to legislate is that of external affairs (Article 51, paragraph 29). As has already been pointed out, a law might be passed by the Parliament of Australia with reference to the subject of foreign enlistment. The consequences of such legislation might involve the Empire in difficulties with foreign Powers. It is not reasonable to withdraw from the Imperial Tribunal the right of deciding whether a measure of this class is or is not invalid as being in contravention of Imperial legislation, or as to its true construction. The legislation of the Parliament of the Commonwealth may affect British shipping coming from the United Kingdom or British processions. The Merchant Shipping Act, 1894, makes (sections 735-736) special provision for legislation in a British possession with regard to vessels there registered, and with regard to the coasting trade in British possessions. Having regard to the interests which may be affected by legislation under this head, it appears essential that there should be the possibility of an appeal to the Queen in Council. | The question of the right of appeal must also be looked at from the point of view of the very large class of persons interested in Australian securities, or Australian undertakings, who are domiciled in the United Kingdom. Nothing could be more prejudicial to Australia than to diminish the security felt by capitalists who desire to invest their money there. One element in the security which at present exists is, that there is the possibility of an ultimate appeal to the Queen in Council, and there is very strong feeling against its abolition. Cases affecting the rights of such persons may often involve questions of the interpretation of the Constitution. But, apart from this consideration, the last sentence of Article 74 of the Constitution provides in express terms that the Parliament of the Commonwealth may make laws limiting the matters in respect of which leave may be asked to appeal. So that it is evident. that the possibility of appeal in certain cases left by Article 74 as it now stands may be indefinitely curtailed in the future. A brief examination of the history of Article 74 may be desirable before proceeding to discuss the arguments of the Delegates against its amendment. || In the draft of the Constitution prepared at the Adelaide meeting of the Federal Convention the Article was as follows: -,,No appeal shall be allowed to the Queen in Council from any Court of any State, or from the High Court or any other Federal Court, except that the Queen may in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of her dominions are concerned, grant leave to appeal to the Queen in Council from the High Court." || The meaning of this Article was explained in the discussion on the 20th April,

1897, by Mr. Higgins, who was a member of the Judiciary Commitee, as follows: ,,I feel a misapprehension has grown up that we are trying to do something new. The object of this clause is simply to stereotype in the Act what has already existed in Canada, where there is a general right of appeal reserved to Her Majesty's in Council on a decision of the Privy Council; but that right of appeal is not allowed unless the cases are of public interest. Therefore the effect of clause 73 is simply to put in plain English what is the law now in Canada." || Mr. Barton endorsed this explanation, saying: ,,That is the whole purpose and object of the clause; my honourable friend has saved me the trouble of explaining it." || The phrase "public interest" was used by Mr. Higgins as defining the class of cases in which special leave is granted to appeal from a decision of the Supreme Court of Canada. The rules laid down. by the Privy Council as regards such appeals are set forth in the case of Prince v. Gagnon (8 App., Cas. 103): ||,,Their Lordships are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal to Her Majesty in Council from the Supreme Court of the Dominion, save where the case is of gravity, involving matter of public interest, or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character." || The language of the Article then under consideration hardly carried out the purpose with which it had been framed, as explained to the Convention by Mr. Higgins and Mr. Barton, namely, that it was only intended to stereotype and fix, in regard to the High Court of Australia, the practice of the Privy Council, as declared by that body itself, in regard to the Supreme Court of the Dominion of Canada; but their declarations are conclusive, as showing the sense in which the Article was adopted by the Convention at the sitting of the 20th April, 1897. || All that Her Majesty's Government desire upon this point is that effect should be given to the expressed intention of the framers of the clause, that it should embody the practice of the Privy Council upon Canadian appeals. After the Bill had been settled at Adelaide, it was discussed at length by the several Parliaments of the Federating Colonies, and several amendments were proposed in favour of extending the right of appeal as left in the Adelaide draft, but none apparently in favour of further restriction. The question was not discussed at the Sydney meeting, nor until January 1898, when an effort Iwas made by those members who were in favour of the appeal to obtain the insertion of a provision saving the prerogative. The attempt was defeated by 22 votes against 14. The question was again brought up on

the 11th March, when, on the motion of Sir Joseph Abbott, a clause saving the prerogative to grant special leave to appeal was carried by one vote in a House of thirty-nine Members. This was followed by an amendment, moved by Mr. Symon, excepting cases involving the interpretation of the constitution of the Commonwealth or of a State, which was carried by 21 votes to 17. || The original draft of the Adelaide Session, therefore, which abolished appeals from all lower Australian Courts, and except by special leave from decisions of the High Court in matters involving the public interests of the Commonwealth, &c., was completely departed from, and the question of the appeal was left in the position summarized on page 7 of the Delegates' Memorandum. || If the provision in the Adelaide draft had carried out the declared intention of those who framed it, and left only the special appeal from the High Court in the cases in which appeals are allowed from the Supreme Court of the Dominion, it would have been entirely satisfactory to Her Majesty's Government, but the exception introduced at the last moment on the motion of Mr. Symon leaves the question in a very unsatisfactory and anomalous position. That exception had not been discussed in the several Parliaments when the measure was before them for detailed consideration and can hardly be said to have received adequate discussion. || The Delegates urge that ,,the contention for the finality of the Judgments of their High Court is based by Australians on the argument that if they arc fit, as is conceded, to make a Constitution for themselves, they are fit also to say what that Constitution means, and for that purpose they should be allowed to rely on the decisions of their High Court", that ,judicial knowledge of local conditions invaluable always is indispensable in the interpretation of Constitutions", and "that Her Majesty's Judges Australian as well as British, will ever be men of conspicuous ability and integrity, whose impartiality will not be prejudiced by their domicile".|| The answer is that in many cases the construction of the Constitution of such a country as Australia cannot be regarded as affecting Australian interests alone.

That cases would come before the Imperial Court of Appeal with the advantage of a full knowledge of local conditions relevant to the case as they would have been explained in the Judgments of the Australian Court, and that while the high standing and ability of Australian Judges s recognized to the fullest degree, it would be of great assistance to them that, in exceptional cases, there should be the possibility of having their decisions on constitutional questions reviewed by a Tribunal which, even if party feeling ran high on the question in dispute, could not

possibly be charged with being under its influence. In conclusion, it should be remembered that the question must be looked at from a still wider point of view. The retention of the prerogative to allow an appeal to Her Majesty in Council would accomplish the great desire of Her Majesty's subjects both in England and Australia, that the bonds which now unite them may be strengthened rather than severed, and, by insuring uniform interpretation of the law throughout the Empire, facilitate that unity of action for the common interests which will lead to a real Federation of the Empire. The object of every one at present should be to draw closer together all parts of the Empire. The existence of the right of appeal, subject to the leave of the Privy Council, has been a link effectively binding together every part of Her Majesty's dominions: the weakening of this tie would seriously lessen the value of even so great and beneficent a result as the Federation of Australia. || If the Bill were passed in its present form, while it would mark a step in advance as far as the Federation of Australia is concerned, it would be a retrograde measure so far as it affects the larger question of Imperial Federation.

March 29, 1900.

Nr. 13136. NEU-SEELAND.

Denkschrift der Regierung an

den britischen Kolonialminister. Wünscht einige Änderungen am Verfassungsentwurf.

The Government of New Zealand desires to secure the insertion of certain amendments in the Commonwealth of Australia Constitution Bill shortly to be laid before the Imperial Parliament. These amendments are three in number. The first of them is, in effect, that New Zealand should preserve the right of joining the proposed Commonwealth of Australia on the same terms as the original States now about to be united in such Commonwealth. The second is, that while New Zealand remains outside the Commonwealth, litigants in her higher Courts, though reserving the right they now possess to appeal to the Queen in Council, should, as an alternative, have the right to appeal to the high Court of Australia on paying the fees and complying with the rules of that tribunal. The third amendment is, that the Australian Commonwealth and the Colony of New Zealand should be empowered to make the necessary arrangements to employ their naval and military forces for mutual aid and defence, including operations outside their own boundaries, and for

that purpose to co-operate in forming a homogeneous Australasian force. || The importance of the first amendment to New Zealand is great. The Colony is divided from Australia by 1200 miles of unbroken sea. It still takes from four to five days for persons quitting New Zealand to reach any port in Australia. Though a large and valuable trade is. carried on between the two countries, and though New Zealand is linked to Australia, not merely by financial ties, but by bonds of intercourse, cordial friendship, and sympathy, she has also vital and separate interests. Many, also, of the leading matters on which the discussions on Federation. in Australia during the last 12 years have turned are topics with which the New Zealand people is almost unaquainted. It is therefore only to be expected that the Colony should watch the Federal movement with caution and reserve. It is also true that, until June of last year, New Zealand was unable to judge as to intentions of the great Colony of New South Wales with regard to the Commonwealth Bill. It was not until the month of September that Queensland decided to enter the Commonwealth; Western Australia has not even yet done so. And it was directly after the decision of Queensland had become known that, in response to a request from Sir John Forrest, the leading statesmen of Australia intimated that, in their opinion, it was impossible to consider any further amendments of the Commonwealth Bill. From that moment the only course left open to New Zealand has been About that time there appeared in New Zealand growth of a feeling in the Colony in favour of a Australia. This was on the eve of the general elections, and Mr. Seddon, the Prime Minister, then defined his position, stating that the future relations of New Zealand with Australia were a matter for education and careful examination: that for himself he kept an open mind, but that prudent deliberation was advisable. At the general elections which took place in December last, Mr. Seddon was returned to power with an unusually large majority. It may therefore very safely be assumed that this cautious but not hostile attitude fairly represents the present view of the people of the Colony. Some stress may be laid on the foregoing facts in view of the possible objection that New Zealand's action now comes to late. The Colony virtually asks that, in view of its positions of distance and difficulty, it should have more time given it to make up its mind than has been found necessary by colonies which are continguous or almost so. If it should be proposed to fix a limit of time to this, that would clearly be a matter for reasonable consideration. || In so far as the second amendment would give certain New Zealand

that now taken. || evidences of the closer union with