There is, indeed, nothing that can be said in favour of such a provision, from the point of view either of justice, of law, of equity or of harmony. If it be destined to remain, it is to be hoped that it will remain a dead letter. Otherwise it will lead to boundless friction and ill-will, internal and external.
Yet there is an excellent principle embedded in this provision. It is very deeply, and perhaps almost inextricably, embedded; but it is there. For if a number of nations are to join together as co-equal members of a Community, plainly there should be some common Court to which all can appeal with equal confidence. Ireland and England, for instance, have made a Treaty. Either side may violate that Treaty. Who is to judge between them? Is the appeal to be to the arbitrament of strength? If so, what of the co-equality of the Community? It becomes an idle phrase, however separate one may claim to be from the other.
The case may be carried even further. A case exists for such a Court, not only in respect of their interdependent relations, but not less in respect of their internal relations. It may even happen that the citizen of a State, or a combination of citizens, may have a plain case to be carried to such a Court as against their State, if a Court of sufficient impartiality could be established. States are not always immaculate of justice, particularly to minorities.
Can such a Court be found? I believe it can. An exposition of the present draft of our Constitution is not the place to give the details of such an alternative. It is sufficient to say that there is such an alternative, for which provision could therefore be made in substitution of the present provision, against which the requirements of justice and the entire experience of the Commonwealth rises in evidence.
It is the duty of a Constitution, not merely to provide for the present, but to leave itself lissom and flexible for the development of the future. If those developments can in any way be foreseen, it is its duty further, to indicate them by allowing specifically for them, without of necessity pledging the future to them. How far these indications may profitably be carried is a question not so easy to answer. Times differ. Constitutions made at a time of fixed social and political ideas, are necessarily fixed in their provisions. Constitutions made at a time, such as the present, when social and political ideas are rapidly shifting and changing must needs indicate the likelihood of change in certain directions; and make allowance for such changes. It is therefore striking to notice that in nearly every Constitution made during and since the Great War such indications are scattered freely. And from that fact alone the historian of the future could tell with assurance that these were years of rapidly changing conceptions.