CH. IV. by or under the constitution of the commonwealth. There will continue to be governors of the several states appointed by the King, not lieutenant-governors as in the Dominion of Canada.

Appeals from the High Court of

Provision is made for the admission of new states, and for the seat of Government, which is eventually to be in the state of New South Wales.

Any alteration of the constitution requires an absolute majority of the two houses of the federal parliament, and involves a referendum.

The Bill as passed by the imperial Parliament was on almost all points identical with the draft Bill sent to England from Australia. Provision was made for the admission of Western Australia as an original state, and certain words which had raised doubts as to the applicability of the Colonial Laws Validity Act were struck out. But the only question on which any substantial difference of opinion arose between the imperial Government and the colonial representatives related to the question of appeals from the new federal high court.

The provision on this subject which appeared in the draft Bill as sent to England, and which became widely known as 'Article 74,' was the result of a compromise between those who wished to retain the existing right of appeal to the Queen in Council and those who wished to abolish it altogether, and ran as follows:

No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests of some part Australia. of Her Majesty's Dominions, other than the Commonwealth or a State, are involved.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise, by virtue of Her Royal Prerogative, to grant special leave of appeal from the High Court to Her Majesty in Council. But the Parliament may make laws limiting the matters in which such leave may be asked.

This change was objected to by Her Majesty's Govern

ment, and the Bill as introduced into the House of Commons CH. IV. provided that

Notwithstanding anything in the Constitution set forth in the Schedule to this Act, the prerogative of Her Majesty to grant special leave to appeal to Her Majesty in Council may be exercised with respect to any judgement or order of the High Court of the Commonwealth, or of the Supreme Court of any State.

After long negotiations and several attempts to effect Article 74. an arrangement between divergent views, Article 74 was eventually settled as follows:

No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question howsoever arising as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal Prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.

federa

and

con

The chief constitutional difference between the federations The of Canada and Australia arises from the circumstance that in tions of Australia the federal legislature has only those powers which Canada are expressly conferred upon it, whereas in Canada it is the Australia provincial legislatures which are limited to the exercise of trasted. powers specifically delegated to them, the Dominion Parliament being left with the residue. Connected with this is the distinction that the constituent parts of the federation in Canada are provinces': whatever their status before 1867 they are not self-governing colonies after it; while the six 'states' of which the Commonwealth of Australia is composed are and remain self-governing colonies, while at the same time combining in federation to form a larger whole. Each of

CH. IV. the Australian 'states' retains its colonial governor, who continues to be appointed by and responsible to the Crown, whereas in Canada the provincial lieutenant-governors are, as we have seen, appointed and dismissed1 by, and liable as regards their assent to provincial legislation to be overruled by, the Governor-General in Council.

While, however, in the matter of distribution of legislative power the constitution of Australia approximates more nearly to the United States constitution than does the constitution of Canada, in neither of the colonial federations does the resemblance with the American scheme extend much beyond what is common to all federal forms of government. Apart from the fundamental distinction, already pointed out, which is based on our conception of responsible government,' the points of difference are numerous and important. Thus in the United States the governor of each state is elected by the people of the state; and the federal government has no control over the governor or legislature of a state, or over the internal administration of the state, except for the purpose of enforcing the laws of the federation, governing the militia, and suppressing insurrection. In fact, apart from the division of powers which is necessary in every federation and the fixed proportion of the number of senators from each province, it is difficult to specify any point of resemblance between the Government of Canada and that of the United States which is not also a point of resemblance between the former and the Government of the United Kingdom. One other point of resemblance with the United States must be conceded in the case of Australia-viz. the leaving to constituent states of the residue of legislative power-but apart from this the points of resemblance between the federal constitutions of Australia and the United States are equally few.

1 Cf. the case of Mr. Letellier, lieutenant-governor of Quebec, who was dismissed by Lord Dufferin, the governor-general, upon the advice of Dominion ministers, although his continuance in office was desired by a majority of the Quebec legislature.

CHAPTER V

COLONIES NOT SELF-GOVERNING

THE colonies which are without responsible government, CH. V. and therefore not self-governing1, may be divided into two classes, those which have and those which have not repre- classes of sentative institutions.

Two

non-self governing

(1) those with, (2) those

The latter may be divided into those which have a council colonies: and those which have no council. The second class are Crown colonies strictly so called, without though that term is frequently applied also to the

first represent

ative institutions.

to the

Govern

class. The colonies of both classes have certain general points of Relation resemblance. Their connexion with the United Kingdom is Home much closer than that of the self-governing colonies, and has ment. more of a subordinate, and less of a federative, character. A much larger portion of the local government is carried on under the direction of the Home Government.

The constitutional authority of the imperial Parliament is greater, as it is the practice for Parliament to legislate for a Crown colony of either class in cases where it would not legislate for a self-governing colony, or at any rate would not do so without previously consulting the colony 2.

But it would be contrary to constitutional practice that

1 For a list of these, see App. II.

2 Thus the Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27), was applied to almost all the Crown colonies without consulting them, whereas it was expressly excluded from applying to New South Wales and Victoria, because those colonies had not assented. See also the Mail Ships Act, 1891 (54 & 55 Vict. c. 31).

CH. V. Parliament should tax the colony, or should alter its constitution, except with its own consent1.

The legislature in a Crown colony.

The

executive.

The legislature of the colony is, when acting within its powers, supreme. But the control exercisable by the Home Government over the legislation of the colony is very much greater, because the governor acts directly upon the instructions of the Home Government, and is not tied by the advice of ministers who are responsible to, and dependent on the support of, a majority of the local legislature. In Crown colonies proper, and in some of the other colonies that are not self-governing, the governor has the sole initiative in legislation.

Even where there is a representative assembly the executive ministers are appointed by the governor independently of that assembly, and do not depend for holding office upon retaining the confidence of the assembly.

As the executive ministers in all colonies, self-governing as well as others, are appointed by the governor and hold office during his pleasure, they are legally all in the same position. But constitutionally, in the self-governing colonies the ministers can only hold office if they retain the confidence of the representative legislative body, while in the other colonies the ministers are independent of the legislative body, even though it may be a representative assembly. The change from the latter to the former position of ministers requires, as before observed, no legislative alteration, but merely instructions to the governor who is responsible for the selection of his ministers 2. But the practical and constitutional effect

This view was not always accepted. In 1838 the constitution of Lower Canada was suspended. The proposal of Lord Melbourne's Government to suspend the Jamaica constitution in 1839 without consulting the colony was opposed by Sir R. Peel, and led to the resignation of the Government. See Sir Robert Peel's speech on the Jamaica Government Bill, Peel's Speeches, iii. 623. The old constitution of Jamaica was abolished in 1866, but only after the colonial legislature had passed an Act for the purpose; and the same course was adopted in the case of other West Indian islands. If an emergency arose the ordinary rule might again be disregarded.