very briefly to the fact that Mr. Haldane, at page 67 of this report of the Debates, was, I think, one of the very first to call attention to a remarkable situation that might possibly arise in the future. I think it may very reasonably be expected to arise either in connection with this case to which I have referred, or to any decision which follows the principles it lays down. Mr. Haldane pointed out that "the clause provides that if you have litigation in a State upon a constitutional question, you may appeal either to the Privy Council or to the High Court. If you appeal to the High Court, the decision is to be final unless the High Court gives you leave to appeal to the Privy Council. It is, in other words, a court of final jurisdiction upon this matter." Then he continues: "As the clause makes the High Court of Australia a court of final jurisdiction, there may well be conflicting decisions between the High Court and the Privy Council. I do not think that is an academic matter." The Attorney-General of the day, Sir Robert Finlay, admitting the apparent conflict, maintained that under such circumstances the High Court would necessarily as of courtesy, and from a sense of subordination, accept the ruling of the Judicial Committee; but members on his own side were doubtful, and those on the other side of the House, and an authority as eminent in such matters-that is, matters relating to a federal constitution-as Mr. Bryce, the present Ambassador to the United States, repeated the warning that the constitution as amended left these two tribunals in danger of conflict. He said-when replying to the AttorneyGeneral: "He suggested that under the Amendment the Committee is now discussing the High Court of the Commonwealth of Australia will not be a court of co-ordinate jurisdiction with the Privy Council. I cannot feel by any means so clear as my right hon. and learned friend on that point, because we are here making a special provision for a special case." He said again: "Surely it will not only be within the power of, but also the duty and the right of the High Court to give full effect to that provision of the Australian constitution, and to say, 'We are in this particular matter made a final court of appeal. In all other matters we are undoubtedly a subordinate court, unless in a particular matter we are made a court of co-ordinate jurisdiction.' They would say: The only appeal is to lie from us, where we are satisfied there is some special reason; we are bound

to carry out the intention of the people of Australia and of the Imperial Parliament in not going beyond the express provision; they have given no appeal unless special reasons, in our opinion, exist.' I think, therefore, that it will be open to the High Court in future to hold that in this matter they are a court, not of subordinate jurisdiction, but of co-ordinate jurisdiction. I cannot assent to the argument that, because they are subject to appeal in other cases, they are subject to appeal in this case also." And lower down he says: "I think it necessary to enter a protest against the view the Attorney-General has taken on this point." I will not venture to delay the Conference by reference to the varying opinions expressed by different members. There was conflict of opinion then that pointed to the conflict in the future. Perhaps I may be pardoned if I refer to the debates in the House of Lords, in which the late Lord Davey viewed this very question. He dealt with it in a very clear and emphatic fashion. At page 101 he is reported to have said: "Clause 74"-that is the clause in question-" as it stands is a perfect solecism in jurisprudence, and for this reason, that it creates two final co-ordinate courts of appeal, neither of which is bound by the decision of the other." Omitting some sentences, he goes on: The Judicial Committee, of course, is not bound by the decision of the High Court, nor, as I understand, is the High Court bound to follow the decisions of the Judicial Committee in matters of this kind. They may, therefore, each maintain. their own opinion. I know that the answer that may be made to me is that the Australian Judges are men of such high principle and good sense that they will find some way of either agreeing with the Judicial Committee or of allowing the matter to be finally decided. They may; but it lies in their discretion, and unless they do so you will have two co-ordinate Supreme Courts of Appeal from the same courts on the same class of subjects deciding in entirely different ways. That, I venture to think, is a solecism in jurisprudence." Finally, the late Lord Chief Justice of England (Lord Russell) at page 109 is reported to have said: "The third and last point to which I will call attention is this. While there is no appeal according to this clause from the High Court except by leave of that Court, in the cases mentioned, there is an appeal from the decision of the State Court to the Queen in Council, and thereupon arises the

conflict to which reference has been made-which court is to prevail? I do not seek to dogmatize upon this matter, as to which there are obviously, from what my noble and learned friend has said, different opinion; but I fail to see anything in this Bill asserting directly or indirectly, that where the decision of the Privy Council conflicts with the decision of the High Court, the decision of the Privy Council is to prevail. I see nothing to that effect expressed certainly, and nothing I think to be implied. When I remind your Lordships that the clause expressly says that the High Court shall be the final judge in the matter unless it chooses to give leave, surely that does lay a solid and reasonable foundation for the contention that it is thereby, as regards matters so dealt with in the clause, created the final court, and therefore co-ordinate with the other final court, namely, the Privy Council. It seems to me that that is a difficulty which will very likely arise." Lower down he says: "It seems to me that the conflict is inevitable."

I am, therefore, bound to consider the possibility that when the recent judgment of the Judicial Committee of the Privy Council comes before the High Court of Australia, as I understand it will within the next two or three months, that out of this grave decision in the Income Tax case that very conflict of opinion may arise. Such a contingency, even if only referred to by way of illustration, suggests the advantage to be derived by the acceptance, so far as Australia is concerned, of the proposal embodied in this resolution. The anomaly to which Lord Davey called attention remains and is likely to remain a cause of serious inconvenience, perhaps of very serious loss and cost to the Commonwealth of Australia. That is, when in this case, or some other case, some discrepancy becomes flagrant between the judgments of the two courts, which are in certain respects co-ordinate and both of which are in terms final Courts of Appeal. Therefore, while not desiring to press for more consideration than we are entitled to on this head, I submit, first, my general resolution with the qualification that it is not in any way desired to be imposed upon any of the other dominions who may prefer to remain subject to the existing jurisdiction. Supposing the Imperial Court of Appeal is rejected, if His Majesty's Government, for one reason or another, does not think fit to proceed with the distinct proposal made in 1900, and then apparently very generally approved,

and if our request cannot be complied with because of differences among ourselves, or for other reasons, perhaps His Majesty's Government would give their attention to the suggestion of an optional appeal-not in each individual case, but for all cases from Australia. Then, if necessary, after legislation by the Commonwealth Parliament, all appeals from us might go to the House of Lords, instead of, as at present, to the Judicial Committee. I make that suggestion in order to clarify our position, and to remove all appearances of pressure on other dominions, but not to detract from our opinion that the best possible manner of meeting the situation is the acceptance, as early as may reasonably be possible, on conditions to be laid down by His Majesty's Government, of the proposal for one court for the Empire.

Finally let me refer to the protest of Mr. Justice Hodges, the very able representative of Australia in 1901. His concluding words relating to this proposition are, "Such a court"-that is one Imperial Court of Appeal for the whole, Empire, sitting perhaps in two divisions, and with certain arrangements which it is not necessary to dwell upon, "would bring the best legal thought in the United Kingdom in touch with the best legal thought in the Empire outside the United Kingdom. It would be a wonderfully strong court, and command the admiration and respect, not only of the whole British race, but of every race in the British dominions. It would be a powerful factor in the development of a closer union between all parts of the empire. In the British dominions it would obliterate in the administration of justice all distinctions between places and persons. Just as there is one flag to protect the subject from external assault, so there would be one court as the final arbiter of internal disputes." That is our view. We think it is a great ideal, and one which ought to be served. thought it necessary to appear to criticise the Judicial Committee of the Privy Council in its methods or manner. In "The Life of the late Mr. Henry Reeve there is a great deal of light thrown upon the manner in which the Board was then constituted-that is the Judicial Committeeand apparently it is still open to the same vicissitudes. With that great ideal before us, we respectfully submit the resolution which I have the honour to move.

(To be continued.)

We have not

THE DEVELOPMENT OF THE ADMINISTRATION OF LAW IN ENGLAND.

(Continued from June Number.)

Evidence. Some of the most remarkable changes have been effected during the last century in the law of evidence, more particularly in regard to the competence of witnesses. Formerly the litigants themselves who, of course, in most cases knew most about the matters in controversy, were debarred from being witnesses because they were "interested," and so were all other persons interested in the result; a wife could not be a witness for her husband, nor a husband for his wife. And it has taken a good many long years before we have concluded that the temptation to interested persons to commit perjury, is a lesser evil than the total exclusion of their testimony, and that the rules excluding them as witnesses were not really just or beneficial: and it may, perhaps, dawn upon us that the stringent rule against the reception of "hearsay " statements, as they are called, which still prevails, is in some cases carried too far. The taking of the evidence at trials in shorthand is we like to think one of our modern improvements, and superior to the old time method of a Judge or officer laboriously writing down the testimony in longhand as it was given by the witnesses. It ought to have shortened the time taken in the trial of actions, but it may well be doubted if it really has done so. Counsel, in their anxiety that every material matter shall be surely taken down, are perhaps prone to dwell longer and more diffusely on a point than they would when they were sure that the Judge had appreciated and noted it. Now the fate of a motion to the Divisional Court may turn on what the stenographer's (and not on what the Judge's) notes contain-the latter, in modern practice, being very rarely referred to.

Judgments. The judgment roll in the former action at law constituted a record of the whole proceedings, the claim, the defence, and the adjudication thereon; in modern practice, since the Judicature Act, it has come to be confined simply to the adjudication in which respect in point of