Parliament, Dominion or Provincial, has authority to legis late with respect to immigration.

It is expressly provided (s. 116), "That the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or prohibiting the free exercise of any religion; and no religious test shall be required as a qualification for any office or public trust under the Commonwealth." No powers are given with respect to education, and difficulties which have arisen in Canada under this head will therefore be avoided.

The Canadian Act (s. 108) transferred to the Dominion Government certain specified kinds of public works and property enumerated in a schedule. In Australia, where any department of the public service of a State is transferred to the Commonwealth, all property of the State used exclusively in connection with the department, becomes vested in the Commonwealth (s. 85). These departments are (1) customs and excise; (2) posts, telegraphs, and telephones; (3) naval and military defence, (4) lighthouses, lightships, beacons, and buoys; (5) quarantine (s. 69). It will be apparent that State property used exclusively in connection with these departments must in the main be property purchased or created by means of public funds, and maintained at the public expense. Other public property, including ungranted lands and mines of precious metals vested in the Crown, remain the property of the different States. In Canada, lands, mines, minerals, and royalties belonging in 1867 to the several Provinces were expressly reserved to them (s.109); the different framing of the Australian Act renders such an express reservation unnecessary. It has been held that lands which escheat to the Crown for want of heirs belong to the Province and not to the Dominion.1 This case was approved in St.

Att, Gen., Ontario v. Mercier ([1883], 8 App. Cas. 767).

Catherine's Milling Co. v. Reg1 where the

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held that the beneficial interest in lands vested in the Crown, subject to a treaty reserving them for the use of the aboriginal Indians, belonged, on the expiration of that treaty to the Province and not to the Dominion, and consequently that a licence to cut timber there, granted by the Dominion Government, was invalid. So, again, in the same year, the Privy Council held that a grant to the Dominion Government of a large tract of land for the purpose of making a railway, did not include the precious metals situated in that land, but that they remained vested in the Crown, and the beneficial interest in them belonged to the Province." The right of the Province to Crown lands and franchises was again declared in 1898 in the case of Att. Gen. Canada v. Att. Gen. Ontario, supra, where it was declared that the proprietary rights in rivers, lakes, and fisheries belonged to the Province, though the Dominion might be empowered to legislate for their control and management. These rights extend not only to property strictly so-called, but to claims or choses in action. Thus a Province or State, as representing the Crown, is entitled to payment of debts due to it in preference to other creditors in the same degree."

The part of the Australian scheme which excited the greatest attention in this Country, and was most discussed when the Bill was passed through Parliament, was that dealing with the Judicature and with appeals to Her Majesty, i.e., to the Judicial Committee of the Privy Council. As finally settled, the provisions differ somewhat from those of the Canadian Act, and it seems well, therefore, to examine them with some care.

The British North American Act vests the appointment of the judges of most of the Provincial Courts in the 1 ([1888] 14 App. Cas. 46).

2 Att. Gen. British Columbia v. Att. Gen. Canada ([1886] 12 App. Cas. 295). 3 Maritime Bank of Canada v. New Brunswick (1892, A.C. 497).

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Governor-General (s. 96); and empowers the Parliament of Canada from time to time to provide for the constitution, maintenance, and organisation of a General Court of Appeal for Canada, and for the establishment of any additional Courts for the better administration of the laws of Canada (s. 101). Pursuant to this provision, the Canadian Parliament passed an Act in 1875 to 1875 to establish Supreme Court of Appeal and a Court of Exchequer (the judges of which Courts are the same persons, though their jurisdiction is different). The Act was repealed and amended in 1886 (49 Vic. c. 135). The amending Act is now in force. The Supreme Court has appellate jurisdiction from all final judgments of the highest Courts of final appeal in the different provinces of Canada, and in certain other specified cases, including appeals from the decisions of its own judges sitting in the Court of Exchequer. If the appeal is from a judgment of the Court in the Province of Quebec, it cannot ordinarily be entertained unless the matter in controversy amounts to the sum of

400; in the other Provinces there is no such statutory limit. The judgments of the Supreme Court are declared to be in all cases final and conclusive, "saving any right which Her Majesty may be graciously pleased to exercise by virtue of the Royal prerogative" (s. 71). There is concurrently with the appeal to the Supreme Court a right of appeal direct from the Superior Courts of the different Provinces to the Queen in Council. This right existed in the case of the older Provinces prior to the passing of the British North America Act. It has since been conferred by order in Council on British Columbia, the North West Territories, and Manitoba, when they were incorporated in the Dominion. Those familiar with the work of the Privy Council know that such appeals are not infrequently brought, as appellants or their advisers often prefer to bring their cases before the Privy Council,

rather than before the Canadian Supreme Court. If an appeal is decided by that Court, no further appeal is permissible unless by leave, either of that Court or of the Privy Council itself. Leave to appeal is not easily obtained.

Previously to the enactment of the new constitution, the different Australian Colonies, ofcourse, had theirown Courts. These Courts remain with the same jurisdiction, and under the same judges as before. When vacancies occur, the appointment remains in the governments of the different States. The Federal Act provides for the creation of a federal Supreme Court, to be called the High Court of Australia, the judges of which are to be appointed by the GovernorGeneral in Council. Their salaries and number are to be fixed by the Parliament. The jurisdiction of the High Court is two-fold (a) original, to determine questions for which Parliament may constitute it a Court of first instance, either alone or concurrently with any other Court or Courts, and (b, appellate.

The original matters are those (1) arising under any treaty, (2) affecting representatives of other countries, (3) in which the Commonwealth is a party, (4) between States or residents in different States, (5) in which a mandamus prohibition is sought against an officer of the Commonwealth (s. 75). The Parliament may also invest it with original jurisdiction in any matter (1) involving the interpretation of the Constitution, (2) arising under any laws made by the Parliament, (3) of admiralty and maritime jurisdiction, (4) relating to the same subject matter claimed under the laws of different States (s. 76). The powers under these two sections may be granted also to State Courts concurrently with the High Court. Its appellate jurisdiction is to hear and determine appeals from any Justice or Court exercising federal jurisdiction, and from the Supreme Court of any State or any other State Court from which an appeal previously lay to the

Queen in Council (s. 73). It may be remembered that the Bill, as originally presented to the British Parliament, proposed to do away altogether with appeals from the High Court to the Queen in Council, and that this proposal was strongly objected to in this Country. The section dealing with this point was consequently redrafted, and now prohibits such further appeals only on questions as to the limits inter se of the constitutional powers of the Commonwealth, and any State or States, or of any two or more States. In cases where such questions arise, the decision of the High Court is to be absolutely final, unless that Court certifies that the question is one which ought to be determined by Her Majesty in Council. In other cases the right of Her Majesty, by Her royal prerogative, to grant special leave to appeal to the Privy Council remains. But the Australian Parliament may hereafter, but only with the express consent of the Crown, make laws limiting the matters in which such leave may be asked. Unless and until such laws receive the Royal assent the right of appeal to the Privy Council will not practically be much curtailed.

With reference to these limitations on the right of appeal, there are several points worthy of notice. The appeal from the Courts of the several States to the Australian High Court is not exclusive. The right of appeal from those Courts direct to the Privy Council, which was originally given by virtue of the Australian Courts Act, 1828,' and has been continued and extended by subsequent charters and legislation, still exists, as in Canada. As there, where the losing party appeals to the High Court, neither party is entitled as of right to any further appeal; but the right of the Crown, in virtue of the royal prerogative, to grant leave for a further appeal in cases where the Privy Council deem it right to do so remains, except where taken away by

19, Geo. IV., c. 83, s. 16.

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