do we want a universal law more than that dealing with the most sacred relations, that concern not merely the individuals who are parties to the contract, or whatever you please to call it, but also those who are to come afterwards? Anyone who seriously considers the social feelings of pain and grief, and worry and trouble, caused by a differentiation of the laws of the colonies, as between themselves, on this most vital subject, must agree that something ought to be done to prevent the anomaly." (Sir John Downer, Conv. Deb., Syd., 1897, p. 1081.)

"A foreign tribunal has no authority, so far as consequences in England are concerned, to pronounce a decree of divorce à vinculo in the case of an English marriage between English subjects, unless such subjects are, at the time of such decree pronounced, bona fide domiciled in the country where that tribunal has jurisdiction, and the suit is prosecuted without collusion. (Shaw v. Gould, 37 L.J. Ch. 433. Dig. of Eng. Case Law, viii. p. 226.)

A wife's domicile is that of her husband, and her remedy for matrimonial wrongs must, as a general rule, be sought in the courts of that domicile; and, therefore, the wife of a man not domiciled in England cannot maintain a suit for restitution of conjugal rights if her husband has left the jurisdiction before the commencement of the proceedings. (Firebrace v. Firebrace, 47 L.J. Prob. 41. Id. p. 225.)

The word domicile has many meanings, according as it is used with reference to succession and other purposes. A person may have retained a foreign domicil for many purposes, and yet may be domiciled in England, so as to give jurisdiction to the court for divorce; but if he has never resided in England except temporarily, and is not there at the time of the commencement of the suit, he is not subject to its jurisdiction. (Yelverton v. Yelverton, I Sw. and Tr. 574. Id. p. 223.)

Great caution ought to be observed in allowing a petition for divorce to proceed in the English Divorce Court where there is ground for supposing that the parties are domiciled out of the jurisdiction. (Sinclair's Divorce Bill, 1897, App. Ca. 469. Dig. of Eng. Case Law, vol. vii. p. 730.)

When the domicile of the parties is English, the jurisdiction of the court is founded, though the marriage and adultery may have taken place abroad. (Ratcliff v. Ratcliff, 29 L.J. Mat. 171. Id.)

For the purposes of the jurisdiction of the Divorce Court, the British colonies, as well as Scotland and Ireland, are deemed to be foreign countries. (Firebrace v. Firebrace, 47 L.J. Prob. 41. Id. p. 733.)

The matters contemplated and covered by this grant of power are those subsidiary and consequential to marriage and divorce. They will naturally include judicial separation, restitution of conjugal rights, nullity of marriage, jactitation, damages against an adulterer, and probably maintenance of wives and children and marriage settlements.

The Parliament has power to legislate respecting the rights of parents to their children, but only in relation to divorce and matrimonial causes. Outside and independent of the area covered by divorce and matrimonial causes, the power of the States to deal with parental rights remains unaltered. The power to determine the parental rights of divorced or separated persons with respect to children of the marriage, is a necessary corollary of the power to dissolve the union by divorce, or to suspend it by judicial separation; one is an essential incident and should be the sequence of the other. Without this conjunction of power the Parliament, whilst able to pass a uniform law of divorce and judicial separation, would be unable to pass a uniform law of parental rights to be enforced in such suits. It would be anomalous for a Federal law to dissolve or suspend a marriage, and for a State law to decide the destiny of the children of the marriage.

At common law a father is entitled to the custody of the child at its mother's breast, and the court, in making an order as to the custody, pendente lite, will not, unless some good cause is shown, take away this right. (Cartledge v. Cartledge, 31 L.J. Mat. 85. Dig. of Eng. Case Law, vol. vii. p. 789.)

In making an interim order as to the custody of the children, the court will adhere to, or depart from, the common law rule, according to its discretion. (Spratt v. Spratt, 1 Sw. and Tr. 215. Id.)

A divorce and matrimonial court has jurisdiction by its order to regulate the custody of children until they attain the age of sixteen. (Mallinson v. Mallinson, 35 L.J. Mat. 84.) But the court has no jurisdiction to make any order as to the custody of children upwards of sixteen years of age. (Ryder v. Ryder, 30 L.J. Mat. 44. Id. p. 788.)

In exercising its discretion in the matter of access to children by their parents, pending suit, the court is mainly influenced by consideration for the interests of the children. (Philip v. Philip, 41 L.J. Prob. 89.)

§ 204. "Custody and Guardianship of Infants."

The power of the Parliament to legislate concerning the custody and guardianship of infants is not a general one; it is limited to divorce and matrimonial causes. Apart from that jurisdiction the States retain their former authority in respect to these matters. (Conv. Deb., Adel., 1897, p. 1085.)

51. (xxiii.) Invalid and old-age pensions205:

HISTORICAL NOTE.-This sub-section was first proposed by Mr. Howe, at the end of the Sydney session in 1897, but was not then dealt with. (Conv. Deb., Syd., 1082, 1085-8.) At the Melbourne session, Mr. Howe proposed it again, when after a short debate it was carried by 26 votes to 4. (Conv. Deb., Melb., pp. 1991-6.)

§ 205. "Invalid and Old-age Pensions."

In considering Mr. J. H. Howe's proposal to place this sub-section in the Constitution, the question debated was not the policy or practicability of giving governmental pensions to poor and aged persons, but whether such a power ought to be left to the States or added to the functions of a Federal Parliament. Those who doubted the wisdom of the proposal argued that it was a matter which stood in the same category as State Banking and State Insurance; that it was a branch of the charitable systems which existed in the States; that it could be best dealt with by each State apart from the Federal authority; that it might involve embarrassing financial issues; that it would tend to load the Constitution with a social problem of complexity and magnitude, which had better be reserved for the States. In reply to these arguments it was said that the Federal authority would occupy a superior vantage-ground which would enable it to deal effectively and comprehensively with the subject, which could not be done by the disunited efforts of the States. Such a law should be uniform so as to reach and regulate the rights and obligations of those who were migratory in their habits. "The people who would benefit most by this provision," said Mr. Howe, “are a moving population. They are engaged in seeking work all over Australia, and are constantly going to those places which, for the time being, are more prosperous than other places. Our labouring classes will be a nomadic race for a considerable time to If the State took this matter in hand, and made payments compulsory, it could not follow a contributor to the fund from one State to another. The duty is one which can only be performed by the Federal authority. (Conv. Deb., Syd., 1897, p. 1086.)

come.

"In these Colonies," said the same hon. gentleman, "men are born in one State, spend their manhood and best days in another, and then return, broken down and unfortunate, to the land of their birth, which owes them nothing. Is it to be contended that under such circumstances the State of the unfortunate man's birth should be compelled to support him? Surely the support of the aged poor could be better accomplished by a Federated Australia. Wherever a man may roam within the boundaries of Federate l

Australia, he should know that in his old age he need never fear the pauper's lot. I would compel every able-bodied man, in the heyday of youth, when he has the means, to make a compulsory contribution towards a fund, out of which provision would be made for his old age. That is another reason why the Federal authority should take it instead of the State, because within the bounds of Federated Australia a law can be enacted compelling that individual, who is to receive the benefit, to contribute to the fund in which he is to participate in old age." (Conv. Deb., Melb., 1898, p. 1992.)

..

If a precedent were required it could be found in the German Empire, which has adopted the system of providing invalid and old age pensions. "In Germany it is compulsory for those in fixed employment, and for employers, to contribute to a fund which is subsidized by the Government. Then when a man comes on the fund he does not come upon it as with us a man comes upon the charitable institutions of the country. He can hold up his head among his fellow men. This law prevents a man who has fulfilled all the obligations of citizen, husband, and father, from becoming a pauper in his declining days. At the present time there are no fewer than 12,000,000 of people in Germany subject to this law, and Germany takes the pride of place in having been the first nation in Europe to adopt the system. . . . In Australia we have a country far removed by a vast expanse of water from every other part of the world. Our labourers will be Australian labourers. Labourers from other lands will not intermingle with them. We should try to prevent these men from becoming destitute in their declining years through no fault of their own. Every member of the Convention knows of cases where men, who, perhaps, once held high positions, have through force of circumstances had to become inmates of charitable institutions. The poor have to be kept by the State in any case, and I want the Commonwealth to say to those of its citizens who have attained a certain age, or who have been maimed for life by some accident, that they shall not want, and need not be a burden upon friends, who, perhaps, are not able to keep them, but that the Commonwealth shall provide the means from this fund to which they have contributed whereby they can live. I hope the Convention will agree to these words being inserted. I am sure that if they do so, the Federal Parliament will be able to formulate a scheme whereby my object can be achieved, and thereby crown itself with glory." (Hon. J. H. Howe. Conv. Deb., Syd., 1897, p. 1086.) The Convention after several unsuccessful appeals at last yielded to Mr. Howe's advocacy of the cause and granted the power to Parliament, making it a concurrent authority, which could be exercised by the States until it was acted upon by the Parliament. 66 And," said Mr. Kingston, "there is no fear whatever that one would desire to exercise that power to the prejudice of the other. No doubt also the Federated authority will be armed with greater power for giving effect to anything it may desire, for the reasons which my hon. friend and colleague has pointed out." (Conv. Deb., Syd., p. 1087.)

51. (xxiv.) The service206 and execution 207 throughout the Commonwealth of the civil and criminal process 208 and the judgments of the courts of the States:

FEDERAL COUNCIL OF AUSTRALASIA ACT, 1885.-Saving Her Majesty's prerogative, and subject to the provisions herein contained with respect to the operation of this Act, the Council shall have legislative authority in respect to the several matters following :

(d) The service of civil process of the courts of any colony within Her Majesty's possessions in Australasia out of the jurisdiction of the colony in which it is issued:

(e) The enforcement of judgments of courts of law of any colony beyond the limits of the colony:

(ƒ) The enforcement of criminal process beyond the limits of the colony in which it 18 issued, and the extradition of offenders (including deserters of wives and children, and deserters from the Imperial or Colonial naval or military forces).— Fed. Council of Aust. Act, 1885, sec. 15.

HISTORICAL NOTE. -No provision corresponding to this sub-section is to be found in the Constitution of the United States of America, or in that of Canada. It first appeared in the Federal Council of Australasia Act, 1885, section 15, supra. In the Commonwealth Bill of 1891 the provision appeared in exactly the same form as that in which it now stands in this sub-section. (Conv. Deb., Syd., 1891, pp. 686-8.) At the Adelaide session it was inserted in its present form. At the Melbourne session a suggestion by the Legislative Council of New South Wales, to omit "throughout the Commonwealth," was negatived. (Conv. Deb., Melb., p. 29.)

§ 206. "Service."

The object of this sub-section is to provide a uniform law for the service of civil and criminal process, for the execution of civil and criminal process, and for the execution of the judgments of the courts of the States, throughout the Commonwealth. With reference to the service, beyond the limits of a colony, of civil process issued within a colony, the constitutionality of laws passed by Colonial legislatures authorizing this to be done has often been questioned. Service, of course, is generally recognized as the foundation of jurisdiction in civil cases. No man can be legally bound by a judgment given behind his back and without his having had an opportunity of being heard. (Per Erle, C.J., in re Brook, 33 L.J. C.P. 246.) Now, the Colonial Constitutions gave authority to the Colonial legislatures to make laws for the peace, order, and good government of their respective colonies. Those legislatures were not sovereign, like the British Parliament; their powers were strictly circumscribed and defined by their respective Constitutions, and it was contended that whilst they could legislate concerning the service of process within their territorial limits, they could not, in the absence of an express grant of power from the Imperial Parliament, give their courts jurisdiction over persons and property situated outside those limits. In several cases the Colonial courts have been asked not to shrink from the responsibility of declaring void Colonial legislative enactments which purported to apply to acts done by persons residing, and property located, outside the territorial limits. In most of these cases the courts have refused to disregard the mandates of the legislative departments.

In connection with Acts which authorize the initiation of civil proceedings against defendants absent from the law-making country, two questions have to be kept steadily in view and distinguished. (1) Are these statutes valid and binding on the courts within the territory of the lawmakers? (2) Will foreign courts recognize judgments obtained in civil proceedings so initiated? Several cases have been decided, from which it appears that the first question ought to be answered in the affirmative. (Lefroy, Leg. Pow. in Can. p. 330.)

In Banks v. Orrell (1878, 4 V.L.R. [L.] 219), the question was raised as to the validity of the service in New South Wales of a writ of the Supreme Court of Victoria. By the Common Law Procedure Act, 1865 (Vic.), sec. 90, it was declared that a writ of summons in any action might be served in any part of Victoria or within fifty miles of the frontier or border thereof. Counsel in support of the service (Mr. Geo. Higinbotham, afterwards Chief Justice), admitted arguendo that the legislature had usurped jurisdiction pro tanto outside its territory, but he contended that as the power was given, the court was bound to carry it out. The Supreme Court held that every Act of the legislature must be obeyed, whatever its meaning. In Regina v. Call ex parte Murphy (1881, 7 V.L.R. [L] 113), Chief Justice Stawell said:- It has always appeared to me to be the duty of the court to assume that Parliament will not lightly attempt to exceed its territory.'

By the Judicature Act, 1883 (Vic.), sec. 90 of the Common Law Procedure Act was repealed, and provision, founded on sec. 18 of the (Imperial) Common Law Procedure Act, 1852, (15 and 16 Vic. c. 76), was made for the issue of a writ of summons "on any defendant being a British subject residing out of the jurisdiction of the Court in any

place;" and on proof that there is a cause of action which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction or the breach within the jurisdiction of a contract wherever made, or in respect of property within the jurisdiction, and that the writ has been personally served on the defendant, or that reasonable efforts were made to effect service, and that it came to his knowledge, the judge may allow the plaintiff to proceed in the action. There is a similar law in New South Wales (Common Law Procedure Act, 1899, sec. 18).

It has been held that this procedure applies to individuals and not to corporations. (Connell v. Neill and Co., 7 W. N. [N.S.W.] 6; Lempriere v. New Pinnacle Group S.M. Co. No Liab., 21 A.L.T. 182 [Vic.].)

Another provision for the extra-territorial service of civil process, applicable to minor courts, has been made by several Australian Legislatures. By the Victorian Intercolonial Debts Act, 1887, re-enacted in the County Court Act, 1890, secs. 142-4, authority is given to serve County Court Summonses on defendants out of the jurisdiction, in Australian colonies, in which there are laws in force by which effect may be given, by the local courts of such colonies, to the judgments of the County Court of Victoria. On recovering judgment against an absent defendant, within any of the reciprocating provinces or colonies, the plaintiff is enabled to procure a certificate of judgment; this certificate is sent on to the clerk of the local court of the other colony in which the absent defendant is resident, and in which execution is then issued. Similar and reciprocal Acts were passed in South Australia (Intercolonial Debts Act, 1887), and in New South Wales (Intercolonial Debts Act, 1889).

The ineffectiveness of this kind of legislation, and the necessity of a federal law regulating service of process and execution of judgment, has been recently illustrated in a striking manner in the case of Elkan v. De La Juvenay, decided by the Full Court of Victoria on the 10th August, 1900.

In March of that year, Madame De la Juvenay, of Camberwell, near Melbourne, was served at her residence with a summons issued from the local court of South Australia, claiming £9 as the amount of two promissory notes. She was domiciled and resident in Victoria, and endorsed the promissory notes there, but they were payable in Adelaide. She did not appear to answer the summons, and judgment was entered up in Adelaide by default. It was transferred to the Victorian County Court, and on 8th May Madame De la Juvenay was served with a notice of the judgment. This was followed up next morning by a writ of execution. Under protest, she paid the money, and afterwards applied to have the judgment set aside. Mr. Justice A'Beckett, however, held that the Intercolonial Debts Act of 1887, now represented by sections 138 to 145 of the County Court Act of 1890, established a system of reciprocity between Victoria and any colony as to which a proclamation had been issued. An appeal was made on the ground that as the defendant was domiciled in Victoria, and had not submitted in any way to the South Australian jurisdiction, the judgment was not enforceable against her in Victoria, and was null by international law. The Full Court allowed the appeal. The Chief Justice (Sir John Madden) pointed out that it was a well understood proposition of international law that a subject of one State was not bound to obey the judgments of another State unless he chose to submit himself to its jurisdiction. The colonies were, for a purpose of this kind, as much apart as if they were foreign States. It was now contended, practically, that whenever a cause of action arose in South Australia against a Victorian, although the Victorian had never been in the other colony at all, the South Australian court had as much jurisdiction against him as if he had lived all his life there. This would be a striking change in the ordinary principles of law, and what had happened was wrong. The Act only applied to cases in which a resident of one colony had gone to another colony; not to cases in which the defendant had never submitted to the jurisdiction of the colony in which the plaintiff sued In the view the court took, Madame De la Juvenay was a person not liable to be sued effectually in the circumstances. The judgment was set aside, and the money paid