that no appeal should lie from its decision to the Queen in council (i.e. to the judicial committee of the Privy Council in England, which is the Supreme Court of Appeal from the British colonies and India), "unless the public interests of some part of her Majesty's dominions, other than the Commonwealth or a State, are involved." When the draft reached England to be embodied in a bill, the British government took exception to this provision as tending to weaken the tie between the mother country and the colonies. There were many in England who thought that it was not in the interest of Australia herself that she should lose, in questions which might involve political feeling and be complicated with party issues, the benefit of having a determination of such questions by an authority absolutely impartial and unconnected with her domestic interests and passions. How much better (they argued) would it have been for the United States at some critical moments could they have had constitutional disputes adjudicated on by a tribunal above all suspicion of sectional or party bias, since it would have represented the pure essence of legal wisdom, an unimpeachable devotion to legal truth!

To this the Australians replied that the experience of the United States had shown that in constitutional questions it was sometimes right and necessary to have regard to the actual conditions and needs of the nation; that constitutional questions were in so far political that where legal considerations were nearly balanced, the view ought to be preferred which an enlightened regard for the welfare of the nation suggested; that a court sitting in England and knowing little of Australia would be unable to appreciate all the bearings of a constitutional question, and might, in taking a purely technical and possibly too literal a view of the Constitution, give to the Constitution a rigidity which would check its legitimate expansion and aggravate internal strife. Australia must -- so they pursued - be mistress of her own destinies, and as it is she that had framed and procured the enactment of this Constitution, so by her ought the responsibility to be borne of working it on its judicial as well as its executive and legislative side. Not only was this better for Australia herself, but it would be more conducive to the maintenance of the connection between the Commonwealth and the mother country.

After some wavering, the British government, perceiving the risk of offending Australian sentiment, gave way. They dropped in committee of the House of Commons the alteration which they had introduced into the Australian draft, substituting for it an

amendment which, while slightly varying the original terms of the draft, practically conceded the point for which the Australian delegates, sent to England to assist in passing the measure, had contended. The act as passed provides that no appeal shall lie to the crown in council upon the constitutional questions abovementioned unless the high court itself shall, being satisfied that the question is one which ought to be determined by the Privy Council, certify to that effect. In all other such cases its judgment will be final.

Appeals to the Privy Council in questions other than constitutional will continue to lie from the supreme courts of the States (with the alternative of an appeal to the high court) and from the high court itself, when special leave is given by the Privy Council. The commonwealth Parliament may limit the matters in which such leave may be asked, but the laws imposing such limitations are to be reserved for the pleasure of the crown.

The scheme of judicature above outlined follows in the main the model contained in the American Constitution. It does not draw the line between state and federal matters and courts so sharply, for appeals are to lie from state courts in all matters alike, and state courts may receive jurisdiction in federal matters. On the other hand, it is more comformable to principle than either the Canadian plan, which provides no federal courts save the supreme court and gives the appointment of all judges alike to the Dominion government, or the Swiss plan, which refers questions of conflict between the nation and the cantons, or as to the constitutionality of federal laws, not to the judiciary at all, but to the federal legislature. Broadly speaking, the Australian high court will have to fill such a place and discharge such functions as have been filled and discharged in America by that exalted tribunal which Chief Justice John Marshall and other great legal luminaries have made illustrious. In working out the provisions of the Constitution by an expansive interpretation, cautious but large-minded, it may render to Australia services not unworthy to be compared with those which America has gratefully recognized.

Now let us see how this frame of government, which I have briefly outlined in its salient features, is intended to work.

Its essence lies in a matter which is not indicated by any express provision, the dependence of the executive upon the legislature. Herein it differs fundamentally from the American and Swiss systems. It reproduces the English system of what is called Cabinet or responsible government; that is to say, a government

in which the executive instead of being, as in America, an independent authority, directly created by the people and amenable to the people only, is created by and responsible to the legislature. As and when the British colonies respectively obtained self-governing institutions, each of them adopted this scheme, since it was the one familiar to them at home; and to it they seem all determined to adhere.

Its distinctive features are these:

The nominal head of the executive, in Britain the crown, in Australia the governor-general as representing the crown, is permanent, and is not responsible to the legislature, because he acts not on his own views, but upon the advice of his ministers.

The ministers are responsible to the legislature which virtually chooses them, and they depend upon its confidence for their continuance in office.

The ministers are, however, not wholly at the mercy of the legislature, because they may dissolve it, that is to say, may appeal to the people, in the hope that the people will elect a new legislature which will support them. This kind of government accordingly rests on a balance of three authorities, the executive, the legislature, and the people, the people being a sort of arbiter between ministry and Parliament. As the ministry can at any moment appeal to the people, the threat of appealing puts pressure upon the Parliament, and keeps a majority cohesive. In the existence of this power of sudden dissolution there lies a marked difference from the American scheme, which some one has called astronomical, because the four years' term of office of the executive and the two years' term of the legislature are both fixed by the earth's course round the

sun.

I have spoken of the legislature as the authority to which the ministry is responsible. But what is the legislature? In England, although Parliament consists of two houses, the minister-making power resides solely in the House of Commons. Being elective, the House of Commons has behind it the moral weight of the people and the prestige of many victories.. Being the holder of the purse, it has the legal machinery for giving effect to its will, since without supplies administration cannot be carried on. Accordingly, though the existence of two often discordant houses may arrest or modify legislation in Britain, it does not affect the executive conduct of affairs, save on the rare occasions when immediate legislation is deemed indispensable by the executive. The same remark applies to Canada. There also one finds two houses, but

the Senate, being a nominated and not a representative body, holds an entirely secondary place. The ministry may disregard a vote of want of confidence passed by it, just as in England they disregard an adverse vote of the House of Lords. In Australia, however, things will be quite different. There the Senate has been constituted as a representative body, elected by the peoples of the States; and as the protector of the rights and interests of the States it holds functions of the highest importance. Its powers (save in one point to be presently mentioned) are the same as those of the House. In whom, then, does the power of making and unmaking ministries reside? Wherever one finds two assemblies, one finds them naturally tending to differ; and this will be particularly likely to occur where, as in Australia, they are constructed by different modes of election. Suppose a vote of no confidence in a particular ministry is carried in one house and followed by a vote of confidence passed in the other. Is the ministry to resign because one house will not support it? It retains the confidence of the other; and if it does resign, and a new ministry comes in, the house which supported it may pass a vote of no confidence in those who have succeeded it.

The problem is one which cannot arise either under the English or under the American system. Not under the English, because the two houses are not coördinate, the House of Commons being much the stronger. Not under the American, because, although the houses are coördinate, neither house has the power of displacing the President or his ministers. It is therefore a new problem, and one which directly results from the attempt to combine features of both schemes, the Cabinet system of England and the coördinate Senate, strong because it represents the States, which a federal system prescribes.

BIBLIOGRAPHICAL NOTE

Jenks, History of the Australasian Colonies. Turner, A History of the Colony of Victoria. Beach, The Australian Federal Constitution, in the Political Science Quarterly, Vol. XIV, pp. 663 ff.

INDEX

Æthelbert, of Kent, extent of his empire, | Boroughs, see Towns.