South Australia v Victoria [1911] HCA 17

he "matters" between States, in respect of which original jurisdiction is Eons y sec. 75 of the Constitution conferred on the High Court, are matters 27,28; March hare of a like nature to those which can arise between individuals and 1+ 9756, ie sh are capable of determination upon principles of law. 15, 16, 17, 20,

herefore, the boundary between two States having been fixed by an Griffith C.J.,

s 1 Act of Parliament before federation, : ne 4 oe - i O'Conner, _ Held, that the High Court had jurisdiction to entertain an action by one of _ Isaacs and

' ae Hi JJ. ese States against the other seeking a declaration that certain land adjoin- aeons at boundary and in the de facto occupation of the latter State formed f the territory of the former State.

The boundary between the Colony of South Australia and that the Colony of New South Wales which now forms the State having been fixed by 4 & 5 Will. IV., c. 95, and by Letters Patent 1 of 19th February 1836 as the 141st meridian of East longitude.

Held (Higgins J. dissenting), that an authority was to be impli

and certainly with, the concurrence of the Crown signified through a of State, to permanently locate and mark on the ground that bound as circumstances called for an exercise of that authority ; and

been marked and located in the wrong place, the error could not th corrected by any judicial authority.

In 1847, by the authority of the Governors of New South Wales : Australia and with the knowledge and approval of the Secretary line was located and marked on the ground as being the 141st m¢ was in fact, as was discovered in 1869, about two miles to the wes that meridian. 'The line so marked was proclaimed by the respecti nors as the boundary and was the de facto boundary thenceforward 1869 onwards the Government of South Australia protested against tinuation of the error in the marking out of the boundary and sougl it rectified, but without result. In an action by the State of South A against the State of Victoria,in the High Court claiming a declaration strip of land between the 14Ist meridian and the line so marked out of the territory of South Australia,

By Higgins J. - As the true 141st degree of East Jongitude was 1 boundary by a British Act of Parliament, nothing that the surveyors nothing that the Colonial Secretaries or Ministers did, nothing that Governor did, nothing that the Secretaries of State did, nothing t King did, altered, or could have altered, that boundary. Even the prerogative must yield to an Act of Parliament. But quere, plaintiffs any cause of action, as South Australia, or, rather, its legis! is mere donee of a power "to regulate the sale and other disposal" Crown lands ? '

TRIAL of action. An action was brought in the High Court by the SI South Australia against the State of Victoria in respi piece of land bounded on the north by the River Murray, on South by the Southern Ocean, on the East by the 141st me of East longitude and on the West by a line parallel to, and: two miles to the West of, such meridian, which piece of land

de facto occupation of New South Wales and after- oria since 1847. The plaintiffs claimed - (1) Posses- said land. (2) Mesne profits from the year 1850 till

plaintiffs were and always had been entitled to the land the defendants were not and never had been entitled to mn thereof. (4) If the eastern boundary of the State of ustralia, so far as it coincided with the western boundary state of Victoria, had not been already sufficiently ascer- an inquiry into the true position thereof, with all direc- d declarations necessary to finally determine the same. account of all sums received from sales or letting or in respect of the said land since the year 1850. (6) An

said land or in any manner dealing with the same, or erfering with or preventing the plaintiffs or their officers tering upon and surveying the said land, or otherwise ith the said land.

the material facts are fully set out in the judgments here-

action was directed to be heard before the Full Bench.

Josiah Symon K.C., Paris Nesbit K.C, Murray K.C., and Shierlaw, for the plaintiffs. The High Court has ion under sec. 75 of the Constitution to entertain this to decide what is the true boundary between the two Formerly the jurisdiction to settle disputes as to the laries of Colonies was in the King in Council and was not a jurisdiction: Blackstone's Commentaries, vol. 1., pp. 237, hitty's Prerogative of the Crown, p.38; Penn v. Lord Bal- 1); Story's Constitutional Law, p. 499 ; Rhode Island v. asetts (2). That was a case as to chartered Colonies. ith Australia was founded under a Statute, 4 & 5 Will. IV. ich fixed its boundaries, and a dispute as to those bound- uld not necessarily be a political matter. In the United isdiction is given to the Supreme Court by Art. IIL the Constitution to deal with "controversies" between

THe State or SoutTH AUSTRALIA w Tae State or VicTorta,

Tue State or Sourn AUSTRALIA vw Tue Stave or Vicrorta.

two or more States, and under that the Supreme Court that it has authority to determine disputes as to bot Rhode Island v. Massachusetts (1); Kansas v. Colo Black's Constitutional Law, 2nd ed., p. 147; Icwa v.

[Isaacs J. referred to United States v. Tewas (4); Mary West Virginia (5).] 'abe

The word "matters" in sec. 75 of the Constitution than "controversies." If the Supreme Court has jurisdiet such disputes between the States of the Union, wh sovereign States, & fortiori the High Court has jurisdictio such disputes between the States of the Commonwealth. whole question is purely a judicial one, namely, what d Imperial Act mean when it fixed the eastern boundary of S Australia as the 141st meridian? If it means what the pl contend for, that is, the true 141st meridian, then the plai entitled to the strip of land which is now occupied by the dants, and can sue for and recover possession of, or, dominion over, it under the Constitution.

The Imperial Parliament having fixed the boundary 141st meridian, that line could not be departed from i ally or otherwise, except by the authority of another Act Parliament.

(GrirritH C.J. referred to Damodhar Gordhan v. Kanji (6)

The Act constituting Victoria a Colony, 13 & 14 V: cannot be said to have recognized the line marked by 1847 as the 141st meridian, because that line was thet marked up to about 150 miles from the Murray. If th any authority elsewhere than in the Imperial Parliamei a boundary line as being the 141st meridian, which was fact the 141st meridian, it was in the King in Councei Governors of New South Wales and South Australia co by agreement or otherwise, do so, even with the authoril Secretary of State. Even if they could, the facts show,

(1) 12 Pet., 657. U.8.,1. (2) 185 U.S., 125; 206 U.S., 46. (5) 217 U.S., 1, 577. (3) 151 U.S., 238, at p. 212. (6) 1 App. Cas., 332, at

fixed under a mistake as to the starting point, and as rror was discovered the Government of South Aus- ht to have the matter put right; and secondly, that as only fixed temporarily, and with the intention that ime a permanent line should be fixed. The onus is defendants to show that the line so fixed has now ethe true boundary. Where the boundaries of adjoining of land have been defined under a mistake of fact the e not bound: Maryland v. West Virginia (1); Mining and Manufacturing Co. v. Packer (2). The having been fixed by Act of the Imperial Parliament

tinued to protest, and have sought by all means in their have the error rectified.

rence was also made to De la Croix v. Chamberlain (3) ; . Stevenson (4); Central Railroad Co. of New Jersey v.

ll K.C., Irvine K.C., Harrison Moore and Starke, for the its. When by the Act 4 & 5 Will. IV.c. 95 the 141st was fixed as the eastern boundary of South Australia, not mean the exact scientific line - that cannot even now

y the Governors of New South Wales and South Aus- tainly with, and possibly without, the concurrence of the y of State, or by the Secretary of State himself, that is, 'ing's actions through the Secretary of State. The Crown da prerogative right to determine where the boundary ny was. There are many examples of the exercise by the Souncil of that prerogative, and the fixing of a boundary way is not an alienation of territory, but the boundary to have been originally where it has been so fixed. line was determined by agreement between the

• but a line to be located or marked out on the ground .

Governors of New South Wales and South Australia, ratified by the Secretary of State. That ratification w: lent to a prior command: Buron v. Denman (1). The agri so arrived at is binding on the plaintiffs. The proclamat the line so fixed as the boundary having been approved Secretary of State was effectual for its purpose. The boui so fixed was intended to be permanent, and has been ré by the Imperial Parliament in the Act constituting the Colo Victoria, 13 & 14 Viet. ¢. 59, and in the Commonwealth of tralia Constitution Act, especially in sec. 123 of the Contity The boundaries of the States for the purpose of that secti be taken to be the de facto boundaries. j

This Court has no jurisdiction in this matter. The disput to the boundary was not justiciable before federation. The. diction given by sec. 75 of the Constitution to deal with between States is limited to matters arising in connection the Constitution, or which at the time the Constitution enacted were justiciable between States. Some limit must] on the word "matters," for it cannot include matters wl undoubtedly political. The plaintiffs can still ask the K Council to settle the dispute, as they always could, even alt he the King in Council has refused to interfere without the of the defendants. This Court has no authority to determir and authoritatively lay down the boundary line. The Am cases which decide that the Supreme Court has jurisdic settle boundary disputes between States are inapplicable there the States are sovereign States, and it was necess: the Supreme Court should assume jurisdiction, for there any other tribunal that could determine the dispute as t here.

[Reference was also made to Dominion of Canada v. of Ontario (2); Attorney-General for N.S.W.v. Brown ( ) Breton Case (4); Penn v. Lord Baltimore (5); Campbell (6); Rhode Island v. Massachusetts (7); Broom's Consti Law, 2nd ed., p. 60; Kansas y. Colorado (8); Quick & Gar

(1) 2Ex., 167, at p. 188. (5) 1 Ves, 444. (2) (1910) A.C., 637. (6) Cowp., 204. (3) 28.C.R. (N.S.W.) App., 30. (7) 12 Pet., 657, at p.

titution of the Australian Commonwealth, p. 275; Anson's H.C. or A.

Custom of the Constitution, vol. 11., pp. 148, 157, 162; ; Riera (1); Cameron v. Kyte (2); Virginia v. Ten- qa srave De Bussche v. Alt (4); Hunt on Boundaries, 5th ed., oF Sovrx

i ae AUSTRALIA 8,250; Maryland v. West Virginia (5); Rhode Island v. v

etts (6); United States v. Stone (7); Indiana v. Ken- ieee Clegg v. Edmondson (9); Boyd's Lessee v. Graves (10) ; ev. Pulido (11); Midland Railway Co. v. Wright (12);

siah Symon K.C. and Paris Nesbit K.C., in reply to Seeton on Decrees, 6th ed., vol. 11. p. 18938; Attorney- of British Colwmbia v. Attorney-General of Canada(14); Legal Maxims, 7th ed., p. 465; St. Catherine's Milling ber Oo. v. The Queen (15); Kent's Commentaries, vol. tv., Rhode Island v. Massachusetts (16); Chitty's Blackstone, 254; Perkins v. Gay (17).

iTH C.J. This is a suit brought in the original jurisdic- may 22, e Court by the State of South Australia against the Victoria, claiming, in substance, a declaration that a strip

itory about two miles in width along the border between

ie two States, and which has for upwards of 60 years been in

cto occupation first of New South Wales and afterwards

ia, forms part of the territory of the plaintiff State, with

nt relief. The boundary between the two States was, by

4 & 5 Wm. IV.c. 95 and the Letters Patent issued under

., 503, at p. 522, (13) 202 U.S., 1. . (14) 14 App. Cas., 295. v1, at p. 41. (15) 14 App, Cas., 46, at p. 59. » 591, at p. 628. (16) 13 Pet., 23; 14 Pet., 210; 15 525. Pet., 233. a (17) 3 Sergeant & Rawle (Penn), 325. BIBT. (18) 6 App. Cas., 636.

that Act, defined to be the 141st meridian of East longitud boundary line in actual use, known as Wade's and W! lies to the West of the mouth of the Glenelg River, and or more to the westward of the true line of the meridia The suit is brought, in accordance with sec. 61 of the Judi Act, in the name of the plaintiff State. Apart from th. it might have been brought in the name of the Attorney- of South Australia (as was for some time the practic troversies between the Canadian Provinces and betwe and the Dominion). This is mere matter of form. In sul the Sovereign as head of the body politic of the State Australia is plaintiff, and as head of the body politie of is also defendant. All this is now so well recognized thi be regarded as elementary. See, for instance, Domi: Canada v. Province of Ontario (1). It is objected by the defendants that the eae ye jurisdiction to entertain sucha suit. : Sec. 75 of the Constitution enacts that the High Co have original jurisdiction in "all matters between State: analogous words in the Constitution of the United s America are " controversies between States," and it is th law of the Republic that the Supreme Court of the Uni has under these words jurisdiction to entertain questi boundaries between States. The reasons, however, upon this construction was based are not fully applicable to tralian Constitution. One main argument was that at of the Union there were notoriously in existence sey troversies as to boundaries, and that the power to sett which had been conferred upon the Confederation, transferred to Congress, and must therefore be taken been transferred to the Supreme Court, for otherwis have been non-existent anywhere. In the ease of Austr power undoubtedly existed in the Imperial Parliament, a sibly also in the Sovereign. But, for reasons which I wards give, recourse to either power may be regarded practically unavailable. I assent to the argument that the jurisdiction of

iny, is judicial and not political. So far, therefore, as a sy requires for its settlement the application of political guished from judicial considerations, I think that it is

anees of such controversies which would clearly be jus- are questions arising under mail contracts, contracts for truction and maintenance of telegraph lines at joint and running agreements over railways.

opinion a matter between States, in order to be jus- must be such that a controversy of like nature could etween individual persons, and must be such that it can

de facto possession of another, I have no doubt that this rould have jurisdiction. And, since actual possession of rt of a tract of land held under a single title is in the eye W possession of the whole, I think that the same result ollow whether the complaining State were in actual pos-

Jong continued trespass followed by actual occupation ise of dominion would have the effect of transferring i-allegiance of the inhabitants of the tract in question

the United States by pointing out that the right to the the principal, and the rights flowing out of its occupation ly accessory. This seems to me to be sound sense. answer may be given - that if the occupation is wrongful y consequence is that the persons who inhabit the disputed re been in the enjoyment of supposed rights under a mis- nsion of fact, and will revert to their real rights when the rrected. This is, in truth, not an objection to the juris-

'Tue State or SoutH AUSTRALIA . Tue State or VicroRIA.

diction, but an argument, of greater or less weight, again: exercise of the jurisdiction in the particular case.

There is another way in which the point of jurisdictior be approached, which leads to the same result. The law of Empire, including the Statute law, is binding as well up: dependencies, regarded as political entities, as upon indivic subjects. If, therefore, any dependency infringes the law Empire governing its relations with a neighbouring depenc it is guilty of a wrong towards that other dependency. Si wrongs committed by one independent State against anoth not justiciable, because there is no tribunal which has jurisdi to take cognizance of them. But if there is a tribunal whi jurisdiction to summon a dependency before it, there is no r¢ why such a wrong should not be redressed. This Court ha: jurisdiction. The question, therefore, whether the State o: toria has infringed the Statute law of the Empire as regards s Australia may be inquired into by this Court as a "mé between States," within the meaning of sec. 75 of the Constit

For these reasons I am of opinion that this Court has jur tion to entertain a suit of this nature.

The objection to the jurisdiction of the Court in this parti case is also presented in another way, namely, that even if plaintiffs' claim, considered as a claim to territory, may be tained and adjudicated upon by the Court, yet the facts show the claim is based upon grounds to which the Court cannot effeet - in other words, that it does not-rest upon grounds able in a Court of law. This is in reality not an objectio jurisdiction, but in the nature of a plea in bar. I will deal the point thus regarded after dealing with the facts.

I proceed now to the facts of the case, and, first, those rel to the laying out of Wade's and White's line.

By the Act 4&5 Wm. IV e. 95, which recited inter ali that part of Australia which lay between the 132nd and degrees of East longitude and between the Southern Ocean 26° of South latitude consisted of waste and unoccupie 1 which were supposed to be fit for the purpose of colonizati was enacted that it should be lawful for the King wi advice of the Privy Council to establish within the pa

lia mentioned one or more Provinces and to fix the respec- daries of such Provinces. s territory then formed part of the Colony of New South the laws of that Colony would ordinarily have continued ly to the new Provinces when established. It was, how- vided by sec. 1 of the Act that those laws should not be ble. The result was that any new Province which might blished was to be treated in law (as it was in fact) as new acquired by settlement, with the consequence that the would take with them the Common and Statute Law of d so far as applicable. etters Patent of 19th February 1836 the King, in exercise powers conferred by the Act, " erected and established" a ce to be called the Province of South Australia. The atent proceeded: "And we do hereby fix the boundaries said Province in manner following (that is to say): - On forth the 26th degree of South latitude on the South the Ocean on the West the 132nd degree of East longitude m the East the 141st degree of East longitude," including oo Island and all other adjacent islands. The first settle- s shortly afterwards made at Adelaide. only detailed maps of that part of Australia then in ice which were produced to the Court were Admiralty of which three were put in evidence. One of them, hed by the Admiralty in 1814 (called " Flinders' Chart of ustralis, Sheet 4, 1802," being Plate V. of the Atlas to rs' Voyages), represents the position of the 141st meridian longitude as being about 18 minutes. of longitude to the ff Mount Gambier, which is a marked natural feature visible he sea, and is the only natural feature in the immediate y shown on the map, except Cape Northumberland, the n of which is a few miles to the East of Mount Gambier. ion assigned is very near the true position as now ed. Another chart, described as "compiled from surveys nders and other navigators to the year 1829" (Plate 1 of ), is on a smaller scale, and shows the position of the eridian as being about. midway between Cape Northum-

Tae State or SourH AUSTRALIA vw Tue Strate or Vrororia.

also is very near its true position. The mouth of the Glenelg does not appear on either map. The third chart no further light on the matter. i In February 1839 Mr. John Arrowsmith, the well k geographer of that time, published a map of "The M: Portion of South Australia from the surveys of Captain Fli and of Colonel Light, Surveyor General (of South Austral copy of which has been shown to us since the trial), in whi . mouth of the Glenelg River is shown as lying to the West o! 141st meridian. In the year 1839, Sir George Gipps, then Governor of South Wales, instructed Mr. C. J. Tyers to proceed to Melbor and undertake certain surveys, as described in a memor: from the Governor to the Deputy Surveyor General dated September of that year. The circumstances which gave ri sending Mr. Tyers are thus stated in a despatch of 28th | tember 1840 from Governor Gipps to the Secretary of State "To the westward of Port Phillip, and near upon the confi of South Australia, is Portland Bay, where an unautho settlement was formed in 1835 by some gentlemen from Diemen's Land, in the same manner that the first unautl settlement was formed at Melbourne and Geelong by tl Phillip Association. The attention of the Government was to Portland Bay in 1839, and the necessity of forming a ment there manifested itself shortly afterwards, when tl was ascertained that stations had been established in tl country to the north of it, on the River Glenelg, visited b Thomas Mitchell in 1836, and by him called Australia F « An object, also, which presented itself of considerable in in this quarter, was to settle the position of the merit which separates the Province of South Australia from New Sou Wales ; and to ascertain on which side of that meridian the 141st degree of East longitude from Greenwich) the the River Glenelg was situated, the same having been ve differently placed by different authorities, particularly Arrowsmith and Sir Thomas Mitchell. "Upon this duty I despatched, in the month of 1839, Mr. Charles Tyers, a gentleman whose services I had.

| for the Surveyor-General's Department of New South and who, in addition to much experience in practical my, possesses a knowledge of the principles on which ic operations on an extensive scale can alone be carried

Tyers' first duty, as stated in the Governor's memorandum, ascertain the best line of communication between Geelong he district of Port Phillip) and Portland Bay, selecting sites future villages. Another duty was to make a survey of

of the lower part of its course and to ascertain the boun- tween the Colony of New South Wales and that of South lia." He was enjoined at all times to consider that one of st objects of his employment was to fix astronomically as spots on his route as possible, and that he should lose no ity of taking observations.

pears from this despatch that Arrowsmith's Map of 1839 ied Australia in that, year.

work done by Tyers is set out in a report, of which a copy it with the despatch of 28th September 1840, and of which . Gipps thought so highly that he said he had caused it to ited "in order that by being circulated among officers of epartment it might stimulate them to exertions and serve odel for other operations."

report begins by saying that the chief object of the ion was to determine the exact position of the boundary tween New South Wales and South Australia and pro- "To effect this three different methods were adopted, viz., lar (Qu. triangulation) from Melbourne, chronometric urement from Sydney and lunar observations near the The report then set out in detail the observations m time to time.

assumed the longitude of Fort Macquarie in Port Jack- rdney) to be 151 deg. 15 mins. 14 sees., which, as appears the evidence of Mr. Baracchi, was (with a difference of 2 the mean of the results of thirteen separate series of anar observations made between 1770 and 1822, but which is

Tue State or SoutH AUSTRALIA w Tue State or VICTORIA.

'Tue State or Soura AUSTRALIA v Tue State or VicToR1a.

now known to be erroneous to the extent of about 0 deg. 16 sec. r

From this assumed longitude he calculated, by chronom that of Melbourne. From Melbourne he made a series of geod measurements to Portland Bay, and calculated that the appr mate longitude of "Mr. Henty's flagstaff" at that place 141 deg. 35 min. 52 sec. East.

From that point he measured on the ground a distance of min. 52 sec. due West, which brought him to a point near, and the East of, the mouth of the Glenelg River, where he laid d in the sand a large broad arrow of limestone blocks, which still in situ, though disturbed, in February of this year, : which, as he thought, marked the approximate meridian of deg. He also set up marks at several other places on the gro in a North and South line from his starting point. It is an

approximate meridian was marked very nearly in the ri place. On his return from the Glenelg, Tyers made further tri,

tions gave 141 deg. 2 min, 54 sec. as the longitude of his approxi. mate meridian mark. He then submitted his work to Cap' Owen Stanley of H.M.S. Britomarte, who checked the tri metrical and chronometric work, making-the. longitude of spot to be 141 deg. 2 min. 21sec. by the former, and 141 deg. min 50 sec. by the latter, method. is Mr. Tyers in his report appends to Captain Stanley's lette! memo. to the effect that "by the above mean the longitude the Sandhill" (where the approximate meridian was marked) 141 deg. 2min. 35.5 sec. East " - i.c., the mean between 141 d min. 21 sec. and 141 deg. 2min. 50 sec. And this he appears have accepted as the true position. i Mr. Tyers' ascertainment, however, did not go unchalleng In April 1841 Mr. Arrowsmith wrote a letter to the Lon Times, criticising it, and maintaining the accuracy of his o map of 1839. He contended, strangely enough, that Tyers

by a letter published in the Port Phillip Patriot in Sep ee : 1841, defending the accuracy of his own conclusion. (re Ge as unticipate for a moment to say that Arrowsmith adhered to estes osition, and in 1852 published another map which also v. the 141st meridian as being to the East of the mouth of oe lenelg. is the matter rested for some time. There was no settle- near the mouth of the Glenelg, and no immediate necessity arking the boundary. In 1844, however, settlement had iced in that direction from both sides, and the question of lary was raised by Captain Grey (afterwards Sir George 7), then Governor of South Australia, in a despatch to the retary of State, dated 30th September of that year, in which ted attention to the very imperfect manner in which the mm and western boundaries of that Province were then He pointed out that it would be extremely difficult "to mine with accuracy a number of points upon the earth's e through which the 141° of East longitude passes, and this ion could certainly only be executed at a cost which the mues of this Colony would for a long series of years be uate to defray ; but, even admitting that the position of 141° of East longitude had been accurately determined, it id still be necessary to define the boundary line by marks, ir and superintendence of which would be a constant of expense." He went on to say that both from advanc- ing settlement and from affrays which had taken place with the iginal natives the matter had ceased to be one of mere tical speculation, and recommended that the eastern boun- should be defined by natural land marks, which he indicated, of by a degree of longitude. The Secretary of State Lthe opinion of the Governors of New South Wales and 1m Australia on the matter. The Governor of New South in turn, invited the opinion of Mr. C. J. Latrobe, who was Superintendent of the District of Port Phillip, which had been in 1839, and which afterwards became the Colony of Vie- _ In his reply, dated 22nd December 1845, Mr. Latrobe | out that since the date of Governor Gipps' despatch the

Tue State or SouTH AUSTRALIA 0. Tue SraTe or Victoria.

necessity of clearly defining and determining the boun between South Australia. and New South Wales had b more and more evident " in consequence of the gradual o tion of the country through which the present line of bound between South Australia and Port Phillip is supposed and the difficulty of deciding, for police ard other purposes, real positions in one or the other territory of the frontier stat (i.e. pastoral properties). ~ He did not, however, concur Governor Grey's proposed solution of the difficulty.

In a report dated 15th July 1846 from Mr. Commis: Bonney to Major Robe, Lieutenant-Governor of South Aus that officer called the attention of the Lieutenant-Governo "the necessity of having the eastern boundary of the Pro at least approximately defined as soon as possible," and add "The country through which it passes is now occupied for miles from the coast, and there are at least twelve or four settlers whose runs lie so near the boundary line that I consid my jurisdiction over them uncertain, and therefore refrained fi interfering with them.

"The loss to the revenue is not the only evil resulting from want of a defined boundary. A number of bad characters to this neutral ground, knowing that the police cannot interf with them until the question of jurisdiction is determined."

On 22nd July 1846 Lieutenant-Governor Robe forwarde copy of this report to Governor Gipps, expressing his coneurr: in Mr. Bonney's views, and asking for an expression of opinioi to Governor Grey's despatch and "any suggestions as to visional arrangements for preventing the inconveniences ¢ plained of until some definite and marked boundary can determined on the spot." Lieutenant-Governor Robe's des] was received by Governor Sir C. Fitzroy (who had suece Sir G. Gipps as Governor of New South Wales). In his of 15th September 1846, he enclosed a Minute: of his tive Council on the subject of Governor Grey's proposals, : also a report from Mr. Latrobe, in which that officer, while curring in the proposal of the Executive Council of New Si Wales (which was to appoint a Commission "to detern upon a new line adhering as closely as possible to the

| as the only one that could be satisfactorily adopted"), e considered that "some immediate steps must be 'define a boundary line for the satisfaction and guidance ites and Commissioners of Crown lands of the two nd settlers, upon what is, under present circumstances, le ground." uggested that this should be done in the following : - " Having fixed on a starting point on the coast near th of the River Glenelg - whether the point fixed by Sir Mitchell, that of Mr. Tyers, or that of Captain Stokes - e North and South line be run to the Murray River, itly indicated at greater or lesser intervals, according to acter of the country that may be traversed, by marked face lines, or piles of stones, in the same manner as is me in the rough survey of boundary lines between » At this point it is convenient to mention that Sir T. Mitchell eyor General of New South Wales) had fixed Cape Northum- id, some ten miles to the westward of the mouth of the ig, as the locus of the 141st meridian, while Captain Stokes ixed that locus as about 40 seconds of are to the eastward r Tyers' position. discussing the best mode of carrying out the work, Mr. be proposed that "taking Mr. Tyers' point as the starting " the line in question should be run by officers appointed for pose, 28th September 1846 Lieutenant-Governor Robe addressed nor Fitzroy, adverting to his despatch of 22nd July, the to which he had not yet received, and stating that he ceived further reports relating to some murders committed eighbourhood of the undefined boundary, and " showing ity of some measures being taken for a provisional ment of a line of demarcation or for giving to the local tracy of each Province jurisdiction within the limits of the until the question of the boundary shall have been finally ed." added that: "It appears to me that unless some boundary 0 ted which: will admit of a more certain and practical

Tue Srare or SourH AUSTRALIA v Tue State or VioroRia.

demarcation than a meridian of longitude, much inconve will result to both Colonies as the borders become ce that the sooner the question is settled the better.

"TJ will therefore look with anxiety for a communication Your Excellency upon a matter of so much importance.

"T am aware that no alteration of the present boundary be made except by Act of Imperial Parliament, but I am desirous of concurring with Your Excellency in any recomme: tions you may deem expedient to make to Her Majesty's Gov ment in order that no time may be lost by further reference this Colony by the Secretary of State, and in the meantime co-operating with you in measures for the repression of the! e complained of by the local magistrates."

A copy of this despatch was sent by the Colonial Secretary South Australia to the Surveyor General, Captain Frome, as for his opinion as to the locality which he would propose adopt as the starting point from which to commence the sury Captain Frome replied on 9th October 1846, remarking tl "The position of the mouth of the Glenelg River, the n natural feature to this meridian on the sea coast, has been det mined within the last few years with considerable claims accuracy by Mr. Tyers and Captain Stokes."

After commenting on the difference between Tyers' and Stoke positions and the modes by which they had been determined, added : " This close approximation renders it a matter of chi which of the determinations to adopt, either of them entitled to be considered as close a result as can be arrived at by the methods adopted. If it is necessary to ascertain accura
the position on the coast of the 141st degree of East longitude independent of all other than the first meridian - that of Gre wich - careful transit observations on the spot of the m« culminating stars, or observations of the occultation of stars by the moon must be resorted to, the first of which meth would require a good transit, and the latter a powerful tele: to be sent to the Glenelg in the hands of some person wh practical skill in astronomical observations could be depen upon. I

"I would, however, recommend to His Excellency that

proposal of 'taking Mr. Tyers' point as the starting a meridian line to be run from the coast northward to River should be adopted, considering that gentle- ermination to be within the necessary degree of accur- 'ing the 141 degree of East longitude."

4th October 1846 Lieutenant-Governor Robe forwarded a e report to Governor Fitzroy, expressing his satisfaction in Frome concurred in Mr. Latrobe's view as to the of marking on the ground the 141st meridian East from h " deduced from a point near the mouth of the Glenelg the longitude of which has been determined by the joint of Mr. Tyers and Captain Stokes." He added: "It is of mecessary for me to remind Your Excellency that how- able it may be to adopt, at some future period, natural £ the country as the boundary of the Provinces, none ian the 141st meridian of East longitude can be recognized t the authority of a new Act of Parliament."

ovember 1846 by direction of the Colonial Secretary of uth Wales, Mr. Wade, a surveyor, was instructed to report to Mr. Latrobe "in order to his being employed in mark- joundary for police purposes between the Port Phillip Dis- ew South Wales and the Province of South Australia." despatch of 30th December 1846 Governor Fitzroy Lieutenant-Governor Robe that a competent surveyor instructed to proceed to the mouth of the Glenelg for the of the projected survey. The despatch concluded as

With respect to the difference of a few seconds of longitude en Captain Stokes and Mr. Tyers as to the position of the y River, as stated by Captain Frome in his letter of the October, enclosed in Your Excellency's despatch of the 26th onth, I apprehend that the best means in our power to the 141st meridian of East longitude, so as to meet the of the Imperial Act, will be to direct the surveyors to strike a mean between the calculations of Captain id Mr. Tyers."

instructions were given to Mr. Wade on 28th January Mir. Lonsdale, who was acting as Superintendent of the

ip District. They contained the following passage : - s 47

Tue State or SouTa AUSTRALIS. v Tur SraTE or VicToRIa.

"With respect to the difference of a few seconds of lo between Captain Stokes and Mr. Tyers as to the position Glenelg River, it is apprehended by His Excellency Si Fitzroy that the best means to ascertain the 141st merid East longitude is to strike a mean between the calcula' Captain Stokes and Mr. Tyers; and this, therefore, as far a New South Wales Government is concerned, is the mode to adopted in settling this point for the present survey. SI however, any further question arise upon this subject I t inay be able to communicate such additional instructions as be necessary before you begin the work."

A copy of Tyers' report was also sent to him, but he information as to the exact position which Stokes assigned the mouth of the river.

Mr. Wade accordingly proceeded to the Glenelg, where h covered the mark put down by Tyers to denote his approxi meridian. In his journal he says, under date 26th March "The mean longitude of this approximate meridian according Mr. Tyers is 141 deg. 2 min. 35 sec. East. The latitude of sandhill at which he commenced measuring his true North | 38 deg. 4 min. 18 sec. South, variation 5 deg. 37 min. East. Aceo ing to this the boundary line will be two miles twenty chains (2 miles 28 chains) to the West of the approx meridian marked by Mr. Tyers, and this is the point from wl in the absence of any information respecting the position o} 141st meridian of East longitude as laid down by Captain Sto I intend to commence measuring the boundary line betwee 7 two Provinces."

It will be observed that he took Tyers' final memorandt expressing the true result of his calculations. He accord: measured a distance of 2 miles 28 chains West from Ty approximate meridian mark, and denoted the position by mound of earth on the summit of a hummock about 7 ¢ from the sea coast," and from that point he proceeded to lay and mark on the ground a North and South line. After la down the line for about 123 miles, to the 36th parallel of latitude, it became impracticable from various reasons to con! his operations, which were for the time abandoned.

le did not receive any information as to Captain Stokes' until he had made some progress with his work, and did e any alteration in respect of it. This fact was brought nowledge of the Government of South Australia on 15th 1847 by Mr. E. R. White, who accompanied Wade as their tative, in a letter, in which he said: - "In the absence of ive information relative to the position of the 141st of East longitude as laid down by Captain Stokes, I con- with Mr. Wade in deeming it advisable to assume the meridian of Mr. Tyers,and commence marking the boundary any further delay ; and this has been accordingly done, I trust, may meet with the approbation of His Excellency eutenant-Governor." In a later letter, of 7th May, Mr. formed his Government that Mr. Wade had on 28th April a letter instructing him that in the event of his not received an extract from Captain Stokes' " Discoveries in lia" relative to the longitude of the mouth of the Glenelg as to go on as he had commenced, and that Mr. Wade had ed the extract at the same time as the letter.

31st August 1847 Mr. Latrobe forwarded Wade's report to w Fitzroy with a later letter from that officer, in which, to the abandonment of the survey, he pointed out that ject for which the survey was called had been neverthe- in a great measure carried into effect, as the scrub in which resent survey had terminated is supposed to extend to the y, and is, from its barren character, adjudged totally in- ble of maintaining stock."

Latrobe suggested "that as soon as the preliminary steps e taken the boundary line as surveyed by Mr. Wade, from to the 36th degree of latitude or thereabouts, should for sent at least be adopted and proclaimed as the recognized 'y in this quarter between the respective Colonies," and "This is a measure which is urgently called for, particu- at the present time, when it is imperative upon the Govern- © define the general boundaries of runs to be held under on that boundary line as elsewhere."

orm Mr. Latrobe that I concur with him in opinion that

THe State or SourH AUSTRALIA Tue State or Vicroria.

the object of the survey has, it would appear, been sui attained for all practical purposes at present.

"Let a communication be addressed to the Governmi South Australia, with a copy of Mr. Latrobe's letter and Surveyor Wade's report, and suggesting in accordance wi Latrobe's recommendation that 'the boundary line, as sury by Mr. Wade from the coast to the 36th degree of latitude, be adopted and proclaimed as the recognized bound ling as it extends between the respective Colonies.''

The Colonial Secretary of New South Wales according]; 20th October wrote to the Colonial Secretary of South Austi transmitting for the information of Lieutenant-Governor copy of Mr. Latrobe's letter and the enclosed reports. The proceeded : - " In forwarding these documents I am also di to inform you that Sir Charles Augustus Fitzroy concurs wit! Honour the Superintendent in opinion that the object of the vey appears to be sufficiently attained for all practical p at present, and to suggest for the consideration of the Lieuten: Governor that, in accordance with the Superintendent's re mendation, 'the boundary line surveyed by Mr. Wade fri coast to the 36th degree of latitude' should be adopted a1 claimed 'as the recognized boundary line' as far as it ext between the respective dependencies."

Apparently acting on this expression of opinion, Lieu! Governor Robe on 16th December 1847 published a proclama which, after reciting the Act 4 & 5 Wm. IV., and the Let Patent of 19th February 1836, proceeded : - * And whereas fre the progress of settlement on the eastern frontier of the said P vince, and on the borders of the territory of New South W: it has become necessary to mark out and asertain the 141st d of East longitude, so fixed as the boundary of South Austr: the East as aforesaid; and for this purpose, by an arran: previously entered into, the Government of New South V has, with the consent and concurrence of the Governme South Australia, caused the position of the 141st meri longitude, East from Greenwich, to be correctly ascertained spot on the sea coast near the mouth of the River Glenelg; therefrom, the said meridian to be surveyed northward as fa

wallel of South latitude by Henry Wade, Esquire, sur- H. ©. or A.

1 to be marked upon the ground by a double row of pes

pon the adjacent trees, and by mounds of earth at inter- Tue srare

e mile where no trees exist : gE bone: a 2 '3 AUSTRALIA whereas it is expedient that the said survey should be tv : : 'Tue STaTE tively adopted and made known: or Viororta. herefore, by virti i a therefore, by virtue and in pursuance of the power and Ganga!

to me confided, I, the Lieutenant-Governor aforesaid, ame and on behalf of Her Most Gracious Majesty, do tify and proclaim, that the line so marked as aforesaid, icularly described in the schedule hereto annexed, and ited on the public maps deposited at the Survey Office, at de, as the meridian of the 141st degree of East longi- nd shall be deemed and construed to be the eastern wy of the Province of South Australia, to all intents and ; and all and singular Her Majesty's Officers, Ministers, jects in the said Province, and all others whom it may are required to take due notice hereof accordingly."

she same day Lieutenant-Governor Robe transmitted to the of State copies of the correspondence which had passed himself and the Governor of New South Wales on the ,in a despatch which I must read at length : -

Lord, - In September 1844 Governor Grey called the ion of Lord Stanley to the necessity of having the bound- this Province defined, and His Lordship, in a despatch | 24th May 1845, intimated his purpose of communicating on ibject with the Governors of the adjacent Colonies. the country about Mount Gambier and the Glenelg River occupied by squatters, it was essential that part of the iy should be marked out and recognized by the Govern- of New South Wales and this Colony. [accordingly opened ondence with the Government of New South Wales on ject, which resulted in the appointment of a surveyor to the ground so much of the 141st degree of East longitude through the occupied district.

e arrangements for the survey were undertaken by Mr. 2, by direction of Sir Charles Fitzroy, and an assistant was attached to the survey party, at my request, to

report to this Government from time to time the progress work. The survey was conducted by Mr. Wade, appointe the Government of New Soush Wales, and his assistant, appo by me, was Mr. E. R. White. They appear to have prose the work very well and very satisfactorily. 7 "TI transmit herewith for Your Lordship's information of all the correspondence that has passed between the Governments on this subject, together with a map of the b dary compiled from Mr. White's sketches, and a copy of proclamation recognizing that boundary as marked on | ground. p "Tt will be necessary to define at some early period that porti of the 141st meridian which crosses the Murray River, as banks of that stream are occupied by cattle and sheep stati both in this Colony and in New South Wales." : The enclosed map showed Mr. Wade's boundary line as sta from the point marked by that gentleman as stated in his rey to the West of the mouth of the Glenelg. On the same day the Colonial Secretary of South Austi sent to the Colonial Secretary of New South Wales a copy of proclamation, which he described as having been issued by tenant-Governor Robe in furtherance of Governor Fitzroy's gestion communicated in the Colonial Secretary's letter of 20tl October. ~ A verbal error occurred in the proclamation which was d corrected in a proclamation of 23rd December, and communics to the Governor of New South Wales and the Secretary of St By a despatch of 8th January 1848 to the Secretary of S Governor Fitzroy, after referring to previous correspondence « the subject between Governor Gipps and Lieutenant-Go Robe and to the resumption of the correspondence by him: summed it up by saying that : - "It was ultimately arranged ' a due North and South line should be run from a point on the s coast to the River Murray, sufficiently indicated on the groun greater or less intervals, according to the character of the cou traversed, by marked tree lines, surface lines, or piles of 'Lhe point where the 141st degree cuts the sea coast had

ed by Mr. Surveyor Tyers, and also by Captain Stokes, different modes of computation.

conclusions they arrived at differed only by a few seconds 'itude ; and it was mutually arranged that the actual points mencement should be the mean of these results. The work cordingly commenced in the early part of last yedr by Mr. or Wade, who successfully conducted it as far as the 36th of latitude, being a total distance from the sea of upwards miles. Here he was unfortunately compelled to abandon her marking of the line until another opportunity in mee of the impossibility of obtaining supplies for his

hough it is to be regretted that the survey has thus been complete, the object for which it was undertaken has, heless, for all practical purposes, been effectually done; is reason to suppose that the scrub in which the survey r the present, terminated, extends to the Murray.

ive now the honour to add that the line thus marked has rmally adopted by the Government of South Australia as stern boundary of that Province. I enclose a copy of or Robe's proclamation on this subject, to which is sub- a detailed schedule of the boundary line marked on the

r Charles Fitzroy appears to have forgotten the fact that the starting point adopted was Tyers' position, instead of the ) between Tyers' and Stokes', as originally intended. But I io not attach any importance to this point, in view of subsequent

consequence of some errors said to have been discovered in edule to Lieutenant-Governor Robe's proclamation some

oceurred. On 26th July 1848 Mr. Latrobe wrote to the nial Secretary of New South Wales, adverting to the sug- ed errors, pointing out that it appeared that the alleged dis- ies were of no great moment, and proposing a compliance suggestion that a description of the boundary line (that is, country through which it passed) as sent to the Surveyor- on 7th January 1848 should be proclaimed. This letter nt by Governor Fitzroy for report to Sir T. Mitchell, the

Tue State or SourH AUSTRALIA v Tue State or Victorta,

Surveyor-General of New South Wales, who minuted follows : - 5 fed

"As the line proposed, and which has been surveye' understood to be merely for police purposes and temporary, slight discrepancies noticed need not, as Mr. Latrobe su; prevent the line from being proclaimed." Governor Fitzroy added a minute : "Let Mr. Latrobe's suggestions be acted u and the boundary line proclaimed accordingly."

Some further delay (unexplained) occurred, but a procla was issued on 4th March 1849 by Sir C. Fitzroy, which reciting the Letters Patent of 20th February 1836, procee: follows : - "And whereas it having become necessary to mai and ascertain the said 141st degree of East longitude betwee said territory of New South Wales and the said Provi South Australia, an arrangement was entered into witl Government of South Australia for that purpose, in conseq! of which the position of the said 141st degree of Hast lo has been correctly ascertained at a spot on the sea coast near mouth of the River Glenelg, and therefrom northward as the 86th parallel of South latitude ; and whereas it is exp that the said boundary line, so marked and surveyed, should made known: Now, therefore, I, Sir Charles Augustus Fitzro as such Governor as aforesaid, do hereby notify and proclaii line so marked and surveyed, and particularly described in schedule hereto annexed; and delineated on the public maj PE the Survey Office in Sydney and Melbourne respectively, sh: al deemed and construed to be the boundary line between th territory of New South Wales and the Province of Australia respectively as far as the same extends."

Half of the cost of Mr. Wade's survey was paid by Australia, the expenditure having been sanctioned by the L of the Treasury on 22nd November 1850, they having informed on 6th November by the Secretary of State, Grey, that "the service was one of absolute necessity," in opinion they concurred.

In a despatch of 30th June 1848 from the Secretary of S to Governor Fitzroy, Earl Grey said that, in intimating to tenant-Governor Young (of South Australia) his approval

which the work "relative to the boundary which has blished between New South Wales and South Australia" performed, he had informed him that he considered it sirable that no time should be lost in carrying on the o the River Murray.

work was accordingly carried on by Mr. E. R. White, and about the end of 1850.

n that time to the present the line marked by Messrs. id White has been the de fucto boundary between South nd that part of New South Wales which is now Vic- t is, as already stated, common ground that it is not che true 141st meridian, but lies two miles or more to the

• but its accuracy was not challenged by South Aus- til the year 1869 under circumstances to be presently

om the facts which I have narrated only one conclusion can wn, namely, that in 1847-8 the Governor of New South and the Lieutenant-Governor of South Australia with the 'ity of the Secretary of State agreed together that the lary between these Colonies, described in the Statute and Patent as the 141st degree of East longitude, should be ained to the best of their ability and marked out on the |, and that the line so marked out should be accepted and on for all purposes of government as being the true line 1st meridian and as the boundary between the Colonies, i Wade's and White's line was marked in pursuance of sreement.

principal debate in the present case has been as to the of the agreement. It is contended for the plaintiff State 1e respective Governors had no authority in fact or law to an agreement for ascertainment or demarcation of the iy, that the agreement in fact made was provisional only, in any case it could not have the effect of establishing 1 boundary than that prescribed by the Act and Letters The term "agreement" is, of course, not used in the if a compact conferring any contractual rights, properly so between the parties to it.

Tue State or SourtH AUSTRALIA v Tue State or Vierorta.

Before dealing with these contentions in detail it is desi refer briefly to the subsequent events.

The District of Port Phillip, which, as already said, had established in the year 1839, was in 1850 erected into a Co under the name of Victoria by the Act 13 & 14 Vict. ¢. 59.

By that Act the boundaries of the new Colony were defi "the territories now comprised in the (said) District of 1 Phillip and bounded" by a line from Cape Howe to the n source of the River Murray "and by the course of that ri the Eastern boundary of the Colony of South Australia." I contended for the defendant State that this description is a le; lative recognition of Wade's line, which was then known to Imperial authorities, although White's extension to the Mw had not been completed in August 1850, when the Act was p A reference in a Statute to a boundary which has, at thetim passing the Act, been marked on the ground and recognized affords, I think, primd facie, strong evidence for thinking the legislature is dealing with the territory then so delimi especially when the object of the Act is to establish a 1

Jolony, and to define its limits. But the force of the argum in the present case is much diminished, if not altogether destroy by the circumstance that the words used in the Act of 1850 mere quotation from the words of an earlier Act, 5 & 6 Viet. ¢.' sec. 2 (1842), which provided for the representation of the Di: of Port Phillip in the Legislative Council of New South and which was passed before Wade's line had been marked.

The plaintiffs' counsel also relied upon a legislative recogni of the boundary by the Act 18 & 19 Vict. ¢. 55 (1855), whi conferred a Constitution upon the Colony of Victoria. By tl Act the boundaries of the several electorates were defi amongst them being the electorate of Follett, which was deseri as "bounded on the West by the (141 deg.) one hundred a forty-first meridian being the line dividing the Colony of toria from South Australia, on the South and East" &.

It appears that this description of the western boundary Follett was a literal quotation from a proclamation issued Sir C. Fitzroy on 30th December 1848 under a power confe upon him by his Commission to divide the Colony of New

into counties. This proclamation was issued after Wade's been marked, and with the express authority of the ry of State, given in answer to a despatch of 6th Decem- 47, which was accompanied by a map showing the position proposed counties. From the map it appeared that the n boundary of the Colony of New South Wales was located position denoted by Wade's line, i.e., some distance to the f the mouth of the Glenelg. rgument is based upon the words "the line dividing the of Victoria from the Colony of South Australia," which en a marked line. I think that some weight should be ven to these facts, but I do not regard them as conclusive in sense contended for. een 1857 and 1865 a geodetic survey of Victoria was , from which it appeared that Wade's line lay some distance he westward of the true 141st meridian. In March 1865 a of Victoria was published by the Lands Department of that , which showed on its face two lines, one of which was ed as "141st meridian as defined by Mr. Edward White, arked on the ground," the other as " Boundary between ria and South Australia being the 141st meridian as adopted rowsmith." It may be taken that the accuracy of the weation of 1847 was at this time generally regarded as open oubt. All later maps have shown the two lines, with or out words of description. une 1866 the Colonial Secretary of South Australia ed a letter to the Colonial Secretary of New South Wales ing a memorandum from the Surveyor-General of the er Colony, which suggested the adoption and confirmation Governments of New South Wales and Queensland of the ing boundary of South Australia and its projection north- from the point on the South bank of the Muriay, at which en terminated to the 26th parallel of South latitude (the ern boundary of South Australia). reply to this communication Sir H. Parkes (then Colonial of New South Wales) transmitted a report from the or-General of that Colony, in which that officer, after out that the method proposed by the Government of

Tue StaTE or SouTH AUSTRALIA v. Tue State or VicroRIA-

South Australia of determining the boundary line betwe two Colonies was the most economical and expeditious, only a prolongation of the existing boundary between S Australia and Victoria," submitted that there were "doubts the identity of such line with the true geographical boun the Colony viz. the 141st meridian." He went on to point how the probable error might have arisen, and that, admitti to have been the best that science with the appliances available could effect, it fell far short of the accuracy ob by the use of telegraphic signals, and referred to the approa completion of telegraphic communication between Sydney Adelaide. Further correspondence followed, with the result that in | Messrs. Todd and Smalley, the Government Astronomers of $ Australia and New South Wales respectively, were instructe proceed to the Murray River and there ascertain the true loca of the 141st meridian as accurately as possible. On Sth Decei 1868 these gentlemen made their report, which certified that meridian line was "2 miles 19 chains East of the prolongation the present boundary line between Victoria and South , tralia" the North end of which was marked, and that the posit of the meridian had been permanently indicated by a substai brick pyramid. The meridian of this pyramid, known as and Smalley's line, was adopted by South Australia and South Wales as the boundary between those Colonies, and. appears from the latest calculations, some of which were on completed during the hearing of this case, that the probable in its position is, at most, a few hundred feet. ee In November 1869 the Chief Secretary of South Austr: addressed the Chief Secretary of Victoria, adverting to the that it was proposed to lay out roads "on the Victorian sit the boundary line" to meet those of South Australia, and gesting that before such steps were taken or a new map of V toria published it might be well for the Government of Vici to consider the fact of the line referred to being about 2} mil the west of the 141st meridian, which was fixed by the I Statute 4&5 Wm. IV. as the boundary of the new Colony of s Australia. He further suggested that it would appear desi

n the South end of the boundary line and the Melbourne Tar srare

rf imi : or Sourn ory, following a similar course to that pursued in deter- Seerea ek

the true boundary North of the Murray." us hief Secretary of Victoria replied on the 16th of the same eee

Government Astronomer of South Australia (who was also -General) appears to have been prevented by opera- mnected with the laying of the telegraph line from ide to Port Darwin from taking any immediate action in

er. In August 1873, however, the Chief Secretary of | Australia again addressed the Chief Secretary of Victoria, ng to the previous correspondence, and asking that instruc- ight be given to the Government Astronomer of Victoria, order that the necessary arrangements for definitely fixing yundary may be completed as early as possible." In De-

873 the Chief Secretary of Victoria replied, stating that xisting line having been, as is well known, determined 'ked on the ground in the year 1847, proclaimed as the in the South Australian Government Gazette of the

established line of demarcation between the two Colonies purposes, this Government cannot now give its consent to se of action which might tend in any way to disturb so ecognized a line as it is, or that could be capable hereafter 1g construed into any kind of admission that it regarded at present time with favour a proposition for amending or ig what has served for many years to define the territorial 'of the two Colonies." But he offered to concur with the nment of South Australia in determining as nearly as le the position of the 141st degree of East longitude, subject, condition that the work was to be done in the interests of only, and that the two Governments should agree before-

Tue State or SourH AUSTRALIA v. Tue SratE or Vicroria.

Some controversial cprrespondence followed, and in 187 Government of South Australia prepared a draft of a peti the Queen in Council, setting out the facts of the case so they were considered relevant, and asking for a determin whether the proclamations of the Governors of South Austr and New South Wales were or ought to be binding upon Colony of South Australia. The contention of South Aust was that the proclamations were extra vires and void, in as a contrary view would, in effect, amount to a ceding of ter: by South Australia and the acquisition of territory by South Wales. The Government of Victoria was asked to in the draft case and in an agreement to give effect to | Majesty's decision, but they declined to do so.

Correspondence on the subject was continued, and in 1) draft case was agreed to by the Governments of both Colo subject to the approval of their respective Parliaments. Th the Parliament of South Australia was obtained, but the Parl ment of Victoria refused to concur. This case submitted stantially the same point for decision as that of 1876.

1847, and by a despatch of 7th August he invited the intervs tion of the Secretary of State to bring about a settlement of th matter. The Marquis of Ripon, then Secretary of State for h Colonies, replied by a despatch dated 19th September 18 which he said that it would not be possible for him to i Parliament to legislate on the subject unless at the requ both Colonies concerned after they had agreed upon the natw the legislation desired. He also said that he would be prepa in the alternative to advise Her Majesty to refer the matter the decision of the Judicial Committee of the Privy Couneil without previous litigation under the powers conferred by of the Act 3 & 4 Wm. IV. c. 41, but that this course could o be taken if both Colonies agreed to request his intervention the matter, and added that unless the Colony of Victoria show be willing to come to an agreement with South Australia for purpose of obtaining the decision of the Judicial Committee

d that it would not be in his power to assist the Govern- H.C. of A. South Australia to bring the dispute to a settlement. Kes was the state of things when the Commonwealth was [ue srare

may be taken that from 1869 to the present time the % Tae Stave

nment of South Australia have done everything in their oy Vicrorzs. to protest against the continued acceptance of Wade's and line and to procure a rectification of it.

e other hand for more than 60 years first New South nd afterwards Victoria have exercised the fullest dominion he land lying to the East of the line. A great portion of the been dealt with by lease and licence to oveupy, some has enated in fee, municipal rates have been collected, and ectoral franchise has been exercised by the inhabitants in under the laws of Victoria, and in federal elections as s of Victoria.

oceed now to deal with the questions of fact and law g for decision. i

first, as to the authority of the Governors of South Aus- and New South Wales in 1847 to ascertain and mark out uundary between the Colonies.

When a tract of waste land in a newly discovered country is ded by the Sovereign power into separate Colonies under administrations, and with different laws, the necessity of ease requires that the boundary between them should be ined as soon as settlement approaches the border, since ise it would be impossible for inhabitants of that locality iow the laws by which they are bound or the authorities they are to obey. When the boundary prescribed is a f latitude or meridian of longitude, the necessity of the her requires that it should be denoted by physical and le marks. Authority to ascertain, and if necessary demar- the boundary must therefore reside somewhere. In the case uch a boundary as last mentioned, the exact location of which the existing state of human knowledge a matter incapable tainment with absolute scientitic precision, the necessity ase requires that the persons in whom the authority to ate the boundary resides should have a further authority

Tue State or SouTu AUSTRALIA v Tue State or Vicroria.

to ascertain the preliminary question of fact. The doe authority arising from necessity is well recognized in our ] See, for instance, Australasian Steam Navigation Oo. v.

Governors acting under the direction of the Secretary of | what is called responsible Government not having been in duced until the years 1855 and 1856 respectively. In 1 opinion, therefore, those Governors jointly, possibly of their motion, and certainly by direction or with the concurrence 0 Crown signified through the Secretary of State, had authori demarcate the boundary between the two Colonies, and for tl purpose to determine as a preliminary question of fact the | location of that boundary, provided that the circumstances such as to call for an exercise of that authority. These cireu stances sufficiently appear from the correspondence betwee Governors already quoted, to which may be added the fact in 1846 and 1847 new provisions had been made by Im Statute for dealing with the waste lands of the Crown in tralia, under which leases of lands on either side of the boun had been applied for.

In my judgment, therefore, the occasion for the exercise authority to demarcate had actually arisen when the agree was made and the proclamations were issued.

Secondly, as to the permanency or provisional nature o} transaction of 1847. There are indications in some of communications from subordinate officers of the respec Governments that they thought that a provisional demares could be made, using the word in the sense that the line be corrected from time to time if discovered to be wrong. cannot find any trace of such a notion in the despatches wl passed between the two Governors, or in the proclamations lished by them, or in the despatches from the Secretary of signifying his approval of their action. It is manifest thai were all aware that it was then impracticable to ascertain scientific precision the exact location of the 141st meridian,

agreed that the position assigned to it by Tyers should ted - in other words, that, on a question of fact to be upon evidence, Tyers' evidence should be accepted as ive for the purpose of the demarcation. The suggestion he demarcation of the line was temporary or provisional in fact, not made until the year 1893. It was strongly d upon us that, even if the Governors had authority to te the line, that authority was only to demarcate it by st known means, and that they could have done better o accept the position assigned by Tyers. It is sufficient, in ent, that the Governors and the Secretary of State Id have honestly adopted what they thought under all the stances of the case, of which they were better judges than was the best course to adopt. That they did so is incon- tible. The argument that Tyers' position was known to be approximation was also used in support of the contention delimitation could not have been intended to be per- but I cannot attach any weight to this argument, in of the actual facts.

hirdly, as to the effect of this determination. It is suggested plaintiff State that if it were valid, and the finding of rere erroneous, it would have the effect of an alienation of ry, which was, of course, not within the power of either nor to make. But, in my opinion, this is an erroneous view ae nature of such a transaction. The real transaction is the inment of a fact by persons competent to ascertain it, and ding of fact so made, and accepted by both, is in the nature in award or judgment in rem., binding upon them and all as claiming under them. So regarded, it is not an alienation itory at all, although, but for the finding, one party might had possession of more territory than he has when effect is it. This was the view taken by Lord Hardwicke in . Lord Baltimore (1) of such a transaction. In the ative view there could never be any finality until there n a judicial decision by some competent tribunal. In the i ease, as I will show, there was no such tribunal in

Tue StaTE or Sovra AUSTRALIA Tue State or VicToR1a,

It may, I think, be taken to be good law, as laid down case just mentioned, that a boundary line so ascertained is presumed to be correct until the presumption is displaced. ' main questions in the present case are whether it is displ: the mere fact of the discovery of the error, and, if so, w!

Although the line as laid down and accepted was bindi the time being upon the two Colonies, it was in 1848 capabl correction under the Royal Prerogative. i

It clearly appears from the very interesting records of Privy Council referred to by Mr. Mitchell that up to the mid of the 18th century the Royal Prerogative to determine tions of disputed boundaries between Dependencies of the C was recognized and exercised. (Pennsylvania and Mary Case, 1683-1709 ; Connecticut and Rhode Island Case, 1 Virginia and North Carolina Case, 1726-7 ; Rhode Island Massachusetts. Case, 1734-46 ; Second Pennsylvania and Island Case, 1734 to 1769; New Hampshire and New York 1764; New York and Quebec Case, 1768). It also appears the jurisdiction was exercised in invitos, and not merely on reference by both parties (Massachusetts and Connecticut ( 1754).

We were not referred to any instances of the exercise o! Prerogative after the Revolution of the North American Col until the middle of last century, when the Cape Breton Cas was referred to the Judicial Committee. In 1872 the Pen Island Case (between New South Wales and Victoria), an 1886 the Manitoba and Ontario Bowndary Case, were simil referred to the Judicial Committee. In all these cases Committee reported to the Sovereign without giving reason their decision. In the two latter cases the reference was by consent of the parties, but the jurisdiction exercised in ing the final Order in Council in the Pental Island Cas certainly an exercise of the Prerogative; for the consent of Colonies concerned could not confer jurisdiction. It must, fore, I think, be taken that the Prerogative then still whether its exercise in invitos had or had not fallen into abey:

le, indeed, that it was exercised per incwriam. In the and Manitoba Oase the Judicial Committee reported was "desirable and most expedient" that the boundary of ey recommended the adoption should be declared by an 1e Imperial Parliament. This, I think, should be regarded s an expression of opinion that the Prerogative, if it sted, should not be exercised as between self-governing ncies than as an expression of opinion as to its continued

taken as a definite expression of opinion that the Pre- so freely exercised in the 18th century ought not, in the conditions of the self-governing Dependencies, to be without the consent of the Dependencies concerned. Prerogative may, therefore, I think be regarded as having en into abeyance, and as no longer affording a practic- eans of solution of such difficulties.

n disposed also to think that the boundary might after ave been corrected by common consent of the two Colonies ind possibly without, the formal approval of the Crown. as certainly the position after 1861, when the Act 24 & 25 4 was passed.

in my judgment there was no other way of disputing or the delimitation of 1847.

tive occupation is ordinarily the best proof of title to ry. In my judgment, for reasons already given, the re occupation which followed on the adoption of Wade's Vhite's line was conclusive upon all persons unless and

ity. lement by agreement being out of the question, and the ive being, at best, in abeyance, it becomes necessary to

this purpose regard must be had to the nature of that and the nature of the right of a Dependency to invoke its

Tue Stare or SourH AUSTRALIA v Tue State or VicToria.

Tus Stare or SourH AUSTRALIA . Tue State or Victoria,

established. 'The reference in colonial boundary cases practice, to the Committee of the Council for Trade and P tations. The Committee was not bound to follow any rule law, but no doubt advised the Sovereign to do what they th just and fair. It appears from an opinion given by Sir W. Murray (afterwards Lord Mansfield) on 5th November 1754, with to a second controversy between the Colonies of Connecticut Massachussets on a question of boundary, that it was n¢ practice of the Crown to disturb settlements of boundaries had been made between Colonies and acquiesced in for a able time, though originally made without authority. 1 would, perhaps, have been equally applicable to the determi: of such questions whether they were regarded as polit judicial. Sir W. Murray said : - "T am of opinion that in s the above mentioned boundary the Crown will not distw settlement by the two Provinces so long ago as 1713, and missioners appointed in 1708. I apprehend His Majesty confirm their agreement, which of itself is not binding upon Crown, but neither Province should be suffered to litigate an amicable compromise of doubtful boundarys. matter was gone into at large, in my apprehension the q should not now be suffered to be agitated between the Prox The agreement ought to stand unless there are objections to the part of the Crown in respect of the inhabitants, or the sovereignty, or upon any account whatsoever. But if the approves the agreement I think it is now too late for the p: to dispute it." ' It is evident that that very learned lawyer, who may be to have been fully acquainted with the rules then adopted the exercise of this branch of the Prerogative, assumed that such a settlement had been made, the de facto boundary ad should be regarded as presumably right until revised b Sovereign. Lord Hardwicke's opinion expressed in Penn v. Baltimore (1), already referred to, is to the same effect. It is also to be inferred, in my opinion, that in the exe of the Prerogative in such cases the Sovereign was guid (1) 1 Ves., 444.

les of law such as can be invoked by a suitor who has a redress recognized by law. It follows, in my judgment, risdiction exercised by the Sovereign was political and icial, and that the Dependency petitioning for redress did

Committee for leave to appeal from a decision of the e Court of Tasmania given under a Statute of the Colony ich certain claims to Crown land were referred to the e Court for examination and report. The decision and f the Court were to be binding, final and conclusive the parties concerned, and the Governor was bound to dance with the report. tatute provided that : - "In examining into and reporting such applications and matters as aforesaid, the said and Clerk of the Court shall be guided by equity and good ence only, and by the best evidence that can or may be pro- though not such as would be required or be admissible in y cases; nor shall the said Court or Clerk of the Court be the strict rules of law or equity in any case, or by any ies or legal forms whatever." A similar power had ly been vested in Commissioners. The Judicial Com- eld that a decision given under the Statute was not a al decision admitting of appeal. 'They said (2): - *It is re judicial than was the action of the Commissioners and ernor. The Court is to be guided by equity and good ice and the best: evidence. So were the Commissioners. ery public officer ought to be. But they are expressly ted from all rules of law and equity, and all legal forms." language, in my opinion, accurately describes the nature of risdiction exercised by the Sovereign in the exercise of the ive in question. This conclusion is strongly supported ircumstance that in the cases referred to the Judicial mittee during the nineteenth century lay Lords sat on the mittee ; and that no formal judgment was delivered. The

Tue State or Sourn AUSTRALIA . Tue Stare or VicTorra.

Tue Stare or SourH AUSTRALIA v Tue State -or VicToria.

same practice was followed in the Queensland Constituti Case in 1885. =

The plaintiff State had not, therefore, in 1869, or at any time, any right to invoke the judicial power of the realm in o to revise the settlement of 1847.

This Court, although it has jurisdiction to entertain the ¢ plaint in the present case, regarded as a complaint of invasion territory, cannot give effect to any other than legal rights, a must give effect to the legal rights of the defendant State. functions are judicial only. It follows that, since the bo of 1847 is valid until set aside by competent authority, and the claim to have that boundary rectified is not a cause of capable of judicial decision, the plaintiff State has no right which this Court can take cognizance. The suit, therefore, and must be dismissed.

I may add, although what I now say is obiter only, that, if the Court could with propriety inquire into the validity settlement of 1847, the long delay which has occurred would my opinion, be a bar to the claim of the plaintiff State, not standing its long continued but ineffective protests. I think, respect, that the principles laid down by the Supreme Cour the United States in the very recent case of Maryland v. Virginia (1), following many previous decisions, and with those stated by Sir W. Murray, are sound, and shoul adopted. I say so much for the satisfaction of the litigants, earnestly invited the expression of our opinion on this aspee the case.

Barron J. I have read the judgment of the learned Chi Justice. In view of his full narration of the facts and statement, in which I agree, of the principles applicable facts, 1 deem it unnecessary to add a separate opinion, eith the question of jurisdiction or on the main questions of fact Jaw.

ved, both upon the law and upon the facts. I do not H.C: or A: to refer in detail to the facts and documents proved in as 'with which he has so adequately dealt. There are, Tay srare r, some aspects of the case with respect to which I wish Peay my reasons separately. °.

not denied that the true line of the 141st meridian, if governess. on the ground in accordance with present knowledge, she aid of modern scientific methods and instruments, be a little over two miles to the East of the marked line has been the de facto boundary between the litigant or the last sixty years. South Australia asserts that the f land between the true line of the 141st meridian and the to boundary is South Australian territory wrongfully in 's possession. She asks in this suit to have her right d, and the strip of land restored to her possession. She certain other relief which is merely consequential. The therefore in substance one in which a State seeks to portion of her territory, of which she alleges that an ing State isin wrongful occupation. It is no doubt true u change of allegiance in the inhabitants of the disputed itory and other political consequences would necessarily , if it were adjudged that South Australia was entitled to

m. But that does not render this a suit for the deter- ion of political rights over the land in dispute, nor is it any a suit the substantial object of which is to obtain redress alleged infringement of the' plaintiff State's rights of pro- The defence may in effect be summarized in a very few "It is objected, in the first place, that the Court has no iction to entertain the suit, the matters to be determined in their nature not justiciable, and therefore not cognizable Court of Justice. It is also contended, and it is to this d that the bulk of the evidence was directed, that, after is proved to have taken place between the two States in ixing, proclaiming and adopting of Wade's line, as marking e position of the 141st meridian, and its subsequent recog- y both States for many years without question in the inistration of their respective territories, it would be impos- or the Court to give effect to the plaintiff State's claim.

Jurisdiction to entertain suits between States is conferred sec. 75 of the Constitution in these words: - "In all matt between States . . . . the High Court have original jurisdiction." The generality of the "matters" in this context is restricted by sec. 71. Reading | sections together the power which is thus vested in the Hi Court is judicial power, and judicial power only.

"Matters" must therefore be read as meaning " matters able of judicial determination." In other words, it is only wl the matter in controversy between States is "justiciable" the High Court can entertain it. Lord Loreburn LO. Dominion of Canada v. Province of Ontario (1) states is I think the true test for ascertaining whether a claim is, not, " justiciable " - Can it, he says, " be sustained on any principl of law that can be invoked as applicable?' This require: that the matter in dispute between States must be such that can be determined on some recognized principle of law, diffe entiates in this respect the Australian from the American Co: tution. At the time when the latter Constitution was fra boundary disputes existed between several of the States. As State had full rights of sovereignty over its own territory, common code of laws could be applied in the determinatio these controversies, and in most cases they were settled as disputes are usually settled between independent nations. some cases principles of international law were appealed ty

or political expediency were the bases of adjustment. The ear! Union or Confederation of States had vested in it the po settle such disputes between States, and when, in the fram the United States Constitution, the power to adjudicate in " troversies between the States" was conferred on the Supt Court of the United States, it was clearly intended to vest in tribunal all the power of settlement and adjudication whicl to then had been exercised by the Confederation, that is to s the power to determine matters not justiciable as well as m justiciable. The Supreme Court of the United States, in set boundary controversies between States, has always acted on

y of its powers. That is made abundantly clear in one of the t ca Maryland v. West Virginia (1). The Australian tution, on the other hand, limits the power of settling between States in boundary disputes, as in other cases, in which the matters in controversy can be determined 'application of recognized legal principles. Several deci- of the Supreme Court of the United States in State ry disputes were cited during the argument. In following guidance in the present case the distinction I have pointed st be kept in mind. I do not, however, propose to refer to rican cases. The language of the Commonwealth Con- in this respect is so entirely free from ambiguity that opinion no authorities are needed for its interpretation. inly says, and it clearly means, that whenever a question as to the position of a boundary line between two States ourt will have jurisdiction to entertain it, if the question in a controversy between the States which is capable of termined on recognized legal principles. already pointed out that in this case South Australia's is, in substance, for redress against the infringement of her 'of possession to land which she claims to be portion of her y. Whether the land in dispute is or is not portion of Australian territory will depend upon the position of the line which, according to recognized principles of law, d her territory on its eastern side at the time when her of complaint arose. Going back to its foundation her right upon a chain of Imperial Statutes. The boundaries are set the first of them, the 4 &5 Will. IV. ¢. 95, which authorized he Letters Patent under which the Colony was created. an authority than an Imperial Statute could alter the so laid down, and no Imperial Statute has altered Moreover, a title under Imperial Statute is of such high y that no agreement between the Governors of the concerned, nor any act of the King or his Ministers odify the rights created by the Statute, or restrict ise, unless power to so alter, modify, or restrict is ound in the Statute itself, or in some latter enactment _ (1) 217 USB. 1.

of the Imperial Parliament. South Australia's right to tl possession of the disputed territory depends upon the int pretation of 4 & 5 Will. IV. c. 95 - no other statutory vision is material - and upon its application to the facts" evidence. The Statute, being in force throughout Australia, binding on both the litigating States; its interpretation an¢ application to the facts of the case are obviously matters capal of being determined on recognized legal principles. It folloy

that the claim is clearly within the jurisdiction of the High Court. Before, however, entering upon the matters thus in co troversy, I shall shortly advert to a view suggested during argument by my learned brother Higgins, and which he h: expressed in the judgment he is about to deliver. The su gestion is a doubt whether the power to deal with her pul lands, conferred on South Australia by her Constitution (18 & 19 Vict. c. 56), entitles her to such possession as necessary for the maintenance of the present suit. Wi every respect to my learned brother's view, I can see 1 ground for the doubt suggested. As far back as 1847, the "= Supreme Court of New South Wales held that, on the first settle- ment of Australia by the British nation, the waste lands of the portions settled were "in point of legal intendment, with office found" in the Sovereign's possession (Attorney-General Brown (1)). The expression "Sovereign's possession" in that connection means, not the personal possession of the King, the possession of the King as representing the supreme executi power of the British Empire. As rights of self-government conferred on each Colony exclusive rights of executive authority over matters within the ambit of the rights conferred became of necessity vested in the executive power of the Colony. TI Statute granting the right of self-government to South Australi expressly empowered the legislature to regulate the sale and othe disposals of the public lands and the disposal of the pro for the Public Service of the Colony. That grant necessai involved a cession to the executive power of the Colony of a rights of possession in public lands for public purposes wl theretofore had been in the King as representing the sup!

e of the Empire. If that were not so, the right of self- ent in respect of public lands would have been an empty Within the limits of self-government conferred by its itution the executive power of each self-governing Colony, h subject to control by Imperial enactment, is as inde- nt of the executive power of the Empire as it is of the tive power of any Colony of the Empire. As pointed out Court in Sydney Municipal Couneil v. The Common- (1) the Crown, as represented by the Executive in Great n and in each of the self-governing possessions of the , is a separate juristic person, each within the ambit of its ity independent of the other, and I entertain no doubt that, British Government, by one of His Majesty's Ministers, to enter into possession of a portion of the South Australian ublic lands, contrary to South Australian laws, His Majesty's would be liable to be dispossessed by writ of intrusion suit of the State of South Australia, just as any other der would be liable. It is clear therefore that, but for the d of defence to which I shall next refer, there could be no r to the claim of the plaintiff State.

main defence rests on the facts relating to Wade's ascer- ent and marking of the position of the 141st meridian at mice of the then Governors of South Australia and New h Wales, their approval and proclamation of the line so ined and marked, the ratification of their action by the h Government, and the subsequent adoption of the line by olonies concerned for nearly twenty years without question e actual boundary between them for all purposes of admin- I entirely concur in my learned brother the Chief e's statement as to the facts concerning these matters, and t his conclusions. I agree that Wade's ascertainment of ine was as accurate as Was practicable, having regard to the ion of knowledge and the appliances for scientific observa- then reasonably available in Australia - that the line was ed and proclaimed by the Governors respectively, not as a ional but as a permanent boundary line on South Aus- eastern side, intended to represent, as nearly as could (1) 1 G.L.R., 208.

Tue Stare or Sourn AUSTRALIA v Tue State or Vicrorta-

Tre Strath or Sourn AUSTRALIA v. Tue Starr or VICTORIA.

be then ascertained, the true position of the 141st meridian. is obvious that the ascertainment and marking of the line at th time had become essential for the efficient administration of bot Colonies. It also appears plainly from the documents that the King's Ministers then charged with the administration of #

Colonies approved and ratified the action of the Governors with full knowledge of all the facts. Under these circumstances thi inference which, in my opinion, naturally arises, is that boundary marked by Wade, and afterwards continued by Wh to the River Murray, represents the position of the 141:

South Australia in accordance with the Letters Patent w authorized its establishment. : The word " boundary," used in the connection now under con sideration, imports, from the very nature and purpose of thing described, a line of demarcation capable of being marked on the ground as the visible and permanent delimitation separate independent adjoining jurisdictions. A line of demai tion, the position of which is liable to be moved a mile or so or West whenever a new method of observation is discovered, a new instrument of greater accuracy is invented, is a thin; entirely inconsistent with the ordinary conception of a bound: line between the territories of adjoining Governments, exercisi jurisdiction independent of each other. In other words, the term "boundary" connotes in its ordinary natural meaning a of division capable of being permanently fixed. 1 agree, theref¢ that, where the Crown is empowered to create a new Provii a power must necessarily be implied in the Executive Gove I ment to ascertain and mark permanent boundaries unless Statute or other document authorizing the establishment of th Province expressly or impliedly prevents that implication fr avising. Turning now to the Act 4 & 5 Wm. IV. ¢. 95, so far from bei inconsistent with such a power, it expressly authorizes its cise. It enables the British Government to erect and estab within the limits prescribed one or more Provinces and "to fix the respective boundaries of the Provinces." The Letters Pat

| in pursuance of the Act establish one Province to be called vince of South Australia. The eastern boundary is fixed 'ollowing terms - I quote material words only : - * We do fix the boundaries of the said Province in the manner ing, that is tosay . . . . on the East the 141st degree longitude."

describing a boundary as the 141st meridian of " East tude" a definite position on the earth's surface is indicated as it would be if the description were "a line running and South passing through a point a thousand miles East reenwich." In either case the position of the line is capable of , ascertained with more or less accuracy. It must be taken ve been within the knowledge of Parliament when the Act 4 & 5 Wm. IV. was passed that in marking out a meridian of ude in South Australia at that period a line within two or miles of the scientifically true position was as near an h to accuracy as could be fairly expected, also that a ble permanent line of demarcation between the new Province | the adjoining Colony on the East would very early become tial for the purposes of administration. Under these cir- tances a reading of the expression "fix the boundaries" h would confine its operation to a fixing on paper could have been within the contemplation of the legislature. In

a fixing and marking on the ground as well as a fixing by ten description, and in that wide sense they ought in my jon to be construed. It follows that the ascertainment and ing of Wade's line, and its approval and ratification by the British Government amounted to no more than an exercise of power to fix the boundaries of the new Province conferred e Statute which authorized its creation. What then were ights of the Province and the adjoining Colony respectively it was, many years afterwards, ascertained by the more ate methods and instruments then available that there had a substantial error in laying down Wade's line as marking e position of the 141st meridian? Did the line ascer- d and marked under the circumstances to which I have remain the legal line of demarcation, notwithstanding

the discovery of the error - or was South Australia entitled to disregard Wade's line and have the boundary moved eastward the position in which the most accurate methods of the pre day would place it, with the consequential right to possession the lands which Wade's line had erroneously enclosed w: Victorian territory. Those are the vital questions in this and the answer to them according to my view is embodied is observations which I have already made. The power to fi territorial boundaries must imply the power to fix them p manently. A boundary liable to re-adjustment on the discover of every new method or instrument -which ensures a nea approach to scientific accuracy in the ascertainment of meri of longitude is not the kind of boundary which the Bri Parliament had in mind in enacting the 4 & 5 Wm. IV. c. 95. the contrary, the language of the Statute, its subject matter a object and the conditions of Australian colonization at the when it was passed, all lead to the conclusion that the legislature intended to endow the British Government with full power ascertain and fix on the ground with all the accuracy attainal under the circumstances the true position of the 141st meric as the permanent line of demarcation between the sepai adjoining jurisdictions which it was the effect of the Statute: create. It was in pursuance of that power that the Bi Government by its officers laid down Wade's line and continu it afterwards to the River Murray. That line thereby and then - became the fixed boundary of the Province on its eastern side, as binding on South Australia ever afterwards as if it had described in express terms by the original Letters Pat Whether the King in Council could when the error was sul sequently discovered have entertained a claim on the part South Australia to have the error corrected it is not necessary to determine. It is plain from the evidence that at least since grant of self-government to the several Colonies of Australia #] British Government has always declined to exercise any such jurisdiction without the consent of both Colonies concern The power exercised by the King in such cases before that tin was a political, not a judicial, power. This Court, as I shown, has no power other than judicial. It has cognizan

f claims which are capable of enforcement in a Court of and in my opinion South Australia has not now and had, after the proclamation of the boundary constituted by sline, a right, capable of being so enforced, to any territory eastern side not included within that boundary.

efore agree that the plaintiff State has failed to establish 'im and that the suit must be dismissed.

sJ. The first question is as to the jurisdiction of the to entertain the suit. This depends on the meaning of the matters" in see. 75 of the Constitution. In my opinion pression, used with reference to the judicature, and ng equally to individuals and States, includes and is con- d to claims resting upon an alleged violation of some positive 9 which the parties are alike subject, and which therefore s their relations, and constitutes the measure of their

0 extend the meaning of the term beyond this, would leave Court without any limits of jurisdiction between States the fact of some dispute, irrespective of cause or subject , and therefore possibly a controversy without any standard ht, but involving judicial interference with political and inistrative action and discretion, a position unheard of, and ther outside the pale of sober thought.

defendants contend that the question raised by this section legal but political.

he necessary parliamentary authority to create the Colony of h Australia was given on 15th August 1834 by 4&5 Will. 95, by which the King was empowered, with the advice of 'ivy Council, between the 132nd and 141st degrees of East ude, to establish one or more Provinces and to fix the tive boundaries of such Provinces.

'y advice, and purporting to act in pursuance of his par- itary powers, established South Australia and fixed its aries, the eastern boundary being 141 degrees East longi-

This act of the King, including the fixation of the ies, was not a prerogative act ; but in strict and acknow-

Tae State or SouTa AUSTRALIA Tue State or Vicroria.

ledged pursuance of a parliamentary authority, and deriv

The Letters Patent had the statutory force of the ena under which they were issued, and the plaintiff State, that i Crown " in right of" the State of South Australia (B Power Co. Ltd. v. Rew (1)), or the Crown " as represented that State (Attorney-General for Dominion of Canada v. neys-General for Ontario, Quebec and Nova Scotia (2) ), tends, as appears from the statement of claim, and as in argu stated, that its eastern boundary having been by Imperial lation declared to be the 141st meridian, that could not be intentionally or otherwise, by any departure from that met without the consent of the British Parliament, which has been given. It avers that Wade's line, being over two mi tant from the meridian, is therefore not the true boundary, should be so declared, as against the defendant State, that i uy Crown in right of the State of Victoria.

That raises a question of law determinable by referen legal considerations only, and justiciable by this Court. If not so justiciable, then whenever new States may be admitte established, or the boundaries of States may be altered un provision of Chapter VI. of the Constitution, this Court ¥ but the King in Council exclusively may, for all futw entertain a dispute as to boundaries. This, however, is not w the range of possibility, and, if not, it seems to follow that Court has, with regard to the present boundaries of exis States, jurisdiction equally with respect to the future boun: of those or future States.

It was contended on behalf of the defendant State that jurisdiction still remains political because the ascertainment settlement of boundaries between disputing Colonies is a bi of the Royal Prerogative, and it is said this must be so b in addition to the direction of the Act and the statutory Patent, circumstances have occurred, as in such cases ¢ stances do occur, which must, from their nature, be resolver according to any rules of positive law, but by the application

(1) (1911) A.C., 87, at p. 95. (2) (1898) A.C., 700, at p. 709.

considerations, or by resort to rules of international law, icable to dependencies of the same Empire. ll important to observe that the Act of 4 & 5 Will. IV. c, nferring the power of His Majesty, required him both in lishment of Provinces and the fixation of their boundaries ith the advice of the Privy Council, which means in ional practice, with the advice of the Ministry of the | other words, the permitted declaration of the Royal in this instance to be, not an exercise of the Prerogative by the common law to govern the Colonies, but an act of ible administration on the part of the Imperial Govern- der parliamentary authority. It is quite clear, therefore, © prerogative power could derogate from the act of the rsuant to his legislative will with the concurrence of nt. gument, however, as to the Prerogative of the King in acting as a tribunal to determine disputes, went so far as intain that the settlement of inter-provincial boundaries, er a dispute arises, and however the Province is created overned, is always a political question, and if determined at st be determined exclusively by the King in Council. No h precedent or authority covers so wide a proposition. observations of the American Supreme Court were quoted our of the view, but they appear to me consistent with a jive meaning, and if not, then to be irreconcilable with nion of Lord Hardwicke L.C. The case of Penn v. Lord nore (1) is a guide on this and other material points of law for our determination. There the same objection was amely, that the King in Council alone had jurisdiction. rd Chancellor speaks of the "original jurisdiction" of ig and Council in boundary questions, compares it to trials mmotes or Lordships and observes (2): - " But in those where neither had jurisdiction over the other, it must be the King and Council ; and the King is to judge, though tt be a party ; this question often arising between the | and one Lord-Proprietor of a province in America: so in of the Marches, it must be determined in the King's

Tue Stare or SoutH AUSTRALIA vw Tue SraTe or VrcTorrA.

Court, who is never considered as partial in these cases ; it b the judgment of his Judges in B.R. and Chancery. So wl before the King and Council, the King is to judge, and is no to be presumed partial in one case than in the other. This Cot therefore has no original jurisdiction on the direct question original right of the boundaries."

The Lord Chancellor's opinion then was that the King Council had jurisdiction to judge as a judicial tribunal of | controversy, even where the King himself was one of the p:

• the latter consideration having no relevance except to judi action.

He goes on to show that the relief prayed before him was. another ground, namely, agreement, and says (1) "an action covenant could be brought in B.R. or C.B. . . . . with going to the Council."

He holds that (1) " the King in Council is the proper Judge the original right," but cannot decree specific performance agreement ; a Court of Equity can alone do that. His words (1): "If that agreement is disputed, it is impossible for the in Council to decree it as an agreement. That Court," says 1 Lord Chancellor, " cannot decree in personam in England unl in certain criminal matters; being restrained therefrom Statute 16 Car., and therefore the Lords of the Council remitted this matter very properly to be determined in anot place on the foot of the contract." 5

Reference to the Order in Council of 16th May 1735, Lord Hardwicke himself was present, shows that the K ordered that the consideration of the report of the Committe the Council for Plantation affairs should be adjourned that Thomas and Richard Penn might have an opportunity to pro in a Court of Equity to obtain relief on the articles of agre insisted by them, with liberty to apply to the Plantation ©: mittee as the nature of the case might require. This is language of a Court, not of a mere political body exerci purely political functions.

Several Orders in Council made by the Sovereign upon bor ary disputes between American Colonies were exhibited to

has not been taken away. 'The latest is that between ork and Quebec in 1768. But there is, first of all, the of Lord Hardwicke, expressed while the function was in on, that it was of a judicial nature, so that its continuance, e present legal power of the Judicial Committee under the Council Act (3 & 4 Will. IV. c. 41), would not offer any le to the concurrent jurisdiction of this Court. And next, uld be considered political, I should be prepared to hold its ion had long ceased with regard to the States of this Com- Ith. /

Campbell vy. Hall (1) Lord Mansfield, speaking for the pointed out that the King's prerogative power is a power dinate to his own authority as a part of the supreme legis- ature in Parliament.

was the case of a conquered country where the Preroga- is greater than in the case of a newly settled country, and I ere observe that in the view of Blackstone, writing in 1768, rican Colonies fell within the class of conquered or treaty tries. Having promised a particular form of constitution to the Court held the promise irrevocable, as an invitation pjects to settle there. The Prerogative so far as inconsistent that promise was abandoned.

by parity of reasoning, when the King in Parliament has taken to deal with the establishment of a dependency, and declared that its boundaries shall be fixed by the King with vice of his Privy Council, and when the King in Parliament further proceeded to confer a representative self-governing stitution upon the dependency comprised within the bound- 0 fixed (18 & 19 Vict.c. 56). it would be highly unconstitu- in the British sense, and in my opinion also inconsistent, nd therefore unlawful, for the King to assert as a common law ogative, by virtue of his regal dignity alone, the power to as a mere political question, regardless of legal rights, and with it by his own personal authority free from the con- ence of Parliament, a boundary dispute between that depend- and another possessing similar powers of self-government

and relied on as proof of the Royal Prerogative, which, it H.C. or A.

(18 & 19 Vict. c. 54). Such personal authority is as inconsist with the parliamentary declaration of territorial limits as v that of legislative limits. If the Sovereign by his own Ro, Prerogative may determine politically disputes as to the firs! see no reason why he may not similarly determine the other.

The principle, as I conceive, is contained in the judgment the Privy Council in the case of In re Lord Bishop of q (1), where Lord Westbury L.C. says : - " With respect to the first question, we apprehend it to be clear, upon principle, that aft the establishment of an independent legislature in the Set ments of the Cape of Good Hope and Natal, there was no pow in the Crown by virtue of its Prerogative (for these Lett Patent were not granted under the provisions of any Statute) establish a Metropolitan See or Province, or to create an Eecle astical Corporation whose status, rights, and authority the Color could be required to recognize. :

" After a Colony or Settlement has received legislative instit tions, the Crown (subject to the special provisions of any Act Parliament) stands in the same relation to that Colony or Settl ment as it does to the United Kingdom." The only Prerogativ:

• and, at all events, the only surviving Prerogative - in relat to such a matter must be of a judicial nature, exercisable ei upon appeal in the ordinary way, or original under the 4th tion of the Act of 3 & 4 Will. IV. c. 41.

The result is that in 1869, when the controversy first a1 there was no political jurisdiction resident in the Sovereign or without the aid of the Imperial Council to declare the posi of the true boundary in edversum between South Australia a1 Victoria. y

There was a right under the 4th section of the Act of 1833 | refer the matter to the Judicial Committee, but Her Majesty the Secretary of State (Lord Ripon) in 1894 declined to exere that power except upon the joint request of the Colonies co cerned. ©

It is not unworthy of observation that, as the matters w) under that section are referable to the Judicial Committee obviously those of a judicial nature (see Zodd's Parliamenta

ment in the Colonies, p. 305, and the speech of Sir George Solicitor-General, Hansard, vol. 209, p. 984), this dispute, le defendants' argument be correct, could never have been ly referred or dealt with under that section. If, however, have been referred as being a judicial matter, this Court of necessity have jurisdiction.

mpetent forum for inter-State controversies its status is plete ; and the lew fori must be either direct Imperial legis- or Colonial legislation authorized by some Imperial

by any law binding the defendants, but is dependent on considerations merely, the Court must say so. It has tion to entertain the suit, but in the course of its exercise be compelled to adjudge adversely to the plaintiffs on the md that no paramount law can be found to support their , An instance of such a case is found in Shekh Sultan Sani ikh Ajmodin (1). A suit was brought in an Indian Court lare the rights of the plaintiff to certain saranjam (which ignment of lands or their revenue by the State for the tt of troops) and a jaghir, a kind of grant. The decision inst him. The Privy Council ultimately held in erms: - " Their Lordships are of opinion that the question ranjam or jaghir shall be granted on the death of its holder which belongs exclusively to the Government to be deter- upon political considerations, and that it is not within the eney of any legal tribunal to review the decision which fovernment has pronounced." But the Court has always liction to determine in the first place whether the standard ical or legal. ing now to the matter in issue, the question is not where a Congress of Astronomers, could locate the 141st degree the least probability of error - for utter precision is even at it impossible - but where, according to law, it should be this action to be, as between these parties and for the e of the boundaries between the two States. The conten- : the plaintiff State, divested of immateriality, is short and

THE StaTE or Sourm AUSIRALIA v. THE StaTE or Vicrorta.

simple. The Imperial law says the 14st meridian is the | boundary. Wade's line is not that meridian astronomically sidered, and therefore Wade's line is not, and cannot be consider the true boundary. The defendants' contention is also short simple. It is that Wade's line was arrived at as the result o scientific attempt authorized by the two States to ascertain position of the meridian for the purpose of locating their boundary, and as a step indispensable to enable them to carry

administrative and judicial ; that it was delimited with the ho endeavour to fulfil the conditions of the law; was accep' both parties at the time; acted on by both unquestioningly 20 years, and since then under informal protest by one, should not be disturbed. I agree that the true boundary is. must be taken always to be in law the 141st meridian an other line. I see no right in this Court to declare the bound to be any line but that which it finds upon the evidence con ling the issue, and according to the law applicable to this ca answer the description of the 141st meridian. But it does no follow that the Court is compelled to resort to the evidence of the position of the astronomical meridian as it may now be se tifically approximated as the controlling evidence, and to regard all that has taken place since the Letters Patent wi issued. i The Imperial Parliament empowered the King to establi Province or Provinces between the meridians of the 132nd an 141st degrees of East longitude and to fix their respective 1 daries, and words were added providing that all persons resit in those Provinces should not be subject to other Australian past or future, but only to such laws as might be made witl the Provinces by persons' there resident and empowered so to by His Majesty in Council. This instant repeal of all legisl in the new Provinces of itself carries with it the necessary imp! cation of Parliament that the point where the old jurisdict ceased and the new jurisdiction began would be definitely cated to residents whose position was affected by the change. certainly did not contemplate an indeterminate boundary, or the residents of either side should rely on their own astronom

ledge at the peril of becoming law-breakers liable to punish- or did it contemplate a boundary shifting according to progress of science. Further, Parliament did not intend that itles of settlers would become insecure or void, judicial juris- m should arise and disappear, laws come into or cease from ion, in conformity with the advance in mechanical art, or onal equations of skilled astronomical observers.

territory was severed from New South Wales and handed immediate independent colonization and government as ical measure. The Preamble declared that divers-of His by's subjects, possessing amongst them considerable pro- ere desirous to embark, and that it was highly expedient ould be enabled to carry their laudable purpose into effect. ng could have been further from the mind of Parliament or imical to its declared object than the possibility of annul- by unexpected boundary alterations, Crown grants to the sective settlers who were induced to embark with their ty to the new Province. The meridian of a degree of longi- is an imaginary circle necessarily requiring a physical act e its position with reference to the earth. The success le operation of locating a meridian on the earth's surface ids upon the state of science for the time being. And Parlia- having in view its declared object, must have contemplated peration being performed with all the attendant difficulty le want of astronomical precision that beset the know- of the day. In other words, the 141st meridian of the ite, and the Letters Patent following it, meant the 141st ian as it could with reasonable certainty be marked when upon the surface of the earth, by trustworthy men ing the recognized standard of professional skill and using are. When, therefore, the time arrived at which the neces- of government called for the identification of the boundary, Colonies concerned proceeded to do what, in my opinion, were in duty bound to do, what they were expected by the of the Statute and the Letters Patent to do, and what the circumstances forced upon them. The necessity of tion might plainly arise suddenly and urgently - in those communication with London was tedious and protracted -

Tre Stare or Sourn AUSTRALIA v. Tue StaTE or VicToria.

instant action was necessary to protect life and property, restrain lawlessness and punish crime, as well as to promote settlement. The Imperial authorities had not undertaken task of delimitation, the Governor's Commissions did not conte any restriction in this respect, and the irresistible inference, my mind, is that the task had been left to the local authorit who were assigned functions and responsibilities side by si and with no other means of fulfilling them, and therefore was by necessary implication an act within the scope of th authority and within their powers. This inference is confir by the subsequent approval by the Secretary of State of the the work had been done and his desire to continue it. And, done, it was of the essence of the matter that it should be manent. A boundary line known to be incorrect and delin as a mere passing convenience, simply to establish liability murder and to try and punish offenders, can hardly be concei as even a temporary compliance with the paramount law.

Nor is it'a reasonable supposition that the line was fixed an implied reservation that it was to be subsequently altere found incorrect. The notion is scarcely conceivable that tit were to be taken and paid for, and homes built, political ties institutions formed and established, all with the conscious that the boundary once fixed might at any moment be alte: and at indefinite intervals swing backwards and forwards. - only reasonable idea is permanency of a boundary delimitatio accordance with the law so far as that was then practi possible, having regard to the circumstances of the country, state of science when the operation was undertaken, and urgency of the occasion. The argument of instability, if in the present case, would apply to every meridianal State on the Continent.

If, however, the fixation of Wade's line was undertaken onl a temporary expedient outside the requirements of the law, by way of establishing a line of demarcation which was not intended to represent actually the 141st meridian, but onl: approximation to it, then it was not a compliance-with the | and South Australia would, in my opinion, succeed. Idon accede to the doctrine that acquiescence by the two States

illegal course, involving an intentional breach of Jaw, would of itself, or together with its actual or ted result, create any right to continue that unlawful The doctrine of MacAllister v. Bishop of Rochester (1) slington Vestry v. Hornsey Urban Cowncil (2) seems that case, because public duties cannot be so divested, ernmental jurisdiction and power so created. But the line ublished, according to my reading of the evidence, as a , definite and permanent line between the two Colonies, so identify their respective limits for all purposes and for all

at, then, was in fact done? The proclamations are, I think, ent, and, strictly speaking, exclusive evidence of the nature proceeding by which the boundary was ascertained. The of those documents are not doubtful. Lieutenant-Governor proclamation recites the necessity which has arrived to out and ascertain the 141st degree of East longitude which mn fixed by the Letters Patent ; it recites the arrangement en the two Colonies, by which the position of that meridian been "correctly ascertained at a spot on the sea coast near he River Glenelg," the survey of the meridian northward as far s the 36th parallel of South latitude, and its marking by artificial , and then declaring it was expedient that the survey should wathoritatively adopted" and made known, proceeded form- notify and proclaim that the line so marked "is and shall ed and construed to be the eastern boundary of the Pro- of South Australia to all intents and purposes." faras words can make the adoption of a boundary line per- it and detinite, that proclamation did so. horter, but equally explicit, terms Governor Fitzroy's pro- ition declared the survey the true boundary line. here thus seems no room for any belief except that the line ded as definitively established beyond the possibility of question. in a matter of so much moment to the States concerned, which the actual intention of the parties, notwithstanding | pronouncement, was so strenuously contested, I think it (2) (1900) 1 Ch., 695.

highly desirable to shortly review the progress of the chief ever

The earliest relevant reference to the eastern boundary o South Australia is contained in a despatch dated 30th Septe 1844 from Governor Grey of that Colony to Lord Stanley ( R.). 'The Governor reminded the Secretary of State that would be extremely difficult to determine with accuracy a num! of points upon the earth's surface through which the 14 degree of East longitude passes, and pointed out that in additic to difficulty there would be attendant expense both in ascert ment and maintenance. He stated "the question of the pos' of the eastern boundary of this Province has now ceased to |

indicated natural landmarks instead of the meridian, so that, the earliest point of discussion, the difficulty of accurate asc tainment was recognized.

The Secretary of State, while aware of the inconvenience thought the correction not sufficiently urgent, and communicat with the Governor of New South Wales on the subject. >

Sir Thomas Mitchell reported to his Governor in favour of { substitution of natural landmarks for the 141st meridian.

Superintendant Latrobe on 22nd December 1845 (Ex. V. assented, but suggested other marks. Governor Gipps laid question before his Executive Council on 3rd February 18: That body did not favour either of the boundaries proposed, agreed that some legal alteration of the boundary was desiral The course they proposed was that the 141st degree should adhered to, with this modification, viz., that a Commission shot be authorized by the Queen to lay down a boundary, that is, new legal boundary, deviating from the meridian line wh within a limited distance geographical features presented the selves as favourable natural frontier marks.

Governor Gipps on 29th April 1846 in a despatch to the retary of State suggested instead of the 141st meridian, | deviating as little as possible from it, a conventional bounda

te action in delimiting the boundary increased. Com- ner Bonney of South Australia called the attention of the rnor to the necessity of having the eastern boundary ap- nately defined as soon as possible. He pointed out three s, that the country was occupied for 70 miles from the that there were 12 or 14 settlers so close to the boundary create uncertainty as to liability for rents, thus causing loss venue, and lastly the fact of bad characters resorting to the le territory. utenant-Governor Robe then (22nd July 1846) communicated overnor Gipps enclosing part of Bonney's report, stating his ence in Bonney's views as to the desirability of an early mation of the boundary, and asking for suggestions for mal arrangements. to prevent the inconveniences com- until some definite and marked boundary could be deter- | on the spot. Even the time necessary to mark the lary without delay should, in his Excellency's opinion, be ed by temporary arrangement. vernor Fitzroy, who in the meantime had succeeded to the nment, obtained a report from Superintendent Latrobe on ibject. That gentleman again stated his concurrence with xecutive Council's conclusions already mentioned, but with v to the immediate definition of the boundary line said in that, whichever of the three points (Mitchell's, Tyers' or s'), which were variously thought to represent the 141st e, was taken, a true North and South line should be run to urray River. He seemed to prefer Tyers' point. Governor roy on 15th September 1846 replied to Lieutenant-Governor communicating the earlier views of the Executive Council Latrobe's suggestions. Lieutenant-Governor Robe replied th September 1846) drawing attention to several murders com- d in the vicinity of the undefined boundary, and expressing necessity of some measwres for a provisional adjustment of a of demareation, or for giving the local magistracy reciprocal fiction, until the question of boundary shall have been ly determined. rhile that letter was under consideration by the Governor of South Wales, Mr. Mundy, the Colonial Secretary of South

Tue Srare or SoutH AUSTRALIA v Tre STATE oF VicTortA.

'Tae State or Sourn AUSTRALIA vw THE Srare or Vicroria.

Australia, by direction of the Governor directed the Surv General to report on the subject of laying out the boundary li between the two Colonies, and especially warned him that no other line than that of the 141st meridian could be adopted as law then stood. Captain Frome, the Surveyor-General, ask (9th October 1846) whether he was required to determine it reference to Greenwich only, in which case he would requ various original astronomical observations - obviously requ!

make Tyers' point a starting point, a course he recommended substantially accurate. Lieutenant-Governor Robe thereuy (14th October 1846) communicated with Governor Fitzroy stat

Excellency that, however desirable it may be to adopt at sor period natural features of country as to the boundary of tl provinces, none other than the 141st meridian of East longitude

On 26th October 1846 Lieutenant-Governor Robe forwarded | Governor Fitzroy a further letter of Frome, who was evidently and naturally anxious that South Australia should get all territory she was entitled to, and referring to a slight differe: between Tyers' and Stokes. Governor Robe says: "As tl Imperial Parliament has deeided that the boundary shall be the 141st degree of East longitude, it remains for us to as that meridian by the best means in our power, to pr further litigation among the occupiers of the soil." On 30) December 1846 Governor Fitzroy replies to both despatches indicates what he considers the best means. He says apprehend that the best means in our power to ascertain #1) 141st meridian of East longitude so as to meet the provisi of the Imperial Act will be to direct the surveyors emplo to strike a mean line between the calculation of Captain Stol and Mr. Tyers." The Governors therefore thoroughly app ated their duty to discharge this important function by the means in their power consistent with the requirements emergencies of the situation, and after weighing the possibiliti

ily arrived at a conclusion which we, at this distance of with a less perfect acquaintance with the necessities cilities then present, are not in a position to reverse. ructions were accordingly given to Surveyor Wade , who was deputed to do the work for both parties YV.). As, however, positive information as to Stokes' as not furnished to Wade, he with the concurrence of , the person who was watching for and reporting to South lia, adopted the point which Tyers had determined to be { meridian, and on this basis, which was in favour of ustralia, the survey proceeded.

12th May 1847 Colonial Secretary Mundy conveyed to the Governor's approval of his report, and both Govern- adopted the line as the correct line of the meridian. The of authoritative recognition by both parties was by each of ommunicated in the ordinary course of official duty to the ary of State.

overnor Fitzroy said (8/1/48), "the line thus marked had 'ormally adopted by the Government of South Australia as astern boundary of that Province. This resumé of the preparations for the proclamations shows that the final documents accurately stated the acts and intentions of the and that unless and until the law should be altered the ation was to stand.

notion of the delimitation being only of a temporary originated in 1893 in a despatch of Sir John Downer's, 18th January of that year. The dispute had then lasted 1869 - that is, 24 years - without any suggestion that the ition of Wade's line was intended to be subject to revision. ontention up to 1893 had been that, notwithstanding the led adoption of the line as the permanent frontier, the law it that character because in fact astronomically it was not 41st degree of East longitude. And there are, among others, circumstances of great importance which evidence the belief to 1869 the South Australian authorities understood the as intended to be permanent, of course because it was to be accurate, and that even up to 1894 the successive nistrations of that Province had no conception of any

Tue State or Soutn AUSTRALIA v Tre Stave or Vicroria.

element of a temporary tentative character in the official nition of 1847.

The first is, that the South Australian land grants went tically up to Wade's line - a mere strip of road reservation left manifestly for mere convenience of communication bet the private land and the frontier. Any possible rectiticati boundary might turn out to be as probably one way as the of and I cannot conceive the Governments of the Province ii their grants to South Australians with the latent idea that day they might all be illegal and void. The other circuns' is, that until Ist August 1894 Lieutenant-Governor Robe's p clamation of 1847 was allowed to stand. On that date, howev Lord Kintore by proclamation revoked Lieutenant-Gover Robe's proclamation, reciting amongst other things that it h long since served the temporary purpose for which it was issu I cannot but think this revocation would have been long p viously effected if the idea of a temporary purpose had entertained. On the supposition that Lieutenant-Governor R proclamation was inherently void, revocation was unneces and so it was until 1894 allowed to remain unnoticed.

As to the Home authorities, Earl Grey acknowledged Go Fitzroy's despatch of 18/1/48 on 17th May 1848 and signified hi: approval of the care with which the work of delimité appeared to have been accomplished. If the assent, not of 1 Governor personally, but of the Imperial Government - as Government - was necessary, this was given. I do not rest any such assent as necessary for the definite legality of boundary so ascertained. That I consider as completed by Governor acting by proclamation as the King's representative executive purposes, and by the implied authority which Commission conferred upon him. I regard the communicat to and the approval by the Secretary of State of the delimitati of the boundary as evidence that all parties thought it had finally and satisfactorily accomplished. The Imperial Treasur (11/12/50) also approved of the expenditure, clearly on the that the work was final. On 30th June 1848 Earl Grey sidered further that this survey should be carried on to 1 Murray.

eding then on the clear basis that Wade's boundary line, H- ©. or A.

extension to the Murray, was adopted as a permanent ag r, and was so acted on for many years, how does that tun srarp in law? or Sourm mee i it aside all the arguments that the later legislation, Imperial a

, must be construed as enacting by declaration or neces- oy Vicrorta.

implication that Wade's line right or wrong must be taken e true boundary. I do not read the Imperial enactments as ing to vary rights, or to silence doubts, and particularly ject the contention that in separating Victoria from New h Wales, a process affecting these two Colonies only, there iny idea present to the British Parliament so unjust as to dice whatever rights or claims South Australia might have, | might otherwise establish. I read every enactment as ming the eastern boundary of South Australia to be what enactments and the Letters Patent had declared it to be, ly, the 141st degree of East longitude. it assuming that, the question is what effect the law attri- ; to the intended permanent delimitation, and the adoption aceuracy of Tyers' ascertainment of the 141st meridian, Wade's consequent marked line, with White's extension of it # my opinion the law for the purposes of this case regards the © marked as the 141st meridian intended by the Letters it. Idonot rest my opinion on the mere fact of agreement, | toppel from agreement. I take my stand upon the ground the final adoption by proclamation of the line was the ate step of the process of separating South Australia from South Wales which was authorized by the Act of Will. IV., begun by the Letters Patent. Whether that step was or not subject to revision by the King in Council at the time quite immaterial to inquire, because it was not objected to, was in fact approved by the Secretary of State. arned eounsel for the plaintiff State contended that alien- ation was incompetent, and I agree. They also argued that, as m as the astronomical position of the meridian is found to from the line as projected on the ground, alienation is eessarily proved. 'This is answered by the view already stated.

_the public duties enacted by the Charters were expressly say

Lord Hardwicke LC. in Penn v. Lord Baltimore said (1) :- say that such a settlement of boundaries amounts to an alienati is not the true idea of it; for if fairly made, without collu (which cannot be presumed) the boundaries so settled are to presumed to be the true and ancient limits." . And again (2 there is no fraud or collusion, i¢ must be presumed to be th true limits being made between parties in an adversary inte each concerned to preserve his own limits, and no pecumas other compensation pretended."

And without giving weight to any other evidence - beca the judgment (p. 452) shows that Lord Hardwicke assumed evidence left it doubtful where the true boundary was - the Chancellor decrees specific performance on the footing that the agreement is binding and conclusive. x

But that is not, as I think, a complete analogy to this except on the point that settlement of boundaries is nol alienation. s

The agreement was between private persons, and in resp their own personal and private proprietary rights, and was gi effect to as such. This clearly appears from the way Hardwicke dealt with the case, and so Lord Chancellor Selb understood it (see the Ontario and Manitoba proceedings b the Privy Council at pages 21 and 23.) The Crown's rights

by the Lord Chancellor. He drew a marked distinction as to effect of the agreement between the parties in his Court, ai between parties before the King in Council on the questio the original rights of the boundaries. There, says Lord Hc wicke, the agreement if fairly entered into and signed might looked upon by the King in Council, and allowed as evidence the original right - provided it was either an undisputed ment, or previously established in Equity. In that connection creates rather an admission than a binding obligation.

The private agreement of the parties could not, where King's rights are concerned, that is in the government of subjects, or his own proprietorship, in any way alter or affect boundaries, and so, said the Lord Chancellor: " I shall expi

(1) 1 Ves., 444, at p. 448. (2) 1 Ves., 444, at p. 450.

fullest words that this decree is entirely without prejudice to rerogative right or interest in the Crown." The distinction

jonsequently, if the arrangement contained or consummated in proclamations here were to be looked upon as evidence only, direct question of the boundaries, as the King in Council ording to Lord Hardwicke could have done in Penn v. Baltimore (1), there would have been considerable force in argument for South Australia, because alienation directly by ment, or indirectly by acquiescence in acts done, in violation he law, would not in my view be permissible. And in the | Order in Council of 11th January 1769 in Penn vy. Lord timore (1) it is to be noted that the King approved of the ements only so far as concerned the disputes between the tioners themselves, and not so as to affect any Crown pre- tive power or interest, or any third person's interest in which, the Order in Council (2), the petitioners "had not a right or by virtue of the respective charters or grants under ch they claimed to bind or conclude."

he true and only ground therefore on which I feel at liberty wd the ascertainment of the boundary as final and binding that it was carried out by legal authority, in the manner | circumstances designed by competent legislative and execu- mperial authority, and is in law in this case, and as between two States, irrevocably to be deemed to be the 14st an within the meaning of the Letters Patent.

iacins J. I regret to find that I cannot take the same view case as the majority of the Court.

indeed, the decision were based on the mere ground that, e allegations of the statement of claim, the State of South lia has no cause of action, I should probably be found in

Tur Stare or Sours AUSTRALIA w Tue Srarr or Victoria.

agreement with my learned colleagues as to the result - reasons which I shall state hereafter. Meantimé, I shall assu that the plaintiffs, as donee of the power "to regulate thi and other disposal" of South Australian lands, is in the sam position as the proprietor of the lands, and shall proceed inquire what is the true boundary in the eyes of the law.

As I regard this question, the answer is very simple. We h: merely to read attentively the relevant Acts of the British Paria ment, and to apply the trite prmciple that even the King's P: rogative must yield supremacy to an Act of Parliament. It admitted on all sides that the boundary as marked on the between these two States is about two miles further to the Wi than the 141st degree of East longitude, as ascertained by m observations. If the true 141st degree of East longitude made the boundary by a British Act then nothing that the st veyors did, nothing that the Colonial Secretaries or Ministers ¢ nothing that the Governors did, nothing that the Secretaric State did, nothing that the King did, altered - or could altered - that boundary.

The history of the case has been so fully and clearly stated b the Chief Justice that it is unnecessary for me to repeat i propose to show my attitude in a series of propositions.

The Act 4 & 5 Wm. IV.c. 95 enabled the King by Lette Patent to create a new Province or Provinces within the terri of New South Wales as far East as "the 141st degree of longitude."

By Letters Patent of 19th February 1836 the King crea
the Province of South Australia, fixing its Houndlapog as "on tl East the 141st degree of East longitude."

Whatever was the meaning of the words in the Act was meaning in the Letters Patent.

Whatever was the Suen of the words in 1834 is the meaning still. eee

The boundary remains what it was in 1836, unless it h been changed by some Act of the British Parliament. _ :

The words in question are technical words of science,

'burn J. Reg. v. Castro (1); Maxwell on Statutes, 2nd

words meant- - and mean - the line - invisible, as the _is invisible - which would accurately represent 141 East from the Greenwich meridian ; as if one said so riles East from that meridian.

he Act 1 & 2 Vict. c. 60 enabled the Queen to appoint per- make Ordinances for the new Province ; and in the recitals indary is again described as " on the East the 141st degree

1839, Mr. Tyers, under instructions from the Governor of jouth Wales, marked near the coast a spot, which, as the 'of chronometric and lunar observations, he thought would represent the 141st degree. Subsequently, as the result of lation, he thought that the 141st degree was about two rther to the West, and so reported. The original spot owas in fact more nearly correct.

'By an Act 5 & 6 Vict. c. 36 it was expressly provided that va te lands of the Crown in the Australian Colonies should <cept as thereinafter provided, be conveyed or alienated by r Majesty or by any person or persons acting on the behalf or the authority of Her Majesty, either in fee simple or for ss estate or interest. All conveyances had to be made by

In 1842, the Acts 4 & 5 Wm. IV. and 1 & 2 Vict. were led by 5 & G Vict. c. 61, which enabled the Queen to con- ea Legislative Council for South Australia. The repeal of icts was not to invalidate what had already been done under (sec. 2); and no change was made in the boundary.

In the same year, by the Act 5 & 6 Vict. c. 76, the Queen nabled to constitute a Legislative Council for New South and by sec. 2 the electoral district of Port Phillip (which wds became Victoria) was defined. The words are (sec. ict of Port Phillip on the North

urse of that river to the eastern boundary of the Province (1) L.R. 9 Q.B., 350, at p, 360.

'Tue Strate or SouTH AUSTRALIA v. 'Tue StaTE or VICTORIA.

of South Australia." These words will reappear in a subseq! 5 Act. In 1842, they must have referred to the 141st degree East longitude.

13. In 1847, Messrs. Wade and White, under siustiustiSoee the New South Wales and the South Australian Govern marked a boundary line for 123 miles from the coast; and th boundary line, so marked, was continued by White to the Mui in 1850. They made no transit observations, but took the starting point at the place where Tyers, after triangulation, ha mistakenly located the 141st meridian. Wade's instructio1

Stokes' pamphlet did not reach Wade's hands in time.

14, Messrs. Wade and White reported to their respect Governments; the Governors sent the reports to Earl Grey, t one of Her Majesty's principal Secretaries of State; and Grey wrote approving of what had been done, and advising tha the marking should be continued to the Murray.

15. By proclamation published 16th December 1847 (cor rected the 23rd December) after reciting the Act 4 & 5 Wm.

necessary to mark out and ascertain the 141st degree of longitude, and that for this purpose, "by an arrangement," Government of New South Wales had, with the consent of th Government of South Australia, caused the position of the 141s meridian to be " correctly ascertained " at a spot on the sea coast near the mouth of the River Glenelg, and therefrom to be su veyed northward as far as the 36th parallel of South latitude and to be marked, Lieutenant-Governor Robe of South Australia - notified and proclaimed that the line so marked as the meridian of the 141st degree should be "deemed and construed to the eee boundary of 'South Australia' to all intents and - purposes."

16. By proclamation published 4th March 1849, after recitin, that the eastern boundary of South Australia was fixed the Letters Patent at' the 141st degree of East longitude, ani that, it having become necessary to mark out and ascertain

ent of South Australia for that purpose, in consequence ich the position of the 141st degree had been "correctly ined" at a spot on the sea coast near the mouth of the x Glenelg, and therefrom northward as far as the 36th allel of South latitude, Governor Fitzroy of New South Wales d and proclaimed that the lines so marked should be deemed nstrued to be the boundary line between New South Wales jouth Australia "so far as the same extends." ]. Much argument - as I think unnecessary - has been directed he question, was this marking by Wade and White " pro- al"? Whatever may have been the mental reservations ir expert advisers, I am inclined to the view that the mors personally meant the line of the 141st meridian to be ly and finally determined and marked on the ground, if '0 far as possible, though they hoped that some more natural ndary would be fixed by a British Act of Parliament. But ab of it? It turns out that the marking was not accurate. legal boundary is at one place, and the marked boundary is swo miles to the West. 'The Governors could not bind anyone their marks. The proclamations issued by the Governors are not in any conclusive. There is no estoppel, whether by record or by ment or otherwise. There is nothing to prevent any litigant showing where the 141st meridian truly is, in any case in the precise position becomes material. 9. The line as marked was marked (I may assume) under the uutive powers of the Crown. But all executive powers are rdinate to laws made by Parliament. If Parliament says 141st degree, the Executive cannot make the boundary two les more to the West. ; 20. It is, to my mind, a mistake to say that there was any ment between the Governors as to the boundary. There ; merely co-operation between them in an effort to ascertain |mark the 141st meridian. The only agreement, if any, was to the expenses of Wade and White. The Governors were wners ; but, even as between owners who employ a man to t a boundary fence between them, a mistake made by him ot preclude the owner whose land is affected by the mistake

Tue State or SourH AUSTRALIA wv Tse StaTE or VICTORIA.

from claiming according to his title. The ascertainm boundary by surveyors appointed by two owners would, no doubt, be evidence as between the owners: Tuylor v. Parry (1 but even as between owners it would not be conclusive - ' presumption may be rebutted: Duke of Beaufort v. Mayor & of Swansea (2). 21. But what the Governors did was by no means futil useless. The line was marked by them with a view to deal with criminals and for purposes of title; and in the law Cou proof that Victoria administered the territory as far as t marked line would raise a presumption of law that all the - ritory so administered as part of Victoria was East of the 141: degree ; just as proof of possession of land is presumptive « dence of title in fee simple (Hunt Boundaries 289). Moreo admiralty charts and standard maps would - until discovery « the error - accept the official marking, and show the 141: degree as coincident with the boundary as marked and ad istered (see per Lord Blackburn, Birrell v. Dryer (3); Phip: on Bvidence, 3rd ed., 313). It would be very hard indeed f any litigant to displace such a presumption 'or such evidence. 22. It next becomes necessary to consider the relevant Bri Acts after the proclamations, to see whether there is any trace an intention to alter the description of the boundary i Letters Patent, or to accept Wale 's marking of the 141st d as being conclusive. 23. By the Act 13 & 14 Vict. ¢. 59, which was passed in 1851 but which did not come into full operation tilt Ist July 1851, district of Port Phillip was separated from New South Wa and became the Colony of Victoria. In the Act the new Col: was described as . . . . "the territories now compri within the said district of Port Phillip . . . . bounded on

(sic) to the nearest source of the River Murray and thence by course of that river ¢o the eastern boundary of South Austral

(1) 1 Man. & G., 604. (2) 3 Ex., 413. (3) 9 App. Cas., 345, at p. 352.

_76 - which was passed before Wade and White's marking. H. C. oF A. what territories were comprised within the district of aeiad hillip in 1850, we look at the Act 5 & 6 Vict. c. 76, which pees he district, an Act which is referred to in the very first PF Sourn 5 AUSTRALIA l of the Act of 1850. The recitals do not make any reference 2.

ade and White's marking. The Act of 1850 does not even Fee 'the territories reputed to be comprised " - words used in sec. 5 & G Vict. ¢. 76. The words must mean the same thing in as in the earlier Act, and refer to the definite, certain, isible, boundary line of the 141st degree of East longitude. he Governor and Council of New South Wales do not. to have been aware in 1851. that a conventional 141st n had been substituted for the scientifically correct 141st lian. For by the New South Wales Act 14 Vict. No. 47, Phillip was divided into electoral districts, for the purposes Separation Act: and Follett, the most western county,

ythe line dividing the Colony of New South Wales from ) Australia." The words used are not "bounded on the by the line marked by Wade and White" or even "bounded e West by the 141st meridian as marked by Wade and

The same words are used in the British Act which conferred stitution on Victoria (18 & 19 Vict. c. 55). The electorate llett is defined as hounded " on the west by the 141st meridian y the line dividing the Colony of Victoria from South Aus-

" The 141st meridian must mean in this Act what it t in the Act of Wm. IV. - the true scientific meridian. if the two Governors had effectively transferred the legal inary, in 1847-1849, to a line two miles West of the 41st ian, it is very difficult to see how any British Court could after this Constitution Act, to treat the scientific 141st ree as being thereafter the true boundary.

Between 1857 and 1865 a geodetic survey was made of ria, and in the course thereof it was discovered by Victorian that the boundary as marked was West of the 141st n. In a map issued by the Victorian Lands Department h 1865, two lines are shown - one is deseribed as " the

141st meridian as defined by Mr. Edward White, and mar on the ground"; and the other - to the East - is described "boundary line between Victoria and South Australia (being tl 141st meridian as adopted by Arrowsmith)." s

In 1868 Messrs. Todd and Smalley, acting for the Govern- se ments of South Australia and New South Wales, laid d boundaries between these two States North of the Murray; an finding the error in the line of Wade and White, announced it their Governments.

South Australia has repeatedly from 1869 onwards pressed her claims on Victoria for a rectification of the boundary so as t comply with the British Act. There is no evidence that Sout Australia knew of the error before 1869; and since 1869 Sout Australia has certainly not been guilty of acquiescence.

The cases in which the King in Council settled bound: lines between dependencies do not apply ; for in those cases ther was no Act of Parliament to check the action of the Prerogative The King gave the charters to the settlers by virtue of his rogative; and by virtue of his Prerogative he decided where the boundary was when disputed. But the Prerogative is powerl against an Act of Parliament.

The case of Buron v. Denman (1) does not apply. military operations of the defendants in that case were adopt and ratified by the Crown, and thereby became an Act of Sint There was no Act of Parliament in the way. Bie

The cases cited from the United States do not apply- cases as to agreements between States, and as to long recogni: boundaries. Apart from the facts of the cases, which in case need the closest scrutiny, the States of the United States a1 (sub modo) independent and sovereign States. Except the Con- stitution, there is no higher law for a State than that of the Stat itself. Subject to the Constitution, the States can make agreement as to boundaries that they like. This power is pi of the general right of sovereignty. As Story J. said : - « It not be doubted, that it is a part of the general right of sovereignty belonging to independent nations, to establish and fix.the disp boundaries between their respective territories; and the boun

so established and fixed by compact between nations, eonglusive foupon all the ie and aunzend thereof, and

8, aS sine as, and real boundaries. This i isa aeiinG univer- ecognized in the law and practice of nations. It is a right ly belonging to the States of this Union, unless it has been dered under the Constitution of the United States. So far

is expressly recognized by the Constitution, and guarded exercise by a single limitation or restriction, requiring the it of Congress" (Poole v. Fleeger (1)). In Australia, on er hand, the States are, in the eyes of the law, dependent verything upon the British Parliament. They are not ign. They are subject to the British law, so far as applic- them. If a British Act prescribe the 141st degree as the dary, that is the legal boundary, whatever the States may do.

am unable to accept the view that the Act 4 & 5 Wm. IV. ved an authority to the Governors or others to ascertain and, ary, mark the boundary, or the location of the 141st ian. [Of course, I take the authority alleged to be an ority by the exercise of which the public would be bound ; 0 one would say that the Governors or their agents were rs.] In the first place, there is not at common law any jion resting even on an owner of land to define or to mark s boundary: Lawrence v. Jenkins (2). In the second place, not any indication of any intention to confer an authority nd the public, or to enable a Governor by an executive act onounce what is in effect a judgment in rem. In the third , the Act 4 & 5 Wm. IV. c. 95 had been repealed by the Act 6 Vict. c. 61, before the marking of the line; and any powers rred on the Governors by the repealed Act, and not exer- 'ould seem to have been brought to an end.

he case of Penn v. Lord Baltimore (3) has been cited as an

Pet., 185, at p. 209. (2) L.R. 8 Q.B., 274, at pp. 278, 9. (3) 1 Ves., 444.

is only "presumed " - it is a presumption of law which ¢ rebutted by evidence; it does not apply to a case where boundary line has not been lost, is not disputed, is not indefin is not uncertain (as regards intention) ; and it cannot affect except between persons who are competent to settle the bound:

• such as private owners, or as the King in the ease of pre! tive Colonies.

35. It is evident that in the United States the Judges used the word "acquiescence" in the loose, vague sense in w! it is used by writers on international law. These writers h encouraged the idea, in the interests of peace, that arrange long existing as between sovereign States should not be distu (see 23 Harvard Law Review, p. 555). But an Australian St as it cannot give up territory by agreement, cannot give it acquiescence; and even if it could, there was here no aequi after knowledge of the facts.

My opinion, therefore, is that the true boundary between two States is still the 141st degree of East longitude; and tl the plaintiffs have any cause of action which entitles them to declaration, the declaration should be to that effect, and to effect that the line as at present marked is wrong. I concur my learned brothers in rejecting the argument that this has not power to entertain this action, and to give some j ment in favour of the plaintiffs, if the plaintiffs have a ear action.

But have the plaintiffs any cause of action? The "lands of So Australia" do not belong to South Australia. That State right conferred on it with respect to the Crown lands except

• that its legislature has power "to regulate the sale and ot disposal " thereof, and to dispose of the proceeds "for the p service of the said" State (18 & 19 Vict. ¢. 56, sec. 5). assuming that the State is to be regarded as being substant the donee of the power, I know of no instance in any Court which a donee of a power 'such as this - a power in gro obtained by action a declaration that he has the power. Und the Constitution, it is our duty to give relief as between State eases where, if the facts had occurred as between private pe: we could give relief on principles of law ; but not otherwis

e phrasing of this claim is that of an action of eject- seeks possession and mesne profits. It is alleged (par. admitted, that the defendants are-in possession of the land. d in such an action, the plaintiffs must show a right to e possession as against the defendants. The plaintiffs have erty in the land; and I can find no right to exclusive ion. Whereis the injury to plaintiffs in their property - or Probably, if a surveyor or agent acting under the of the State, in execution of the power to sell, were ed or hindered, he would have a cause of action; but the is not such a case. There has been no such molestation nee, and the surveyor or agent is not the plaintiffs.

)pular phraseology, the lands within the limits of South ia are commonly spoken of as the lands of South Aus- mt when we get face to face with a claim of legal right, look at the position with legal precision. By the

ls; and he still remains the owner except so far as he has d them - at first through his British Ministers or Coloniza- mmissioners, afterwards through his Australian Govern- Tf there be any unlawful oecupation of Crown lands, the n have a writ of intrusion. His Majesty, or his Attor- eral for him, is.the plaintiff. His Majesty can select his nt for purposes of litigation; and it has been held, both South Wales and in Victoria, that the Attorney-General a. can sue on behalf of the King (Attorney-General . Gee (1); Attorney-General for Victoria v.

(2); Rabin: General for N.S.W. v. Brown (3). In se of Attorney-General v. Gee (1), Moleswor th J. said transfer of the control of the lands to the Colonial ies did not transfer the remedies for encroachment on property, and that these rights can only be enforced ww officers. In Attorney-General v. Belson (2) the same | Judge said, with regard to the section in the Victorian ition which corresponds with: sec. 5 of 18 & 19 Vict. c. 56 ith Australia : -

W. (Eq-), 122, at p. 131. (2) 4 W.AV. & AB. (Eq.), 57, at p. 62. (3) 28,C.R. (N.S.\W.), App. 30.

ion of this continent, the King became the owner of all-

"This Act seems to me to have made no change in the est of the lands, or the powers of the Crown to protect legal publ interests in them, . . . . it simply transferred to the colonia (legislature ?) "a subordinate power of dealing with a subje previously controlled by the Imperial, Government."

Now, what is the position of the State of South Australia, - is not proprietor. It is the donee of a power with regard to the lands. he position resembles that of a manager or agent ; a manager or agent cannot sue for trespass to his princij property: Bertie v. Beawmont (1), White v. Bailey (2). a possession of the servant is the possession of the master. true that, within its own limits, a State represents the Crow: against private persons; but it cannot represent the Croy contests between itself and other States which equally rep: the Crown. The "States " mean the late " Colonies" (Consti Act, sec. 6). I may fitly adopt the phraseology used by | Court in Sydney Municipal Council vy, The Commonwealth | and say that the Crown of Great Britain and Ireland is one juristie person, and that the Crown in its South Australian cay is another juristie person; and that the lands belong to Crown in its former capacity. As between themselves, eacl the States seems to be equally an agency, created for defi purposes, by the British Parliament. The lands remain vest in the King, not as part of the South Australian Governm but as Sovereign of all the Dominions. The Acts of that Par ment which confer certain powers on the South Australian liament with regard to those lands do not confer all the Ki rights, but some only of the rights. Whether this view is or is wrong, it is idle to say that it involves a mere for objection. The practical importance of the view becomes obvi when one reflects that the proprietor, the King, may be ad) not to interfere by a writ of intrusion where, as in this erroneous boundary has been marked and acted on for m years, and the error does no real harm to any of the inhabi

'The American cases are no safe guide to us in this matte is true that the Supreme Court of the United States has tained suits between States to settle boundaries, and has ]

judgments which are conelusive as between all persons, he nature of judgments in vem. But these judgments sed on property in the lands. By the Revolution the became successors to the King as to all his prerogatives ll his rights of property, within their respective areas. The mt of the Supreme Court in Rhode Island v. Massa- (1) was explained in State of Georgia v. Stanton (2); , was shown that for the exercise of the judicial power in ining boundaries, the rights involved must be rights of r of property. "The right of property was undoubtedly " (in Rhode Island v. Massachusetts (1) ); "and as in this where feudal tenures are abolished, in cases of escheat te takes the place of the feudal lord, by virtue of its y, as the original and ultimate proprietor of all the ithin its jurisdiction. See also per Thompson J. in e Nation v. State of Georgia (3). On the other hand, in stralian State the King still retains both his prerogatives property, although to a certain defined extent the British

;although counsel for Victoria raised at the bar - not in e defence - several objections to jurisdiction, they have not d this point ; and in view of this fact, and of the judgments by the majority of the Court, I do not think it to be bent upon me to give a final opinion on the subject, but y to express a strong doubt - a doubt which may have to be dat some future day. It is sufficient for me to say that, in y Opinion, the boundary still remains, in the eyes of the law, 41st degree of East longitude. I am unable to accept the that "the 141st degree of East longitude" means such line e Governors of the Colonies, or any one else, may treat, er reasonably or not, as being the 141st degree of East

tor, for plaintiffs, Dashwood, Crown Solicitor for South

(1) 12 Pet., 656. (2) 6 Wall., 50. (3) 5 Pet., 1. BL

Tue. SraTe or South AUSTRALIA 0. Tue State or Vrerorta,