269; 11 W. N. 55; National Starch Manuf. Co. v. Munn's Patent Maizena Co., 13 N.S. W. L.R. Eq at P. 116.

To give jurisdiction under this section it is not necessary that rights should be created by the treaty; it is enough if they are protected by the treaty, from whatever course they may spring. (New Orleans v. De Armas, 9 Pet. 224.) The fact that the matter in controversy in a suit is a sum received as an award, under the treaty providing for the submission of claims to arbitration, does not "draw in question the validity of the construction of a treaty." (Borgmeyer v. Idler, 159 U.S. 408. See Note, § 329 infra, Arising under this Constitution.")

"It has been made a question as to what was a case arising under a treaty. In Owings v. Norwood's Lessee (5 Cranch. 344) there was an ejectment between two citizens of Maryland, for lands in that State; and the defendant set up an outstanding title in a British subject, which he contended was protected by the British treaty of 1794. The Supreme Court of the United States held that not to be a case within the appellate jurisdiction of the Court, because it was not a case arising under the treaty. The treaty itself was not drawn in question, either directly or incidentally. The title in question did not grow out of the treaty, and as the claim was not under the treaty, the title was not protected by it; and whether the treaty was an obstacle to the recovery, was then a question exclusively for the State Court." (Kent, Comm. i.

325-6.)

§ 322.

"Affecting Consuls, or Other Representatives

of Other Countries."

CONSULS.-The officers mentioned in the corresponding provision of the United States Constitution are "ambassadors, other public ministers, and consuls." The relations of the Commonwealth with foreign powers being not diplomatic, but almost wholly commercial, the words "ambassadors" and "public ministers" were inapplicable. Thus "consuls," who in the American provision are mentioned last in order, are the main subject of this sub-section.

Consuls, unlike ambassadors and other public ministers, are not protected by the law of nations, but are subject, both in civil and criminal cases, to the laws of the country in which they reside. (Kent, Comm. i. 44.)

"Consuls, indeed, have not in strictness a diplomatic character. They are deemed as mere commercial agents, and therefore partake of the ordinary character of such agents, and are subject to the municipal laws of the countries where they reside. Yet, as they are the public agents of the nation to which they belong, and are often entrusted with the performance of very delicate functions of State, and as they might be greatly embarrassed by being subject to the ordinary jurisdiction of inferior tribunals, State and national, it was thought highly expedient to extend the original jurisdiction of the Supreme Court to them also. The propriety of vesting jurisdiction in such cases in some of the national courts seems hardly to have been questioned by the most zealous opponents of the Constitution." (Story, Comm. § 1660.)

The words of the Constitution, coupling consuls with "other representatives of other countries," seem to contemplate that jurisdiction shall only be conferred under this sub-section when the consul or other representative is affected in his official or representative capacity. (See Conv. Deb., Melb., p. 2456.) This construction is in harmony with the position of a consul as a public agent of the country which he represents. So far as his public position is concerned, the special protection of the federal jurisdiction is thrown over him; but where his public position is not affected there is no need to differentiate him from any ordinary citizen.

It would seem that the words of the United States Constitution-"affecting ambassadors, other public ministers, and consuls"— are interpreted differently as extending to the private as well as the public capacity of those dignitaries. Moreover the American Judiciary Acts make the jurisdiction exclusive of the State Courts, so that the dignitaries named can only be sued in the Courts of the Union. "This is not a mere personal privilege; it is a privilege of the foreign Sovereign, that his representative should be sued only in the Courts of the United States, with which Government alone he has relations; and it is not waived by an omission to plead it to the action." (Davis v. Packard, 7 Pet. 275. See also Kent, Comm. i. 45.)

“AFFECTING.”—It has been held in the United States that an indictment for offering violence to the person of a public minister is not a case 'affecting" the minister.

"It is that of a public prosecution, instituted and conducted by and in the name of the United States, for the purpose of vindicating the law of nations and that of the United States, offended, as the indictment charges, in the person of a public minister, by an assault committed on him by a private individual. It is a case, then, which affects the United States and the individual whom they seek to punish; but one in which the Minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution or in the costs attending it." (Per Washington, U.S. v. Ortega, 11 Wheat. at p. 469. See Story, Comm. § 1661; Kent, Comm. i. 39, 315.)

It seems, however, that the words of the Constitution are broad enough to cover cases where the consul or other representative is not a party, but may be affected in interest.

"If a suit be brought against a foreign minister, the Supreme Court [of the United States] alone has original jurisdiction; and this is shown on the record. But suppose a suit to be brought which affects the interests of a foreign minister, or by which the person of his servant, or of his secretary, is arrested. The minister does not, by the

mere arrest of his secretary or his servant, become a party to this suit; but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed; not because he is a party to it, but because it affects him. The language of the Constitution in the two cases is different. This court can take cognizance of all cases affecting' foreign ministers; and therefore jurisdiction does not depend on the party named in the record. But this language changes when the enumeration proceeds to States. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reasons which all comprehend, to give the national courts jurisdiction over all cases by which they were in any manner affected. In the case of States, whose immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only to which they were actual parties." (Per Marshall, C.J., Osborn v. Bank of U.S., 9 Wheat. at p. 854. See Story, Comm. § 1662.)

"The Court has, I think, indicated that the phrase 'affecting ambassadors,' &c., includes all cases where the ambassador, &c., is either party to the suit or is directly affected and bound by the judgment." (Burgess, Pol. Sci. ii. 329.)

OTHER REPRESENTATIVES.-The phrase "other representatives of other countries " is somewhat vague, but would presumably include all persons officially accredited to the Commonwealth by foreign governments. The expression, "other countries" occurs again in sec. 51-i., where trade and commerce "with other countries" means trade or commerce with persons outside the limits of the Commonwealth; but a representative of a country can hardly mean anything else than an accredited representative of the government of the country. The parallel expression in sec. 51 leads to the inference that the expression "other countries," in this section as in that, includes all countries outside the Commonwealth, whether British or foreign.

PROOF OF JURISDICTION.-The mode in which the facts which give rise to jurisdiction are to be proved is a matter of procedure, to be regulated by the Parliament. (For U.S. cases, see Re Baiz, 135 U.S. 403: Ex p. Hitz, 111 U.S. 766; Kent, Comm. i. 39.)

§ 323. "In which the Commonwealth, or a Person Suing or being Sued on Behalf of the Commonwealth, is a

Party."

In the United States, the provision that "the judicial power shall extend

to controversies in which the United States shall be a party" confers appellate jurisdiction only.

"It scarcely seems possible to raise a reasonable doubt as to the propriety of giving to the national courts jurisdiction of cases in which the United States are a party. It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts. Unless this power were given to the United States, the enforcement of all their rights, powers, contracts, and privileges in their sovereign capacity would be at the mercy of the States. They must be enforced, if at all, in the State tribunals. And there would not only not be any compulsory power over these courts to perform such functions, but there would not be any means of producing uniformity in their decisions. A sovereign without the means of enforcing civil rights, or compelling the performance, either civilly or criminally, of public duties on the part of the citizens, would be a most extraordinary anomaly. It would prostrate the Union at the feet of the States. It would compel the national government to become a supplicant for justice before the judicature of those who were by other parts of the Constitution placed in subordination to it." (Story, Comm. § 1674.)

This sub-section, like the others, confers a jurisdiction only, not a right of action. It does not enable actions to be brought by or against the Commonwealth, but only provides that, where any such action lies, the High Court shall be a competent court of original jurisdiction. (See Conv. Deb., Melb., p. 320; and Notes, § 338, infra.) The effect of it is that whenever the Commonwealth has a right to sue-no matter what the subject-matter or character of the suit-it can sue in the High Court; and wherever anybody has a right to sue the Commonwealth, he can sue in the High Court.

The Commonwealth, being a government, possesses corporate powers, and may sue in its corporate name, and may by its consent be sued. (See United States v. Maurice, 2 Brock. 109; Ableman v. Booth, 21 How. 506.) But the Commonwealth, being the Crown, cannot be sued except by its own consent. (See Kendall v. United States, 12 Pet. 524; Hill v. United States, 9 How. 386.) It has been held that the doctrine, that the United States cannot be sued unless provision has been made by Congress, is limited to suits against the United States directly and by name; and that this plea cannot be raised by officers or agents of the government when sued for property in their hands as such officers or agents. (United States v. Lee, 106 U.S. 196. See Baker, Annot. Const. p. 126.) In Great Britain, and also in the several colonies, the mode of enforcing claims against the Crown is regulated by Statutes. Thus in Great Britain, claims against the Crown in respect of property or contract may be made by petition of right, entitled in the appropriate Court. (Broom's Comm. p. 234.) In most of the Australian colonies, the procedure is by action against a nominal defendant sued on behalf of the Crown; and in some of the colonies the remedy extends to tort as well as contract. (See Notes, § 338, infra.)

The power of the Commonwealth to confer rights of suit against itself was the subject of some debate in the Convention, and is dealt with under sec. 78. The jurisdiction extends, not only to cases in which the Commonwealth is a party, but to cases in which "any person suing or being sued on behalf of the Commonwealth" is a party. This is in order to include cases in which the Commonwealth is the real plaintiff or defendant, but is represented in the suit by a nominal party-for instance, where an information is filed by the Attorney-General on behalf of the Crown, or where a nominal defendant is, in accordance with statutory provision, sued on behalf of the government. But jurisdiction is not given by this sub-section unless the Crown is really and directly the party seeking a remedy, or against whom a remedy is sought; it does not arise merely because the Commonwealth has an interest in the case, or because an officer of the Commonwealth, or a political corporation distinct from the general government of the Commonwealth, and not acting directly on its behalf, is a party. (See Story, Comm. § 1686; Osborn v. Bank of U.S., 9 Wheat. 855. See also remarks by Mr. Barton, Conv. Deb., Melb., p. 1884.)

PARTIES." It may be laid down, as a rule which admits of no exception, that in all cases under the Constitution of the United States where jurisdiction depends upon the party, it is the party named on the record." (Story, Comm. § 1688; Kent, Comm. i. 350; and see Notes, § 324, infra.) This principle seems equally applicable to this Constitution; from which it would seem that, in order that jurisdiction may be given under this sub-section, either the Commonwealth must be a party on the record, or it must appear from the record that one of the parties is suing or being sued "on behalf of the Commonwealth."

$324.

"Between States, or between Residents of Different States, or between a State and a Resident of

Another State."

The original jurisdiction of the High Court extends to "all matters between States," &c.-words which are wide enough to include controversies of all kinds between a State or a resident of a State on the one hand, and another State or a resident of another State on the other hand. In cases of this class "the jurisdiction depends entirely on the character of the parties. . . . If these be the parties, it is entirely unimportant what may be the subject of the controversy. Be it what it may, these parties have a constitutional right to come into the courts of the union." (Per Marshall, C.J., Cohens v. Virginia, 6 Wheat. at p. 378.)

COMPARISON WITH UNITED STATES.-The whole of this provision is adapted with important modifications from the Constitution of the United States; and for a proper

application of the American authorities it is necessary to examine the points of difference between the words of the two Constitutions.

The provision in the Constitution of the United States is a gift of "judicial power,” and in 1793 it was held (Chisholm v. Georgia, 2 Dall. 419) that it enabled a State to be sued in assumpsit by a citizen of another State. This decision gave such intense dissatisfaction that the eleventh amendment was passed declaring that the judicial power should not be construed to extend to any suit brought against a State by citizens of another State, or by aliens. Notwithstanding this amendment, however, a State can still be sued by another State of the Union, though enjoying immunity from being sued by citizens of such other State. The result of this distinction was that attempts were made by States, whose citizens had claims against another State, to prosecute these claims on behalf of their citizens; but these attempts were defeated, it being held that a State could not in this way create a controversy with another State. (New Hampshire v. Louisiana, New York v. Louisiana, 108 U.S. 76) The provisions of this Constitution, however, make no distinction between a plaintiff State and a plaintiff resident of that State.

Again, though the Supreme Court of the United States has original jurisdiction in cases where a State is a party, it has only appellate jurisdiction in cases "between citizens of different States." Accordingly in an action of ejectment between citizens of different States in respect of land over which both States claimed jurisdiction, it was held that the Supreme Court had no original jurisdiction, inasmuch as a State was neither nominally nor substantially a party; and it was not sufficient that the State might be consequentially affected by having to compensate its grantee. (Fowler v. Lindsey, 3 Dall. 411; see Kent, Comm. i. 323.)

The judicial power of the United States extends to controversies "between a State, or the citizens thereof, and foreign States, citizens, or subjects." In this Constitution there is no such provision.

SUITS AGAINST A STATE. -It is submitted that - notwithstanding Chisholm v. Georgia, cited above-this sub-section, like the rest of the section, only confers a jurisdiction, and not a right of action where no right of action existed before; that it does not extend the category of cases in which a State, or a resident of a State, may be sued, but merely enables certain suits, which might otherwise have been brought in some other court, to be brought in the High Court. (See remarks of Messrs. Barton, Symon, and Isaacs in connection with mandamus; Conv. Deb., Melb., pp. 1875-85.) Apart from express words in the Constitution, a State would not be suable without its own consent. This section does not appear to affect this immunity; but an important limitation has been put upon it by sec. 78, which provides that "in respect of matters within the limits of the judicial power" the Federal Parliament may make laws conferring rights to proceed against a State. The express provision that the Parliament may confer these rights seems to show that they are not conferred by the Constitution itself; and there is thus a guide to the intention of the framers which was absent in the Constitution of the United States. It seems, therefore, that no suit can be brought against a State, either by another State or by a resident of another State, except (1) by consent, expressed by legislation or otherwise, of the State sued, or (2) under a right given by the Federal Parliament under sec. 78.

It has been decided in the United States that a State may waive its immunity, and by appearing in a Federal court, in a suit in which it has an interest, does waive it. (Clark v. Barnard, 108 U.S. 436.) And a State may be sued with its own consent. (Hans . Louisiana, 134 U.S. 1.) Such consent may be given on such terms and conditions as the State chooses to impose, and may be withdrawn. (Re Ayers, 123 U.S. 505; Railroad Co. v. Tennessee, 101 U.S. 337; Beers v. Arkansas, 20 How. 527.)

"When a State submits itself, without reservation, to the jurisdiction of a Court in a particular case, the jurisdiction may be used to give full effect to what the State has, by its act of submission, allowed to be done; and if the law permits coercion of the