THE AUSTRALIAN COMMONWEALTH AND THE PRIVY COUNCIL. T HE discussion that
has arisen over the Bill for found- ing the Australian Commonwealth may have hitherto been conducted with rather more heat than was necessary ; but for all that the controversy is, we think, likely to lead to good, not evil, results as regards the general welfare of the Empire. The main point in debate, as it is hardly necessary to remind our readers, is whether appeals to the Judicial Committee of the Privy Council shall not be greatly restricted in the case of private litigants, and forbidden altogether in the case of disputes as the interpretation of the new Constitution. That is, broadly speaking, what is proposed to be done by the draft Constitution which is being submitted by the Convention of Australian Colonies to the Imperial Parlia- ment. Before considering the question on its merits let us say plainly that we hold, and believe that the people of this country will hold, that in the last resort the Australians have a. right to make their own Constitution, and that no one here would dream of attempting to force down their throats a Constitution of which they disap- proved, even if it could be certainly shown to be an infinitely better instrument of government than that de- vised by themselves. The Australians, as one of the free nations of the Empire, must be the final masters of their own destiny. About that there is no sort of question. At the same time the Mother-country has a duty to perform. While fully admitting that the final decision lies with the daughter-State, she must make sure that she is listening to the authentic voice of Australia, and that Australia fully realises the nature of the action she is taking. We must take care, for example, in the present case, that we shall not be told later that the majority of the people of Australia did not in the least realise what was being done in their name, and that the one thing they would like would be to be able to feel that a conflict between State rights and Federal rights should be adju- dicated upon by a Tribunal with no predilections one way or the other.
Personally we should greatly regret to see the juris- diction of the Judicial Committee abolished. In matters in which the self-governing nations of the Empire are concerned we take without reserve the old Liberal line,--i.e., that the less interference there is with the Colonies the better. We hold that in their case liberty is better even than ideally e laws, and that in order to be really free they must h allowed the power to do wrong as well as to do right. For example, we detest Protection in all its forms, and regard it as injurious to the best interests—social, moral, and political—of any community, young or old. But at the same time we realise that freedom is greater than Free-trade, and we have never regretted for a moment that the Whig statesmen of the last generation gave absolute fiscal freedom to the Colonies, and did not try to keep them even for their own good in financial swaddling clothes. Free-trade secured by the authority of the Mother-country would have been no gain to the Empire. Free-trade learnt by experience will be worth having. Again, we have never encouraged any attempt to set up any cut-and- dried system of Imperial Federation. We have always felt content with preserving the existing conditions, which, as the last six months have proved so magnificently, are well worth preserving. A common citizenship and the passionately loyal alliance of the great free nations of the Empire have never seemed to us as anything but strong and trustworthy bases for the Imperial system ;- possibly a system out of which in some distant future a closer connection may grow, but in any case a system full of power and prosperity, and one under which we may all feel proud and secure. But while deprecating the forging of new links, we have always regarded the jurisdiction of the Judicial Committee of the Privy Council as of great importance in preserving and sym- bolising that common citizenship which is the root of the whole matter, and which makes one kin the "native born" of Australia, Canada. New Zealand, and South Africa, and the "native born "of England, S2otland, and Ireland. The tie of the Imperial jurisdiction -of the Judicial Committee, which /inks withont friction -or -strain.; -has- these more or less sentimental reasons to back it, but there are also very practical arguments to be used in its favour. Owing to their origin and history the Constitu- tions of Canada and Australia—and some day of South Africa—are Federal Constitutions. But it is impossible in Federal Constitutions to avoid the necessity for taking deci- sions as to whether this or that matter is within the powers of the central or of the local Government. That being the case, the most "detached" Tribunal possible is the beg. In America the Tribunal charged with the work of inter- preting the Constitution—i.e., the Supreme Court—is necessarily an internal body, but it is difficult to deny that at a moment of great strain a Court more detached from the politics of the Union' and so able to view the issues in a purely impersonal spirit, might give better satisfaction. America cannot have such a Tribunal, but since the Dominions and Commonwealths of the Empire can it seems a pits- that they should not take advantage of the opportunity. We do not for a moment mean %Io suggest that a Court sitting in London would necessarily be an abler, or more learned, or more high-minded Tribunal than one sitting in Canada or Australia. We do, however, believe that in constitutional cases it would be more detached. And even if its decisions were not yet as more impartial, it would be a better Court for the purpose of settling con- stitutional disputes, because it would be far easier for an angry political party or province to bow to the decision of a Court hearing appeals from the whole Empire than to those of a Court whose members could be declared to be prejudiced. In a word, the chance of having so ideal an umpire in con- stitutional points as the Judicial Committee is not one lightly to be missed. And this view is not mere theory. The experience of the Canadian Dominion goes to show that the jurisdiction of the Judicial Committee has been of the greatest possible use in determining constitutional questions arising under the British North America Act. It comes, then, to this. The Commonwealth Bill proposes to break one of the most useful links of Empire and to do away with one of the institutions which maintain the common citizenship within the Empire, and also to aban- don a most useful method of settling the difficult consti- tutional problems which are sure to arise under the Bill. All who care for the welfare of the Empire should therefore, it seems to us, try to prevent so unfortunate a result. We must not, as we have said, force the jurisdiction of the Judicial Committee down the throat of an unwilling Australia but we must make sure that Australia really means what the Bill says, and must ask her to consider the immense advantage of having one system for the whole Empire. and of not establishing so vital a differ- ence between the Constitutions of the Dominion and of the Common wealth.
Many ways have been suggested for meeting the ob- jections of the framers of the Australian Bill, and for reconciling them to the maintenance of the jurisdiction of the Judicial Committee. The best, in our opinion, is the proposal advocated by Mr. Haldane for amalgamating the House of Lords and the Judicial Committee, and for making them into one supreme and final Court for the whole Etupire,—a proposal which some of our readers may remember has been several times made in our columns within the last nine or ten years. Very little actual change would be required, for at present the two Courts are almost the same in personnel. The Law Lords are all members of the Judicial Committee, and there are only some two or three of the acting members of the Judicial Committee who are not Law Lords. To put it in another may, the most important Colonial appeals. are noir heard by the men who constitute the Law Court called "The House of Lords," but sitting in a diffei eat room and. tinder a different name. What we would do, and what, we take it, Mr. Haldane also desires, is that the jurisdiction of the Judicial Committee should be trans- ferred bodily to the House of Lords, and those acting members of the Judicial Committee who are not now Law Lords should become Lords of Appeal in Ordinary. In this way we should obtain at once one supreme Court for the whole Empire,—a Court which would be second to none in the whole world. This Court might, as a rule, sit in two Divisions in order to prevent arrears, but all the Judges would be of equal dignity and authority, and. each Division would speak with the weight of the whole. On very special occasions the whole Court might sit as one. It ,,,,oves without saying that the distinguished Colonial Judges who are now sworn to the Privy Council should become Lords of Appeal in Ordinary. But they sheuld not be mere honorary members of the Court. They should be regularly paid members, and should receive from the Imperial Treasury such a sum as, added to their Colonial salaries, would bring their pay up to the regular remuneration of a British Lord of Appeal in Ordinary. There should also, of course, be an Indian Lord of Appeal in Ordinary to represent India, just as there is now on the Judicial Committee. The judicial advantages of having Canadian, Australian, and South African Judges represent- ing those great self-governing communities would be very great, but as great would be the political advan- tages. The Colonial Judges who now come over to sit on the Judicial Committee are only visible to the legal world. As Lords of Appeal in Ordinary they would be regular Members of the House of Lords, would attend. all its sittings, and would take part in all its debates just as do the other Law Lords. The result would be an immediate representation of the great Colonies within the British Constitution, yet a representation which would neither hamper our machine of government, nor bode any inter- ference or injudicious meddling or control in their affairs. The Commonwealth of Australia would not he any the less free for having its Chief Justice a Member of the House of Lords, but the Empire would have secured a very useful symbol of unity. We most sincerely trust, therefore, that this Session may see an Act passed. for appointing at least four more Lords of Appeal in Ordinary, one from Canada, one from Australia, one from South Africa—ultimately another must come from New Zealand—and one from India, and for transferring the jurisdiction of the Judicial Committee to the House of Lords. Surely that is not a Court-which the Australians will consider unfit to act as the umpire under their Constitution. We are aware, of course, that it is said that the draft Australian Bill cannot be altered by a word, and that the Imperial Parliament must take it exactly as it is, or else the Colonies will cease to be bound. by it, but we refuse to believe that the ingenuity of the lawyers cannot find a means of escape from a position so ridiculous and. un- reasonable. It is quite right that the main structure of the Bill should remain absolutely intact, but not the clause dealing with the appeals to the Queen in Council. Some way can, we are convinced, be found for preserving the Bill and yet leaving the right of appeal as it exists in Canada. It will be the part of Australia to do that. Our part will be so to alter the Court to which appeals will in future lie that under the name of the House of Lords it will hear the final appeals from all parts of the British Empire. To use the old phrase, every British citizen will be a suitor in that Court, and its decisions will receive dignity and authority by the presence in it of representatives of the great self-governing nations over- see, as well as of those of England. Scotland, and Ireland.
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