to the wives and children of persons not being prohibited immigrants. S. 6 provides that a person appearing to be a prohibited immigrant shall be allowed to enter the Colony on conditions-viz. (a) that he shall deposit £100 with the proper officer; (b) the deposit to be returned if, within a week after landing, he shall obtain a certificate as provided that he does not come within the Act; (c) on failure to obtain such certificate the deposit may be forfeited, and he may be treated as a prohibited immigrant. S. 8 provides a penalty for the master of a ship landing a prohibited immigrant.

The matter for consideration is s. 3. The framers of the Act, no doubt, had in view the possibility of international complications, if restrictions were placed directly and eodem nomine against particular nationalities. Nominally, the Government of the day supported the Act as necessary to secure a "white Australia," and to prevent for ethnological reasons a possible invasion by Asiatic peoples. To shut out Japanese and Indians and Syrians by name, on the score of race, would be to offend friendly peoples, who could not very well complain of an educational test which, on the wording of the section, could be applied to any British subject as well as to an alien. But, at the same time, s. 3 could be used to shut out all persons that any political party in power might wish to exclude. The labour market could be kept bare at the will of the Government. For, on the strict wording of s. 3, no immigrant could claim to be tested in his own language, and an English carpenter might be called upon to satisfy the examining officer in the Russian language, and be prohibited from landing if he could not pass the test. In a word, the examining officer could, at his will, stop the immigration of any person he might desire to stop.

By the Commonwealth of Australia Constitution Act, 63 & 64 Vict., c. 12, s. 51, the Federal Parliament is given exclusive power in the Commonwealth to make laws with respect to (xix) Naturalisation and Aliens, and (xxvii) Immigration and Emigration; and the Federal Act No. 17 of 1901 (1 Edward VII.), the Immigration Restriction Act of 1901, is now substituted for, and abrogates, the local Colonial Immigration Restriction Acts.

Into the Federal Parliament organised labour sent its representatives, and the Federal Labour Parliamentary Caucus directs the social legislation of the Commonwealth.

The "Prohibited Immigrant."-S. 2 defines as a "prohibited immigrant " who may not enter the Commonwealth:

(a) Any person who when asked to do so by an officer fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in an European language directed by the officer.

(6) Any person likely in the opinion of the Minister or of an officer to become a charge on the public, or upon any public or charitable institution.

(c) Any idiot or insane person.

(d) Any person suffering from an infectious or contagious disease of a loathsome or dangerous character.

(e) Any person who has within three years been convicted of an offence, not

being a mere political offence, and has been sentenced to imprisonment for one year or longer therefor, and has not received a pardon.

(f) Any prostitute or person living on the prostitution of others.

(g) Any person under contract or agreement to perform manual labour within the Commonwealth: Provided that this paragraph shall not apply to workmen exempted by the Minister for special skill required in Australia, or to persons under contract or agreement to serve as part of the crew of a vessel engaged in the coasting trade in Australian waters, if the rates of wages specified therein are not lower than the rates ruling in the Commonwealth.

The exemptions are similar to those as set out above under ss. 2 and 5 of the New South Wales Act of 1898, the other provisions of which are incorporated and developed in the Commonwealth Act.

Criticism of the Act.-For the welfare of Australia the prohibition of the classes (b), (c), (d), (e), and (f) is proper and statesmanlike, but the clauses (a) and (g) cannot be justified on the principles of the law that relate to the freedom of the subject. The comments above made on the definition of "prohibited immigrant," in the New South Wales Act, apply equally to clauses (a) and (g) of the Commonwealth Act. One of the basic constitutional principles of British law is that British soil is free to the foot of every British subject, restraint being lawful only when imposed for the public welfare, and that on British soil freedom of contract, eo loco, between parties is to be maintained. Broad constitutional principles override the works of Parliaments, so that Acts passed in opposition to those principles must be ultra vires and of no effect. Clause (a) above set out is an example of such repugnancy to constitutional principle, that it must, if ever submitted for judicial decision, be declared to be ultra vires the power of Parliament in respect of British subjects. Under its conditions the English carpenter, as above pointed out, can, though a free British subject, be prohibited from landing on British soil at the whim or caprice of a Customs House officer. It cannot be maintained that his ignorance of Russian is a menace to the welfare of the community ethnologically, socially, or economically, upon which grounds alone a person may be excluded rightly and justly. In a case lately decided in Sydney, in which the Crown in an Excise case (P. Healey's Case) contended that the Federal Excise Act put the onus of proving his innocence on the accused, contrary to the recognised principle of British law, that a man is presumed to be innocent until proved to be guilty, Pring J., of the Supreme Court, dealing with the contention as repugnant to British law, referred to clause (a) above set out as being equally repugnant to the same principles. The "Six Hatters Case," in which certain tradesmen, British subjects and members of their Trade Union, were prevented from landing in Sydney under the above clause (g), is well known to all. As they were eventually landed under the proviso, the legality of the restriction was not tested.

It is not necessary to discuss the reasons why it is good to declare, by Statute, null and void in one part of the British Empire contracts which are to be performed there, but made in other parts. Suffice it that they are many, and are universally recognised by jurists to be good. S. 11 of the Commonwealth Immigration Restriction Act provides :

No contract or agreement made with persons without the Commonwealth for such persons to perform manual labour within the Commonwealth, whereby such persons become prohibited immigrants within the meaning of paragraph (g) of section three shall be enforceable or have any effect.

The effect of this section must be that as soon as a British prohibited immigrant under clause (g) comes within Federal jurisdiction-that is within three miles of Australia-he ceases to be bound, and as far as any action he may wish to take, should he be allowed to land, he is as free as air. The nullifying of his contract destroys the conditions that made him a prohibited immigrant, and, provided that he does not come under the other clauses of s. 3, he can claim his right as a free Briton to tread on free British soil. To interfere with this right on the ground that he had made a contract which cannot be enforced is to penalise him for an act, in itself innocent, that has no consequences, and is ultra vires the Parliament cf the Commonwealth. The interference with the

Six Hatters was a blunder. As far as a British subject is concerned clause (g), s. 3, is non-existent in face of s. II.

By gradual steps, urged, no doubt, by the selfish stimulus of the manual worker, the regulation of undesirable immigration into Australia has been evolved by the statesmen of Australia. A modification of the educational test (a), or the substitution for it of a racial test, and the total elimination of clause (g) in s. 3, would leave the Commonwealth Immigration Restriction Act a measure of great value in the development of Australia, in so far as it would shut out undesirable immigrants without leaving in the hands of any person the power to harshly exclude desirable settlers in order to please the whim of any party.

Aggrieved Japan.-The severity of the Commonwealth Immigration Restriction Act has drawn forth the declared resentment of the Japanese, and this paper cannot have a more suitable conclusion than the translation of two extracts from Japanese newspapers published in March of this year, relative to the Immigration Restriction Legislation of Australia, Canada, and the United States of America :

In some cases we must be prepared to offer a determined resistance to external oppression on our emigration, and should such resistance necessitate sacrifices of the first magnitude, the people ought not to shrink from the task. We are already paying a good sum of money for the maintenance of a strong army and a strong fleet, and also of a Foreign Office with a large staff. These institutions are not for ornament. Looking at the tendency of affairs abroad, the coast is not

quite clear for carrying out an emigration policy. We cannot, under these circumstances, help urging upon our Government and people the necessity of a firm determination on their part.-Toyo Koizai.

And as comment on above :

We are ourselves strongly inclined to resent the unfair discrimination made against our nationals in the countries named above, and we have never missed an opportunity to condemn such discrimination. We can, therefore, understand the strong feeling exhibited on this subject by our weekly contemporary. Nevertheless, we must remind the latter of the very serious, injurious influences that might follow the use of such intemperate language. A war with either the Americans or the English is out of the question, as nothing would be gained by it, while everything might be lost.-Japan Times.

CRIMINAL PROCEDURE IN THE TRANSVAAL.

[Contributed by W. F. CRAIES, Esq.]

General Observations. In a previous number of this journal1 the present writer ventured on certain criticisms and suggestions with reference to the law of South Africa, and expressed the hope that during the period of Crown Colony Government in the newly conquered territories steps would be taken for the proper and systematic creation of a series of South African Codes. His views met with considerable criticism from Sir Henry de Villiers,2 who deprecated any attempt at codification before federation; and by Mr. Berwick, who was chiefly concerned to maintain the vitality of RomanDutch law. With respect to one branch of that law there seems, however, to be a fairly general agreement that it possesses no distinctive elements which render it superior to the English law, except, perhaps, the existence of the offence furtum usus and a very wide if not vague definition of stellionatus, or cheating. The adjective portion of the law, being based on the Roman system, has been found on most points incompatible with the British notions of the administration of criminal justice, and even before the South African war had been to a large extent superseded by local legislation, or by the adoption of principles from the English system where the laws of Holland were silent.

The Transvaal Legislature has now taken a step in the direction suggested by the writer, by passing an Ordinance to establish a Code of Criminal Procedure without waiting for federation. This Code was passed by the Legislative Council on January 2nd, 1903, was assented to on January 7th by Lord Milner, and on April 3rd it was intimated that the King would not exercise his powers of disallowance.

The Materials for the Code. The Code, which contains 281 sections, has been printed as a Parliamentary Paper (1903, C. 1555) with a short report as to its origin and special characteristics. At the outset of the South African war criminal procedure was regulated in the South African Republic by an Ordinance (No. 5 of 1864-also known as No. 9 of 1866) copied almost verbatim from Ordinances and Acts of the Cape Colony, the earliest of which dates from 1828 (No. 40). A draft Criminal Procedure Law was published in the Staats Courant in 1899, but was not proceeded 1 O N.S., vol. ii. p. 233. 2 N.S., vol. iii. p. 9. N.S., vol. iii. p. 98.