Court, for its opinion, questions not actually arising in the course of any judicial proceeding. The subject of extra-judicial opinions is one of considerable constitutional importance, and reference may be made to English, American, and Canadian constitutional practice.

In England, till the end of the 17th century, it was not uncommon for the King to ascertain the opinions of his Judges on a question before it came judicially before him. (See Broom, Const. Law, pp. 143-6.) This objectionable practice of extra-judicially anticipating judicial decisions in cases pending in the courts was generally condemned by jurists as tending to sap the independence and impartiality of the Bench, and has fallen completely into disuse. The House of Lords, however, when sitting in its judicial capacity, may still submit to the Judges questions bearing on any case sub judice; and even when sitting in its legislative capacity, it may constitutionally propound to the Judges abstract questions of law. (Broom, Const. Law, p. 147.) Thus before the passing of Fox's Libel Act, in 1792, a series of questions relating to the existing law of libel were submitted to and answered by the Judges. The Judges will, however, decline to answer a question put by the House of Lords, unless it is confined to the strict legal construction of existing laws. Re Westminster Bank, 2 Cl. and F. 191. where the Judges declined to answer a question whether the provisions of a certain Bill then before the House were consistent with the statutory rights of the Bank of England.

In the United States, the strict separation of the judicial from the other departments makes it unconstitutional for the Courts to perform extra-judicial duties.

By law the President possesses the right to require the written advice and opinions of his cabinet ministers upon all questions connected with their respective departments. But he does not possess a like authority in regard to the judicial department. That branch of the Government can be called upon only to decide controversies brought before them in a legal form; and therefore are bound to abstain from any extra-judicial opinions upon points of law, even though solemnly requested by the executive." (Story, Comm. § 1571; and see Bryce, Amer. Comm., i. 257.)

"The functions of the Judges of the Courts of the United States are strictly and exclusively judicial. They cannot therefore be called upon to advise the President in any executive measures, or to give extra-judicial interpretations of law, or to act as Commissioners in cases of pensions or other like proceedings. (Id. § 1777.)

Thus in Hayburn's Case, 2 Dall. 409 (and see ibid. 410-412) an Act assigning ministerial duties to the Circuit Courts was held to be unconstitutional, and it was laid down that Congress cannot constitutionally assign to the judicial power any duties which are not strictly judicial. In Dewhurst v. Coulthard, 3 Dall. 409, while an action was pending in a circuit court, the opinion of the Supreme Court was prayed on an agreed statement of facts; but the Court declared that it could not take cognizance of any suit or controversy not brought before it by regular process of law.

The Constitutions of some of the American States expressly provide for extra-judicial opinions on the validity of proposed laws; but in the absence of such provision the State Courts have held that the separation of powers implicitly prohibits advisory opinions. (Amer. and Eng. Encyc. of Law, 2nd Ed., vi. 1067.)

In a few of the States, indeed, the legislative department has been empowered by the Constitution (ie., of the State) to call upon the courts for their opinion upon the constitutional validity of a proposed law, in order that, if it be adjudged without warrant, the legislature may abstain from enacting it. But those provisions are not often to be met with, and judicial decisions, especially upon delicate and difficult questions of constitutional law, can seldom be entirely satisfactory when made, as they commonly will be under such calls, without the benefit of argument at the bar, and of that light upon the questions involved which might be afforded by counsel learned in the law, and interested in giving them a thorough investigation." (Cooley, Const. Lim. 40.)

In Canada it is provided by a Dominion statute (54 and 55 Vic. c. 25, s. 4) that "important questions of law or fact touching provincial legislation or touching the constitutionality of any legislation of the Parliament of Canada, or touching any

other matter with reference to which he sees fit to exercise this power," may be referred by the Governor in Council to the Supreme Court for hearing. Persons interested are entitled to be notified and to be heard by counsel, and the Judges must give their reasons; but the opinions of the court are advisory only, although they are appealable to the Privy Council. Ontario has a similar enactment. (See Wheeler, Confed. Law in Canada, pp. 394-5, 401-2, 405-6.)

Under this Constitution it is clear that, as in the United States, the functions of the federal Justices are "strictly and exclusively judicial," and that no duties can be cast upon them of an essentially extra-judicial kind. (See Notes to sec. 81.) They cannot be called upon to advise on questions of a political nature, or as to the constitutionality of proposed legislation. But whether they could be called upon by the Parliament or by the Executive acting under a law of the Parliament-to deliver opinions on the "strict legal construction of existing laws," is a more difficult question. The answer seems to depend on the scope and meaning of the word "judicial." Would such opinions be judicial, or extra-judicial? The true answer would seem to be that the function of advising on a matter of law, where there is no regular judicial proceeding before the Court to declare the rights of parties, or to enforce remedies, is no part of the duty of a Judge, and is not contemplated in the gift of the judicial power. In England, the advisory duties of the Judges were very exceptional, and only exercised, by virtue of ancient custom, at the request of the House of Lords-itself a judicial as well as a legislative body. In the Australian colonies no such practice is known; whilst the advisory duties which are cast upon the Canadian judges by statute are clearly extrajudicial. The giving of advisory opinions "is not the exercise of the judicial function at all, and the opinions thus given have not the quality of judicial authority." (Prof. J. B. Thayer, article on the Origin and Scope of the American Doctrine of Constitutional Law, 7 Harvard L. Rev. 129, 153; cited Kent, Comm. I. 296.)

"Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the Act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity for the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act." (Per Brewer, J., Chicago and Grand Trunk R. Co. v. Wellman, 143 U.S. at p. 345.)

The argument from policy is very strong in support of this view. Ex parte interpretations of the law, without the thorough examination of interested parties and their counsel, are apt to be unsatisfactory and unauthoritative. It might indeed happen that the persons interested might be represented and heard upon a reference; but the practice would be, at least, open to serious abuse. The one advantage it would have-that of obtaining a prompt decision upon questions which are in doubt, but which no one is ready to litigate-is more than balanced by other considerations. The Judges would be liable to be hindered in the discharge of their appropriate duties by being employed, in a manner, as the law advisers of the Crown-a position which might lead to the undesirable entanglement of the Bench in political matters. Seeing that the Supreme Court is not solely the servant of the Federal Government, but is also the final arbiter between the Commonwealth and the States, it is of the highest constitutional importance that it should interpret the scope of its judicial duties in the strictest possible

way.

Nor do the debates of the Convention justify the supposition that it was intended to permit such a practice. In the Bill of 1891 the jurisdiction of the Federal Courts was confined to "cases" and "controversies," as in the United States. The Judiciary Committee at Adelaide substituted the word "matters," with a view, not of extending the scope of the clause to extra-judicial opinions, but of including every kind of judicial

process, whether civil or criminal, and whether there were opposing parties or not. At Melbourne (Debates, 319-20) Mr. Isaacs and Dr. Quick raised this very question. Mr. Symon (Chairman of the Judiciary Committee) replied :—

"We want the very widest word we can procure in order to embrace everything that can possibly arise within the ambit of what are comprised under the sub-section. I think we are using the best word here. The word matters' merely indicates the scope within which the judicial power is to be exercised, but no matter can be dealt with until it comes before the authorities in the form of a case or some judicial process which will be regulated by the Judiciary Acts. It does not strike me that the word is too wide."

Mr. Barton added :-' I think the word 'matters' means such matters as can arise for judicial determination." (See also Coav. Deb., Melb., p. 1680.)

TREATY.

States.

$ 321.

"Arising Under any Treaty."

A treaty is a compact between two or more independent and sovereign The power of making treaties is by English law vested in the Crown as a part of the prerogative. (Stephen's Comm. ii. 491.)

"It is a rule of international law, that none but Supreme and independent sovereign powers are competent to contract treaties with foreign nations. The only exception to this rule is where the right to conclude treaties in its own behalf, with other States or foreign powers, has been expressly delegated to a subordinate government by the Crown and Parliament of the mother country. But responsibility for the exercise of such delegated power continues to rest upon the Imperial authority, to the same extent as for any acts of any other accredited public agents of the Crown." (Todd, Parl. Gov. in Col. p. 247.)

Accordingly, though treaties with foreign powers are uniformly recognized as matters of Imperial concern, concessions have been made to the Dominion of Canada as regards the negotiation of treaties between Her Majesty and the United States on matters specially concerning Canadian interests. (Todd, Parl. Gov. in Col. pp. 268-275.) From 1871-3 claims were put forward by some of the Australian colonies to enter into independent reciprocal treaties with foreign States; but the Imperial Government refused to part with the control of the foreign relations. (See pp. 106-7, 634, supra ; and Todd, Parl. Gov. in Col. p. 257.)

Similarly the Commonwealth, being a dependent part of the Empire, has no power to make treaties except so far as such power may be expressly delegated to it by the Imperial Government. This Constitution does not itself contain any such delegation of a treaty-making power. The Bill of 1891 contained a power to legislate as to "external affairs and treaties," and in the covering clauses it was provided that "all treaties made by the Commonwealth" should be binding. These provisions were repeated in the Adelaide draft of 1897; but afterwards, at Sydney and Melbourne respectively, references to treaties were struck out. (Conv. Deb, Syd., pp. 239-40; Melb., p. 30.) But though no power to make treaties is expressly conferred, there is nothing to prevent the Crown from delegating to the Commonwealth the power of negotiating treaties, on behalf of the Empire, to any extent which may be deemed advisable. (See Note, § 214, p. 634, supra.)

The corresponding clause in the Bill of 1891 was limited to treaties "made by the Commonwealth with another country;" but in 1897 these limiting words were not introduced, and the clause therefore applies to all treaties of which Australian courts can take judicial cognizance. The constitutional right of the Crown to make treaties includes the right to make them binding on all parts of the Empire; and although it is a recognized principle that participation in the benefits of a treaty entered into with any nation does not extend to the colonial possessions of such nation when they are not expressly named, yet as a matter of fact the commercial treaties now in force between Great Britain and other countries are in most instances expressly made applicable to the colonies. (Todd, Parl. Gov. in Col. pp. 265-6.)

MUNICIPAL RIGHTS UNDER TREATIES.-Treaties themselves are matters of international law, and the primary rights and obligations which arise under them, between the high contracting parties, are matters with which courts of law have nothing to do. As a rule, a treaty does not of itself create legal relations between individuals; and the municipal courts can neither enforce its observance, nor decide whether it has been violated. (Elphinstone v. Bedreechund, 1 Knapp, 340.)

"A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honour of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens." (Per Miller, J., Head Money Cases, 112 U.S. at p. 598.)

As the words "arising under any treaty" are adopted from the United States Constitution, and as light is thrown upon their scope by American cases, it is necessary to point to the fundamental distinction between the nature of a treaty under American and English law. The United States Constitution expressly declares that treaties, as well as the Constitution and laws of the union, are the supreme law of the land; and therefore treaties, when they are self-executing, are on a level with federal statutes, and may become the subject of judicial cognizance without direct legislative sanction from Congress. They in fact derive their legislative validity from the Constitution itself.

"A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infr-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either party engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court." (Per Marshall, C.J., Foster v. Neilson, 2 Pet. 314.)

"A treaty to which the United States is a party is a law of the land, of which all courts, state and national, are to take judicial notice, and by the provisions of which they are to be governed, so far as they are capable of judicial enforcement." (United States v. Rauscher, 119 U.S. 407.)

"A treaty is primarily a contract between two or more independent nations For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment." (Whitney v. Robertson, 124 U.S., at p. 194. See also United States v. Forty-three gallons of Whiskey, 93 U.S. 188; Chinese Exclusion Case, 130 U.S. 581, 600; Horner v. United States, 143 U.S. 570; Fong Yue Ting v. United States, 149 U.S. 698.)

In England, on the other hand, a treaty does not of itself have legislative effect, and cannot, it seems, be a subject of judicial cognizance until it has been carried into effect either by the Parliament or-where the Crown either by statute or prerogative has the requisite authority-by the Crown. Thus a treaty of cession does not operate to change the national character of a place until some act of possession has been performed by the Crown. (The Fama, 5 Rob. Adm. 106.) Commercial treaties are frequently executed by Act of Parliament which gives them legislative effect; see for instance the Imperial Act 37 Geo. III. c. 97, carrying into effect a treaty between Great Britain and the

United States.

Extradition treaties are carried into effect by Orders in Council under the Imperial Extradition Acts, 1870 and 1873; international arrangements as to Copyright by Orders in Council under the International Copyright Acts. (See Note, § 214, supra.)

"The responsibility of determining what is the true construction of a treaty, made by Her Majesty with any foreign power, must remain with the Imperial Government, who can alone decide how far Great Britain should insist upon the strict enforcement of treaty rights, whatever opinions may be entertained upon the subject in any colony especially concerned therein." (Todd, Parl. Gov. in Colonies, p. 272.)

"On the other hand, the legislature in any colony is free to determine whether or not to pass laws necessary to give effect to a treaty entered into between the Imperial Government and any foreign power, but in which such colony has a direct interest." (Ib. p. 275.)

The power of making laws to give effect to treaties, so far as they concern the Commonwealth, must be deemed to be included in sec. 51-xxix.-" External affairs." The sub-section as originally framed was "External affairs and treaties," but at the Melbourne Convention (Debates, p. 30) the last words were struck out-apparently lest they should be construed as involving a claim of power to make treaties. The words "external affairs" are, however, wide enough to confer on the Federal Parliament the legislative power proper to a colonial legislature in respect of treaties. Compare sec. 132 of the B.N.A. Act, which gives the Parliament and Government of Canada “all powers necessary or proper for performing the obligations of Canada or of any Province thereof as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries." Under that section it was held that the (Imperial) Extradition Act, 1870, applied to Canada, and was not inconsistent with the section; and that the (Canadian) Extradition Act, 1869, must be read with it. (Exp. Charles Worms, 22 Lower Can. Jur. 109.)

CASES ARISING UNDER TREATIES.-When a treaty has been duly carried into effect by legislative or executive authority, legal rights and liabilities may arise under it which may be the subject of judicial cognizance, and the treaty itself may become the subject of judicial interpretation. For instances in which treaties have thus been interpreted by the courts, see cases cited in Phillimore Intern. Law, ii. 125 (2nd Ed.). Also Exp. Marks, 15 N.S. W. L.R. 159; 10 W.N. 224; Exp. Rouanet, 15 N.S. W. L. R. 269; 11 W. N. 55; National Starch Manuf. Co. v. Munn's Patent Maizena Co., 13 N.S. W. L.R. Eq at p. 116.

To give jurisdiction under this section it is not necessary that rights should be created by the treaty; it is enough if they are protected by the treaty, from whatever course they may spring. (New Orleans v. De Armas, 9 Pet. 224.) The fact that the matter in controversy in a suit is a sum received as an award, under the treaty providing for the submission of claims to arbitration, does not draw in question the validity of the construction of a treaty." (Borgmeyer v. Idler, 159 U.S. 408. See Note, § 329 infra, "Arising under this Constitution.")

"It has been made a question as to what was a case arising under a treaty. In Owings. Norwood's Lessee (5 Cranch. 344) there was an ejectment between two citizens of Maryland, for lands in that State; and the defendant set up an outstanding title in a British subject, which he contended was protected by the British treaty of 1794. The Supreme Court of the United States held that not to be a case within the appellate jurisdiction of the Court, because it was not a case arising under the treaty. The treaty itself was not drawn in question, either directly or incidentally. The title in question did not grow out of the treaty, and as the claim was not under the treaty, the title was not protected by it; and whether the treaty was an obstacle to the recovery, was then a question exclusively for the State Court." (Kent, Comm. i. 325-6.)