¹ Perhaps, 'going to dinner' might be just as accurate and, at least from the perspective of constitutional lawyers, more appropriate. The reason is obvious. It was at a 'dinner on [Wednesday] 14 May [1900] ... over port and cigars' that the third great compromise was suggested and agreed to. The text of s 74 was the result. For details of the dinner see John La, Nauze, The Making of the Australian Constitution (1972) 263–4Google Scholar; Alfred, Deakin, The Federal Story: The Inner History of the Federal Cause 1880-1900 (1944) (John La, Nauze (ed) 2nd ed 1963) 161Google Scholar (reprinted as Stuart, Macintyre (ed), 'And Be One People': Alfred Deakin's Federal Story (1995))Google Scholar. See also text accompanying below nn 121-44. For the other two great compromises see below n 55 (1897 compromise over Senate power vis-a-vis the House of Representatives and, in particular, Senate power to reject or amend money Bills); n 98 (1899 limitation of the 'Braddon blot' to ten years and insertion of s 96).

² Robert, Garran, Prosper the Commonwealth (1958) 101Google Scholar (suggesting that 'it was at one of [Barton's federation] meetings, at Ashfield, that [Barton] coined the memorable impromptu-which would have been unrecorded if [Garran] had not happened to jot it down–"For the first time in history, we have a nation for a continent, and a continent for a nation"'). See also ibid 136; Geoffrey, Bolton, Edmund Barton (2000) 172-3Google Scholar (quoting the Sydney Morning Herald, 8 April 1898, report of Barton's 7 April 1898 referendum campaign address at Annandale: '[The people] would see a whole continent for a nation, and a nation for a continent'). Compare Frank, Moorhouse, 'Edmund Barton–Australia's First Prime Minister' in John, Reynolds, Edmund Barton (1948 reprint 1999) 13, 20Google Scholar (suggesting that Barton 'coined the phrase “One People, One Destiny''') (references are to the 1999 reprint).

³ For Australia see generally, James, Thomson, 'Cutting Loose: Secession and Australian Constitutional Law' (1987) 17 University of Western Australia Law Review 160Google Scholar (reviewing Greg, Craven, Secession: The Ultimate States Right (1986))Google Scholar; Christopher, Bessant, 'Two Nations, Two Destinies: A Reflection on the Significance of the Western Australian Secession Movement to Australia, Canada and the British Empire' (1990) 20 University of Western Australia Law Review 209Google Scholar. For Canada see generally Rosemary, Rayfuse, 'Reference Re Secession of Quebec From Canada: Breaking Up Is Hard To Do' (1998) 21 University of New South Wales Law Journal 834Google Scholar; Roya, Hanna, 'Right to Self-Determination in In Re Secession of Quebec' (1999) 23 Maryland Journal of International Law and Trade 213Google Scholar; James, McHugh, 'Making Public Law, “Public”: An Analysis of the Quebec Reference Case and its Significance for Comparative Constitutional Analysis' (2000) 49 International and Comparative Law Quarterly 445Google Scholar; Mark, Walters, 'Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom' (1999) 62 Modern Law Review 371Google Scholar. For the USA see generally Cass, Sunstein, 'Constitutionalism and Secession' (1991) 58 University of Chicago Law Review 633Google Scholar; Cass, Sunstein, Designing Democracy: What Constitutions Do (2001) 95-114Google Scholar ('What Should Constitutions Say? Secession and Beyond'); Mark, Braddon, Free in the World: American Slavery and Constitutional Failure (1998) 167-99Google Scholar ('No Exit? Secession and Constitutionalism'); Vasan, Kesavan Michael, Paulsen, 'Is West Virginia Unconstitutional?' (2002) 90 California Law Review 291Google Scholar (discussing the constitutionality of West Virginia 'seceding from secessionist Virginia' and noting President Lincoln's distinction between and view of 'secession against the Constitution, and secession in favor of the Constitution'). See generally Allen, Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (1991)Google Scholar; David, Gordon (ed), Secession, State and Liberty (1998)Google Scholar.

⁴ For narratives, photographs and memorabilia see Bolton, above n 2, 227-8; Keenan, J J, The Inaugural Celebrations of the Commonwealth of Australia (1901)Google Scholar; Roslyn, Russell Philip, Chubb, One Destiny! The Federation Story–How Australia Became a Nation (1998) 1-21, 273-5, 280-1, 302Google Scholar; John, Hirst, The Sentimental Nation: The Making of the Australian Commonwealth (2000) 298-313Google Scholar; Aedeen, Cremin (ed), 1901: Australian Life at Federation: An Illustrated Chronicle (2001) 122–43Google Scholar; Helen, Irving, 'Introduction: A Nation in a Day' in Kevin, Livingston, Richard, Jordan Gay, Sweely (eds), Becoming Australians: The Movement Towards Federation in Ballarat and the Nation (2001) 1, 4–18Google Scholar; Peter, Young, 'A Century of Federation' (2001) 75 Australian Law Journal 1Google Scholar.

⁵ Three legally significant steps occurred in the UK. First, approval of the Commonwealth of Australia Constitution Bill 1900 (UK) by the House of Commons on 25 June 1900 and the House of Lords on 5 July 1900. See Commonwealth of Australia Constitution Bill: Reprint of the Debates in [the U.K.] Parliament, The Official Correspondence with the Australian Delegates, and Other Papers (1900). Secondly, on 9 July 1900, Queen Victoria assented to the Bill. 'The Queen gave her approval to the constitution at Windsor. She did not actually sign the Constitution Bill; she gave authority to three members of the House of Lords–[John Adrian Louis, Earl of] Hopetoun was one of them–to sign the Bill in the Lords on her behalf.' Hirst, above n 4, 304. Thirdly, on 17 July 1900 at Balmoral, Queen Victoria signed a Proclamation declaring that on and after 1 January 1901 'the people of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia.' 'Proclamation' no 722 of 1900 reprinted in Statutory Rules Made Under Commonwealth Acts from 1901 to 1956 (1960) vol 5, 5300. Therefore, 'at 4pm on 1 January 1901 ...; the Commonwealth of Australia was ceremonially proclaimed.' Peter, Young, 'The Centenary of Federation' (2000) 74 Australian Law Journal 795Google Scholar.

⁶ Of course, historiographical struggles also surround the 'why' conundrum: Why did federation under the Australian Constitution occur? Necessarily, in this context, several questions overlap: How and why did federation happen? What were the people's intentions during the 1890s and 1900 about how federation and the Constitution should and would operate? In practical reality, what in 1901 was federation? For opposing arguments over linkages between economic factors, motivations and influences and the Australian Constitution's formation see James, Thomson, 'Looking for Heroes: History, Framers and the Australian Constitution' (1996) 3 Deakin Law Review 89Google Scholar; James, Thomson, 'A Great Swindle?: Australia's Constitution and the People: Origins and Amendment' (2000) 23 University of New South Wales Law Journal 345Google Scholar.

⁷ As to the role and effect women may have had on the federation movement and, in particular, on the Constitution and its drafting see generally Helen, Irving (ed), A Woman's Constitution? Gender & History in the Australian Commonwealth (1996)Google Scholar; Helen, Irving, To Constitute a Nation: A Cultural History of Australia's Constitution (1997) 171-95, 235-7Google Scholar; Helen, Irving, 'Women of the West and How They Won' (December 2000) 6 The New Federalist: The Journal of Federation History 9Google Scholar; Marion, Quartly, 'Victoria' in Helen, Irving (ed), The Centenary Companion to Australian Federation (1999) 219, 233-5, 274, 280, 283Google Scholar; Jan, Roberts, 'Maybanke Anderson and Federation' (December 1998) 2 The New Federalist: The Journal of Federation History 41Google Scholar; Russell and Chubb, above n 4, 240-72, 299-302; Bolton, above n 2, 173. In this context, particular attention has focused on Rose Scott (1847–1925) who opposed federation and Catherine Helen Spence (1825–1910). See generally Judith, Allen, 'Scott, Rose' in Geoffrey, Serle (ed), Australian Dictionary of Biography (1988) vol 11, 547–9Google Scholar; Judith, Allen, Rose Scott: Vision and Revision in Feminism (1994)Google Scholar; Marilyn, Lake, '"In the Interests of the Home”: Rose Scott's Feminist Opposition to Federation' in David, Headon John, Williams (eds), Makers of Miracles: The Case of the Federation Story (2000) 123-31Google Scholar; Helen, Irving, 'Scott Rose' in Irving, (ed), The Centenary Companion, above this note, 422Google Scholar; Susanna De, Vries, Great Australian Women: From Pioneering Days to the Present (2002) vol 2, 99-174Google Scholar; Susan, Eade, 'Spence, Catherine Helen' in Geoffrey, Serle Russell, Ward (eds), Australian Dictionary of Biography (1976) vol 6, 167–8Google Scholar; Susan, Eade, A Study of Catherine Helen Spence 1825-1910 (MA thesis, Australian National University, 1971)Google Scholar; David, Headon, 'No Weak–Kneed Sister: Catherine Helen Spence and “Pure Democracy"' in Irving, , A Woman's Constitution, above this note, 42-54Google Scholar; Vicki, Moore, 'Catherine Helen Spence: Grand Old Woman of Australia' in Headon, Williams, , above this note, 132–40Google Scholar; Susan, Magarey, 'Spence, Catherine Helen' in Irving, (ed), The Centenary Companion, above this note, 424–5Google Scholar; Susan, Magarey, 'Catherine Spence and the Federal Convention' (June 1998) 1Google Scholar The New Federalist: The Journal of Australian Federation History 20. For a comparative perspective see Sylvia, Law, 'Women and the Framers' in Bertell, Ollman Jonathan, Birnbaum (eds), The United States Constitution (1990) 106-9Google Scholar; Jan, Hoff, 'Women and the Constitution' in ibid 231–46Google Scholar; Akhil, Amar, 'Women and the Constitution' (1995) 18 Harvard Journal of Law and Public Policy 465Google Scholar; Jennifer, Brown, 'The Nineteenth Amendment and Women's Equality' (1993) 102 Yale Law Journal 2175Google Scholar; Jacob, Cogan, 'The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America' (1997) 107 Yale Law Journal 473Google Scholar; Reva, Siegel, 'She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family' (2002) 115 Harvard Law Review 947Google Scholar; Jan, Lewis, '"Of Every Age Sex & Condition”: The Representation of Women in the Constitution' (1995) 15 Journal of the Early Republic 359Google Scholar; Jan, Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women (1991)Google Scholar; Adam, Winkler, 'A Revolution Too Soon: Woman Suffragists and “The Living Constitution"' (2001) 76 New York University Law Review 1456Google Scholar (discussing the 1869–75 suffragists' creativity, efforts and influence in relation to the U.S. Constitution, especially in shifting constitutional interpretation from the 19th century interpretative practice of originalism to the 20th century interpretative methodology of an evolutionary living constitutionalism).

⁸ Similar issues might also be addressed in relation to State constitutions. See generally R Darrell, Lumb, The Constitutions of the Australian States (5th ed, 1991) 3–46Google Scholar; Melbourne, A C V, Early Constitutional Development in Australia (1963)Google Scholar; David, Black, The House on the Hill: A History of the Parliament of Western Australia 1832-1990 (1991)Google Scholar.

⁹ See generally Thomson, , 'Looking for Heroes', above n 6, 90-1Google Scholar (suggesting six possible categories of 'framers': Convention delegates; individuals assisting delegates; colonial parliamentarians; United Kingdom parliamentarians; UK Colonial Office officials and voters in pre and post 1901 referendums). See also below n 229 (originalism debate).

¹⁰ Henry Parkes (27 May 1815-27 April 1896). See generally Allan W, Martin, Henry Parkes: A Biography (1980)Google Scholar; Allan W, Martin, Henry Parkes (1964)Google Scholar; Allan W, Martin, '“It Would be a Glorious Finish to your Life”: Federation and Henry Parkes' in Headon, Williams, , above n 8, 65-74, 231-2Google Scholar; Robert, Travers, The Grand Old Man of Australian Politics: The Life and Times of Sir Henry Parkes (1992)Google Scholar; Charles, Lyne, Life of Sir Henry Parkes G.C.M.G.: Australian Statesman (1897)Google Scholar; Allan W, Martin, 'Parkes, Sir Henry' in Bede, Nairn, Geoffrey, Serle Russell, Ward (eds), Australian Dictionary of Biography (1974),vol 5, 399-406Google Scholar; Hirst, above n 4, 81-104 ('Profit'), 299-300 (father of federation); Helen, Irving, 'The Grand Old Man' The Weekend Australian, (27-28 April 1996) 20 (noting that 'Parkes is known, on his grave and in history, as the “Father of Federation''')Google Scholar; Helen, Irving, 'New South Wales' in Irving, (ed),The Centenary Companion, above n 7, 19, 60-2 (discussing and denying to Parkes the attribution 'Father of Federation')Google Scholar; Leslie F, Crisp, 'Book Review' (1981) 27 Australian Journal of Politics and History 96Google Scholar (Professor Crisp (1917-1984) noting that his 'generation was still being brought up to hail the old reprobate [Parkes] as “the Father of Federation” [but] that [Martin, Henry Parkes, above] hardly explores sufficiently the case for that grand title').

¹¹ Edmund Barton (18 January 1849-Wednesday 7 January 1920). See generally Bolton, above n 2; Reynolds, above n 2; Percival, Serle, Dictionary of Australian Biography (1949) vol 1, 53-6 ('Barton, Sir Edmund')Google Scholar; Martha, Rutledge, Edmund Barton, (1974)Google Scholar; Martha, Rutledge, 'Barton, Sir Edmund' in Nairn, Serle, (eds), Australian Dictionary of Biography (1979) vol 7, 194- 200Google Scholar; Tessa, Milne, 'Barton At Bathurst: “Front Stage/Backstage”' in David, Headon Jeff, Brownrigg, 'The People's Conventions: Corowa (1893) and Bathurst (1896)' (December 1998) 32 Papers on Parliament (Special Issue) 103-7Google Scholar; Clive, Beauchamp, 'Legitimacy for Australia's Noblest Son: The Hastings and Macleay By-election 1898' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 66Google Scholar; Mollie, Hetherington, Famous Australians (revised edition, 1983) 118-25Google Scholar; Robert, Macklin, 100 Great Australians (1988) 8-11Google Scholar; Michael, Boylan, 'Sir Edmund Barton: History Remembers the Many Faces of “Toby Tosspot”' (August 2001) 23(7) Law Society Bulletin (South Australia) 25Google Scholar; Geoffrey, Bolton John, Williams, 'Barton, Edmund' in Tony, Blackshield, Michael, Coper George, Williams (ed), The Oxford Companion to the High Court of Australia (2001) 53-6Google Scholar; Beverley, Kingston, 'Barton, Edmund' in Graeme, Davison, John, Hirst Stuart, Macintyre (eds), The Oxford Companion to Australian History (revised edition, 2001) 61Google Scholar; Nicholas, Aroney, The Federal Commonwealth of Australia: A Study in the Formation of its Constitution (PhD thesis, School of Law, Monash University, 9 April 2001) 243–56 ('Barton's Resolutions: Conceptions of Democracy and Federalism')Google Scholar. See also below n 26. One description characterises Barton as 'corpulent, warm-hearted, [a] sociable human, [a] fine orator, able but erratic in the conduct of business.' Bolton, above n 2, 16.

¹² George Houston Reid (25 February 1845–13 September 1918). See generally Winston G, McMinn, George Reid (1989) especially 103 (asserting that '[b]y February 1895 Reid had become the acknowledged leader of the Australian federal movement'), 154–68Google Scholar (Chapter 17's title: 'Father of Federation'); Winston G, McMinn, 'Reid, Sir George Houstoun' in Geoffrey, Serle (ed), Australian Dictionary of Biography (1988) vol 11, 347–54Google Scholar; Leslie F, Crisp, Federation Fathers (1990) 1–45, 458–9 ('George Houston Reid: Federation Father. Federation Failure?')Google Scholar; Norman, Abjorensen, 'George Reid, The Democrat as Equivocator: Piss and Wind, or Principles in Search of a Constituency?' in Headon, Williams, , above n 8, 56– 64, 230–1Google Scholar; Helen, Irving, 'Reid, George' in Irving, (ed), The Centenary Companion, above n 8, 416–17Google Scholar; Norman, Abjorensen, 'Reid and the Yes-No Speech' (June 1999) 3 The New Federalist: The Journal of Australian Federation History 88Google Scholar. See also below nn 44, 92, 100, 106 (comparing Reid and Barton).

¹³ William McMillan (14 November 1850–21 December 1926). See generally Peter M Gunnar, , Good Iron Mac: The Life of Federation Father Sir William McMillan (1995)Google Scholar; Thomson, , 'Looking for Heroes', above n 6Google Scholar; Allan, Martin, 'McMillan, Sir William' in Nairn, Serle, (eds), Australian Dictionary of Biography (1986) vol 10, 342–4Google Scholar. See also below n 55 (noting McMillan's crucial change of view on the Senate's power).

¹⁴ Robert Garran (10 February 1867–11 January 1957). See generally Garran, above n 2; Noel, Francis, The Gifted Knight: Sir Robert Garran G.C.M.G., Q.C.: First Commonwealth Public Servant, Poet, Scholar and Lawyer (1983)Google Scholar; Robert S, Parker, 'Garran, Sir Robert Randolph' in Nairn, Serle, (eds) Australian Dictionary of Biography (1981) vol 8, 622–5Google Scholar; James, Thomson, 'Quick & Garran's Australian Constitution in Retrospect' (June 1998) 1 The New Federalist: The Journal of Australian Federation History 74Google Scholar; Jeff, Brownrigg, 'Federation Prodigy: The Private Life of Robert Randolph Garran' in Headon, Williams, , above n 8, 96–109, 236–7Google Scholar; Scott, Bennett, 'Robert Randolph Garran, The Coming Commonwealth' (June 1999) 3 The New Federalist: The Journal of Australian Federation History 93Google Scholar; Rae, Else-Mitchell, 'Sir Robert Randolph Garran, Prosper the Commonwealth' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 107Google Scholar; Helen, Irving, 'Garran, Robert Randolph' in Blackshield, , Coper, Williams, , above n 11, 292–3Google Scholar. See also Bolton, above n 2, 149 (noting that 'the [1897-98] drafting committee had as its secretary the 30-year-old Robert Garran... [who] had accepted [George] Reid's invitation to come to the [1897-98] Convention as [Reid's] secretary'). See ibid 164, 173, 227, 236, 346.

¹⁵ Joseph Chamberlain (8 July 1836–2 July 1914). See generally James L, Garvin, The Life of Joseph Chamberlain (1932–1969) (6 vols) (vols 4–6 completed by Julian Amery)Google Scholar; Michael C, Hurst, Joseph Chamberlain and West Midland Politics 1886-1895 (1962)Google Scholar; Peter, Fraser, Joseph Chamberlain: Radicalism and Empire 1886-1914 (1966)Google Scholar; Robert, Kubicek, The Administration of Imperialism: Joseph Chamberlain at the Colonial Office (1969)Google Scholar; Michael, Hurst, Joseph Chamberlain and Liberal Reunion: The Round Table Conference of 1887 (1970)Google Scholar; Richard A, Rempel, Unionists Divided: Arthur Balfour, Joseph Chamberlain and the Unionist Free Traders (1972)Google Scholar; Richard, Jay, Joseph Chamberlain: A Political Study (1981)Google Scholar; Peter, Marsh, Joseph Chamberlain: Entrepreneur in Politics (1994)CrossRefGoogle Scholar; Peter A, Howell, 'Chamberlain, Joseph' in Irving, (ed), The Centenary Companion, above n 8, 343. See also below n 117 (noting Chamberlain's 1897 and 1900 amendments to the Constitution Bill)Google Scholar.

¹⁶ Born 5 May 1874–died 2 January 1923. See generally Kavanagh, A J, Thomas Rainsford Bavin: A Political Biography (MA thesis, University of Sydney, 1978)Google Scholar; John, McCarthy, 'Bavin, Sir Thomas Rainsford' in Nairn, Serle, (eds), Australian Dictionary of Biography (1979) vol 7, 214–16 (noting Bavin's vigorous 1898 referendum campaign for the Constitution Bill and that in 1901 Bavin 'became private secretary to [Prime Minister] Barton' and 'in 1903, Bavin became [Justice Barton's] associate, while remaining private secretary to the new prime minister Alfred Deakin')Google Scholar; Bolton, above n 2, 164, 236 (noting, as indicated below n 19, Bavin's pre-1901 relationship with Barton).

¹⁷ Born 16 June 1843-died 16 October 1912. See generally Winston G, McMinn, 'Dowling, Edward' in Nairn, Serle, (eds), Australian Dictionary of Biography (1981) vol 8, 329–30 (noting Dowling's executive roles in the Australian Natives' Association; the Central Federation League and the Australasian Federation League of NSW)Google Scholar; Bolton, above n 2, 106 (suggesting that '[i]n coordinating the [Australasian Federation] leagues [Dowling was] the essential figure' and that '[w]ithout [Dowling] the federal movement would probably have fallen apart'); Helen, Irving, 'The Most Eccentric of Them All: J.W.R. Clarke' in Headon, Williams, (eds), above n 8, 189, 191, 195 (describing Dowling as included in the 'prominent Federationists')Google Scholar.

¹⁸ Born 7 November 1864-died 19 September 1935. See generally Helen M, Davies, The Administrative Career of Atlee Hunt, 1901-1910 (MA thesis, Melbourne University, 1969)Google Scholar; Helen M, Davies, 'Hunt, Atlee Arthur' in Nairn, Serle, (eds), Australian Dictionary of Biography (1983) vol 9, 403–4 (noting that Hunt was in 1898 secretary of the NSW Federal Association and 'in 1899 general secretary of the Federal League of Australasia' and 'was part of that coterie which surrounded (Sir) Edmund Barton and planned the Federation campaign')Google Scholar; Bolton, above n 2, 164, 236 (noting, as indicated below n 19, Hunt's pre-1901 relationship with Barton).

¹⁹ Born 5 February 1873–died 3 November 1955. See generally Anthony, Fisher, 'Maughan, Sir David' in Nairn, Serle, (eds), Australian Dictionary of Biography (1986) vol 10, 453–4Google Scholar; Bolton, above n 2, 164 (describing Maughan, together with Garran, Hunt and Bavin, as one of the '[y]oung men prepared to work hard for Federation [who] travelled across [Sydney] Harbour [to Kirribilli] on those Sunday evenings when it was open house at the Bartons, and ...; [Barton] would keep them up into the small hours planning the next moves in the Federation strategy').

²⁰ Born 1 September 1834–died 7 February 1908. See generally Allan G, Smith, 'Henry, John' in Nairn, Serle, (eds), Australian Dictionary of Biography (1983) vol 9, 266–7 (indicating that Henry was '[a]n ardent Federalist ...Google Scholar; [and] a Tasmanian delegate and member of the finance committee at the 1897 Australasian Federal Convention where he opposed, against his fellow Tasmanians, financial powers for the Senate'); Thomson, , 'Looking for Heroes', above n 6, 113 (noting that Henry voted for Reid's amendment limiting the Senate's power)Google Scholar; Bolton, above n 2, 151 (same). See generally below n 55 (compromise over Senate power).

²¹ John Quick, Henry D'Esterre Taylor, William Guy Higgs, Francis Clarke, Robert McGeoch and John William Richard Clarke might also be included.

• On Quick see, Michele, Mathews, 'A Forgotten “Father of Federation”: Sir John Quick' (December 1998) 2 The New Federalist: The Journal of Australian Federation History 55 (discussing Quick's 31 July 1893 Corowa Conference motion that colonial parliaments enact legislation 'providing for the election of representatives to attend a statutory Convention or Congress to consider and adopt a Bill to establish a federal Constitution for Australia and ...Google Scholar; [then] it be submitted by some process of referendum to the verdict of each colony'); Michele, Mathews, 'Sir John Quick (1852-1932): A Missionary for Federation' (March 1993) 2 Constitutional Centenary Foundation Newsletter 12Google Scholar; Thomson, above n 14. See also below n 269 (noting the promotion of 'Quick as the real Federation Father').

• On Taylor see Helen, Irving, 'When Quick Met Garran: The Corowa Plan' in Headon, Brownrigg, (eds), above n 11, 13, 15–16 (discussing the possibility that the Corowa Plan, embodied in Quick's motion, originated with Taylor)Google Scholar.

• On Higgs see Bolton, above n 2, 113–15 (discussing 3 July 1893 meeting of the Sydney branch of the Australasian Federation Movement at the Town Hall where 'the radical challenge' of Higgs' popular (but, perhaps improperly, defeated) resolutions advocating 'a democratic republic with no Senate ...; one-man-one-vote ...nationalisation of all land, and the total exclusion of all Asians ...; pushed protectionists and free-traders into closer co-operation on the Federal League'); Hirst, above n 4, 118 (reproducing pamphlet distributed at 3 July 1893 meeting by 'W. G. Higgs President South Sydney Labor Electoral League'), 214 (discussing Higgs' 'huge shift' in May 1899 in defying his Labor party in voting, with the Queensland government, in the Queensland Parliament to put the Constitution Bill to a referendum without lessening voting restrictions and, consequently avoiding 'the defeat of the federal cause'); Kay, Walsh, 'Higgs, William Guy (1862–1951)' in Ann, Millar (ed), The Biographical Dictionary of the Australian Senate: 1901-1929 (2001) vol 1, 27-30, 405Google Scholar.

• On Francis Clarke see Bolton, above n 2, 187 (discussing Clarke vacating his NSW Legislative Assembly seat to enable Barton to be elected on 23 September 1898); Beauchamp, above n 11, 67.

• On Robert McGeoch see Tessa, Milne, 'Farmer McGeoch's Diaries' in Headon, Williams, , above n 8, 179-88, 243-4Google Scholar.

• On John Clarke see Irving, above n 17, 189-96, 244.

²² For the various views and opposing arguments see Thomson, , 'A Great Swindle?', above n 7, 354-61Google Scholar.

²³ Two extremes exist. A textually unequivocal–'Whereas the people ...; have agreed to unite ...under the Constitution hereby established'–preamble. The small percentage of people who voted in the 1898, 1899 and 1900 referendums on the Constitution Bill as compared to those people who could not or did not vote. See Thomson, , 'A Great Swindle?', above n 6, 354-61 (analysing voting eligibility and statistics)Google Scholar.

²⁴ See generally Hirst, above n 4, 141-9 (discussing 1897 election); Bolton, above n 2, 139-40 (1897 election); Rosemary, Pringle, 'The Convention Elections in New South Wales: A Milestone?' (1972) 58 Journal of the Royal Australian Historical Society 3Google Scholar; Helen, Irving, '“Old Familiar Hacks” Just When They're Needed: The NSW Delegation' (June 1998) 1 The New Federalist: The Journal of Australian Federation History 39Google Scholar; Scott, Bennett, 'The Tasmanians: The Convention [1897] Election' in ibid 51Google Scholar; John, Bannon, 'The Gathering of Tribunes and Oligarchs' (March 1998) (No 41) Canberra Historical Journal (New Series) 2Google Scholar; Helen, Irving, 'Saying 'Yes': The Referendum of 1899' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 2Google Scholar; Kay, Saunders, 'The North Comes In! The 1899 Referendum Campaign in North Queensland' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 7Google Scholar; Dawn, Peel, 'Patriotism, Politics and Personalities: the 1899 Referendum in a Rural Electorate' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 72Google Scholar; Scott, Bennett, 'Tasmania's Referendum Choices, 1898/9' (June 1999) 3 The New Federalist: The Journal of Australian Federation History 3Google Scholar; Brian, Galligan Winsome, Roberts, 'The People's Constitution? Exploring Australia's Popular Democracy 1885-1901: A Research Study' (June 2000) 5 The New Federalist: The Journal of Australian Federation History 87Google Scholar; Jim, Loveday, 'The 1899 Constitutional Referendum in South-Eastern Queensland: The “German Vote”' (June 2000) 5 The New Federalist: The Journal of Australian Federation History 91Google Scholar; Helen, Irving, 'Referendums in the Air: New South Wales in June 1898' (December 1998) 2 The New Federalist: The Journal of Australian Federation History 9Google Scholar; John, Bannon, 'Trust in the Hands of the People: South Australians, the Press and the First Federation Referendum' (December 1998) 2 The New Federalist: The Journal of Australian Federation History 17Google Scholar; Ronald, Norris, 'Economic Influences on the 1898 South Australian Federation Referendum' in Allan W, Martin (ed), Essays in Australian Federation (1969) 137Google Scholar; Patricia, Hewett, 'Aspects of Campaigns in South-Eastern New South Wales at the Federation Referenda of 1898 and 1899' in ibid 167Google Scholar; Winston G, McMinn, 'The First Federal Referendum: A Local Study' (1960) 46 Royal Australian Historical Society Journal and Proceedings 69Google Scholar; Rosemary, Pringle, 'Public Opinion in the Federal Referendum Campaigns in New South Wales 1898–99' (1979) 64 Journal of Royal Australian Historical Society 235Google Scholar; Kay, Saunders, '''The Free Spirit of Australasian Democracy”: The 1899 Constitution Bill Referendum Campaigns in New South Wales and Queensland' in Patricia, Clarke (ed), Steps to Federation: Lectures Marking the Centenary of Federation (2001) 103–28Google Scholar; Glen, Rhodes, Federalism in Australia and the 1898–99 Federation Referenda in the Hunter Valley Region of New South Wales (BA (Hons) thesis, University of Newcastle, 1974)Google Scholar; Patrick, McCormack, 'Boorowa and the Young: The “No” and “Yes” Cases For Australian Federation' in Livingston, , Jordan, Sweely, (eds), above n 4, 92–101Google Scholar; Wendy, Hillman, 'The 1900 Federal Referendum in Western Australia' (1978) 2 Studies in Western Australian History 51 (reprinted in Lyall Hunt (ed), Towards Federation: Why Western Australia Joined the Australian Federation in 1901 (2000) 151–70)Google Scholar.

²⁵ For a glimpse into this historiographical debate see Alice, Kessler-Harris, 'Social History' in Eric, Foner (ed), The New American History (1990) 163–84Google Scholar (discussing social history's endeavour to narrate history from the bottom up, rather than from the reverse traditional historical scholarship perspective); Jesse, Lemisch, 'American Revolution Seen From the Bottom Up' in Barton J, Bernstein (ed), Towards a New Past: Dissenting Essays in American History (1970) 3–45Google Scholar; George, Frederickson, 'Wise Man' (28 February 2002) 49(3) New York Review of Books 37 (noting that '[t]he new “micro-history” is less concerned with making connections and establishing general patterns than with re-capturing the experiences and appreciating the achievements of those who were overlooked by previous generations of historians. Recording the doings of elite white males has taken a back seat to accounts of marginalised groups–women, African-Americans, Latinos, low-skilled workers, and poor people generally. Much of value has come from social and cultural history “from the bottom up,” but it has deprived us of a unifying vision of the nation's past across the divides of gender, race, ethnicity, and class')Google Scholar; Geoge Rude, , Europe in the Eighteenth Century: Aristocracy and the Bourgeois Challenge (1985)Google Scholar; Arlette, Farge, Fragile Lives: Violence, Power and Solidarity in Eighteenth Century Paris (1993)Google Scholar; Edward P, Thompson, The Making of the English Working Class (1963)Google Scholar; Edward P, Thompson, Whigs and Hunters: The Origins of the Black Act (1975) 16 (noting that from a historiographical perspective that '[s]ince I started with the experience of humble foresters and followed up ...Google Scholar; the lines that connected them to power, there is a sense in which the [manuscript] sources themselves have forced me to see English society in 1723 as they themselves saw it, from “below'''); Daniel, Cole, '“An Unqualified Human Good”: E. P. Thompson and the Rule of Law' (2001) 28 Journal of Law and Society 177–8Google Scholar (noting that '[w]hile other historians focused on the dominant figures and major events of history, Thompson wrote of the ordinary men and women who both made and suffered through the epochal upheavals of the [English] Industrial Revolution') (footnote omitted). Edmund Barton provides one perspective:

Many of today's practising historians are moved by a moral imperative to give voices to the obscure and the disadvantaged who have previously been overlooked in the reconstruction of Australia's past. Writers of 'history from below' tend to mistrust political history as a genre dealing with the transactions of powerful elites, and political biography as liable to uphold the myth of 'the great man in history'.

Bolton, above n 2, ix. In the context of Australian federation see John, Waugh, 'New Federation History' (2000) 24 Melbourne University Law Review 1028Google Scholar. For examples of such 'bottom-up' history see Bruce, Scates, A New Australia: Citizenship, Radicalism and the First Republic (1997)Google Scholar; John, Williams, 'Book Review' (1997) 3 Australian Journal of Legal History 253Google Scholar; Derek, Drinkwater, '"A Living Part of People's Lives”: Literary and Debating Societies, Self- Improvement and Federation' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 90Google Scholar. At least implicitly, this 'bottom-up' perspective of federation provides some empirical support for the concept of popular sovereignty and its consequences. See generally Thomson, , 'A Great Swindle?', above n 6, 360Google Scholar; Michael, Kirby, 'Deakin: Popular Sovereignty and the True Foundation of the Australian Constitution' (1996) 3 Deakin Law Review 129Google Scholar; George, Winterton, 'Popular Sovereignty and Constitutional Continuity' (1998) 26 Federal Law Review 1Google Scholar; Anthony, Dillion, 'A Turtle By Any Other Name: The Legal Basis of the Australian Constitution' (2001) 29 Federal Law Review 241Google Scholar; John, Tate, 'Giving Substance to Murphy's Law: The Question of Australian Sovereignty' (2001) 27 Monash University Law Review 21Google Scholar. For comparative analysis see Edmund S, Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (1988)Google Scholar; Bruce, Ackerman, We The People: Foundations (1991)Google Scholar; Akhil, Amar, 'Philadelphia Revisited: Amending the Constitution Outside Article V' (1988) 55 University of Chicago Law Review 1043Google Scholar; Akhil, Amar, 'The Consent of the Governed: Constitutional Amendment Outside Article V' (1994) 94 Columbia Law Review 457Google Scholar; James, Thomson, 'American and Australian Constitutions: Continuing Adventures in Comparative Constitutional Law' (1997) 30 John Marshall Law Review 627, 677–8Google Scholar. See also Saul, Cornell, 'Moving Beyond the Canon of Traditional Constitutional History: Anti-Federalists, the Bill of Rights, and the Promise of Post-Modern Historiography' (1994) 12 Law and History Review 1 (discussing and utilising the 'revisionist project' of the 'new constitutional history and post-structuralism' which 'explore[s] a wider variety of texts and the diverse communities of readers who interpreted those texts' so as to 'avoid the homogenizing tendencies of traditional scholarship and restore some of the complexity')Google Scholar; Thomson, , 'Looking for Heroes', above n 6, 94–7Google Scholar (discussing historiographical struggle over issues relating to the Australian Constitution). For a second utilisation of this 'bottom-up' perspective in constitutional law see John, McGinnis, 'Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence of Social Discovery' (2002) 90 California Law Review 487 (contrasting the constitutional jurisprudence of the U.S. Supreme Court under Chief Justices Warren and Rehnquist in terms of 'top- down' and bottom-up)Google Scholar.

²⁶ Bolton, above n 2. Initial reviews include Ian, Hancock, 'Book Review' (2001) 60 Australian Journal of Public Administration 90Google Scholar; James, Curran, 'Book Review' (2001) 87 Journal of the Royal Australian Historical Society 286Google Scholar; Mike, Stekettee, 'Edmund Who?', The Weekend Australian: Review 25–26 November 2000 4Google Scholar; Rod, Moran, 'Fathering Federation' West Australian (Big Weekend Section) Saturday 21 October 2000, 8Google Scholar; John, Bryant, 'Correcting the “Tosspot Toby” Characterisation', Canberra Times (Panorama Section), 6 January 2001, 17Google Scholar; Peter, Coleman, 'Forged by Sentiment', Weekend Australian: Review, 25 November 2000, 14Google Scholar. See also Geoffrey, Bolton, 'Sir Edmund Barton' in Michelle, Grattan (ed), Australian Prime Ministers (2000) 22– 35, 473Google Scholar; Geoffrey, Bolton, 'Edmund Barton: Some Mysteries' in Headon, Williams, , above n 6, 75–81, 232–3Google Scholar; Geoffrey, Bolton, 'Barton, (Sir) Edmund' in Irving, (ed), The Centenary Companion, above n 7, 335–7Google Scholar; Geoffrey, Bolton, 'The Making of “Australia's Noblest Son”' (December 1998) 2 The New Federalist: The Journal of Australian Federation History 4Google Scholar; Geoffrey, Bolton, 'The Art of Consensus: Edmund Barton and the 1897 Federal Convention' (November 1997) 30 Papers on Parliament 33Google Scholar; Bolton and Williams, above n 11. See also below n 30.

²⁷ For bibliographies see Thomson, , 'Looking for Heroes', above n 6, 121–2Google Scholar; Thomson, , 'A Great Swindle?', above n 6, 366 n 128Google Scholar. See also Thomas, Campbell, George Richard Dibbs: Politician, Premier, Patriot, Paradox (1999)Google Scholar; Richard, Ely, Marcus, Haward James, Warden (eds), A Vital Force: Andrew Inglis Clark and the Ideal of Commonwealth (2001)Google Scholar; Frank M, Neasey Lawrence J, Neasey, Andrew Inglis Clark (2001)Google Scholar.

²⁸ 'The point is illustrated by the manner of [Barton's] selection as Prime Minister of Australia. … Lord Hopetoun ...; commissioned Barton–who was not the leader of any State or any party–but only the leader of Australia. It had been illustrated earlier [on 5 March 1897] by his election first on the poll of the New South Wales delegation, and his unopposed election [on Tuesday 23 March 1897] by the [Constitutional] Convention as its leader. Why did these things come to him? They came to him because he was the acknowledged leader of Australian union and of that only. And that came of his concentration on that one aim …. Without any of the arts of the demagogue but by intense conviction and ceaseless work, he became the accepted leader of the people of all the colonies of Australia, and led them to a great decision. He could do this only because, with the whole of his makeup, and being the man he was, he was the one man for the job.' Letter from Robert Garran to John Reynolds dated 4 November 1940 (Garran Papers, MS. 2001/5/125 National Library of Australia) (emphasis in original) quoted in Reynolds, above n 2, 71, 217 n 1 and in La Nauze, above n 1, 280, 352 n 22 and in Bolton, above n 2, 346–7. See also text accompanying below nn – 49. Indeed, from Professor Bolton's perspective, Barton was 'the necessary man'. Bolton, above n 2, x. See also Geoffrey, Bolton, 'A vote of confidence for Federation fathers', West Australian (Big Weekend Section), 7 April 2001, 6Google Scholar. For details of the 1897 election and Barton's appointment as Convention leader see Bolton, above n 2, 139–42; La Nauze, above n 1, 108–9, 110.

²⁹ Waugh, above n 25, 1041–46 (noting that 'the new Federation history reveals … a Constitution more fully of its time: the product of a process of public deliberation and participation ...; and, perhaps most importantly, creating a framework of popular sovereignty') (emphasis in original). See also Livingston, Jordan and Sweely (eds), above n 4, 120–47 ('New Approaches to Federation History').

³⁰ See generally Who's Who In Australia 2002 (38th ed, 2002) 270. Professor Bolton has held chairs of history at the Universities of Western Australia, Murdoch, Queensland and Edith Cowan and the Institute of Commonwealth Studies (London). In addition to above n 26, Professor Bolton's publications include Alexander Forrest: His Life and Times (1958); A Fine Country to Starve In (new edition, 1994); A Thousand Miles Away: A History of North Queensland to 1920 (1963); Spoils and Spoilers: A History of Australians Shaping their Environment (2nd ed, 1992); The Oxford History of Australia: The Middle Way: 1942–1995 (2nd ed, 1996) vol 5; '1939–51' in Frank Crowley (ed), A New History of Australia (1974) 458–503; 'Queensland' in Irving (ed), The Centenary Companion, above n 7, 93–127; 'Samuel Griffith: The Great Provincial' (November 1991) 13 Papers on Parliament 19–33; 'Samuel Griffith: The Great Provincial' (1991) 14 Journal of the Royal Historical Society of Queensland 350; 'Sir Samuel Griffith: Behind the Scenes Operator' (December 1999) 4 The New Federalist: The Journal of Federation History 45; 'The Valley of Lagoons: A Rehearsal for Canberra?' (June 1999) 3 The New Federalist: The Journal of Australian Federation History 22; 'The Western Australians: A Silent Majority' (June 1998) l The New Federalist: The Journal of Australian Federation History 57; Geoffrey Bolton, 'Ewing, Norman Kirkwood (1870–1928)' in Millar, above n 21, 336–7, 445; Geoffrey Bolton, 'Buzacott, Richard (1867–1933)' in Millar, above n 21, 365–7, 449; David, Black Geoffrey, Bolton, Biographical Register of Members of the Parliament of Western Australia, Volume One: 1870–1930 (1990)Google Scholar; David, Black Geoffrey, Bolton, Biographical Register of Members of the Parliament of Western Australia, Volume Two: 1930–1990 (1990)Google Scholar.

³¹ For analyses of biographical scholarship see Hermione, Lee, 'Tracking the Untrackable' (12 April 2001) 48(6) New York Review of Books 53–7Google Scholar (reviewing Richard, Holmes, Sidetracks: Explorations of a Romantic Biographer (2000)Google Scholar; David, Ellis, Literary Lives: Biography and the Search for Understanding (2000)CrossRefGoogle Scholar; Richard, Backscheider, Reflections on Biography (2000))Google Scholar. For judicial biography see James, Thomson, 'Swimming in Air: Lionel Murphy and Continuing Observations on Australian Judicial Biography' (1998) 4 Australian Journal of Legal History 221Google Scholar; James, Thomson, 'Getting to Know Harlan: A New Approach to Judicial Biography?' (2001) 18 Constitutional Commentary (forthcoming)Google Scholar.

³² Other than free trade versus protection, some wider issues briefly noted include the 1890– 94 strikes, the women's movement and the 1899–1902 Boer War. See generally Bolton, above n 2, 75, 82, 173, 197–8, 254–8. On the strikes see Alistair, Davidson, The Invisible State: The Formation of the Australian State 1788–1901 (1991) 224–8, 301Google Scholar; John, Richard, Class and Politics: New South Wales, Victoria and the Early Commonwealth (1976) 5–80Google Scholar; Thomson, , 'A Great Swindle?', above n 6, 363Google Scholar. On women and federation see above n 7. On the Boer War see John, Bannon, 'A War for a Constitution: The Australian Colonies and the South African War' (June 2000) 5 The New Federalist: The Journal of Australian Federation History 2Google Scholar.

³³ See, for example, Peter, Loveday Allan, Martin, Parliament, Factions and Parties: The First Thirty Years of Responsible Government in New South Wales, 1856–1889 (1966)Google Scholar; Brian, Dickey, Politics in New South Wales 1856–1900 (1969)Google Scholar; Peter, Loveday, Allan, Martin Patrick, Weller, 'New South Wales' in Peter, Loveday, Allan, Martin Robert S, Parker (eds), The Emergence of the Australian Party System (1977) 172–249Google Scholar.

³⁴ See, for example, Stuart, Macintyre, A Concise History of Australia (1999)Google Scholar; Hirst, above n 4; Irving, , To Constitute a Nation, above n 7Google Scholar.

³⁵ In addition to the 1897 Adelaide session of the Constitutional Convention, Barton in 1893– 94 'spent three weeks holiday as Sir John Downer's guest in Adelaide' and had another 'holiday in Adelaide with the Downers' in January 1899. Bolton, above n 2, 120, 193.

³⁶ Ibid 195, 200–1 (discussing Barton's 1899 referendum campaigning in Brisbane and the Darling Downs).

³⁷ Ibid 81 (noting that in 1891 'Barton ...; had never been out of New South Wales apart from rare visits to Melbourne and Brisbane'). But note that '[b]etween 1891 and 1897 [Barton] had … built up a sympathetic network with prominent federationists elsewhere in Australia, especially Deakin in Victoria, Downer and Symon in South Australia, and Griffith in Queensland.' Bolton, 'The Making', above n 26, 5.

³⁸ Ibid 203–14, 268–77, 319–21 (discussing 1900, 1902 and 1915 visits).

³⁹ Ibid 115, 277 (discussing 1893 and 1902 visits).

⁴⁰ In addition to above n 24, see Irving (ed), The Centenary Companion, above n 7, 93–325; Reynolds, above n 2, 152–72.

⁴¹ For the suggestion that Barton 'command[ed] ...; nationwide acceptability' see Bolton, above n 2, 345. See also Bolton, above n 26, 5 (partially quoted in above n 37).

⁴² Bolton, above n 2, xi.

⁴³ Ibid 345. From both extremes of the continent, Sydney and Cue in Western Australia, Barton was acclaimed as 'indisputably the strongest and ablest of the federationists' and as being of 'sterling worth and ability' in March 1897. Bolton, above n 2, 140 (quoting Sydney Morning Herald, 7 March 1897 and Murchison Times, 10 March 1897).

⁴⁴ Bolton, above n 2, 345. See also ibid 166–92 ('Barton versus Reid'). 'The subtleties of the relationship between Barton and Reid call for care in interpretation'. Ibid 131. After such an evaluation, others form a different conclusion from Edmund Barton. 'W.G. McMinn, in his much-needed rehabilitation of George Reid, inevitably presented [Reid] as overshadowing Barton.' Ibid 345. See McMinn, , George Reid, above n 12, 155–68Google Scholar ('Father of Federation').

⁴⁵ Previously, in the 27 July 1898 NSW general election Barton stood against Reid 'in the King division of central' and lost 761 votes to 651 votes. See below n 92. In the 23 September 1898 NSW Legislative Assembly by-election for the seat of Hastings and Macleay, Barton defeated Sydney Smith 961 votes to 653 votes and Lyne 'yielded the leadership of the [Protectionist] party to Barton' who became leader of the opposition. Bolton, above n 2, 179–85, 187–9. See also McMinn, , George Reid, above n 12, 161–2Google Scholar; Beauchamp, above n 11 (September 1898 election).

⁴⁶ Bolton, above n 2, 188, 198. See also above nn 11, 26.

⁴⁷ Bolton, above n 2, x. See also Bolton, , 'The Art of Consensus', above n 6, 41Google Scholar (concluding that 'Barton built up a national reputation as the indispensable advocate of federation').

⁴⁸ Bolton, above n 2, x.

⁴⁹ Bolton, above n 2, 346. See also ibid 161 (noting that 'Sir Edward Braddon described [Barton] to the Tasmanian House of Assembly [in 1897] as '"the Colossus of the Convention”'). See also Bolton, , 'The Art of Consensus', above n 26, 35Google Scholar (etching–'the Convention Colossus'–reproduced from the (8 April 1897) Melbourne Punch 271). Compare the description of John Adams as a 'colossus'. See, for example, David, McCullough, John Adams (2001) 163 (attributing to Thomas Jefferson the statement that Adams was the 'colossus of independence')Google Scholar; David, Kirkpatrick, 'Error in Quote Stirs Arguments Over Adams Legacy', New York Times, 23 July 2001,10 (noting McCullough's admission that he 'made a mistake' and his subsequent suggestion that Jefferson called Adams a'“colossus on the floor” of the Continental Congress')Google Scholar; Richard N, Rosenfeld, 'The Adams Tyranny: Lost Lessons from the Early Republic' (September 2001) 303(1816) Harper's Magazine 82 (referring to 'the worshipful phrase “the colossus of independence” which [David McCullough] employs as a chapter title [in John Adams ] and then falsely attributes to Thomas Jefferson' and describing it as a 'nonexistent quotation')Google Scholar.

⁵⁰ Others disagree with Professor Bolton. For example, Professor McMinn (see above n 44) and Professor Clark who characterised Barton as 'a Pontius Pilate type of liberal … not lik[ing] to face up to big questions.' Bolton, above n 2, 343 (quoting Manning, Clark, A History of Australia: The People Make Laws 1888–1915 (1981) vol 5, 73)Google Scholar. On Clark and his conspiracy thesis views see Thomson, , 'A Great Swindle?', above n 6, 362Google Scholar.

⁵¹ Bolton, above n 2, viii.

⁵² Ibid ix.

⁵³ See James, Thomson, 'Using the Constitution: Separation of Powers and Damages for Constitutional Violations' (1990) 6 Touro Law Review 177, 210–11Google Scholar (urging, in circumstances involving remedies for constitutional violations, that 'succumbing to routine or revolution' is not appropriate). See also Cass, Sunstein, One Case at a Time: Judicial Minimalism on the [U.S.] Supreme Court (1999) (advocating that constitutional adjudication proceed by narrow, case by case decisions, not grand, open-ended theories)Google Scholar.

⁵⁴ See La Nauze, above n 1, 289–91 (chronological list of 'Successive Printed Versions of a Bill to Constitute the Commonwealth of Australia, 1890–1900'). Copies of those Bills are in Samuel W, Griffith, Successive Stages of the Constitution of the Commonwealth of Australia 1891 (Griffith Papers, Dixson Library, Sydney, Ms.Q 198, CY Reel 221)Google Scholar; John, Reynolds, 'A I Clark's American Sympathies and His Influence on Australian Federation' (1958) 32 Australian Law Journal 62, 67–75Google Scholar; David, Eastman, The Founding Documents of the Commonwealth of Australia (2000)Google Scholar; John, Williams, The Australian Constitution: A Documentary History (forthcoming 2003)Google Scholar. Locations of other Bills are provided in James, Thomson, 'Constitutional Interpretation: History and the High Court: A Bibliographical Survey' (1982) 5 University of New South Wales Law Journal 309, 315 n 12, 316 n 20Google Scholar.

⁵⁵ For opposition see, for example, Hugh, Anderson (ed), Tocsin: Contesting the Constitution, 1897–1900(revised edition 2000)Google Scholar; Ruth, Campbell, 'A Watchful Attitude Towards Federation: Tocsin's Approach to the Draft Constitution Bill 1897–1900' (1977) 11 Melbourne University Law Review 252Google Scholar; David, Headon, 'Tocsin for the Times: O'Dowd, Whitman and the “'Internal Brotherhood” of Federation' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 58Google Scholar; C, Wallace-Crabbe, 'O'Dowd, Bernard Patrick' in Geoffrey, Serle (ed), Australian Dictionary of Biography (1988) vol 11, 62–3Google Scholar; Tom, Campbell, 'Sir George Dibbs and the Anti-Federation Argument in NSW' (June 2000) 5 The New Federalist: The Journal of Australian Federation History 67Google Scholar; Christopher, Cunneen, 'Anti-Billites' in Irving, (ed), The Centenary Companion, above n 7, 330–2Google Scholar; Bolton, above n 2, 83–5, 159–60 (NSW Legislative Council's opposition to 1897 Adelaide session of Convention's Constitution Bill), 172 (opposition in 1898 NSW referendum campaign), 194–5 (NSW Legislative Council opposition to the Constitution Bill in February 1899 after the 1899 Premiers Conference agreement on amendments to the Bill). Prominent Anti-Billites included:

• Henry Bournes Higgins (see John, Rickard, H.B. Higgins: The Rebel as Judge (1984)Google Scholar; Graham, Fricke, Judges of the High Court (1986) 51–8; Crisp, above n 12, 155–73, 183– 5, 464–6Google Scholar; James, Thomson, 'Judicial Biography: Some Tentative Observations on the Australian Enterprise' (1985) 5 University of New South Wales Law Journal 380, 389–92, 397Google Scholar; John, Rickard, 'Higgins, Henry Bournes' in Nairn, Serle, (eds), Australian Dictionary of Biography (1983) vol 9, 285–9Google Scholar; Stephen, Dowd, 'Henry Bournes Higgins: An Antagonist to Federation' (June 2001) 23(5) Law Society Bulletin (South Australia) 32Google Scholar; Ian, Holloway, 'Higgins, Henry Bournes' in Blackshield, , Coper, Williams, , above n 11, 321–2)Google Scholar;

• George Richard Dibbs (see Campbell, above n 27; Crisp, above n 12, 49–120, 459– 61; Bruce, Mansfield, 'Dibbs, Sir George Richard' in Douglas, Pike (ed), Australian Dictionary of Biography (1972) vol 4, 65–9)Google Scholar;

• Albert Bathurst Piddington (see Morris, Graham, A.B. Piddington: The Last Radical Liberal (1995)Google Scholar; Crisp, above n 12, 129–37, 181–2, 461–2; Fricke, above, 77–83, 217; Michael, Roe, 'Piddington, Albert Bathurst' in Geoffrey, Serle (ed), Australian Dictionary of Biography (1988) vol 11, 224–6Google Scholar; Gafy, Phillips, Justice Unknown: A Biography of Albert Bathurst Piddington (1987) (Legal History Research Paper, Adelaide University, 1987)Google Scholar; Frank, Cain,'“Good Old Piddo” and the Search to Wage and Working Equity' (7–13 September 1995) Campus Review: University of New South Wales 20Google Scholar; Jan, Bassett, 'Who's Piddington?' (July 1995) 172 Australian Book Review 14Google Scholar; David, Hodgkinson, 'Albert Bathurst Piddington and Appointments to the High Court of Australia' (September 1999) 26(8) Brief: Journal of the Law Society of Western Australia 26Google Scholar; Max, Spry, 'Executive and High Court Appointments' in Geoffrey, Lindell Robert, Bennett (eds), Parliament: The Vision in Hindsight (2001) 419, 445Google Scholar; Morris, Graham, 'Piddington, Albert Bathurst' in Blackshield, , Coper, Williams, , above n 11, 533–5Google Scholar; Peter, Young, 'When is a judge not a judge?' (1998) 72 Australian Law Journal 833Google Scholar; and see also below nn 193, 195);

• Thomas Price (see Crisp, above n 12, 143–55, 182–3, 462–4; Percival, Serle, Dictionary of Australian Biography (1949) vol 2, 251–3 ('Price, Thomas')Google Scholar; Steven, Weeks, 'Price, Thomas' in Geoffrey, Serle (ed), Australian Dictionary of Biography (1988) vol 11, 286Google Scholar; Thomas, Smeaton, From Stonecutter to Premier (1924)Google Scholar; Ganzis, N, Tom Price: First Labour Premier (A Political Biography) BA(Hons) thesis, University of Adelaide, 1959))Google Scholar;

• John Henry Want (see Paul, Finn, 'Want, John Henry' in John, Ritchie (ed), Australian Dictionary of Biography (1990) vol 12, 380)Google Scholar.

• Compare the debate over the role, significance and remembrance of the anti–federalists in the formation of the 1789 US Constitution and 1791 Bill of Rights. See Thomson, , 'A Great Swindle?', above n 6, 349 n 31Google Scholar.

• For an important shift in views see, for example, Bolton, above n 2, 152–3 (noting that 'overnight lobbying … persuaded … two more of the Tasmanians [Nicholas Brown and Neil Lewis] to change sides' on the issues of the Senate's power); La Nauze, above n 1, 144 (describing the nocturnal activities on 13 April 1897 and the shift by Brown and Lewis); Thomson, , 'Looking for Heroes', above n 6, 105–15Google Scholar (discussing McMillan's crucial change from 'no' to 'yes' on limiting the Senate's power). See also text accompanying below nn 115– 44 (shifting positions over s 74 Privy Council appeals).

⁵⁶ For example the 1897 elections for delegates to the 1897–98 Convention and the 1898, 1899 and 1900 referendum campaign. See above n 24.

⁵⁷ Indeed, Deakin, indicated that '[t]here is much unstated [in the Debates], because the delegates to this Convention have practically lived together for six weeks in private as well as in public intercourse.' Official Report of the National Australasian Convention Debates (1891) 914Google Scholar. Consequently, '[w]hat happens overnight in conferences may be as important as what is said in debate.' La Nauze, above n 1, 44. There are four important examples. First, negotiations over the Senate's power. See above n 55 and below n 201. Secondly, the secret committees, including the drafting committee. See La Nauze, above n 1, 122–36; Hirst, above n 4, 160 ('The constitution was shaped in Adelaide in secret committee meetings'). Thirdly, three secret Colonial Office memorandums. See text accompanying below nn 108–13. Fourthly, 1900 negotiations in London, including negotiations during dinner and 'port and cigars'. See above n 1; text accompanying below nn 115–42.

⁵⁸ See above n 27.

⁵⁹ See text accompanying below nn 95–108.

⁶⁰ For bibliographies see La Nauze, above n 1, 355–9; Crisp, above n 12, 369–435, 470–6; Pam, Crichton, Patsy, Hardy Marion, Stell (compilers), Federation Bibliography (1992)Google Scholar. For compilations see Scott, Bennett, Annotated Documents on the Making of the Commonwealth of Australia (MA thesis, Australian National University, 1969)Google Scholar; Scott, Bennett (ed), The Making of the Commonwealth (1971)Google Scholar; Scott, Bennett (ed), Federation (1975)Google Scholar; Eastman, above n 54; Williams, above n 54. See also Stephen, Foster, Susan, Marsden Roslyn, Russell (compilers), Federation: The Guide to the Records (1998)Google Scholar; Lenore, Coltheart, 'Documenting Democracy: <www.foundingdocs.gov.au>' (2001) 16 Australasian Parliamentary Review 176Google Scholar.

⁶¹ The Papers of Edmund Barton are in the National Library of Australia (MS 51) and State Library of New South Wales (ML MSS 249). Descriptions of both collections are in S Foster et al (compilers), above n 60, 34–41, 64 and in the National Library collection at <http://www.nla.gov.au/ms/findaids/0051.html>. See also below n 175 (referring to Barton's 'judge's notebooks' and 'cabinet note book'). '[Probably around 1909, Barton] and his wife systematically went through their past correspondence, carefully preserving letters which they thought of permanent interest, but destroying almost all personal and family material … The remaining correspondence was further winnowed by Barton's executor and son-in-law, David Maughan …'. Bolton, above n 2, xi–xii. On Maughan see above n 19. Similarly, Charles Cameron Kingston (see below n 70) 'does not seem to have left any papers (it is rumoured that his increasingly eccentric and long-suffering wife, Lucy, burnt them all on his death in 1908)…' John, Bannon, 'Birth of a nation' (February 1998) 3 The Australian Review of Books 10, 11Google Scholar.

⁶² See, for example, Deakin, above n 1; George, Reid, My Reminiscences (1917)Google Scholar; Gerald, O'Collins, Patrick McMahon Glynn: Letters to His Family (1874–1927) (1974)Google Scholar; Joseph, Carruthers, 'Autobiography' (National Library of Australia, MS 2829)Google Scholar. For collections of delegates' papers see, for example, S Foster et al (compilers), above n 60, 43–4, 47–50 (Australian Archives), 63–71 (State Library of New South Wales).

⁶³ As to the records of the 1897–98 Finance Committee, the Constitutional Committee and the Judiciary Committee see La Nauze, above n 1, 123, 201–2. The 1891 Convention's three committees—the Committee on Constitutional Machinery and the Distribution of Functions and Powers; the Committee on Provisions relating to Finance, Taxation and Trade Regulation; and the Committee on the Establishment of a Federal Judiciary—and the 1897–1898 Convention's Committee records, including the Drafting Committee's records, are held in the Australian Archives, R21–R31, R212–R216 (summarised in S Foster et al (compilers), above n 60, 29, 32).

⁶⁴ When did Barton start on his federal crusade? '[Barton] first advocated federation as practical politics at a meeting called on 2 November [1889], to set up a branch of the Protectionist Party at Lithgow … [Barton argued] that no question was as important as the federation of Australia.' Bolton, above n 2, 68. However, '[t]he initiative came… from Andrew Inglis Clark …[who] in the winter of 1889 … met Barton and ...; talked about the desirability of New South Wales joining the Federal Council … [and] agreed that there were many legal problems … which could be handled much better at federal level … [Clark] wrote [Barton] a follow up letter [on 19 June 1889].' ibid 66.

⁶⁵ Held in Sydney Monday 2 March–Thursday 9 April 1891. On the background and surrounding circumstances see above n 32 (strikes). For the Convention see Bolton, above n 2, 74–82; La Nauze, above n 1, 28–86. 'During the summer of 1890–91 Barton prepared himself for the Convention by three months of incessant study, probably at the expense of his legal practice.' Bolton, above n 2, 73.

⁶⁶ There were three sessions: Adelaide, Monday 22 March–Wednesday 5 May 1897; Sydney, Thursday 2 September–Friday 24 September 1897; Melbourne, Thursday 20 January–Thursday 17 March 1898. See generally Bolton, above n 2, 127–56, 160–63, 166–71; La Nauze, above n 1, 97–160, 177–238; Essays, 'On the Road Again: The Adelaide Constitutional Convention of 1897' (June 1998) 1 The New Federalist: The Journal of Australian Federation History 5–62; Kevin, Livingston, 'The Communication Revolution, the Adelaide Convention and the Constitution' (December 1998) 2 The New Federalist: The Journal of Australian Federation History 24Google Scholar. For the negotiations and decision that Barton be the leader of the 1897–98 Convention see Bolton, above n 1, 108–9.

⁶⁷ Barton sojourned in the UK from 15 March 1900 to 6 July 1900. The delegation was Barton (NSW), Kingston (SA), Dickson (Qld), Deakin (Vic) and Fysh (Tasmania) together with representatives from Western Australia (Stephen Henry Parker) and New Zealand (William Pember Reeves). Even though Barton 'had never been in England before and had no first-hand experience of negotiating with the British authorities, the others from the first treated [Barton] as leader of the delegation.' Bolton, above n 2, 205. On this 1900 sojourn see Deakin, above n 1, 107–73; La Nauze, above n 1, 248–69, 349–51; Crisp, above n 12, 344–8, 475; Bolton, above n 2, 203–14; Reynolds, above n 2, 173–80; Hirst, above n 4, 219–43, 304; John La, Nauze, Alfred Deakin: A Biography (1965) vol 1, 186–91Google Scholar; Margaret, Glass, Charles Cameron Kingston: Federation Father (1997) 191–9Google Scholar; Brian de, Garis, 'Western Australia' in Irving, (ed), The Centenary Companion, above n 7, 285, 313–19Google Scholar; Brian de, Garis, British Influence on the Federation of the Australian Colonies, 1880–1901 (D Phil thesis, Oxford University, 1965) 325–409Google Scholar. On Parker (born 7 November 1846–died 13 December 1927) see 'Parker (Sir) Stephen Henry' in The Bicentennial Dictionary of Western Australians Pre–1829–1888 (1988) vol 3 K-Q 2415; Enid, Russell, A History of the Law in Western Australia and Its Development from 1829 to 1979 (1980) 216–17Google Scholar; Barbara, Sewell, The House of Northbourne Parkers: Pioneers of Western Australia 1830–1983 (1984) 79–85Google Scholar. On Reeves (born 10 February 1857–died 15 May 1932) see Keith, Sinclair, William Pember Reeves: New Zealand Fabian (1965)Google Scholar; Ruth, Fry, 'Reeves, Magdalene Stuart' in The Dictionary of New Zealand Biography: 1901–1920 (1996) vol 3, 423–4Google Scholar.

⁶⁸ On the drafting committees see La Nauze, above n 1, 46, 48–70, 74–6, 128–30, 135–6, 179–80, 183, 192, 235–8; Bolton, above n 2, 79–80, 147–50, 154–5, 160–3, 167; Roger, Joyce, Samuel Griffith (1984) 109, 193–6Google Scholar; Glass, above n 67,167; Crisp, above n 12, 307–8. For the committees' records see above n 63. See also text accompanying below nn 69–85.

⁶⁹ Born 21 June 1845–died 9 August 1920. See generally Joyce, above n 68; Roger, Joyce, 'Griffith, Samuel Walker' in Nairn, Serle, (eds), Australian Dictionary of Biography (1983) vol 9, 112–19Google Scholar; Forward, R K, 'Sir Samuel Griffith' in Six Great Australians: Third Series (1965) 1–30Google Scholar; John, Macrossan, Kay, Saunders, Sandra, Berns, Colin, Sheehan Katie, McConnel, Griffith, the Law, and the Australian Constitution (1998)Google Scholar; Michael White (ed), Sir Samuel Griffith: The Law and the Constitution (forthcoming); John, Williams, 'Samuel Griffith and the Australian Constitution: Shaking Hands with the New Chief Justice' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 37Google Scholar; Harry, Gibbs, 'Griffith, Samuel Walker' in Blackshield, , Coper, Williams, , above n 11, 309–11Google Scholar. See also above n 30.

⁷⁰ Born 22 October 18599–died 11 May 1908. See generally Glass, above n 67; Crisp, above n 12 at 2729–368; John, Playford, 'Kingston, Charles Cameron' in Nairn, Serle, (eds) Australian Dictionary of Biography (1983) vol 9, 6029–5Google Scholar.

⁷¹ See generally Marcus, Haward James, Warden (eds), An Australian Democrat: The Life, Work and Consequences of Andrew Inglis Clark (1995)Google Scholar; Ely, Haward and Warden (eds), above n 27; Neasey and Neasey, above n 27.

⁷² This Queensland government owned steamer was named after Jeanie Lucinda Musgrave who was an American and the widow of the Queensland Governor. Joyce, above n 68, 156, 157 (photograph of Mrs Musgrave), 194 (photograph of the steamer).

⁷³ For the 1897 Adelaide and Sydney negotiations and decisions to have Barton, Downer and Kingston, but not Isaacs, on this committee see Bolton, above n 2, 148; La Nauze, above n 1, 1289–9, 1799–80.

⁷⁴ Born 6 July 1849–died 2 August 1915. See generally Peter, Bartlett, 'Downer, Sir John' in Nairn, Serle, (eds), Australian Dictionary of Biography (1981) vol 8, 330–2Google Scholar; Peter, Howell, 'The Strongest Delegation: The South Australians at the Constitutional Convention of 1897– 98' (1998) 1 The New Federalist: The Journal of Australian Federation History 44, 46–7Google Scholar; Graeme, Powell, 'Downer, Sir John William (1843–1915)' in Millar, , above n 21, 148–52, 420–1Google Scholar; Carol, Fort, 'Downer Family' in Wilfred, Prest (ed), The Wakefield Companion to South Australian History (2001) 151–2Google Scholar.

⁷⁵ Born 4 August 1851–died 18 November 1912. See generally Fricke, , above n 55, 30–5; 'The Late Mr Justice O'Connor' (1912) 15 CLR (remarks of Isaacs , Griffith CJ and Barton J)Google Scholar; Henry, Manning, 'Richard Edward O'Connor' (1951) 25 Australian Law Journal 116Google Scholar; Martha, Rutledge, 'O'Connor, Richard Edward' in Serle, (ed), Australian Dictionary of Biography (1988) vol 11, 56–9Google Scholar; Martha, Rutledge, 'O'Connor, Richard Edward' in Blackshield, , Coper, Williams, , above n 11, 509–11Google Scholar; Martha, Rutledge, 'O'Connor, Richard Edward (1851–1912)' in Millar, , above n 21, 27–30, 405Google Scholar.

⁷⁶ See above n 14.

⁷⁷ 'It was, and is, a pleasant house, overlooking the park lands, and within a few minutes' walk of Parliament House. Barton was staying with Downer … The 'Downer House'…next to the Anglican Cathedral, became the original Master's lodge of St Mark's University College. In the 1930s a large bare room with a marble fireplace … was said to be the room “where the Constitution was framed” … What can safely be assumed to have been framed in the “Downer House” was the draft Constitution presented to the Convention on 12 April 1897.…' La Nauze, above n 1, 136–7. See also above n 35 (Barton's 1893–94 and 1899 visits to the Downer House).

⁷⁸ 'Never shall I forget those days and nights. In a sitting-room at the Grand Hotel (now the Windsor) Barton, O'Connor, Downer and I worked on while the city slept.… Barton and I would carry on till at four or five in the morning [before] I could persuade him to call it a day.' Garran, above n 14, 123. Also, Garran indicates that '[o]n the last night of all [the evening of 16 March and morning of 17 March 1898] … Charles Gavan Duffy and I worked feverishly till breakfast-time at the proofs of the final schedule of amendments' to the Constitution Bill. Ibid.

⁷⁹ See La Nauze, above n 1, 232–8 (discussing approximately four hundred amendments proposed by the drafting committee on Wednesday 16 May 1899 which the Convention accepted and which included more drafting amendments which may well have significantly altered the meaning of the Constitution).

⁸⁰ For such an excursion see La Nauze, above n 1; Thomson, 'Looking for Heroes', above n 6, 97 n 18 (bibliography of scholarship on the history of specific provisions in the Constitution). Additionally, consideration needs to be given to the proceedings in colonial parliaments, for example, in 1897 and 1898. See La Nauze, above n 1, 161–6; Bolton, above n 2, 157–60, 179–92.

⁸¹ La Nauze, above n 1, 129, 135, 232, 234, 236. See also Brian de, Garis, 'The Colonial Office and the Commonwealth Bill' in Martin, (ed), above n 24, 198 n 28 (suggesting Barton's 'marginal notes on Memoranda A and B and nineteen pages of notes on Memorandum C …give valuable insight into the work of the Drafting Committee and their understanding of the meaning of many clauses in the Constitution')Google Scholar.

⁸² Others who wrote the Constitution's words included Clark, Kingston, Griffith, Garran, colonial parliaments, UK Colonial Office Law Officers, and those present at or assisting the 1899 Premiers' Conference. On the latter see below n 98.

⁸³ In addition to above n 82, new clauses and amendments were proposed by Convention delegates and committees. See also La Nauze, above n 1, 132 (noting that Symon, chairman of the 1897 Judiciary Committee, 'transformed [the] appearance [of the]… judicature chapter' of the 1891 Constitution Bill).

⁸⁴ Of course, being Leader of the Convention, Barton may well have 'guided' the Convention and other delegates. Such 'guidance' may have been assisted by the perception that Barton 'lack[ed] the killer instinct' and was a compromiser. Bolton, above n 2, 201. See also ibid 242–3 ('In the Convention of 1897–98 Barton had shown a great readiness to give way on points of details, sometimes substantial points, in order to secure workable outcomes'), 346 (characterising Barton as practising 'politics as the art of the possible').

⁸⁵ Of course, Barton was 'a practitioner of the art of maximising consensus' and, therefore, was prepared to compromise. Bolton, above n 2, 299. See also above n 84. 'Barton's real strength was in conciliation and compromise. … What he lacked in the ability to cut deals he overcame with tack, generosity and sincerity. … His readiness to compromise also left him open to criticism as someone prepared to subordinate everything, including the interests of NSW, to the cause of Federation'. Steketee, above n 26, 5. Even Barton's own words may well have resulted from the 'profound influence' of his University of Sydney classics professor Charles Badham. Bolton, above n 2, 10. Also compare the assessment of the 1891 drafting committee: 'The contributions of Kingston and Barton to the work of drafting cannot be precisely assessed. All the corrections of the draft made on the Lucinda are in Griffith's hand and we cannot say who made them. …[Indeed in 1893] Griffith said: The [1891 Constitution] bill was not the work of any one man. It was the work of many men in consultation with one another'. Nauze, La, above n 1, 76 (quoting Samuel Griffith in Federal Council of Australasia, Debates (5th Session 1893) 93)Google Scholar.

⁸⁶ Edmund Barton exposes some of Barton's foibles, flaws and failures. See generally Bolton, above n 2, 59 (Barton's swings of mood'), 118–19 (conflict of interest allegations resulting in 'the worst moment of Barton's parliamentary career' and his resignation as Attorney General in the Dibbs government on 15 December 1893), 184 ('Consciously or otherwise, [Barton, during the July 1898 NSW election,] was transferring his achievements during the [March–June] 1898 referendum campaign to his much less encouraging experiences two or three years earlier'), 193 (assessing Barton's 'performance as a political tactician [as] no more than mediocre'). See also below n 115 (discussing Barton's 'unfortunate slip').

⁸⁷ Examples include being the founder of the Australasian Federation League, Barton's participation in the 1898 and 1899 referendum campaigns and the 1896 Bathurst Convention. See generally Bolton, above n 2, 104, 138–9, 171–7, 195–8; Bolton, 'The Making', above n 26, 5; Milne, above n 11.

⁸⁸ See generally Bolton, above n 2,112–5; Reynolds, above n 2, 116–7; Hirst, above n 4, 118–20; Stuart, Macintyre, 'Corowa and the Voice of the People' in Headon, Brownrigg, , above n 11, 1, 8–9Google Scholar.

⁸⁹ See generally Headon and Brownrigg, above n 11, 67–143; Scott, Bennett, 'Bathurst People's Federal Convention' in Irving, (ed), The Centenary Companion, above n 7, 335–8Google Scholar.

⁹⁰ See generally Bolton, above n 2, 171; McMinn, , George Reid, above n 12, 149–53Google Scholar; Hirst, above n 4, 187; Abjorensen, above n 4.

⁹¹ Bolton, above n 2, 128. Professor Bolton quotes John Reynolds: 'During [1894–96] it is recorded that [Barton] addressed nearly 300 meetings in New South Wales alone. He visited other colonies, and [Barton] considered that the total number of addresses he gave was over one thousand'. Reynolds, above n 2, 121. See also Bolton, 'The Making', above n 26, 4 (criticising Reynolds' view).

⁹² Barton lost: Reid 761 votes, Barton 651 votes. See Bolton, above n 2, 182–5; McMinn, above n 12, 158–60. Professor Bolton concedes that this election campaign contest 'focused on one issue: “Who is the rightful owner of Federal Policy?” Was Reid or Barton better qualified to negotiate terms with the other premiers to secure a more equitable deal if New South Wales federated?… The hardest-fought ground between [Barton and Reid] was the contest for legitimacy as the leader who had transformed Federation from the Parkesian concept … as something to be negotiated between senior statesmen into a popular cause identified with the Australian people.' Bolton, above n 2, 182–4. See also La Nauze, above n 67, 180 (quoting Barton's letter of 16 June 1898 to Deakin: 'Who is to be trusted with the leadership of the Federal movement in question?') (emphasis in original); La Nauze, above n 1, 240 (suggesting that, as a result of Reid's election victory, '[t]he answer, it appeared, was Reid').

⁹³ Bolton, above n 2, 184.

⁹⁴ Compare text accompanying above nn 50–52.

⁹⁵ For Barton's geographical confinement and consequential non-attendance at events in other colonies see text accompanying above nn 35–39. Of course, Barton could have been influential despite not being physically present. See text accompanying below nn 103–107.

⁹⁶ 'There is no question that it is correct to describe the [1895] Hobart [Premiers'] Conference as the great turning point for Australian federation.' John, Bannon, The Crucial Colony: South Australia's Role in Reviving Federation 1891 to 1897 (1994) 32Google Scholar. The 1895 Premiers' Conference in Hobart on Tuesday 29 and Thursday 31 January, except for WA, agreed to a federal Convention comprising delegates elected by voters. See generally John, Bannon, 'Rediscovering Federation History' in Livingston, , Jordan, Sweely, (eds), above n 4, 123Google Scholar (postulating various possible explanations for 'the reasons and timing of the convening by George Reid (NSW) of the crucial 1895 Premiers' Conference'); Bannon, above this note, 27–37; Bolton, above n 2, 130; La Nauze, above n 1, 90; Hirst, above n 4, 127–31; Glass, above n 67, 170–2, 174; McMinn, , George Reid, above n 12, 101–3Google Scholar; John, Hirst, 'A Novel Convention: Adelaide 1897' (June 1998) 1 New Federalist: The Journal of Australian Federation History 5Google Scholar; Stuart, Macintyre, 'After Corowa' (1994) 65 Victorian Historical Journal 98Google Scholar; James, Thomson, 'Andrew Inglis Clark and Australian Constitutional Law' in Ely, , Haward, & Warden, (eds), above n 27, 294, 301 n 20Google Scholar; Glen, Rhodes, 'The Hobart Understanding: A Plan of Prearranged Coincidences' (December 1993) 2(5) Constitutional Centenary: Newsletter of the Constitutional Centenary Foundation 6–8Google Scholar. See also below n 100 (Reid's assertion).

⁹⁷ On the 4 March 1896 Sydney Premiers' Conference see Bannon, above n 96, 37–8 (noting the adoption of a 'significant resolution' stating that the Conference's deliberations 'made the urgent necessity for a federation of the colonies more than ever apparent').

⁹⁸ From Sunday 29 January 1899 to Friday 3 February 1899 the Premiers' Conference met in Melbourne. They unanimously agreed to the text of amendments to the Constitution Bill, including a new s 96. Other amendments were made to sections 7, 57, 87, 123, 124 and 128.

See generally Bolton, above n 2, 191, 193; La Nauze, above n 1, 241–7; Joyce, above n 68, 207, 395 n 66; Crisp, above n 12, 338–41; Hirst, above n 4, 198–9; Glass, above n 67, 186–90; McMinn, above n 12, 165–7; Irving, , 'Saying “Yes'', above n 24Google Scholar; de Garis, above n 67, 308–9; Cheryl, Saunders, 'Towards a Theory for Section 96: Part 1' (1987) 16 Melbourne University Law Review 1–5Google Scholar; John, Bannon, 'Introduction to the Minutes of the Conference of the Premiers in the Commonwealth Bill' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 104Google Scholar. All of the amendments and their texts as agreed to by the Premiers were inserted into the Constitution. Who drafted the amendments? Possibly Kingston, Cullen or Griffith. Cullen 'was an adviser to (Sir) George Reid' at the 1899 Melbourne Premiers Conference and 'a skilled draftsman of bills and of amendments' and was Chief Justice of New South Wales from 1910 to 1925. John, Bennett, 'Cullen, Sir William Portus' in Nairn, Serle, (eds), Australian Dictionary of Biography (1981) vol 8, 167–8Google Scholar. But see La Nauze, above n 1, 243 (concluding that '[w]ho drafted [these amendments] is not known'). Compare the uncertainly about the origins of the words 'the limits inter se' in s 74. See La Nauze, above n 1, 266; Geoffrey, Sawer, Australian Federalism in the Courts (1967) 28 (noting that '[t]he “inter se question” concept was devised by an unknown official of the British Colonial Office in 1900, and had no forbears or analogies')Google Scholar. The basis of those amendments was the resolution approved in December 1898 by the NSW Parliament. Originally, those resolutions had been in Reid's July 1898 election manifesto and, except for a narrowing of proposals to amend the Constitution Bill's financial provisions to simply removing the Braddon blot in s 87, were introduced into the NSW Legislative Assembly by Reid on 24 August 1898. Barton agreed with Reid on all aspects of these resolutions except the proposal to revise the inland rivers provisions. The NSW Legislative Council made a number of changes, including additions, which in reality Reid ignored. See generally Bolton, above n 2, 186–7, 190–1; McMinn, above n 12, 160–3; La Nauze, above n 1, 241, 245–6. From one perspective the conclusion is clear: 'There can be no doubt that what Reid got at Melbourne [in 1899] was a substantial improvement in the draft constitution.' McMinn, above n 12, 166. However, was it wise or beneficial and, if so, from whose perspective, to allow s 87 to be terminated in 1910? See also Bannon, above n 104 ('The outcome is generally seen to have been a major victory for George Reid'). Also, Reid overcame the NSW Legislative Council's resistance to the amended Constitution Bill by having the acting NSW Governor prorogue Parliament and appoint twelve additional Council members with the clear implication of further appointments to swamp the Council and, consequently, overcome its opposition. See generally Bolton, above n 2, 194; McMinn, George Reid, above n 12, 166–7; La Nauze, above n 1, 147. See also below n 107.

⁹⁹ The 24 January 1900 Sydney Premiers' Conference appointed the Australian delegation– Barton, Deakin, Kingston, Dickson and Fysh—to the United Kingdom. Crisp, above n 60, 344; La Nauze, above n 1, 249–50; Joyce, above n 69, 209. At the request of the Australian delegation, led by Barton, in London, the 19 April 1900 Melbourne Premiers Conference considered Chamberlain's proposals to retain appeals to the Privy Council and agreed that '[a]mendment of some kind' to restore to the Constitution Bill appeals to the Privy Council 'was less objectionable than postponement of the federated Commonwealth; and the premiers of Queensland [Robert Philp] and Tasmania [Neil Lewis] were willing to jettison Clause 74 altogether.' Bolton, above n 2, 208–9. See also La Nauze, above n 1, 262; Crisp, above n 12, 348; Garis, de, British Influence, above n 67, 356–62Google Scholar; Garis, de, 'Western Australia', above n 67, 316–7Google Scholar.

¹⁰⁰ Indeed, because Barton was not a Premier, he did not lead and, therefore, did not control events. There are, at least, three important examples. First, Reid, who was the NSW Premier, could assert: 'I took control of [the federal movement]… and what I did was to assemble the Premiers [in 1895 in Hobart] … and ask them to take the movement out of the hands of the politicians and place the great national destiny in the hands of the people.' Bolton, above n 2, 184. Second, because he was Premier, Reid was in London in June 1897 and 'spent a considerable part of his time performing an important service for the federation movement in confidential consultations with Chamberlain on aspects of the draft constitution which might, if not thoroughly considered, cause trouble when the time came for it to be submitted to the Imperial Parliament.' McMinn, , George Reid, above n 12, 137Google Scholar (footnote omitted). See also below n 102 (secret memoranda). Third, Reid's 27 July 1898 election victory (see above n 45) and, subsequent control, via the NSW Parliament and 1899 Melbourne Premiers' Conference (see above n 98) of amendments to the Constitution.

¹⁰¹ Seventy two delegates, but not Barton who was visiting Canada, attended a conference in Corowa from 31 July to 1 August 1893 which adopted the resolution that colonial parliaments legislate to establish a convention with delegates elected by voters to adopt a Constitution Bill to be submitted to electors voting at a referendum in each colony. See generally Headon and Brownrigg, above n 11, 1…65; Irving, (ed), The Centenary Companion, above n 8, 351…2Google Scholar.

¹⁰² Reid, Turner, Kingston, Braddon, Forrest and Nelson attended Queen Victoria's Diamond Jubilee celebrations and the June 1897 Colonial Conference initiated by Joseph Chamberlain. See McMinn, above n 12, 136–8; Irving, (ed), The Centenary Companion, above n 7, 388Google Scholar; Frank, Crowley, Big John Forrest: 1847–1918: A Founding Father of the Commonwealth of Australia (2000) 184…6Google Scholar. On the 1897 Conference see Richard, Jebb, The Imperial Conference (1911)Google Scholar; Burdon, R M, King Dick: A Biography of Richard John Seddon (1955) 194, 196, 201–4Google Scholar; Kendle, J E, The Colonial and Imperial Conferences, 1887–1911 (1967)Google Scholar; Marsh, above n 15, 423–5, 429, 489.

¹⁰³ On these memoranda, their contents, who saw them and when, how they were utilised and what changes to the Constitution Bill resulted from their suggested alterations see Garis, de, British Influence, above 67, 267–301Google Scholar; de Garis, above n 81,94–114, 197–8; Bolton, above n 2, 162–3; McMinn, , George Reid, above n 12, 137–8Google Scholar; La Nauze, above n 1, 170–6, 183–6, 253; Ken Buckley, Ted, Wheelright, No Paradise for Workers: Capitalism and the Common People in Australia 1788–1914 (1988) 213Google Scholar. See also text accompanying below nn 109–14. See also above n 100 (Reid's 'important service').

¹⁰⁴ 'The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified.' Southern Pacific Railway Co. v Jensen (1917) 244 US 205, 221–2 (Holmes, J dissenting). On Holmes see generally G Edward, White, Justice Oliver Wendell Holmes: Law and the Inner Self (1993)CrossRefGoogle Scholar; Albert W, Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (2000)Google Scholar; James, Thomson, 'Playing With a Mirage: Oliver Wendell Holmes, Jr. and American Law' (1990) 22 Rutgers Law Journal 123Google Scholar.

¹⁰⁵ In this context, compare:

So widespread was Laski's reputation in India because of his work for independence and his influence on the political elite through [Jawaharlal] Nehru, [Krishna] Menon and the legions of [London School of Economics] students in the [Indian] government and civil service that it was often said that 'there was a vacant chair at every Cabinet meeting in India, reserved for the ghost of Professor Harold Laski'.

Isaac, Kramnick Barry, Sheerman, Harold Laski: A Life on the Left (1993) 589Google Scholar (quoting Granville, Eastwood, Harold Laski (1977) at 94)Google Scholar.

¹⁰⁶ Bolton, , above n 2, 193 (quoting from Sydney Morning Herald, 27 January 1899)Google Scholar. See also La Nauze, above n 1, 244–5 (discussing'“the curious incident of the dog in the night,” or rather Barton's role in the [1899 Melbourne Premiers' Conference] discussions' and suggesting that Barton's remarks to the Sydney Morning Herald interviewer were 'something of an understatement. The premiers could trust Barton. With [Barton's] aid, Reid got off to a good start [at the 1899 Premiers' Conference].' But note ibid 245 ('Barton himself was publicly committed to seek some of the same principal amendments Reid was asking for'). See also above nn 98, 100 (suggesting Reid's superior influence and position) and below n 107 (suggesting Barton was not as influential as Reid).

¹⁰⁷ See text accompanying above nn 91–93. See also La Nauze, above n 1, 240–1 (noting that 'the real battle for the adoption of the Constitution took place in New South Wales' and that on 4 'August [1899 Reid's] proposals for modifications of the [Constitution] Bill to be submitted to a conference of premiers were introduced in the [NSW] parliament with minor additions in the assembly, and some provocative alterations in the unrepentant Council, [Reid's proposals] were duly approved in December [1898]'). Because the resolutions were in Reid's July 1899 election manifesto, it is unlikely that Barton, who generally agreed with them, was influential in formulating the resolutions or the subsequent 1899 Premiers' Conference amendments. See above n 98.

¹⁰⁸ Bolton, above n 2, 191–2 (quoting McMinn, George Reid, above n 12, 166). On the 23 September 1898 by-election see above n 45.

¹⁰⁹ On s 74 of the Constitution see generally Gabriel, Moens John, Trone, Lumb & Moens' The Constitution of the Commonwealth of Australia Annotated (6th ed, 2001) 258Google Scholar. The theoretical possibility of appeals from the High Court to the Judicial Committee of the Privy Council remains because of s 74 of the Constitution, s 16(1) of the Australia Act 1986 (Cth & UK) (definition of 'Australian Court' excluding 'the High Court') and voters' rejection, at the 6 November 1999 s 128 referendum, of the proposal to repeal s 74 which was contained in clause 34 of Schedule 2 of the Constitution Alteration (Establishment of Republic) 1999. Compare Sue v Hill (1999) 199 CLR 462, 492–9 (discussing this 'obsolete' jurisdiction); Anne, Twomey, 'Sue v Hill–The Evolution of Australian Independence' in Adrienne, Stone George, Williams (eds), The High Court at the Crossroads (2000) 105–8 (discussing the curtailment, but not complete abolition, of s 74 appeals)Google Scholar.

¹¹⁰ See above n 103.

¹¹¹ Bolton, above n 2, 162. Who else saw these secret memoranda? When and in what form did they see them? Possibly, Kingston and Garran in 1897 and in 1900 the Australian delegation to the UK. In addition to above n 103, see Joyce, above n 69, 210 (indicating that Barton had given the memoranda to Dickson and that Dickson, by letter of 21 February 1900, had told Griffith of their existence and character).

¹¹² Bolton, above n 2, 163.

¹¹³ de Garis, above n 81, 198 n 28. As to the whether and when questions see above nn 103, 111. Compare La Nauze, above n 1, 254 ('These extensive [Barton] annotations [on the 31 October 1899 Colonial Office officials' Notes on the Commonwealth of Australia Constitution Bill ] were probably written during [Barton's 1900] voyage to London, and certainly before the first [15 March 1900] meeting [of the Australian delegation] with Chamberlain').

¹¹⁴ de Garis, above n 81, 108, 114. Compare de Garis' suggestion that 'a number of the amendments desired by the Colonial Office were unobtrusively incorporated into the Constitution', with La Nauze, above n 1, 185 ('For the most part, however, Barton did not accept the suggestions') and Bolton, above n 2, 163 ('For the most part [Barton] … resisted [the Colonial Office Law Officers'] tendency to go into points of finicking detail'). The Bolton and La Nauze comments appear to relate only to Memorandum C, while the de Garis suggestion appears to encompass Memoranda A, B and C.

¹¹⁵ Indeed, this was the position which the 24 January 1900 Sydney Premiers' Conference had agreed that all members of the delegation should take. They were 'to press for the passage of the Bill [through the UK Parliament] without amendment.' La Nauze, above n 1, 250. See also ibid 261; Bolton, above n 2, 205, 209. However, '[a]t the first conference at the Colonial Office, Barton made an unfortunate slip of the tongue that added to the difficulties of the delegates in the lengthy negotiations which lay ahead of them. [Barton] said that [the Australian delegates] asked that the [Constitution] Bill be passed with as “little amendment as possible”. This statement from the acknowledged leader of the Australian Federal movement must have given Chamberlain encouragement to stand firmly in his intention to amend the important clause 74.' Reynolds, above n 2, 174.

¹¹⁶ The WA referendum was held on 31 July 1900. For the referendums and their results see Scott, Bennett Helen, Irving, 'Referendums (General)' in Irving, , The Centenary Companion, above n 7, 414–15Google Scholar; Irving, , 'Referendums, Constitution Bill' ibid 415–16Google Scholar; Reynolds, above n 2, 152; Glen, Rhodes, The Australian Federation Referenda 1898–1900: A Spatial Analysis of Voting Behaviour (PhD thesis, London School of Economics & Political Science, 1988)Google Scholar. See also above n 24 (referenda campaigns).

¹¹⁷ For the earlier 'Chamberlain' amendments pursuant to the 1897 secret memoranda see text accompanying above nn 109–114. For the subsequent 1900 'Chamberlain' amendments see text accompanying below nn 118–37.

¹¹⁸ See above n 67 (scholarship on 1900 negotiations in the United Kingdom). See also La Nauze, above n 1, 255 (characterising the 1900 negotiations as 'three months of private and public argument'); John Goldring, The Privy Council and the Australian Constitution (1996) 36–48 ('Discussions in London').

¹¹⁹ For example, the deletion of '[t]his Act shall bind the Crown' and the definition of colony as 'any colony or province'. La Nauze, above n 1, 251–2, 254, 256–9.

¹²⁰ For an analysis of negotiations between the Australian delegates, Chamberlain and other UK parliamentarians, the Colonial Office Law Officers and individuals (including Griffith) in Australia and changes to the text of s 74 see La Nauze, above n 1, 252, 254, 259–69, 303–4; Joyce, above n 68, 209–15; Garis, de, British Influence, above n 67, 335–62, 369–409Google Scholar; Goldring, above n 118, 34–50 ('The Enactment of the Constitution: Chamberlain's Compromise'); David, Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–1986 (1987) 54–87Google Scholar. In the Commonwealth of Australia Constitution Bill, approved at the 1898 Melbourne session of the Constitutional Convention and 1898 and 1899 referenda, s 74 stated:

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

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

Official Record of the Debates of the Australasian Federal Convention: Third Session (1898) vol 2, 2536.

¹²¹ See above n 1. See also Bolton, above n 2, 211; Glass, above n 67, 198.

¹²² Compare La Nauze, above n 1, 263 (quoting Kingston's letter of 18 May 1900 to Symon: 'the little dinner we had with Chamberlain after he introduced the [Constitution] Bill [in the House of Commons on 14 May 1900] had a great deal to do with a better understanding'); Deakin, above n 1, 161 ('Chamberlain invited the [Australian] delegates to dine with him' and discussion about clause 74 'passed quietly between Chamberlain and [Barton and Kingston] towards the end of the evening after Dickson and Deakin had left'); Bolton, above n 2, 211 ('Late over the port … Chamberlain flagged a compromise to Barton and Kingston').

¹²³ See generally Goldring, above n 120; Swinfen, above n 120; Peter, Howell, The Judicial Committee of the Privy Council 1833–1876(1979)Google Scholar; Joseph, Smith, Appeals to the Privy Council from the American Plantations (1950)CrossRefGoogle Scholar; Loren, Beth, 'The Judicial Committee as Constitutional Court for the British Empire 1833–1971' (1977) 7 Georgia Journal of International and Comparative Law 47Google Scholar.

¹²⁴ La Nauze, above n 1, 263 (referring to 'port and cigars' and quoting Kingston's letter of 18 May 1900 to Symon describing 'the little dinner we had with Chamberlain'); Bolton, above n 2, 211. However, Barton's letter of 18 May 1900 to Lyne 'said nothing about the dinner: it hardly fitted into his dignified picture of the [Australian] delegates' earnest endeavours to secure some modification of the [United Kingdom] government's decision once it was clear that Clause 74 would not be retained in its original form.' La Nauze, above n 1, 264. However, despite its omission from his correspondence, Barton would have welcomed such a forum for negotiations. Compare Bolton, above n 2, 310 (Barton's statement at 3.00 am in Spring Street in his 'early High Court years: 'Men die and dynasties fall, but tonight there is only one tragedy. There is no Chateau d'Yquem') (quoting Randolph Bedford, Naught to Thirty Three (1976) 330).

¹²⁵ See generally Blanche, Dugdale, Arthur James Balfour: First Earl of Balfour (1936) (2 vols)Google Scholar; Kenneth, Young, Arthur James Balfour (1963)Google Scholar; Gollin, A, Balfour's Burden: Arthur Balfour and Imperial Preference (1965)Google Scholar; Denis, Judd, Balfour and the British Empire: A Study in Imperial Evolution 1874–1932(1968)Google Scholar; Max, Egremont, A Life of Arthur James Balfour (1980)Google Scholar; Ruddock, Mackay, Balfour: Intellectual Statesman (1985)Google Scholar.

¹²⁶ See generally Guy, Strutt, 'Balfour, Gerald William' in L G, Wickham Legg & Williams, E T (eds), The Dictionary of National Biography: 1941–1950 (1959) 51–2Google Scholar; Marsh, above n 15, 531, 570, 577–8, 636; Andrew, Roberts, Salisbury: Victorian Titan (1999) 9, 14, 385, 420, 652–5, 786, 789Google Scholar.

¹²⁷ See generally Hirst, F W, 'Morley, John' in Weaver, J R H (ed), The Dictionary of National Biography: 1922–1930 (1937) 616–24Google Scholar; John, Morley, Recollections (1917) (2 vols)Google Scholar; David, Hamer, John Morley (1968)Google Scholar.

¹²⁸ See generally Brewis, J S, 'Palmer, William Walde-Grave, Second Earl of Selborne' in Legg, L & Williams, E (eds), above n 126, 647–50Google Scholar; George, Boyce (ed), The Crisis of British Unionism: Lord Selborne's Domestic Political Papers 1885–1922 (1987)Google Scholar; David, Torrance, The Strange Death of the Liberal Empire: Lord Selborne in South Africa (1996)CrossRefGoogle Scholar. See also Don, Wright, 'Sir Josiah Symon, Federation and the High Court' (1978) 64 Journal of Royal Australian Historical Society 73, 81–2 (noting Symon's 1899 discussions in England with 17 and 24 January 1900 letters to Selborne)Google Scholar.

¹²⁹ La Nauze, above n 1, 263 includes 'W.H. Smith' as attending the 14 May 1900 dinner. This appears to be an error. La Nauze relies on two sources to identify the persons attending this dinner. First, Alfred Deakin's 'Rough Diary' entry for 14 May 1900. This mentions only Chamberlain, Morley and Gerald Balfour as dining with Deakin. Second, A Deakin, above n 1, 161 which mentions Chamberlain, Arthur Balfour, Gerald Balfour, John Morley, Barton, Kingston, Dickson, Deakin, Chamberlain's Parliamentary Secretary and Smith. However, Chamberlain's Parliamentary Secretary was Lord Selborne. In the context of Deakin's discussion of this dinner and the seating arrangements, the name 'Smith' appears to be referring to Chamberlain's Parliamentary Secretary. However, Lord Selborne (not 'Smith') was the Parliamentary Secretary. There are two possible explanations for this error. First, Deakin may have made a mistake in writing 'Smith' instead of Selborne. Secondly, there may have been a transcription error caused by 'Deakin's sometimes difficult [to read] handwriting [in] … an unrevised manuscript written … at high speed.' Deakin, above n 1, xi ('Note on the Text' by La Nauze). Subsequently the error has been compounded by La Nauze's attempt to identify and name the person as 'W.H. Smith'. This person appears to be William Henry Smith (1825–1891) who also was a UK parliamentarian. See generally Viscount, Chilston, W.H. Smith (1965)Google Scholar. In the 1995 re-publication of Deakin's Federal Story, the name 'Smith' continues to be used. Macintyre, above n 1, 161. The portion of Deakin's Federal Story containing the description of the dinner was written between 'July 1900, when [Deakin] returned from … England', and 'September 1900'. S Macintyre, above n 1, 161. Professor Macintyre indicates that 'La Nauze was a meticulous scholar and while [Macintyre] … compared [La Nauze's] text to the manuscript of the 'inner history', which is now with the Deakin Papers in the National Library of Australia, [Macintyre did not attempt] … to improve on [La Nauze's] work.' Macintyre, above n 1, xxiv.

¹³⁰ La Nauze, above n 1, 263 (quoting Deakin, above n 1, 161). The reason was obvious: 'Deakin, known to be less happy over port and cigars than [Barton and Kingston] …had been given the hint that it would be useful to leave early, taking Dickson [who favoured an unrestricted right of appeal to the Privy Council] with him.' La Nauze, above n 1, 263.

¹³¹ See above n 67.

¹³² Who initiated the compromise? At least five possibilities exist.

•First, from Deakin and Kingston's perspective the answer is Arthur Balfour because he was'“practically the head of government,”' a master of compromise and likely as Leader of the House of Commons to be sensitive to the unfortunate atmosphere of disharmony surrounding the birth of the Australian Commonwealth.' La Nauze, above n 1, 263–4 (quoting Kingston's letter of 1 June 1900 to Symon as 'report[ing] a very plausible rumour, that the suggestion about a compromise had come in the first instance from Balfour').

•Second, Professor La Nauze suggests that '[i]t was Chamberlain's suggestion, a political compromise offered from a position of strength… [T]he idea of offering a compromise could have come to [Chamberlain] only in the course of the evening' of 14 May 1900: ibid 263. See also Glass, above n 67, 198 (suggesting that '[o]ver dinner, [Chamberlain] raised the possibility of a compromise' and '[h]e therefore suggested that Clause 74 should be reinstated but amended so as to ensure that Imperial issues would not be determined by an Australian court').

•Third, even before 14 May 1900, when the Commonwealth of Australia Constitution Bill was introduced by Chamberlain into the House of Commons without clause 74, the Colonial Office 'Law Officers were already quietly working on a compromise' and that 'this was the first suggestion, put quietly by Chamberlain to Barton and Kingston, after a private dinner.' La Nauze, above n 67, 191.

•Fourth, Sir Charles Dilke, who, via Edwin G Blackmore (Clerk of the 1897–98 Constitutional Convention) in September 1899, 'warned the Australians about the likelihood of trouble over Clause 74', was Barton's 'most useful contact' during this 1900 UK sojourn and who 'was [in early May 1900] introducing Barton and Deakin to some influential go-betweens.' Bolton, above n 2, 204, 211, 361 (referring to letter of 12 September 1899 from Blackmore to Barton and letter of 7 May 1900 from Dilke to Barton). See also La Nauze, above n 1, 260 (quoting Deakin's letter of 14 September 1899 to Dilke warning that amending the s 74 Privy Council appeal provision 'would be an “inconsiderate, impolite and offensive act of supremacy'''); La Nauze, above n 67, 190 (quoting Deakin's letter of 18 May 1900 to Dilke indicating that the Australian delegates, at their dinner with Chamberlain and subsequent negotiations, had obtained what they wanted regarding Privy Council appeals). On Dilke see, J R, T, 'Dilke, Sir Charles Wentworth' in Lee, S (ed), The Dictionary of National Biography: Supplement: 1901–1911 (1912) vol 1 502–6Google Scholar; Roy, Jenkins, Sir Charles Dilke: A Victorian Tragedy (revised edition, 1965)Google Scholar; David, Nicholls, The Lost Prime Minister: A Life of Sir Charles Dilke (1995)Google Scholar. See also John, Bannon, 'Blackmore, Edwin Gordon (1837–1909)' in Millar, , above n 21, 377–82, 450–1Google Scholar.

•Fifth, Sir Josiah Symon, whose opposition to Privy Council appeals (see Wright, above n 128, 76, 79–83), was adumbrated in 1899 discussions with Selborne and 1900 correspondence with Selborne, Chamberlain and Kingston. See above n 128 and below n 136.

But see Barton, above n 2, 211 (concluding that '[h]ow far lobbying by Dilke and others brought about this shift cannot be determined').

¹³³ See Bolton, above n 2, 211 ('Chamberlain flagged a compromise to Barton and Kingston'); Deakin, above n 1, 161 ('All this passed quietly between Chamberlain and his two neighbours [Barton and Kingston who were sitting on either side of Chamberlain] towards the end of the evening'); La Nauze, above n 1, 263–4 (elaborating 'Chamberlain's proposition' to Barton and Kingston: that 'Clause 74 be restored in a form that left constitutional cases of distinctively Australian interest to final settlement in Australia, while leaving matters involving imperial interests still open to appeal to the Privy Council'); La Nauze, above n 67, 190 (indicating that Chamberlain's suggestion was that '[a]ppeals to the Privy Council on constitutional questions involving the respective limits of the powers of Commonwealth and States (the limits 'inter se' …) could be made only with the consent of the executives of the governments concerned'). Importantly, the Privy Council retained 'a limited constitutional jurisdiction.' Goldring, above n 120, 50. In addition to inter se questions, other cases, including constitutional law decisions of State Supreme Courts could, subject to the enactment of Commonwealth legislation, be appealed to the Privy Council. Both aspects—the Privy Council's continuing appellate jurisdiction and Commonwealth legislative power to preclude such appeals—are recognised in the third paragraph of s 74. Such legislation was enacted in the Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth); s 11 of the Australia Act 1968 (Cth). See generally for analysis of the Commonwealth legislation and Privy Council and High Court imbroglio see Anthony, Blackshield, The Abolition of Privy Council Appeals: Judicial Responsibility and 'The Law for Australia' (1978)Google Scholar; Sawer, above n 98, 23–31,128–9; John, Goldring, 'The Path to Engineers' in Michael, Coper George, Williams (eds), How Many Cheers for Engineers? (1997) 1–32Google Scholar.

¹³⁴ See above n 55 (Senate powers compromise) and above n 98 (finance compromise). See also above nn 84, 85 (Barton's willingness to compromise).

¹³⁵ The Constitution Bill was enacted by the UK Parliament in 1900 as the Commonwealth of Australia Constitution Act 1900 (UK). Compare Barton's annotations on Memorandum C: 'This is a Constitution and not a Dog Act' and '[t]his is not a body of laws, but a Constitution.' Reproduced in Bolton, above n 2, 163; La Nauze, above n 1, 186. See generally James, Thomson, 'The Australian Constitution: Statute, Fundamental Document or Compact?' (November 1985) 59(11) Law Institute Journal 1199Google Scholar.

¹³⁶ See generally La Nauze, above n 1, 264–9, 303–4 (discussing drafting negotiations and reproducing the text of various versions of s 74); Bolton, above n 2, 211, 212; Wright, above n 128, 81–3 (discussing Symon's 'valuable contribution', via correspondence in 1900 with Selborne, Chamberlain and Kingston, to retain clause 74 limiting appeals to the Privy Council); Glass, above n 67, 195 (quoting Symon's cable published in The Times, 20 April 1900); Don, Wright, 'Symon, Sir Josiah Henry (1846–1934)' in Millar, , above n 21, 162–7, 422–3 (discussing Symon's opposition to Privy Council appeals)Google Scholar; Josiah, Symon, 'Dawn of Federation: Some Episodes, Letters and Personalities and a Vindication' (edited and annotated by Don Wright) (September 1976) 15(2) South Australiana 113, 130–1, 135, 136–46 from Sir Josiah Symon Papers (National Library of Australia, Canberra, MX 1736 series 29) (discussing Symon's efforts in England and Australia to curtail Privy Council appeals and reproducing Barton's letter of 12 August 1900 to Symon)Google Scholar. See also above n 122 (quoting Kingston's letter to Symon).

¹³⁷ For subsequent convolutions involving the High Court, Privy Council and Commonwealth legislation see above n 133.

¹³⁸ Deakin, above n 1, 162 (partially quoted in Bolton, above n 2, 211, 213). For a similar description see Walter, Murdoch, Alfred Deakin: A Sketch (1923) 203 (quoted in Reynolds, above n 2, 177)Google Scholar. However, 'Sir Josiah Symon wrote years later [in March 1930], “knowing the men, I think their joining hands in a fandango … though a good story, is apocryphal."' Bolton, above n 2, 213 (quoting, without providing a direct citation reference, Symon, above n 136, 138). Symon was criticising Walter, Murdoch, Alfred Deakin: A Sketch (1923) for promulgating this 'story'Google Scholar. However, in 1923 Murdoch was drawing on Deakin's (then) unpublished manuscript. Macintyre (ed), above n 1, xxiv. When published in 1944, after Symon's March 1930 manuscript, Deakin, above n 1, 162 indicated that there had been such a 'fandango'. Therefore, Wright concludes, Symon was wrong. Symon, above n 136, 151 n 27 (Don I Wright's footnote). However, there is a possibility that Symon was right. Symon was also a contemporaneous, albeit indirect, participant in these 1900 negotiations (see above nn 132, 136) who knew Barton, Deakin, and especially, Kingston well and Deakin's manuscript may contain at least one mistake in connection with these negotiations (see above n 129). See also Crisp, above n 12, 348 (concluding that '[w]hilst no complete victory, this represented a really substantial success for the [Australian] delegates'); Garis, de, British Influence, above n 67, 403–9 (discussing the views of other participants, including Chamberlain's 'fiercest critic, Lord Carrington', about the 'cleavage of opinion' between whether the Australian delegation or Chamberlain had won and concluding that 'it is difficult to see that Chamberlain gained anything')Google Scholar. The New Zealand representative shared that view. 'Chamberlain “astonished everyone [in London in 1900] by giving way to the [Australian] delegates almost altogether”.' Sinclair, above n 67, 293 (quoting letter of 31 May 1900 from William Pember Reeves to Richard John Seddon, Premier of New Zealand). Similarly, Seddon stated: 'In respect to Federation, Chamberlain has proved a regular jelly fish and has fallen very much in my estimation, as I thought he was ...; endowed with plenty of backbone. The people in Australia did not care a dump about the Federal High Court.' Letter of 7 July 1900 from Seddon to Reeves (quoted in Sinclair, above n 67, 292). On Seddon see Burdon, above n 102. Also, Professor La Nauze considers that Chamberlain's 14 May 1900 suggestion 'gave [Barton and Kingston] most of what they wanted' and that '[t]he delegates had served their country well.' La Nauze, above n 67, 190; La Nauze, above n 1, 168.

¹³⁹ Garvin, , above n 15, 567 (Empire and World Policy, 1895–1900 (1934) vol 3) (quoted in Reynolds, above n 2, 178)Google Scholar. See also Howell, above n 15, 343 (concluding that Chamberlain was 'successful'). See also Swinfen, above n 128, 63 (characterising the result as 'Chamberlain's success in extracting Australian concessions, small though they were'), 249 (concluding that 'in 1900 it was Chamberlain almost single-handed who forced the Australians to accept modifications to article 74'); Goldring, above n 118, 46–7 (concluding that 'there is little doubt that, in substance, the imperial authorities secured their main objective' and that Chamberlain only made 'one small concession'), 48 n 193 (noting that Swinfen, above n 120, 'advances the preferable view that the final form of s 74 was almost single-handedly the result of Chamberlain's efforts, and the evidence in support of this view is convincing').

¹⁴⁰ Marsh, above n 15, 491-2. For contextual reinforcement of this perspective compare Chamberlain's last words on 1 July 1914 about Ireland: '''Somebody has got to give way"', was the final sentence of the dying fighter to his gentle son, '"but I don't see why it should always be us”.' Ibid 666. Similarly, credence is given to this perspective by the character assessment in Edmund Barton: 'A strong-willed and able businessman … well preserved [1900] at 64, clean-shaven and monocled, Chamberlain was one of the few members of the British Cabinet from outside the aristocracy. He could talk to the Australians in their own language, and this was to be of value in the tough bargaining which followed.' Bolton, above n 2, 204, 205.

¹⁴¹ See La Nauze, above n 1, 244 (concluding that after the 1899 Premiers' Conference 'one further alteration of substance was to be imposed by a superior power' in 1900).

¹⁴² See above n 33.

¹⁴³ The s 128 referendum attempt on Saturday 6 November 1999 to repeal s 74 failed. See above n 109.

¹⁴⁴ See above n 109.

¹⁴⁵ See the opening words of the third paragraph of s 64 of the Constitution which indicate that it was not to operate until '[a]fter the first general election'. Compare its similar post-first general election exemption permitting a 'Minister for State [to] … hold office for a …period [of] three months … [without being] …a senator or a member of the House of Representatives.' For a discussion of this 'three month period of grace' see Final Report of the Constitutional Commission (1988) vol 1, 320–3. See also Thomson, James, 'Executive Power, Scope and Limitations: Some Notes from a Comparative Perspective' (1983) 62 Texas Law Review 559, 569Google Scholar (suggesting that '[b]y a contrived system of 3 monthly appointments, dismissals, and reappointments, the Australian executive, without any constitutional amendment, could be forced into the American presidential mould').

¹⁴⁶ 'The Governor-General and his nine executive councillors were sworn into office as the climax to a grand inaugural ceremony in [Centennial Park] Sydney on New Year's day, 1901.' Gavin, Souter, Acts of Parliament: A Narrative History of the Senate and House of Representatives: Commonwealth of Australia (1988) 29Google Scholar. See also Bolton, above n 2, 228 (describing 'Barton … in full formal frock coat … as he advances to receive his commission from Hopetoun'); La Nauze, above n 67, 214 (noting that '[t]he first Executive Council met at 4.30 that [1 January 1901] afternoon' and that '[t]he Ministers were sworn into their specific offices of state').

¹⁴⁷ Elections for the Senate and House of Representatives were held on Friday 29 March 1901 (in NSW, Victoria, Tasmania and WA) and Saturday 30 March 1901 (in Qld and South Australia). The Commonwealth Parliament assembled on Thursday 9 May 1901. On the election campaign, the election and the opening of Parliament see Sawer, Geoffrey, Australian Federal Politics and Law 1901–1929 (1956) 14–19Google Scholar; Souter, above n 146, 331–45, 612–13; McMinn, above n 12, 187–8; Bolton, above n 2, 234–6.

¹⁴⁸ For the events surrounding Barton's appointment as Prime Minister, including the Governor-General on Friday 19 December 1900 commissioning the NSW Premier William Lyne to form the first Commonwealth ministry and Lyne's inability to do so by 10pm on Wednesday 24 December 1900, see Bolton, above n 2, 219–22; Glass, above n 67, 202–4; Sawer, above n 147, 3–4; John, Waugh, 'The First Governor-General' (December 2000) 6 The New Federalist: The Journal of Australian Federation History 62, 66–7Google Scholar; John La Nauze, 'The Hopetoun Blunder' in Irving, Helen Macintyre, Stuart (ed), No Ordinary Act: Essays on Federation and the Constitution by J.A. La Nauze (2001) 36–81Google Scholar.

¹⁴⁹ The other Commonwealth Ministers—Deakin, Turner, Kingston, Forrest, Dickson, O'Connor, Lewis and Lyne—were all founding fathers. Dickson died on 10 January 1901 and Drake was appointed. Bolton, above n 2, 226–7, 230. See also La Nauze, above n 67, 214–18 (biographical sketch of each Minister).

¹⁵⁰ The Senate and House of Representatives did not assemble until 9 May 1900. La Nauze, above n 67, 228 (describing '[t]he opening of Parliament in the Exhibition Building' in Melbourne), 242 (describing election of Senate and House of Representatives 'presiding officers'). The High Court's first sitting was on 6 October 1903. Bennett, John, Keystone of the Federal Arch: A Historical Memoir of the High Court of Australia to 1980 (1980) 23–4Google Scholar. Of course, State parliaments and State courts operated during this 1 January–8 May 1900 period.

¹⁵¹ See Bolton, above n 2, 229 (describing some executive actions); La Nauze, above n 67, 219– 20 (describing Cabinet meetings, drafting of Bills and executive despatches); Souter, above n 146, 30–1 (describing the 'government's administrative work', including the drafting of Bills). Compare subsequent executive action, for example, La Nauze, above n 67, 296–8 (discussing Cabinet's objection, especially 'strongly taken by Barton,' to the constitutional validity of extending the draft Conciliation and Arbitration Bill 1903 (Cth) 'to all seamen on vessels engaged in the coasting trade'); Glass, above n 67 (noting Cabinet's assessment that Kingston's proposed clause in the draft Conciliation and Arbitration Bill 1903 (Cth), applying the Bill's wages provision to foreign sailors on foreign ships when in Australian waters, was unconstitutional); Sawer, above n 147, 20, 26 (noting Barton and Deakin's opposition on constitutional law and policy grounds). For comparative analysis of executive interpretation and implementation of the US Constitution see Frank, Easterbrook, 'Presidential Review' (1990) 40 Case Western Reserve Law Review 905Google Scholar; Miller, Geoffrey, 'The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law' (1993) 56 Law and Contemporary Problems 35CrossRefGoogle Scholar; Lawson, Gary Moore, Christopher, 'The Executive Power of Constitutional Interpretation' (1996) 81 Iowa Law Review 1267Google Scholar; 'Symposium: Presidential Power in the Twenty-First Century' (1997) 47 Case Western Reserve Law Review 1213–1670. See also Winkler, above n 7, 1472 n 81 (discussing the 'extensive literature from the 1980s and 1990s on dialogic lawmaking' which 'emphasize[s] how constitutional law is shaped by nonjudicial actors, such as Congress, the Executive Branch, and the states'); Thomson, James, 'States in an Australian Republic: Constitutional Conundrums' (2001) 3 University of Notre Dame Australia Law Review 95–6Google Scholar n 4 (noting scholarship on congressional and executive constitutional interpretation and decision- making); Larry, Kramer, 'Foreword: We the Court' (2001) 115 Harvard Law Review 4, 5–9 (discussing debates concerning priority of and relationship between judicial, presidential and congressional interpretation of the Constitution)Google Scholar; Rachel, Barkow, 'More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy'(2002) 102 Columbia Law Review 237 (discussing the hierarchical, coordinate and monopolistic relationships between Supreme Court, presidential and congressional constitutional interpretation and decisionmaking through the perspective of classical, prudential and functional variants of the political question doctrine)CrossRefGoogle Scholar.

¹⁵² 'Without a majority of its own in either [the Senate or House of Representatives] the [Barton] government [had to] win enough supporters from Labor or the Reidite opposition to push through its programme, and it [was] necessary to cobble together a fresh team of supporters for almost every major piece of legislation.' Bolton, above n 2, 240. Indeed, 'the Senate asserted its muscle immediately on receiving the first supply bill.' Ibid.

¹⁵³ As required by s 64 of the Constitution, all Commonwealth Ministers sat in the Senate or House of Representatives. The three month period (see above n 145) was not utilised at the beginning of the first Commonwealth Parliament.

¹⁵⁴ Compare the US Congress. See generally Currie, David, The Constitution in Congress: The Federalist Period 1789–1801(1997);Google Scholar Currie, David, The Constitution in Congress: The Jeffersonians 1801–1829 (2001);Google Scholar Tushnet, Mark, 'Shut Up He Explained' (2001) 95 Northwestern University Law Review 907Google Scholar; Symposium, , 'Congress and the Constitution' (2001) 50 Duke Law Journal 1165–1425Google Scholar.

¹⁵⁵ See generally Thomson, , 'Looking for Heroes', above n 6, 117–19Google Scholar (suggesting that the 'first Commonwealth Parliament was a continuation of the 1890, 1891 and 1897–98 Conventions' and raising three unexplored issues concerning 'Commonwealth parliamentary interpretation of and decision-making under the Constitution'). See also below n 161 (parliamentary discussion of meaning and interpretation of ss 53 and 54 of the Constitution).

¹⁵⁶ See generally Sawer, above n 147, 14–33 ('The First Parliament, 1901–1903'); La Nauze, above n 67, 236–45, 276–318 ('Foundations, 1901–1903'); Millar, above n 21; Laurence F, Fitzhardinge, 'Political and Public Life' in Nation Building in Australia: The Life and Work of Sir Littleton Ernest Groom (1941) 15–40Google Scholar; Norris, Ronald, The Emergent Commonwealth: Australian Federation: Expectations and Fulfilment 1889–1910 (1975)Google Scholar.

¹⁵⁷ See generally Bolton, above n 2, 243–8; Norris, above n 156, 43–106 (discussing the white Australia policy and associated legislation).

¹⁵⁸ See generally Bolton, above n 2, 246–7.

¹⁵⁹ See generally ibid 286, 288–9.

¹⁶⁰ See generally ibid 284, 287–8; Galligan, Brian, Politics of the High Court: A Study of the Judicial Branch of Government in Australia (1987) 71–7Google Scholar; Bennett, above n 150, 12–20; Wright, above n 128, 83–4; Joyce, above n 68, 257–58; La Nauze, above n 67, 220, 265–66, 287–96, 305; Symon, above n 136, 147–48 (discussing Symon's 'revision of Griffith's draft Judiciary Bill'); Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation Report No 92 (October 2001). For a comparative analysis see generally Goebel, Julius, History of the Supreme Court of the United States: Antecedents and Beginnings to 1801 (1971) vol 1, 45–508Google Scholar; Ritz, Wilfred, Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence (1990)Google Scholar; Marcus, Maeva (ed), Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 (1992)CrossRefGoogle Scholar.

¹⁶¹ Bolton, above n 2, 240. See generally Sawer, above n 147, 30–1 (discussing Commonwealth parliamentary debate over the meaning and interpretation of ss 53 and 54 of the Australian Constitution).

¹⁶² Bolton, above n 2, 254–6. See also above n 32.

¹⁶³ Bolton, above n 2, 279–82. See generally Wright, Don, Shadow of Dispute: Aspects of Commonwealth-State Relations 1901–1910 (1970) 1–49Google Scholar; Wright, Don, 'An Open Wrestle for Mastery: Commonwealth-State Relations, 1901–1914' in Hodgins, Bruce, Wright, Don Heick, Welf (eds), Federation in Canada and Australia: The Early Years (1978) 211–17Google Scholar; Sawer, above n 147, 31–2.

¹⁶⁴ See above nn 151, 154, 160 (US President and Congress).

¹⁶⁵ Cabinet ministers (including Prime Minister Barton), Senators and members of the House of Representatives had been delegates to the 1890 Conference and 1891 and 1897–98 Conventions.

¹⁶⁶ The executive (sworn into office on 1 January 1901) and the Senate and House of Representatives (assembled on 9 May 1901). The High Court did not commence until 7 October 1903.

¹⁶⁷ Of course, for example, state courts continued to operate and decided cases under the Constitution. See, for example, In re the Income Tax Acts (No 4); Wollaston's Case (1902) 28 VLR 357 discussed in Goldring, above n 133, 3–5; Parkinson, Charles, 'The Early High Court and the Doctrine of the Immunity of Instrumentalities' (2002) 13 Public Law Review 26, 28–31Google Scholar ('The approach of the State Supreme Courts').

¹⁶⁸ See, for example, s 51(xxxvi) of the Constitution which enables the Commonwealth Parliament to make laws 'with respect to … matters in respect of which this Constitution makes provision until the Parliament otherwise provides'. Those matters are in ss 3, 7, 10, 22, 29, 30, 31, 34, 39, 46, 47, 48, 65, 66, 67, 73, 87, 93, 96, 97. See also s 49. Therefore, 'a large number of provisions in the Constitution …leave to the [Commonwealth] Parliament the power of altering the actual constitutional provisions.' AG (Cth) (ex rel McKinlay) v Commonwealth (1975) 135 CLR 1, 24 (Barwick CJ). See also below n 275.

¹⁶⁹ See Sawer, above n 147.

¹⁷⁰ Even so, William Howard Taft, US President (1909–1913) and Chief Justice of the US Supreme Court (1921–1930), might have surpassed Barton's achievement. See generally Pringle, Howard, The Life and Times of William Howard Taft (1939)CrossRefGoogle Scholar; Mason, Alpheus, William Howard Taft: Chief Justice (1964)Google Scholar; Coletta, P, The Presidency of William Howard Taft (1973)Google Scholar; Burton, David, William Howard Taft: In the Public Service (1986)Google Scholar; Post, Robert, 'William Howard Taft' in Urofsky, Melvin (ed), The Supreme Court Justices: A Biographical Dictionary (1994) 457–63Google Scholar; Robert, Post, 'Defending the Lifeworld: Substantive Due Process in the Taft Court Era' (1998) 78 Boston University Law Review 1489Google Scholar; Post, Robert 'Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft' (1998) 1 Supreme Court History 50CrossRefGoogle Scholar; Post, Robert, 'The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court' (2001) 85 Minnesota Law Review 1267Google Scholar. Barton was Prime Minister (1 January 1901 to 24 September 1903) and a High Court Justice (7 October 1903 to 7 January 1920). See also below n 187.

¹⁷¹ Bolton, above n 2, 131–332 (acting judge April 1895), 136–7 (refused 'permanent appointment' November 1896). Barton's list of colonial offices included: NSW Attorney General; Speaker of the NSW Legislative Assembly; and Acting NSW Premier.

¹⁷² Ibid 314 ('for nine months' during 1913).

¹⁷³ Ibid 320 (during 1915).

¹⁷⁴ Barton's, judicial tenure encompasses the Commonwealth Law Reports volumes 1 to 27Google Scholar. Edmund Barton does not reveal whether the Barton papers (above n 61) contain any draft opinions. Apparently Barton 'pocket[ed] his own reasons for judgment and subscrib[ed] to others which followed substantially the same lines.' Robert, Menzies, 'Foreword' in Reynolds, above n 2, 11Google Scholar. Compare the availability and use of US Supreme Court draft opinions and internal documents. See Thomson, James, 'Inside the Supreme Court: A Sanctum Sanctorum?' (1996) 66 Mississippi Law Journal 177Google Scholar; Lee, Epstein Jack, Knight, 'Piercing the Veil: William J. Brennan's Account of Regents of the University of California v. Bakke' (2001) 19 Yale Law and Policy Review 341Google Scholar; Forrest, Maltzman Paul, Wahlbeck, 'Inside the U.S. Supreme Court: The Reliability of the Justices' Conference Records' (1996) 58 Journal of Politics 528Google Scholar; Tushnet, Mark, Making Constitutional Law: Thurgood Marshall and the [U.S.] Supreme Court, 1961-1991 (1997)CrossRefGoogle Scholar; Dickinson, Del (ed), The Supreme Court in Conference (2001)Google Scholar.

¹⁷⁵ Bolton, above n 2, 305 (referring to Barton's 'judge's notebooks', Australian Archives, A10612). Compare Brennan, Gerard, 'Three Cheers for Engineers' in Coper and Williams, above n 133, 145, 146–8 (utilising the notebooks of Knox CJ and Isaacs J recording counsels' arguments in the Engineers Case (1920) 28 CLR 129)Google Scholar. See also Tony, Thew, 'Judges' Notebooks' in Blackshield, , Coper, Williams, , above n 11, 369Google Scholar (providing a general description of judges' notebooks and specific details about 'Barton's notebook of 1903'). Also compare Barton's 'cabinet note book'. La Nauze, above n 67, 310 (quoting Barton's last entry on Thursday 24 September 1903).

¹⁷⁶ For example Barton's letters to Governor-General Ronald Munro Ferguson, Chief Justice Griffith, Thomas Bavin, Deakin, and Albert B Piddington. See Bolton, above n 2, 307, 309, 313, 315, 316, 317, 323, 324–25. Also utilised is Edmund, Barton, 'The Godfathers of Federation', Daily Mail (Brisbane), 11 July 1919” (subsequently republished in the Sydney Morning Herald) (partially quoted in Bolton, above n 2, 330–1)Google Scholar.

¹⁷⁷ Ibid 297 (Barton-Griffith 'telegrams written in Latin' about Griffith's appointment as Chief Justice).

¹⁷⁸ See, for example, Menzies, above n 174, 8–12; Garfield Barwick, 'Foreword to this Edition' in Reynolds, John, Edmund Barton (1979) v-ixGoogle Scholar; Garran, above n 2, 170.

¹⁷⁹ Compare Thomson, , 'Swimming in Air', above n 31, 227–78Google Scholar, 241–2 ('Removal of Justices').

¹⁸⁰ See generally James Thomson, 'Appointing Australian High Court Justices: Some Constitutional Conundrums' in Lee, H P Winterton, George (eds), Australian Constitutional Perspectives (1992) 251–73Google Scholar (analysing the legal requirements of s 72(i) of the Constitution and s 6 of the High Court Act 1979 (Cth) and providing examples of the practical politics behind High Court appointments); Spry, above n 55 (discussing s 72(i) and proposals to reform the appointment process). Of course, much more is known about the politics and manoeuvrings behind US Supreme Court appointments. See, for example, David Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (1999); Gerhardt, Michael, The Federal Appointments Process: A Constitutional and Historical Analysis (2000)CrossRefGoogle Scholar; Dean, John, The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court (2001)Google Scholar; Thomson, James, 'Prologue to Power: Selecting Supreme Court Justices' (1986) 12 University of Dayton Law Review 71Google Scholar.

¹⁸¹ For some details see Bolton, above n 2, 291–4, 296-9. However, a good deal more raw politics is exposed in Joyce, above n 68, 268; Galligan, above n 160, 78–9; La Nauze, above n 67, 294–5, 305–11.

¹⁸² Clark was passed over in 1903 and 1906. See generally Bolton, above n 2, 292, 297, 299; Thomson, above n 96, 294, 330 n 122. Sometimes offers of appointment have been refused. Examples include Sir Samuel Way (1906); Sir John Gordon (1912); Sir Keith Aickin (1969); Robert Ellicott (1981). See Bolton, above n 2, 303; Thomson, above n 180, 254 n 11; Ian, Holloway, 'Aickin, Keith Arthur' in Blackshield, , Coper, Williams, , above n 11, 15Google Scholar; Troy, Simpson, 'Appointments that Might Have Been' in Blackshield, , Coper, Williams, , above n 11, 23Google Scholar.

¹⁸³ Bolton, above n 2, 292 ('Jenkin Coles, the premier of South Australia put in a strong plea for Barton's old friend Downer').

¹⁸⁴ Ibid 291–2 (mentioning Isaacs, Symon and Hodges).

¹⁸⁵ During 1903–20 they were: Griffith, Barton, O'Connor, Isaacs, Higgins, Gavan Duffy, Powers, Piddington, Knox and Starke. For subsequent years see Winterton, George, Lee, H P, Glass, Arthur & Thomson, James, Australian Federal Constitutional Law: Commentary and Materials (1999) 902–3Google Scholar.

¹⁸⁶ Bolton, above n 2, 293. The reason was Barton's view of Griffith's pre-eminence as a 'jurist' in Australia. Ibid. For a more complex assessment see Joyce above n 68, 258-61 (discussing Deakin's strong support for and correspondence with Griffith and Governor-General Tennyson's discussions with Barton and letter to Griffith). See also La Nauze, above n 67, 305-6 (noting that 'Deakin had never had any doubt that for Chief Justice he wanted Griffith'); Wright, above n 128, 84–5 (discussing Symon's objections to Griffith's appointment); Symon, above n 136, 147–8 (discussing Kingston's severe condemnation of Griffith's appointment because of the latter's active support in 1900 for retaining Privy Council appeals).

¹⁸⁷ Bolton, above n 2, 288, 291, 296-8 See also Bolton and Williams, above n 11, 54 (suggesting that Barton's health was also an influential factor). For other perspectives see Bennett, above n 150, 21 (noting that 'Deakin, who [,as a Cabinet minister,] had a part in proposing appointees to the new [High Court] Bench, was accused of sponsoring Edmund Barton… so that Deakin himself might [become Prime Minister]'). But see La Nauze, above n 67, 305– 10 (endeavouring to refute that accusation and reproducing Barton's letter of Wednesday 23 September 1903 to Deakin and 'the last entry in [Barton's] cabinet note book' of Thursday 24 September 1903). The second Commonwealth election was held on 16 December 1903. See Sawer, above n 147, 34–7. On 23 September 1903 Cabinet made the decision to recommend to the Governor-General in Council that Barton (as well as Griffith and O'Connor) be appointed, under s 72(i) of the Constitution, to the High Court. Barton resigned as Prime Minister on 24 September 1903 and 'a few days later from parliament'. Ibid 20. Barton, together with Griffith and O'Connor, took the oath of office as a High Court justice on 7 October 1903.

¹⁸⁸ Bolton, above n 2, 283–4. But see Galligan, above n 160, 78 (suggesting that 'O'Connor's appointment was … widely supported'). On the circumstances involving O'Connor's appointment see Bolton, above n 2, 284–5; Fricke, above n 55, 35. See also above n 75 (biographical scholarship on O'Connor).

¹⁸⁹ Generally on the protectionist versus free trade debates behind and influence on the Constitution see Cole v Whitfield (1988) 165 CLR 360, 385–93; Patterson, Gordon, The Tariff in the Australian Colonies 1856–1900 (1968)Google Scholar; Nauze, John La, 'A Little Bit of Lawyers' Language: The History of “Absolutely Free” 1890–1900'Google Scholar in Irving and Macintyre (eds), above n 148, 111–46; Bolton, above n 2, 63–70, 84–91; McMinn, above n 12, 8–14, 41–6, 66–79, 88–91, 98–102, 107–112, 116–17, 122–4, 141–2, 159, 163–4.

¹⁹⁰ Of course, from one perspective law is merely politics albeit disguised under a nom de plume. See generally Kairys, David (ed),The Politics of Law: A Progressive Critique (3rd ed, 1998)Google Scholar; Kelman, Mark, A Guide to Critical Legal Studies (1987)CrossRefGoogle Scholar; 'Critical Legal Studies Symposium' (1984) 36 Stanford Law Review 1–674; 'Symposium on Critical Legal Studies' (1985) 6 Cardozo Law Review 691–1031; Tushnet, Mark, 'Critical Legal Studies: A Political History' (1991) 100 Yale Law Journal 1515CrossRefGoogle Scholar.

¹⁹¹ Details are in Fricke, above n 55, 80–3; Phillips, above n 55, 24–30; Fitzhardinge, Lawrence F, That Fiery Particle 1862–1914: A Political Biography of William Morris Hughes (1964) vol 1, 276– 83Google Scholar.

¹⁹² See above n 55 (biographies of Piddington).

¹⁹³ Piddington was offered the appointment by Attorney-General Hughes on 14 February 1913, formally accepted the offer in a letter dated 1 March 1913 to Attorney-General Hughes, appointed on 6 March 1913 and resigned on 24 March 1913. See, for example, Phillips, above n 55, 24–30; Fricke, above n 55, 80–3; Fitzhardinge, above n 191, 276–83. However, for the suggestion that Piddington resigned on 5 April 1913 see, for example, Morris, , 'Piddington', above n 55, 534Google Scholar; Winterton, Lee, Glass and Thomson, above n 185, 902; Lane, Patrick H, The Commonwealth Law Reports: An Index-Digest with a Table of Cases Reported Volumes 1–150 (1903–1982) (1986) 10Google Scholar. Compare Justice McTiernan's 46 year tenure (1930–1976). See Michael, Kirby, 'Sir Edward Aloysius McTiernan, 1892–1990: Parliamentarian and Judge' (1990) 64 Australian Law Journal 320Google Scholar. Such disparity might engender debate over the relationship, if any, between the quantitative and qualitative aspects of judicial tenure. From a comparative perspective, see Currie, David, 'The Most Insignificant Justice: A Preliminary Inquiry' (1983) 50 University of Chicago Law Review 466CrossRefGoogle Scholar; Easterbrook, Frank, 'The Most Insignificant Justice: Further Evidence' (1983) 50 University of Chicago Law Review 481CrossRefGoogle Scholar; Edelmann, Paul and Chen, Jim, 'The Most Dangerous Justice Rides Again: Revisiting the Power Pageant of the Justices' (2001) 86 Minnesota Law Review 131Google Scholar; Ross, William, 'The Ratings Game: Factors that Influence Judicial Reputation' (1996) 79 Marquette Law Review 401Google Scholar.

¹⁹⁴ For similar public controversies see Thomson, above n 180, 250 n 2 (details of Evatt, McTiernan and Murphy appointments); Thomson, , ‘Swimming in Air’, above n 31, 224–5, 238–9 (Murphy appointment)Google Scholar.

¹⁹⁵ Piddington had been appointed a High Court justice prior to his consultation with Barton. See above n 193 and below n 196. Previously, Piddington and Barton had been friends. Bolton, above n 2, 313 (noting that Piddington had been 'a friend of Barton's from the early years of the Athenaeum Club').

¹⁹⁶ See ibid 313; Fitzhardinge, above n 191, 280. See also ibid 281 (quoting Barton's letter).

¹⁹⁷ See generally Fricke, above n 55, 91–107; Graham Fricke and Martha Rutledge, 'Knox, Adrian' in Blackshield, Coper and Williams, above n 11, 400–2; Martha, Rutledge, 'Knox, Sir Adrian' in Nairn, Serle, (ed), Australian Dictionary of Biography (1983) vol 9, 624–26Google Scholar; Farmer Whyte, W, William Morris Hughes: His Life and Times (1957) 49–53Google Scholar (discussing the contribution of Knox, as the member for Woollahra in the NSW Legislative Assembly, during the 1894 debate on the proposed repeal of the Parliamentary Representatives Allowance Act 1889 (NSW) and suggesting that Knox was a 'leading spirit among the 'reactionary elements', as the Labour members called them' and noting that in this debate Hughes agreed with Knox).

¹⁹⁸ See generally Bolton, above n 2, 331–2; Joyce, above n 68, 356–7, 410–11; Donald Markwell, 'Griffith, Barton and the Early Governor-Generals: Aspects of Australia's Constitutional Development' (1999) 10 Public Law Review 280, 291–2; Donald, Markwell, 'Sir Edmund Barton and the Retirement of Sir Samuel Griffith' (unpublished Seminar paper, University of Western Australia, 14 December 1984)Google Scholar (compilation of quotations from primary documentation, including extracts from the Governor-General's diary and letters from Griffith and Barton).

¹⁹⁹ The first occasion occurred during the 1900 negotiations in the United Kingdom and included Griffith's correspondence with Chamberlain and, 'probably', with James Bryce and Griffith's 'support for Chamberlain's original attitude' on Privy Council appeals. See Bolton, above n 2, 204 (Griffith's 'devious role' as illustrated by Griffith's letter to Chamberlain of 19 October 1899 indicating that '[t]he [Constitution] Bill … was far from perfect, and British improvements on it would be welcomed'), 209 (Bryce's critical letter of 4 May 1900 to Barton was 'probably fuelled by misinformation from Griffith'), 213 ('The fear [that clause 74 would eliminate direct appeals from State Supreme Courts to the Privy Council] was groundless, but it was fanned by Griffith'), 331 (Griffith going 'behind Barton's back … in the Commonwealth Bill negotiations of 1900'); La Nauze, above n 1, 266–8; Joyce, above n 68, 208–15. Bryce's critical letter may well have had a detrimental effect on Barton's 'mood' (Bolton, above n 2, 209) because of Bryce's influence, via Bryce, James, The American Commonwealth (1888) (3 vols)Google Scholar, on the formation and drafting of the Australian Constitution. See La Nauze, above n 1, 18–19, 273; Thomson, James, Judicial Review in Australia: The Courts and the Constitution (1988) 118–20Google Scholar, 281–2; Mathew Harvey, 'James Bryce, “The American Commonwealth”, and the Australian Constitution' (2002) 76 Australian Law Journal 362. On Bryce see Ions, Edmund, James Bryce and American Democracy 1870–1922 (1968)CrossRefGoogle Scholar; Tulloch, Hugh, James Bryce's American Commonwealth: The Anglo- American Background (1988)Google Scholar.

²⁰⁰ Bolton, above n 2, 331. For Barton's anguished feelings when he discovered, via Griffith's 'hard and unsympathetic letter' of November 1919 to him, Griffith's 'advice … when consulted as to the appointment of [Griffith's] successor' see Bolton, above n 2, 335 (quoting Barton's letter of 11 November 1919 to Governor General Munro Ferguson that Griffith 'did not care if it killed the man [namely, Barton] who had helped him'). For analysis of this correspondence see Joyce, above n 68, 357; Markwell, , ‘sir Edmund Barton’, above n 198, 15Google Scholar.

²⁰¹ Barton was not in Brisbane, where the High Court was sitting, because of his illness. Bolton, above n 2, 331 (characterising as 'fateful' the fact 'that Barton's health prevented [Barton] going to Brisbane to attend Griffith's farewell ceremony on 25 July [1919]'). For a second 'fateful illness', compare 'Barton's 'providential catarrh' [on Monday 12 April 1897] which allowed time for overnight lobbying' before a 'critical vote' was to be taken, at the Adelaide Session of the Constitutional Convention, on the Senate's power over supply and appropriation Bills. Bolton, above n 2, 151–2. See also La Nauze, above n 1, 143–8 (discussing relationship between Barton's 'bronchial cold' and the settling of this 'most contentious issue between the two groups of [large and small] States'); Thomson, , 'Looking for Heroes', above n 6, 105–16 (analysis of 'Senate and Money Bills: The Great Crisis?')Google Scholar. See also above n 55. A third important Barton illness occurred on 30 May 1893. See Bolton, above n 2, 108–10 (noting that 'illness' prevented Barton from 'lead[ing] the [NSW] Legislative Assembly through detailed consideration of the draft [1891] federal Constitution' and that this was 'inconvenient to the federal cause').

²⁰² Bolton, above n 2, 331. Griffith (as well as Barton, above n 201) did not attend the 25 July 1919 High Court farewell ceremony. Joyce, above n 68, 356–7. GovernorGeneral Munro Ferguson was in Brisbane and 'while speaking privately to Griffith found him vexed and troubled about [Griffith's] successor' as Chief Justice of the High Court. Bolton, above n 2, 331, 368 (referring to Governor-General's memorandum of 27 November 1919 to the UK Secretary of State for the Colonies). The Governor-General's diary entry for 26 July 1919 stated: 'Home via Sir S. Griffith's. I promised to tell Ministers I agreed Adrian Knox was the successor to him.' Quoted in Markwell, , 'Sir Edmund Barton', above n 198, 12Google Scholar; Markwell, , 'Griffith, Barton and the Early GovernorGenerals', above n 198, 291Google Scholar. See also Joyce, above n 68, 357 (indicating that Griffith 'was consulted by [Prime Minister] Hughes'). For suggestions as to why Griffith preferred Knox, not Barton, see Joyce, above n 68, 215 (Griffith's failure, on 30 December 1900 in Sydney, to obtain a 'firm offer' of appointment to the new Commonwealth government), 357 (Griffith's concern to secure 'stability' on the High Court); Bolton, above n 2, 331 (Griffith's effort to thwart a Commonwealth Labor government 'pack[ing] the High Court').

²⁰³ Bolton, above n 2, 331. See also above n 202 (quoting Governor-General's agreement 'to tell Ministers'). Griffith did not 'say anything' to Barton about Griffith's suggestion and request. The GovernorGeneral did not tell Barton because 'confidentiality prevented' such disclosure. Bolton, above n 2, 331. See also above n 200 (indicating Barton only became aware of Griffith's role in November 1919).

²⁰⁴ Bolton, above n 2, 332. Governor-General Munro Ferguson's diary entry for 5 September 1919 stated: 'Afterwards I gave [Prime Minister Hughes] Sir S Griffith's view re High Court.' Quoted in Markwell, 'Sir Edmund Barton', above n 198, 12. Prime Minister Hughes left Sydney, Australia on 26 April 1918 and, after visiting America, England and France (including the Paris Peace Conference), returned to Fremantle, Australia on 23 August 1919 and arrived in Melbourne on Saturday 30 August. Fitzhardinge, Laurence F, William Morris Hughes: A Political Biography: Volume 2: The Little Digger: 1914–1952 (1979), 311–420Google Scholar. See also ibid 421 (noting that '[o]n Wednesday [3 September 1919 Prime Minister Hughes] attended a cabinet meeting in Melbourne, but when the meeting resumed next day [Hughes] was resting at home').

²⁰⁵ Bolton, above n 2, 331. See also ibid 329 (suggesting that '[a]ll' of the other High Court justices 'thought' that Barton 'must be' the second Chief Justice). However, 'Griffith had favoured Knox over Barton and Isaacs.' Joyce, above n 68, 357. See also Markwell, , 'Griffith, Barton and the Early Governor-Generals', above n 198, 291Google Scholar (noting that '[a]t least one [High Court] judge, Powers, wrote to Griffith saying that he wanted Barton as Chief Justice').

²⁰⁶ Bolton, above n 2, 332; Markwell, , 'Sir Edmund Barton', above n 198, 12–13 (quoting Governor-General's diary entry for 15 October 1919 indicating that 'Sir E. Barton [came] to tea')Google Scholar.

²⁰⁷ See generally Markwell, , 'Griffith, Barton and the Early GovernorGenerals', above n 198, 280 (noting that GovernorGeneral Munro Ferguson and Barton 'developed [a] very close relationship')Google Scholar. See also Farmer Whyte, above n 197, 358 (commenting on the relationship, perhaps friendship, between Governor-General Munro Ferguson and Prime Minister Hughes).

²⁰⁸ Bolton, above n 2, 332 (indicating that Governor-General 'Munro Ferguson immediately wrote to [Prime Minister] Hughes advising him of Barton's feelings').

²⁰⁹ Section 72(i) of the Australian Constitution. See above n 180. See also Markwell, 'Sir Edmund Barton', above n 198, 11 (quoting Barton's letter of 21 August 1919 to W Farmer Whyte (editor of the Queensland Daily Mail newspaper): 'The decision of the Federal Executive as to the succession to Sir Samuel Griffith will take place at any rate—I suppose—within a fortnight of the return to Sydney of Mr Hughes. That is expected to occur on the 29th Aug. [1919]').

²¹⁰ See Prime Minister Hughes' letter of 16 October 1919 to Governor-General Munro Ferguson (partially quoted in Bolton, above n 2, 332–3 and Joyce, above n 68, 410–11); secret memorandum of 27 November 1919 from Governor-General Munro Ferguson to the UK Secretary of State for the Colonies ('The Chief Justice') (pages 3–4) (Colonial Office 418/178 folios 438–9, Public Records Office, London; Novar papers, MS 696 folio 2283, National Library of Australia) (reporting on events and circumstances, including the Cabinet decision, surrounding the appointment of Chief Justice Knox) (partially quoted in Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 291, 292). Prime Minister Hughes' letter of 16 October 1919 indicated that Cabinet had decided to recommend Knox be appointed because the 'best course was to select some distinguished member of the Legal Profession who, being in the prime of life, could be expected to hold the office [of Chief Justice] for some years and give stability to the High Court.' Quoted in Bolton, above n 2, 332. Of course, 'this decision reduced the risk of an incoming Labor Government being able to appoint a new Chief Justice.' Markwell, , 'Griffith, Barton and the Early Governor-Generals', above n 198, 291Google Scholar. On Knox see above n 197 (biographical scholarship). On 17 June 1919 Griffith sent his resignation to the Commonwealth Attorney General to take effect from 31 July 1919. However, Griffith agreed to extensions until 17 October 1919. Adrian Knox was appointed on 18 October 1919. Joyce, above n 68, 356–7; Sawer, above n 147, 182. Prime Minister Hughes and Adrian Knox had been parliamentary colleagues in the NSW Legislative Assembly. Farmer Whyte, above n 197, 49–53. See also Anthony, Mason, 'Griffith Court' in Blackshield, , Coper, Williams, , above n 11, 311, 314 (noting 'Griffith's success in having Knox appointed as his successor')Google Scholar.

²¹¹ See above n 174. See also text accompanying above nn 171, 173 (Barton's tenure as an acting NSW Supreme Court judge and member of the Judicial Committee of the Privy Council). Compare Bolton, above n 2, 320 (indicating that Barton chose to take only a few [Privy Council] cases') with Bolton and Williams, above n 11, 55 (indicating that Barton 'sat on a number of [Privy Council] cases').

²¹² See above n 174 (alluding to the possibility of draft opinions). See also text accompanying below nn 235–40 (Barton's and other Justices unpublished advisory opinions).

²¹³ There are two main exceptions. First, see Bolton, above n 2, 305 (discussing Blundell v Vardon (1907) 4 CLR 1463 (Barton J sitting as the Court of Disputed Returns declared void the election of Vardon as the third South Australian Senator at the 1906 general election)). Second, see Bolton, above n 2, 309–10 (discussing the Vend case (1912) 15 CLR 65 overturning a conviction under the Australian Industries Preservation Act 1906 (Cth)) on which see generally Sawer, above n 147, 109. Other non-constitutional law cases referred to in Edmund Barton are Knight v Knight (1912) 14 CLR 86 (discussing interpretation of a will) and Brown v Lizars (1905) 2 CLR 837 (discussing criminal law and entitlement to a new trial). See Bolton, above n 2, 304, 305.

²¹⁴ See, for example, D'Emden v Pedder (1904) 1 CLR 91 (holding that the doctrine of implied immunity of instrumentalities (see below n 218) precluded State stamp duty applying to receipts given by Commonwealth employees to the Commonwealth Paymaster when receiving their Commonwealth salary); Deakin and Lyne v Webb (1904) 1 CLR 585 (holding that the implied immunity doctrine precluded State income tax applying to Commonwealth salaries); Commonwealth v New South Wales (1906) 3 CLR 807 (holding that the implied immunity doctrine precluded State stamp duty applying to documents transferring land to the Commonwealth); Railway Servants case (1906) 4 CLR 488 (holding that the implied immunity doctrine precluded the Conciliation and Arbitration Act 1904 (Cth) applying to State railway employees); Webb v Outrim [1907] AC 81 (Judicial Committee of the Privy Council holding that the implied immunity doctrine was not part of Australian constitutional law and that, therefore, Commonwealth officials were liable to pay general non-discriminatory State income tax levied on their Commonwealth salary); Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 (holding that the implied immunity doctrine precluded State taxation applying to Commonwealth employees' salaries); R v Sutton (Wire-netting case) (1908) 5 CLR 789 (holding that Commonwealth customs legislation could bind State governments and prevent State officers taking out of Commonwealth customs control dutiable goods); Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Ltd (1911) 12 CLR 398 (suggesting that municipal corporations' trading functions were not protected from Commonwealth legislative power by the implied immunity doctrine); R v Barger (1908) 6 CLR 41 (holding provisions in the Excise Tariff Act 1906 (Cth), imposing excise duty and penalties on defendants who did not provide fair and reasonable employment conditions, were invalid as being in substance an endeavour to regulate employment conditions which were not within any Commonwealth legislative power); Australian Boot Trade Employes Federation v Whybrow & Co (Bootmakers' case No 1) (1910) 10 CLR 266 (holding that, under s 51(xxxv) of the Constitution, the Commonwealth Court of Conciliation and Arbitration could not make a federal industrial award directly inconsistent with State awards made under State legislation); R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (Bootmakers' case No 2) (holding that s 51(xxxv) supported the validity of the Commonwealth Conciliation and Arbitration Act 1904 which made some features of the federal arbitration system, for example, the referral of industrial disputes to the Commonwealth Court of Conciliation and Arbitration, compulsory); Australian Boot Trade Employes Federation v Whybrow (Bootmakers' case No 3) (1910) 11 CLR 311 (holding that s 38(f) of the Commonwealth Conciliation and Arbitration Act 1904, which gave to the Commonwealth Court of Conciliation and Arbitration power to make federal awards a 'common rule' for the whole of an industry even though only some companies in the industry were parties to the dispute, was invalid as beyond the s 51(xxxv) arbitration power); New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54 (holding that the Inter-State Commission was invalidly established because its enforcement powers under the Inter-State Commission Act 1912 (Cth) made it a judicial tribunal without s 72 life tenure and that the Wheat Acquisition Act 1914 (NSW) did not contravene s 92); Foggitt Jones & Co Ltd v New South Wales (1916) 21 CLR 357 (holding that the Meat Supply for Imperial Uses Act 1915 (NSW), which prevent owners moving their cattle across State borders, contravened s 92); Duncan v Queensland (1916) 22 CLR 556 (holding that the Meat Supply for Imperial Uses Act 1914 (Qld) did not contravene s 92 and overruling Foggitt Jones); Farey v Burvett (1916) 21 CLR 433 (holding the War Precautions Acts 1914, 1915 and 1916 (Cth), a Commonwealth regulation and an order stipulating the maximum price for the sale of bread constitutionally valid under the s 51(vi) defence power).

²¹⁵ Generally, there remains a significant and unfavourable contrast between this aspect of High Court Justices' biographies and US Supreme Court justices biographies. For the former see Thomson, , 'Swimming in Air', above n 31Google Scholar; Winterton, Lee, Glass and Thomson, above n 185, 919–24 (bibliography of biographies). For the latter see, for example, Alschuler, above n 104; White, above n 104; Thomson, , 'Getting to Know Harlan', above n 31Google Scholar.

²¹⁶ Bolton, above n 2, 304–5, 313. See also ibid 305 (concluding that '[i]n general [Barton] identified consistently with Griffith'); Bolton, Williams, , above n 11Google Scholar (noting that '[t]he Commonwealth Law Reports indicate that Barton shared Griffith's views in all 164 reported cases in the first three years of the [High] Court'). For the dissents discussed by Edmund Barton see Bolton, above n 2, 318–19 (discussing New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54), 322–3 (discussing Duncan v Queensland (1916) 22 CLR 556). The 'civil case,' which Edmund Barton does not identify, appears to be Knight v Knight (1912) 14 CLR 86, 96 involving the interpretation of the word 'survive' in a will, where Barton expressly 'regret[ted] that he was unable to agree with [Chief Justice Griffith] in his conclusion as to the construction of this will.' Edmund Barton postulates three reasons— Barton's 'recovery from an attack of typhoid' O'Connor's death on 18 November 1912; and 'another shift in the membership of the High Court'—for Barton's 1912 change. Bolton, above n 2, 313.

²¹⁷ For other glimmers see above n 11 (scholarship on Barton).

²¹⁸ See generally Zines, Leslie, The High Court and the Constitution (4th ed, 1997) 1–7Google Scholar; Parkinson, above n 67; Winterton, Lee, Glass and Thomson, above n 185, 743–4.

²¹⁹ See generally Macken, J, Australian Industrial Law (2nd ed, 1993)Google Scholar; Creighton, W, Ford, William Mitchell, R, Labour Law: Text and Materials (2nd ed, 1993)Google Scholar; Lane, Patrick H, Lane's Commentary on the Australian Constitution (2nd ed, 1997) 334–66Google Scholar; Blackshield, Tony Williams, George, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) 803–53Google Scholar ('The Industrial Relations Power'); Moens and Trone, above n 109, 162–73; Ford, William, 'Reconstructing Australian Labour Law: A Constitutional Perspective' (1997) 10Google Scholar Australian Journal of Labour Law 1, 11–20; Fraser, Andrew, 'Parliament and the Industrial Relations Power' in Lindell, and Bennett, (eds), above n 55, 93–148Google Scholar. See also Bolton, above n 2, 307–10 (discussing the narrow Griffith, Barton and O'Connor view of s 51 (xxxv)).

²²⁰ Bolton, above n 2, 308.

²²¹ Barton's letter of 26 January 1908 to Thomas Bavin (quoted in Bolton, above n 2, 307).

²²² Bolton, above n 2, 308. See also ibid 333 (suggesting that a significant reason for appointing Adrian Knox, rather than Barton, as Chief Justice was that, as compared to Barton, Knox 'was not committed … to the original federal compact and so had fewer qualms about enlarging the Commonwealth's powers … at the expense of the States').

²²³ Ibid 307 (discussing the Wire-netting case (1908) 5 CLR 789).

²²⁴ Ibid 318 (discussing the Wheat case (1915) 20 CLR 54).

²²⁵ Ibid 322–3 (discussing Duncan v Queensland (1916) 22 CLR 556).

²²⁶ See above n 2.

²²⁷ Duncan v Queensland (1916) 22 CLR 556 (Griffith CJ, Powers, Gavan Duffy and Rich JJ; Barton and Isaacs JJ dissenting).

²²⁸ Ibid, 605 (partly quoted in Bolton, above n 2, 323).

²²⁹ For debate on originalism and its place in constitutional interpretation (especially by judges) see, for example, Kay, Richard, 'Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses' (1988) 82 Northwestern University Law Review 226Google Scholar; Kirk, Jeremy, 'Constitutional Interpretation and a Theory of Evolutionary Originalism' (1999) 27 Federal Law Review 323CrossRefGoogle Scholar; Goldsworthy, Jeffrey, 'Interpreting the Constitution in Its Second Century' (2000) 24 Melbourne University Law Review 677Google Scholar; Eastman v Queen (2000) 74 ALJR 915, 935–41 (paras 131–58) (McHugh J), 958–9 (paras 241–45) (Kirby J).

²³⁰ Barton's letter of 14 October 1916 to his wife (Jeanie Barton) (quoted in Bolton, above n 2, 323).

²³¹ In addition to primary sources (see above nn 174–78), see scholarship on Barton's judicial colleagues, for example, Joyce, above n 68; Zelman, Cowen, Isaac Isaacs (1967)Google Scholar; Rickard, John, H. B. Higgins: The Rebel as Judge (1984)Google Scholar; Pamela Coward, Henry Bournes Higgins and the Australian Constitution (LLM thesis, Australian National University, 1975). See also above n 75 (Richard O'Connor). For other scholarship on Barton see above n 11.

²³² See above n 215 (biographical scholarship on High Court justices).

²³³ Sawer, above n 147, 27 (quoted in Bolton, above n 2, 304). For example, Sir Leo Cussen considered that 'Barton's judgments were the best [as compared to Griffith and O'Connor], that they had more philosophy in them, more understanding of what a Constitution was about, more sagacity; that they were well written, and that they were extremely good.' Owen, Dixon, 'Retirement of the Chief Justice' (1963) 110 CLR iii, xiiiGoogle Scholar. Dixon, to whom Cussen had expressed this private opinion, considered Cussen to be 'a high witness.' But see Anthony Mason, 'Griffith Court' in Blackshield, Coper and Williams, above n 11, 312 (suggesting that 'Barton … [was] generally considered a lesser lawyer than Griffith, with a less extensive reservoir of legal knowledge').

²³⁴ Compare the scholarship of rating US Supreme Court Justices such as Abraham, Henry, Justices, Presidents, and Senators (revised edition, 1999) 369–72Google Scholar ('Rating Supreme Court Justices'); Blaustein, Albert Mersky, Roy, The First One Hundred Justices: Statistical Studies of the Supreme Court of the United States (1978) 32–51Google Scholar; Mersky, Roy and Hartman, Gary, 'Rating the Justices' (1992) 84 Law Library Journal 113Google Scholar; Bryden, David Christine Flaherty, E, 'The 'Human Resumes' of Great Supreme Court Justices' (1991) 75 Minnesota Law Review 635, 656–62 ('Evaluating the Evaluation'); Ross, above n 193Google Scholar.

²³⁵ Compare the publication of US Supreme Court Justices draft judicial opinions (see above n 74) and advisory opinions, for example, Jay, Stewart, Most Humble Servants: The Advisory Role of Early Judges (1997)CrossRefGoogle Scholar; Kalman, Laura, Abe Fortas: A Biography (1990)Google Scholar 293–318 ('The Adviser'); Urofsky, Melvin, Division and Discord: The Supreme Court under Stone and Vinson, 1941–1953 (1997) 209Google Scholar (discussing Chief Justice Vinson's advice to President Truman); Murphy, Bruce, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982)Google Scholar; Thomson, James, 'Not a Trivial Pursuit: Salmon P. Chase and American Constitutional Law' (1996) 23 Northern Kentucky Law Review 285, 321–2Google Scholar (discussing and quoting from Chief Justice Chase's letter of 10 December 1872 to Secretary of State Hamilton Fish on the constitutionality of provisions in a proposed treaty).

²³⁶ Some advisory opinions have been published. See, for example, Griffith's 3 June 1914 verbal advice and 5 October 1914 written advice ('Memorandum by Sir Samuel Griffith, Chief Justice of Australia, on the “Double Dissolution” Section of the Constitution' in the Novar Papers (National Library of Australia, Canberra, MS 696 folios 4495–8, 1020–91), Griffith Papers (Mitchell Library, Sydney, ML MSS 363/8xfolios 49–50) and Colonial Office (Public Records Office, London, 418/123 folios 352–3)) partially reproduced in Scott, Ernest, Official History of Australia in the Great War (1938) vol 11, 18–19Google Scholar; Crisp, Leslie F, Australian National Government (5th ed, 1983) 404–5Google Scholar; Fajgenbaum, Jacob and Hanks, Peter, Australian Constitutional Law: Cases, Materials and Text (1972) 93Google Scholar; Evatt, Herbert V, 'The Discretionary Authority of Dominion Governors' (1940) Canadian Bar Review 1, 4–5Google Scholar. For smaller extracts from other advisory opinions see, for example, the articles referred to below n 237.

²³⁷ Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 286. In addition to above n 236, for reference to, discussion of and quotations from such opinions see also Markwell, Donald, 'On Advice from the Chief Justice' (July 1985) 29(7) Quadrant 38Google Scholar; Paul, John, 'The Dismissal: History Justifies Barwick's Advice' (1 March 1983) 103 Bulletin 50Google Scholar; Thomson, James, 'Book Review' (1983) 6 University of New South Wales Law Journal 255Google Scholar; Thomson, James, 'History, Justices and the High Court: An Institutional Perspective' (1995) 1 Australian Journal of Legal History 281, 287–91Google Scholar, 301–7 (especially 301 n 72 providing references to '[f]urther discussions and examples'); Bolton, above n 2, 316–18, 323–5; Sawer, above n 147, 122 (discussing Griffith's advice (above n 236) and '[t]he propriety of the [Governor-General] seeking such an opinion, and of the Chief Justice giving it').

²³⁸ Markwell, , 'Griffith, Barton and the Early Governor-Generals', above n 198, 289Google Scholar.

²³⁹ Ibid, 290.

²⁴⁰ Ibid, 290. See also Bolton, above n 2, 324 (similar discussion).

²⁴¹ Bolton, above n 2, 317.

²⁴² Specifically in the context of Barton's advisory opinions see Markwell, , 'Griffith, Barton and the Early Governor-Generals', above n 198, 293–4 (defending the propriety of Barton's advisory opinions to and consultations with the Governor-General as '[a]spects of Australia's constitutional development')Google Scholar. See also above n 237 (scholarship on propriety of other justices' advisory opinions).

²⁴³ In addition to Barton, Justices and Chief Justices who have given (oral and written) advisory opinions include Griffith, Latham, Dixon, Barwick and Mason. See generally above n 237 (citing references). On US Supreme Court justices' advisory opinions to American Presidents see Thomson, , 'History, Justices and the High Court', above n 237, 301–2 n 72 (citing references)Google Scholar.

²⁴⁴ For US Supreme Court comparisons see, in addition to above n 174, Lazarus, Edward, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court (1998)Google Scholar; Sullivan, Kathleen, 'Behind the Crimson Curtin' (8 October 1988) 45(15) New York Review of Books 15Google Scholar; Kozinski, Alex, 'Conduct Unbecoming' (1999) 108 Yale Law Journal 835CrossRefGoogle Scholar; Christopher, Drahozal, 'The “Arrogance of Certainty”: Trust, Confidentiality, and the Supreme Court' (1998) 47 Kansas Law Review 121Google Scholar; Richard, Painter, 'Open Chambers?' (1999) 97 Michigan Law Review 1430Google Scholar; Garrow, David, '''The Lowest Form of Animal Life'? Supreme Court Clerks and Supreme Court History' (1999) 84 Cornell Law Review 855Google Scholar; Knox, John, The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR's Washington (Hutchinson, Dennis Garrow, David (eds), 2002)Google Scholar.

²⁴⁵ See generally Thomson, , 'Swimming in Air', above n 31Google Scholar; Thomson, , 'History, Justices and the High Court', above n 237Google Scholar; Amelia, Simpson Troy, Simpson, 'Personal relations' in Blackshield, , Coper, Williams, , above n 11, 528Google Scholar.

²⁴⁶ See above n 11 (biographical scholarship on Barton's judicial colleagues).

²⁴⁷ Bolton, above n 2, 301, 306, 315, 366.

²⁴⁸ Reynolds, above n 2, iii (quoted in Bolton, above n 2, 305).

²⁴⁹ Markwell, , 'Sir Edmund Barton', above n 198, 3 (quoting letter of 22 March 1906 from Chief Justice Griffith to his wife)Google Scholar. See also Bolton, above n 2, 366 (same).

²⁵⁰ Markwell, , 'Sir Edmund Barton', above n 198, 2 (quoting Governor-General Munro Ferguson's diary entry of 24 March 1915)Google Scholar. See also Bolton, above n 2, 366–7 (same).

²⁵¹ Bolton, above n 2, viii, 59.

²⁵² Ibid, 304, 313.

²⁵³ See text accompanying above n 81. See also above n 78 (Barton's long working hours on the drafting Committee).

²⁵⁴ See above nn 84, 85. For particular examples, see above nn 55 (Senate power compromise), 98 (finance compromise), 132 (Privy Council appeals compromise). See also above n 152 (Prime Minister Barton's need to 'cobble together' compromises to have legislation enacted).

²⁵⁵ Barton's letter of 11 January 1904 to Prime Minister Alfred Deakin (quoted in Bolton, above n 2, 301).

²⁵⁶ Bolton, above n 2, 301.

²⁵⁷ Ibid 305.

²⁵⁸ (1907) 4 CLR 1087. For a discussion see Parkinson, above n 67, 44–7.

²⁵⁹ Bolton, above n 2, 306.

²⁶⁰ Ibid 315 (quoting Barton's letter to Isaacs).

²⁶¹ See, for example, ibid 315, 323. But for opposing characterisations of Barton's letters of 22 June 1913, 25 August 1913 and 10 September 1913 to Griffith about Isaacs see Rickard, above n 55, 274 (describing Barton's attitude to Isaacs as 'personal venom') and Bolton, above n 2, 315 (excusing Barton's remarks about Isaacs as 'casual, flippant anti-semitism of upper middle-class Anglo-Australians' and suggesting 'Barton was [probably] playing up to Griffith's prejudices').

²⁶² (1916) 22 CLR 556. See above n 214.

²⁶³ See, for example, Mason, above n 233, 311 ('Griffith Court'). Of course, there is an initial question: Should Australia follow the practice, adopted in relation to the US Supreme Court, of referring to the High Court by the Chief Justice's surname? For a prominent example of the use of this nomenclature see Saunders, Cheryl (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996)Google Scholar. However, it has been suggested that '[r]eferences to the 'Mason Court' are of course a convenience rather than an attempt to overstate the influence which a single Justice may have on a court of seven in which the responsibility to give 'individual expression to the law' clearly is taken very seriously. Nevertheless, the role which the Chief Justice played in fact should be recognised appropriately as well.' Saunders, , 'The Mason Court in Context', ibid 2, 4Google Scholar. See also Gerard, Brennan, 'A Tribute to Sir Anthony Mason', ibid 10 (noting that '[t]o describe the [High] Court during Sir Anthony Mason's Chief Justiceship as 'the Mason Court' is a useful shorthand, but it is not a term which accurately describes the dynamics of a Court constituted by Justices of robust independence of mind, willing and able to give cogent expression to their own views')Google Scholar.

²⁶⁴ Bolton, above n 2, 16. See generally ibid 9–10 (discussing Barton's education, including in 1868 being awarded by the University of Sydney a 'first class honours [degree] in Classics'). See also above n 85 (noting the 'profound influence' of Barton's classics professor). On the classical influence on the U.S. see generally Richard, Carl, The Founders and the Classics: Greece, Rome, and the American Enlightenment (1994)Google Scholar; Sellers, Mortimer N S, American Republicanism: Roman Ideology in the United States Constitution (1994)CrossRefGoogle Scholar; 'Symposium: The Republican Civic Tradition' (1988) 97 Yale Law Journal 1493–1723.

²⁶⁵ See generally McCullough, above n 49; Joseph, Ellis, Passionate Sage: The Character and Legacy of John Adams (1993)Google Scholar; Robert, Allison, 'John Adams Returns' (2002) 30 Reviews in American History 212Google Scholar.

²⁶⁶ See generally Jack, Rakove, James Madison and the Creation of the American Republic (2nd ed rev 2001)CrossRefGoogle Scholar; Rutland, Robert, James Madison: The Founding Father (1987)Google Scholar; Rutland, Robert, The Presidency of James Madison (1990)Google Scholar; Rutledge, Robert (ed), James Madison and the American Nation, 1751–1836: An Encyclopedia (1994)Google Scholar; Banning, Lance, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (1995)Google Scholar; Matthews, Richard, If Men Were Angels: James Madison and the Heartless Empire of Reason (1995)CrossRefGoogle Scholar; Miller, William, The Business of May Next: James Madison and the Founding (1992)Google Scholar; Wills, Garry, James Madison (2002)Google Scholar; Finkelman, Paul, 'James Madison and the Bill of Rights: A Reluctant Paternity' [1990] Supreme Court Review 301CrossRefGoogle Scholar.

²⁶⁷ See generally Bannon, John Williams, John, 'Completing the Federation' (2000) 6 The New Federalist: The Journal of Australian Federation 1Google Scholar (indicating that the forthcoming issue will address 'the question 'who is the “father” of federation'). Some scholars compile A and B teams. See, for example, Saunders, Kay, 'Book Review' (2000) 46 Australian Journal of Politics and History 128–;9Google Scholar (suggesting that '[t]he long held A list would … have consisted of Samuel Griffith…Henry Parkes and Edmund Barton… along with Alfred Deakin … [and that] [t]he old B list consisted of Richard Baker, Richard O'Connor, Charles Cameron Kingston and John Downer as well as [Andrew Inglis] Clark' and noting possible changes, including the diminishing stature of Parkes and Griffith and the elevation of Clark and Downer). Compare above n 234 (rating the justices).

²⁶⁸ See above n 64 (discussing the commencement of Barton's federal crusade).

²⁶⁹ See above nn 10 (Parkes), 12 (Reid). See also Macintyre, above n 88, 6 (noting that 'the city of Bendigo is assiduously promoting Sir John Quick as the real Federal Father'); Dixon, above n 233, xi (concluding that 'the Constitution owes its shape more to [Samuel Griffith and Andrew Inglis Clark], probably than to anybody').

²⁷⁰ See, for example, above nn 13 (McMillan's crucial change of view on the Senate's power over money Bills), 133 (Chamberlain's Privy Council compromise).

²⁷¹ See above n 86 (alluding to Barton's foibles, flaws and failures).

²⁷² Others who take this position include Robert Garran (see above nn 14, 28). See also above n 45 (Braddon's description of Barton as 'the Colossus of the [1897–98 Constitutional] Convention').

²⁷³ See above n 28 (quoting Garran's letter of 4 November 1940).

²⁷⁴ In addition to the already available and used primary and secondary sources (see, for example, above nn 4, 54), much information may remain to be discovered and examined. Compare, for example, Bannon, 'Rediscovering', above n 96, 121 (noting that Premiers' 'intercolonial communications' were 'a rich source of materials which had not been closely looked at').

²⁷⁵ Given the existence of the Commonwealth Constitution, no Parliament in Australia is sovereign. Even though s 51(xxxvi), in conjunction with provisions containing the phrase 'until the Parliament otherwise provides' (see above n 168), permits the Commonwealth Parliament to amend some aspects of the Constitution, that Parliament is not sovereign. See, for example, Thomson, , 'History, Justices and the High Court', above n 237, 304 n 92 (referring to the relationship between s 51(xxxvi) and s 96)Google Scholar. Compare parliamentary sovereignty in the United Kingdom. See, for example, Jeffery, Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999)Google Scholar; William, Wade, 'Sovereignty—Revolution or Evolution' (1996) 112 Law Quarterly Review 568Google Scholar; Trevor, Allan, 'Parliamentary Sovereignty: Law, Politics, and Revolution' (1997) 113 Law Quarterly Review 443Google Scholar. See also Trevor, Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001) 13–21, 201–42 (discussing the relationship between parliamentary sovereignty and the rule of law)CrossRefGoogle Scholar.

²⁷⁶ See, for example, Thomson, James, 'An Australian Bill of Rights: Glorious Promises, Concealed Dangers' (1994) 19 Melbourne University Law Review 1020, 1063Google Scholar (noting various theories of judicial review, constitutionalism, democracy and justice and their syntheses).

²⁷⁷ See above n 266 (scholarship exposing and exploring the various dimensions of Madison's political and constitutional philosophy).

²⁷⁸ Indeed, the benefits should penetrate much further into constitutional law. For some possibilities see generally Edward White, G, 'The Arrival of History in Constitutional Scholarship' (2002) 88 Virginia Law Review 485CrossRefGoogle Scholar (discussing various 'alternative explanation[s]' for the '"turn to history” by American constitutional scholars' and for the 'widespread assumption within the [American] legal academy that historical inquiry has become a central and statured dimension of contemporary constitutional scholarship'); Thomson, , 'A Great Swindle?' above n 6, 346 n 7 (providing bibliographical references to explore the question: does Australian constitutional law scholarship, including High Court decisions, 'represent a turn to history?')Google Scholar.