A PROBLEM OF FEDERATION TINDER THE CROWN. 
693 
decisions of the provincial courts may be reviewed in the Dominion 
courts. The decisions of the Dominion court may in turn be reviewed 
by the Privy Council. (A relic, however, of the old provincial isola- 
tion remains in the fact that it is optional to pass over the Dominion 
courts, and appeal direct from the provincial courts to the Privy 
Council.) The Canadian Constitution, in fact, in judicial as in other 
matters, models the relation between Dominion and State on that 
between Empire and Dominion. We may say, therefore, that the 
American division of jurisdictions represents the strict federal prin- 
ciple, whilst the Canadian system (whether we look at Empire and 
Dominion, or Domiuion aud State) represents the dependency 
principle. 
If, then, in a federation under the Crown we strictly followed 
with regard to the judiciary the rule I have laid down with regard 
to the legislature — that between Empire and Commonwealth the 
dependency relation should hold, between Commonwealth and States 
the federal relation — the result would be something like this : Cases 
arising within the Commonwealth would be divided into two classes — 
(1) those which concerned the Commonwealth, (2) those which con- 
cerned the several States. The first class would be assigned (in the 
first instance or on appeal from the State courts) to the federal 
courts, with ail ultimate appeal to the Privy Council. The second 
class would from first to last lie wholly within the cognizance of the 
State courts ; the decision of the highest State Court of Appeal would 
be final, and there would be no further appeal to Federal or Imperial 
courts. In other words, the Crown would be represented in the 
judicature of the Commonwealth, but not in those of the States ; the 
Crown would no longer be the “fountain of justice” for the States, 
any more than it would be the fountain of law or of executive authority. 
So much for the strict “ principle” of the situation. Put a 
principle is only a spirit to exorcise with when it is backed up by solid 
practical advantages. And there can be no doubt that practical 
advantage is in favour of having a general Australian or Canadian 
Court of Appeal. Such a court is technically an interference with 
State rights ; if a dispute is of local concern when at nisi prius , aud 
again when in Banco, it must still be of local concern when before 
the Federal Supreme Court. But this particular State right is not 
one of which the States are jealous. The independence aud impar- 
tiality of the bench is so deep-rooted a part of our institutions that no 
one would dream of looking on the jurisdiction of a general Federal 
Court of Appeal as interference with State independence. Such a 
court, without interfering with State independence or the differences 
of State law which would continue to exist, would confer the inestim- 
able advantage of a uniform system of interpretation of the law 
throughout the Commonwealth. 
There should be an appeal, therefore, from the State courts to the 
Federal Supreme Court ; but what about the further appeal to the 
Privy Council? Here we must distinguish between the Federal 
Supreme Court as a Court of Appeal for the States and as a court of 
original jurisdiction. A s a court of original jurisdiction — a jurisdiction 
which would, of course, extend only to matters of federal concern — 
there would, in accordance with the dependent relation, be an appeal 
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