grace is one of the unsettled questions of constitutional law. The Crown is a party to colonial legislation, and colonial legislation frequently does impair the royal prerogative, whence it might seem that the State Parliaments could extinguish the prerogative of grace. On the other hand, there is a distinction between prerogatives exercisable in a colony which may well be affected by the enactments of the colonial legislature, and majora regalia which, though belonging to the Crown in respect to the colonies, are not exercised there. These may be regarded as matters of Imperial and not local concern, to be affected only by the legislation of the Imperial Parliament. This is probably the better opinion.1

Note. The tables on the following pages are the regulations under which at the present time appeals from the Australian States lie to the Queen in Council. They are in the main extracted from a Table prepared by Mr. Wood Renton, and published in the Journal of the Society of Comparative Legislation, December, 1899.

1 Cushing v. Dupuy (1880), 5 App. Cas. 409, is sometimes cited as authority for the proposition that a colonial legislature cannot affect the prerogative to hear appeals as a matter of grace. No such proposition was affirmed and no opinion was expressed by the Judicial Committee on the subject; all that was said was "It is in their Lordships' view unnecessary to consider what powers may be possessed by the Parliament of Canada to interfere with the royal prerogative, since the 28th section of the Insolvency Act does not profess to touch it, and they think, upon the general principle that the rights of the Crown can only be taken away by express words, that the power of the Queen to allow this appeal is not affected by that enactment."

CHAPTER XVI.

FEDERAL JURISDICTION.

IN considering the federal jurisdiction of the Commonwealth we return to the normal state of things under the Constitution-the restriction of the powers of the Commonwealth organ to certain enumerated subjects. The Government of the Commonwealth is, in all its departments, primarily a Government of limited and enumerated powers; the general, unenumerated powers belong to the States. Therefore, just as the first thing to be done in interpreting an Act of the Commonwealth Parliament is to ascertain that the subject of the Act is one committed to the Parliament; so, in invoking the jurisdiction of the federal courts, it must be shown that the cause is within the enumerated powers. In the United States it must always appear by the record that a case in the federal court is within its jurisdiction; the presumption is against it until it is shown.1

The subjects of federal jurisdiction in the Constitution closely follow the subjects of the judicial power of the United States, though in many respects the political condition of the Australian Colonies and the character of their courts is widely different from the state of things which in America led to the inclusion of certain subjects in the judicial power of the central government. In the great case of Chisholm v. The State of Georgia, Mr.

1 Robertson v. Crease, 97 U.S. 646; Godfrey v. Terry, 97 U.S. 171.
*(1793) 2 Dallas, 419.

Justice Iredell remarked, in terms which have had the approval of Story, that "the judicial power of the United States is of a peculiar kind. It is indeed commensurate with the ordinary legislative and executive powers of the general government (i.e. the Federal Government) and the powers which concern treaties. But it also goes further. When certain parties are concerned, although the subject in controversy does not relate to any special objects of authority in the general government wherein the separate sovereignties of the several states are blended in one common mass of supremacy, yet the general government has a judicial authority in regard to such subjects of controversy; and the legislature of the United States may pass all laws necessary to give such judicial authority its proper effect." The principles underlying these subjects are stated by Kent: "All the enumerated cases of federal cognizance are those which touch the safety, peace, and sovereignty of the nation, or which presume that State attachments, State prejudices, State jealousies, and State interests might sometimes obstruct or control the regular administration of justice."

Section 75. In all matters

i. Arising under any treaty;

ii. Affecting consuls or other representatives of other countries;

iii. In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

iv. Between States, or between residents of different States, or between a State and a resident of another State;

v. In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth the High Court shall have original jurisdiction.

Section 76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter

i. Arising under this Constitution, or involving its interpretation;

ii. Arising under any laws made by the Parliament; 'Kent's Commentaries (Holmes' edition, vol. i., p. 320).