The ancient right of the King, as the fountain of justice, to dispense justice in his Council survived even after the establishment of Courts of Common Law. (See Anson, Law of Constitution, ii. 86.) In 1640 the Long Parliament, by the Act 16 Car. I c. 10, which abolished the Star Chamber, enacted that neither the King nor his Privy Council should have jurisdiction over any man's estate, but that "the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law." But the King in Council, though his original jurisdiction within England was taken away, was still the resort of suitors in the dependencies, and continued to hear petitions from the plantations. The result was that down to 1833 all petitions from beyond the seas were dealt with by an open Committee of the Privy Council, which advised the Crown as the order to be made in each case." (Anson, Law of Const. ii. 442.)

THE JUDICIAL COMMITTEE.-In 1833, by the Act 3 and 4 Wm. IV. c. 41, the Judicial Committee of the Privy Council was constituted, and it was enacted (sec. 3) that "all appeals or complaints in the nature of appeals which either by virtue of this Act or of any law statute or custom may be brought before His Majesty or His Majesty in Council" from the decision of any Court or Judge should thenceforth be referred to the Judicial Committee. It was also enacted (sec. 4) that His Majesty might refer to the Judicial Committee "any such other matters whatsoever as His Majesty shall think fit." The Judicial Committee was also given various necessary powers of a Court of Justice, with regard to the examination of witnesses, compelling their attendance, making rules of practice, and so forth.

The composition of the Judicial Committee has been the subject of statutory change from time to time. It now consists of the Lord President, such Privy Councillors as hold or have held "high judicial office" (defined to mean the office of Lord Chancellor, of a paid Judge of the Judicial Committee, or of a Judge of one of the Superior Courts of Great Britain and Ireland), the Lords Justices of Appeal, and two other persons being Privy Councillors whom the Queen may appoint. There may also be one or two paid members, who have held judicial office in the East Indies. (See Appellate Jurisdiction Acts, 1876 and 1887, 39 and 40 Vic. c. 59; 50 and 51 Vic. &. 70; Judicial Committee Act, 1881, 44 and 45 Vic. c. 3.) It is now provided by the Judicial Committee Amendment Act, 1895 (58 and 59 Vic. c. 44), that if any person being or having been Chief Justice or a Judge of the Supreme Court of Canada, or of a Supreme Court in any province of Canada, or of any of the Australasian Colonies, or of Cape Colony or Natal, or of any other Superior Court in the Queen's Dominions which might be named by Order in Council, is a member of the Privy Council, he shall be a member of the Judicial Committee; but such colonial members of the Judicial Committee must not exceed five.

Although the Acts relating to the Judicial Committee require the Queen's prerogative right of admitting appeals to be exercised through a particular court, of definite statutory composition, they do not limit the extent of that prerogative right. It is however capable of being limited to any extent, or of being abolished altogether, by the sovereign British Parliament, whose sovereignty extends to the prerogative as to everything else. (See Dicey, Law of the Const., p. 60.) "The prerogative appears to be, both historically and as a matter of actual fact, nothing else than the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown." (Id.. p. 352.) To say that the right of granting leave to appeal to the Queen in Council is a "prerogative right " is therefore merely to say that it has not yet been legally taken out of the hands of the Crown.

This prerogative right of the Crown is sometimes spoken of, somewhat inaccurately, as a sacred constitutional right of the individual subject. See for instance a petition presented to the Melbourne Convention (cited Conv. Deb., Melb., p. 2298), where it is spoken of as "this right of approach to the Sovereign which all her other subjects (i.c., other than Australian) possess." Language such as this is due to a confusion of the right of appeal with the general right of petitioning the Crown for the redress of grievances—a right which belongs to every subject in every part of the Empire, and is

not taken away by limiting the right of appeal in matters of litigation. (See Blackstone's Commentaries, i. 143.) The right of appeal to the Privy Council is not in any sense a right of approaching the person of the Sovereign, but merely a right of appealing to one of the Queen's Courts-a Court which is not a Court of Appeal for the whole Empire, but only for the colonies and dependencies of the Empire. See remarks on this subject by Mr. Symon (Conv. Deb., Melb., pp. 2295, seqq). The extent to which a right of appeal to the Queen in Council ought to be retained is purely a question of political expediency.

LIMITATIONS PRESCRIBED BY PRIVY COUNCIL.- Though the right of the Queen to grant leave to appeal to herself in Council has not hitherto been legally limited, very definite limitations as to the cases in which such leave will be granted have been laid down by the Privy Council itself. Thus in criminal cases, leave will only be granted in special circumstances, where it is shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done. (Reg. v. Bertrand, L. R. 1 P.C. 520; Re Dillet, 12 App. Ca. 459; Exp. Deeming, 1892, App. Ca. 422; Kops v. Reg., 1894, App. Ca. 650; Exp. Carew, 1897, App. Ca. 719.)

In applications for special leave to appeal to the Queen in Council from decisions of the Supreme Court of Canada, or of the Courts of Appeal in the Provinces, the Privy Council has laid down limitations which had an important influence on the Convention in determining the provisions of this section, and which are further of importance as laying down rules which will undoubtedly guide the Privy Council in the exercise of the right to grant special leave under this Constitution.

In Johnston v. Ministers of St. Andrew's Church, Montreal, 3 App. Ca. 159, special leave of appeal from the Supreme Court of Canada was refused in a case where the amount at issue was only £300, and where the issue between the parties related simply to the legal construction and effect of a particular contract, and where no general principle was involved, and no other cases were necessarily affected by the decision complained of. The judgment of Lord Cairns, L.C., concluded as follows:

"It appears to their Lordships that it would be a departure from the principles which should guide them when advising Her Majesty as to when an appeal should be allowed, to advise that an appeal should be allowed merely for the purpose of testing the accuracy of the construction put upon a particular document, which document, if it affects any number of other cases, can be altered at the will of the party who asks for the exercise of the prerogative in allowing an appeal. Their Lordships, therefore, cannot, either from the magnitude of the particular case, or from the effect which this decision may have on a number of other cases, think that this is a case in which they should advise Her Majesty to allow the appeal which is asked for."

In Valin v. Langlois, 5 App. Ca. 115, an important constitutional question was involved as to the validity of a Dominion Act; but special leave to appeal from two concurrent judgments of the Courts in Canada, affirming the validity of the Act, was refused, it appearing that there was no substantial question to be decided, nor any doubt of the soundness of the decisions, nor any reason to apprehend difficulty or disturbance from leaving the decisions untouched. Lord Selborne, delivering the judgment of the Court, said (at p. 117) :

"Their Lordships must remember on what principles an application of this sort should be granted or refused. It has been rendered necessary, by the legislation which has taken place in the colony, to make a special application to the Crown in such a case for leave to appeal; and their Lordships have decided on a former occasion that a special application of that kind should not be lightly or very easily granted; that it is necessary to show both that the matter is one of importance, and also that there is really a substantial question to be determined. It has been already said that their Lordships have no doubt about the importance of this question, but the consideration of its importance and the nature of the question tell both ways. On the one hand those considerations would undoubtedly make it right to admit an appeal, if it were shown to their Lordships, prima facie at all events, that there was a serious and a substantial question requiring to be determined. On the other hand, the same considerations make

it unfit and inexpedient to throw doubt upon a great question of constitutional law in Canada, and upon a decision in the Court of Appeal there, unless their Lordships are satisfied that there is, prima facie, a serious and substantial question requiring to be determined. Their Lordships are not satisfied in this case that there is any such question, inasmuch as they entertain no doubt that the decisions of the Lower Courts were correct. It is not to be presumed that the Legislature of the Dominion has exceeded its powers, unless upon grounds really of a serious character."

In Prince v. Gagnon, 8 App. Ca. 103, which was a suit involving a question of a sum of £1000, Lord Fitzgerald, delivering the judgment of the Court, said ::

'Their Lordships, having looked into the case, see that it involves nothing whatever beyond this £1000. There is no grave question of law or of public interest involved in its decision that carries with it any after-consequences, nor is it clear that beyond the litigants there are any parties interested in it. 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."

In Montreal v. Ecclesiastiques de St. Sulpice, 14 App. Ca. 660, the unwillingness of the Privy Council to grant special leave was still further illustrated. Lord Watson, delivering judgment, referred to the provision of the Canadian Supreme Court Act, that the decision of the Court should be "final and conclusive," saving the Queen's prerogative, and declined to formulate any general rule as to when leave to appeal would be given. "In some cases," he said, "as in Prince v. Gagnon [supra] their Lordships have had occasion to indicate certain particulars, the absence of which will have a strong influence in inducing them to advise that leave should not be given, but it by no means follows that leave will be recommended in all cases in which these features occur. case may be of a substantial character, may involve matter of great public interest, and may raise an important question of law, and yet the judgment from which leave to appeal is sought may appear to be plainly right, or at least to be unattended with sufficient doubt to justify their Lordships in advising Her Majesty to grant leave to appeal." (See, for these and other cases in which special leave was granted or refused, Wheeler, Confed. Law, pp. 440-482; Wheeler, Privy Council Law, Part II.)

§ 311. "No Appeal shall be Permitted."

A

These words are a limitation of the Queen's prerogative right to admit appeals from any colonial court. Such a limitation is within the competence of the Imperial Parliament. (Dicey, Law of the Const., p. 60; and Notes, supra, § 310.)

The prohibition is directed against appeals by special leave of the Privy Council. Appeals as of right from decisions of the High Court are already taken away by the provision of sec. 73 that the judgment of the High Court shall be "final and conclusive " (see Note, 308, supra). The prohibition is limited

(1) to appeals from decisions of the High Court;

(2) to appeals upon questions as to the limits inter se of the constitutional
powers-

(a) of the Commonwealth and those of any State or States; or
(b) of any two or more States;

(3) by the qualification that an appeal will lie "if the High Court shall certify
that the question is one which ought to be determined by Her Majesty
in Council"

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The limited extent of the prohibition against appeals to the Privy Council is confirmed by the concluding paragraph of the section, which expressly saves the royal prerogative to grant special leave of appeal 'except as provided in this section." Accordingly the prerogative right of the Queen in Council to grant special leave to appeal from judgments of the State courts is not affected by the Constitution; and the

right of appeal from the Supreme Courts of the States, under the Orders in Council, in matters over the appealable amount-a right which is derived from statute, not from prerogative-is of course also untouched. (See Notes, §§ 299, 300, supra.)

§ 312. "From a Decision of the High Court.” DECISION.--For the meaning of the words "decision upon any question," see Note, § 313, infra.

OF THE HIGH COURT.-The section as it stands differs from the Bill as adopted by the Convention in not forbidding appeals from the State Courts to the Privy Council on constitutional questions. The clause as orginally drafted by the Judiciary Committee at the Adelaide session began :--"No appeals shall be allowed to the Queen in Council from any court of a State, or from the High Court, or any other federal court, except,” &c. As redrafted at the Melbourne session, after the third report, and adopted at the fourth report, it began :—“ Notwithstanding anything in the last section, an appeal to the Queen in Council from a court of a State, or from the High Court, or from any other federal court, shall not be allowed in any matter," &c. Before the final stage, it was redrafted to read :-" No appeal shall be permitted to the Queen in Council in any matter," &c. There was certainly no intention on the part of the Convention to limit the clause to appeals from the High Court, the general words "no appeals shall be permitted" being understood to include appeals from all courts, State or federal.

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In some quarters, however, the cause was understood as referring to appeals from the High Court alone; and Mr. Chamberlain's first proposed compromise (p. 245, supra), providing that no question as to the limits of constitutional powers should be 'capable of decision except by the High Court," was objected to by Sir Samuel Griffith, amongst others, on the ground that this was a substantial alteration of the Bill, and a curtailment of a right of appeal from the State Courts to the Privy Council which had been expressly reserved by the Convention. The Chief Justices of all the Australian colonies, being consulted by Mr. Chamberlain, seem to have expressed opinions adverse to any curtailment of the right of appeal from the State courts to the Privy Council; and as a consequence of these representations the clause as finally passed by the Imperial Parliament left this right untouched.

The Convention, therefore, meant that on constitutional questions the High Court should be the sole, as well as the final, court of appeal ; but under the Constitution as it stands, any judgment of the Supreme Court of a State may, even if it involves constitutional questions, be appealed from to the Privy Council direct; though, if the appellant chooses to adopt the alternative of appealing to the High Court instead of to the Privy Council, there can be no further appeal to the Privy Council unless the High Court certifies that such an appeal is proper.

This result does not appear to be altogether satisfactory. Whatever view may be taken of the expediency of retaining a right of appeal to the Privy Council in constitutional questions, it would at least seem that the Privy Council ought not to be required to decide any such question without having, for its assistance, the judgment of the highest Court in Australia. As it is, the decision of the High Court on a certain class of constitutional questions is final, unless the High Court certifies, for special reasons, that an appeal ought to be allowed to the Privy Council; but if any such question arises in a Supreme Court of a State, an appeal may be had direct to the Privy Council, passing by the High Court altogether. There is thus a lack of unity in the system of interpreting the fundamental law of the Commonwealth. There is also a lack of consistency; the principle that the interpretation of the Constitution, as between Commonwealth and State, ought to rest with the Australian courts, is affirmed by the provision which makes the decision of the High Court in such cases ordinarily final, and denied by the reservation of the full right of appeal from the State courts to the Privy Council.

This anomaly, however, can, if inconvenience is found to arise, be removed in either of two ways-by the Imperial Government, or by the Federal Parliament. The statutory right of appeal from the State Courts to the Privy Council is defined by the Orders in Council already cited (§ 300, supra); and it is competent at any time for the Queen in Council (i.e., the Imperial Government) to promulgate new orders, abolishing this right of appeal in questions as to the limits of constitutional powers. If that course should not commend itself, the Federal Parliament has power to deal with the matter in another way. Under sec. 76, the Parliament may confer original jurisdiction on the High Court in several classes of cases, including "cases arising under this Constitution, or involving its interpretation." Under sec. 77, it can confer a similar jurisdiction on any federal court other than the High Court, and can declare the jurisdiction of any federal court (including the High Court), to be exclusive of that belonging to the courts of the States. The Federal Parliament can therefore, by making the federal jurisdiction exclusive in cases arising under the Constitution, ensure that all such cases shall be brought in the first instance into the federal courts, when they will of course be subject to the exclusive appellate jurisdiction of the High Court. That is to say, the Federal Parliament-though it cannot interfere with the right of appeal from the Supreme Courts of the States to the Privy Council-can under sec. 77 reserve to the federal courts exclusive original jurisdiction in cases "arising under the Constitution," and thus prevent such cases being brought in the courts of the States.

$313. "Upon any Question, Howsoever Arising."

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DECISION UPON A QUESTION.-The appeals forbidden by this section are appeals "from a decision of the High Court upon any question" of a certain character. The distinction should be noted between the phrase "decision of the High Court" in this section and the phrase judgment of the High Court" in sec. 73. A judgment of the court is its order upon a case; a decision of the court is its finding upon a question of law or fact arising in a case A decision upon a question is not of itself a judgment, but is the basis of a judgment; and one judgment may be based on the decision of several questions.

This section, then, forbids not an appeal from a judgment, but an appeal from the decision of a question. Where a judgment is based upon the decision of several questions, one of which is a question as to the limits of constitutional powers, the section does not forbid the Privy Council to grant special leave of appeal from the judgment; what it does is to forbid the Privy Council from disturbing the decision of the High Court on that particular question. It may be that, apart from the constitutional question, there are other questions of law or of fact which the Privy Council may hold to have been erroneously decided by the High Court, and which are material to the judgment. The Privy Council has power to deal with the whole matter, except that it cannot disturb the decision of the High Court on the constitutional question unless the High Court has ertified that the question ought to be determined by the Privy Council.

AMERICAN ANALOGY.-The provision, which denies to the Privy Council the power of "independent interpretation" of the limits of the constitutional powers of the Commonwealth and the States, bears an interesting analogy to the doctrine laid down by the federal courts in the United States, that those courts have no right of "independent interpretation" of State Constitutions and laws unless national rights or authorities are affected.

"The same reasons which require that the final decision upon all questions of national jurisdiction should be left to the national courts will also hold the national courts bound to respect the decisions of the State courts upon all questions arising under the State Constitutions and laws, where nothing is involved of national authority, or of right under the Constitution, laws, or treaties of the United States; and to accept the State decisions as correct, and to follow them whenever the same questions arise in the national Courts." (Cooley, Const. Lim. p. 13; and see Burgess, Pol. Sci. ii. 328.)