THE
YALE
LAW
JOURNAL
VOLUME
67
DECEMBER,
1957
NUMBER
2
MR.
JUSTICE
FRANKFURTER:
A
TRIBUTE
FROM
AUSTRALIA
THE
RIGHT
HONOURABLE
SIR
OWEN
DIXONI
THIS
salutation
to
Mr.
Justice
Felix
Frankfurter
comes
from
an
Australian
judge
who
stands
deeply
in
his
debt.
It
is
a
debt
under
which
a
high
intelli-
gence
and
a
generous
heart
has
placed
the
writer
by
the
constant
encourage-
ment
and
support
which
friendship
gives
and
by
the
lively
communication
of
the
products
of
a
great
mind
and
a
lofty
spirit.
In
return
the Australian
can
do
little
but
acknowledge
his
obligation
and,
by
way
of
tribute,
offer
a
lawyer's
statement
of
why
it
is
that
the
work
of
Frankfurter
has
a
peculiar
importance
in
the
constitutional
law
of
Australia
and
how
it
came
about
that
his
interest
in
that
Commonwealth
was
aroused.
Australia
is
a
large
continent
and
until,
in
the
first year
of
the
twentieth
century,
a
federal
union
was formed,
it
was divided
into
six
separate
colonies
each
enjoying
its own
unitary
form
of
government
under
a
democratic
bicam-
eral
system.
Some
ten
years
before
some
of
the
leaders
in
these
independent
colonies
had
turned
their
thoughts
towards
uniting
the
six
colonies
into
one
federal
Commonwealth.
With
such
thoughts
in
their
minds
it
became
certain
that
they
must
consider
American
federalism
as
providing
the
pattern
which
they
might
agree
to
follow.
Some
of
them,
perhaps
not
very
many
at
that
time,
began
to
make
a
study
of
the
constitutional
law
of
the
United
States.
During
the
decade
that
followed,
a
draft
constitution
was
produced
and
agreed
upon
which
adopted
American
federalism
as
its
basis.
Strange,
however,
as
it
may
seem
to
Americans,
it
was
not
the
federalism
as
it
was
perfected
in
1791
by
the
adoption
of
the
Bill
of
Rights,
but
that
of the
Constitution
of
the
United
States
as
it
had
stood
immediately
before
that
date.
To
British
colonies
at
the
end
of the
Victorian
era
guarantees
of
personal
liberty
seemed
unnecessary.
An
exception
was
made
in
the
case
of
religious
freedom
1
and
of
expropriation
without
just
terms.
2
But
for
the
rest
there
were
no
constitutional
guarantees
of
individual
rights.
In
other
respects,
however,
what
was
done
was
to
make
a
combination
of
the
British
parliamentary
system
of
responsible
government
with
federalism
on
the
general
pattern
of
the
original
Constitution
of
the
United
States.
It
has
meant
of
course
that
to
Australians
no small
part
of
the
constitutional
law
of the
United
States
must
be
of
first
importance.
Accordingly
lawyers
tG.C.M.G.,
Chief
Justice
of
the
High
Court
of
Australia.
1.
AusTR.
Co.xsr.
§
116.
2.
Id.
§ 51(xxxi).
THE
YALE
LAW
JOURNAL
whose
work
calls
for
any
consideration
of
Australian
constitutional
questions
cannot
neglect
the
decisions
of the
Supreme
Court
of
the
United
States.
The
High
Court
of
Australia
was
set
up
in
1903
and from
the
beginning
the
opinions
of
the
Justices
of
the
Supreme
Court
were
frequently
cited
and
dis-
cussed.
One
of
the
earliest subjects
of
controversy
was
the
question of
recip-
rocal
state
and
commonwealth
immunities
and
that
of
course
opened
up
the
whole
field
of
McCulloch
v.
Maryland,
3
Veazie
Bank v. Fenno,
4
Collector
v.
Day
6
and
South
Carolina
v.
United
States.
6
In
the
year
1914
one
of-the
Judges
of
the High
Court
of
Australia
visited
the
United States
and
at Harvard
met
two
future
Justices
of
the
Supreme
Court-Louis
D.
Brandeis
and
Felix
Frankfurter.
He
was
H.
B.
Higgins
who
was
appointed
in
1906
and
died
in
office
in
1929.
For
the
first
thirteen
years
of
that
period
he devoted
much
of
his
time and energy
to
the
work
of
industrial
arbitration
and
in
that
field
gained
a
fame
spreading
beyond
the
limits
of
the
Commonwealth.
With
both
Brandeis
and
Frankfurter
he maintained
a
corres-
pondence
after
his
return
to
Australia.
In
1924
he
again
visited
the
United
States
and
again
met
them.
It
is
evident
that
a
friendship
sprang
up
between
Frankfurter
and
Higgins
and
there
can be
little
doubt
that
as a
result
Higgins
obtained
a
much livelier
and more
informed
understanding
of
the
course
of
decision
in
the
Supreme
Court during
those
years
than
he
could
obtain
from
a
reading
in
Melbourne of
the
reports
of
the
opinions
given
in
Washington.
It
happened
that
Higgins,
long
before
he
met
Frankfurter,
had
in
the
High
Court
of
Australia
stood
out
against
the
course
taken
by
that
Court
in
adopting
the
extreme
doctrine
of
state
and
federal
reciprocal
immunity.
On
the
federal
side
he
had
refused
to
acknowledge
not
merely
the
applicability
of
Marshall's
doc-
trine
to
the
Commonwealth
Constitution
but
even
the
soundness in
point
of
law
of
the
doctrine
itself.
Higgins
died
long
before
the
decision
in
Graves
v.
New
York
7
but
it
would have
formed
for
him
a
source of
great
satisfaction.
For
he
had never
relinquished his opposition
to
the
full
doctrine
of
intergovernmental
immunity
and
at
lefigth,
about
eighteen
years
before
that
decision,
he
had
formed one
member of
a
court
which
had
renounced
for
Australia
the
doctrine,
which
the
same
court
as
earlier
constituted
had
espoused,
of
the
reciprocal
immunity
of
government
agencies
or
instrumentalities."
It
would have delighted
him to
find
this
decision
referred
to in
the
concurring
opinion of
Frankfurter
but
even
more
to
read
in
that
opinion
the
statement--"All
these doctrines
of
intergovernmental
immunity
have
until
recently
been
moving in
the
realm
of
what
Lincoln
called
'pernicious
abstractions'."
9
Had
there
never
been
a
meeting
between
Frankfurter
and
Higgins
one
may
be
sure
that
the
work
of
the
former
would
have
commanded
attention
in
the
3.
17
U.S.
(4
Wheat.)
316
(1819).
4.
75
U.S.
(8
Wall.)
533
(1869).
5.
78
U.S.
(11
Wall.)
113
(1871).
6.
199
U.S.
437
(1905).
7.
306
U.S.
466
(1939).
8.
See
D'Emden
v.
Pedder, 1
Commw.
L.R.
91
(Austr.
1904).
9.
306
U.S.
at
490.
[Vol.
67:179
A
TRIBUTE FROM AUSTRALIA
Australian
High
Court.
In
the
same
way
one
may
be
sure
that
in
what
Lord
Evershed,
the Master
of
the
Rolls,
has
recently
called
"his
extraordinary
intel-
lectual
energy"'
0
Frankfurter
would
have
taken
into
his wide
survey
of
legal
affairs
the
constitutional
developments
in
Australia.
But
it
is
not
unimportant
that
they
met
and
that
they met
when
they
did.
For
it
meant
that
Frankfurter's
writings
were
referred
to
in
Australia
long
before
he
became
a
member of
the
Supreme
Court
and
his
name
became
not
unfamiliar
to those
arguing
consti-
tutional
cases
in
the
High
Court. Indeed
it
is
probable
that
the
curiosity
of
Australian
constitutional
lawyers
about
the
Supreme
Court
was
first
really
aroused
by
the
publication
of
The
Bvsiness
of
the
Supreme Court
by
Frank-
furter
and
Landis
when
that
work
appeared
in
1927.
It
is
a book
which found
its
way
into
the
hands
of
most
of
the
Judges
of
the
High
Court
as
well
as
of
some
of
the
counsel
habitually
appearing
in
such
cases.
It
was
natural
when
Frankfurter
reached
the
Bench
for
men
to
turn
with
special
interest
to
his opinions.
The
very
subject
matter
of
Graves
v.
New
York
attracted
the
attention
of
Australian
constitutional
lawyers.
The
course
pursued
some
eighteen
years
before
by
the
High
Court
in
overthrowing
earlier
doctrine
had
called
forth
some
rather
acrid
criticisms,
particularly
among
those
who
supported
the
interests
of States.
What
Frankfurter
said
had a
special
relevance.
For
it
amounted
so
to
speak
to retrospective
justification
of
some
of
the
grounds taken
by
the
judges
who
cast
aside
the
old
doctrine
derived
from
the
earlier
American
cases
and
at
the
same
time
it
suggested
the
true
nature
of
the
respective
implications
which
set
limits
to
interference
by
states with
the
exercise
of
federal
functions
and
vice
versa.
As
time
passed
an increasing
number
of
Australians
visited
Washington.
No
one
can
be
more generous
than
Frankfurter
in
making
time for
those
whom
he
is
asked
to
see
and
as
a
result
a
quite
extraordinary
number
of lawyers
in
Australia
may
say
that
they
know
him
personally.
They
range from
men hold-
ing
the
highest
offices
of
State
to
men
conducting
practices
at
the
Bar.
The
high
quality
of
his
writings,
judicial
and
extra-judicial,
would
in
any
case
have
caught
the attention
of
students
of
constitutional
law
in
Australia,
to
say
noth-
ing of
its
other
votaries,
both
judges
and
counsel.
One
may
be
sure
that
they
would
go
to
his
opinions
as
specially
significant
expositions
of
law.
It
must
be
borne
in
mind
that
the
authority
of
the
decisions
of
the
Supreme
Court
in
the
High
Court
of
Australia
is
merely
persuasive.
It
is
not
imperative
and
always
the
degree of persuasiveness
possessed
by
persuasive
authority
is
intrinsic.
Frankfurter's
opinions
are written
in
no
ordinary
style
and
it
is
particularly
true
in
his
case
that
to
know
the
man
is
to
read
with
additional perception
the
adroit
phrases,
the epithets
charged
with
calculated
implication
and
even
the
significant
ellipses,
all
of
which
often
combine
to
form
the
expression
of
a
very
closely
reasoned
argument.
Of
course
the
cases
that
commanded
the
greatest
attention
were
those
that
most
nearly
touched
Australian
problems.
As
it
happened
the war
brought
an
10.
Evershed,
The
Impact
of
Statute
oi,
the
Law
of
England,
42
BRITIsH
ACADEMY
PROCEEDINGs
253
(1956).
1957]
THE
YALE
LAW
JOURNAL
unexpected
difficulty
with
reference
to
the
guarantee
of
the
free
exercise
of
a
religion."
Jehovah's
Witnesses
were
regarded
by
the
authorities
as
obstruct-
ing
the
war
effort
and
were
dealt
with
accordingly.
In
answer
they
placed
their
reliance
upon
the
constitutional
denial
to
the
Commonwealth
of
power
to
make
laws
for
prohibiting
the
free
exercise of
any
religion.
The
decision
of
the
High
Court
12
was
given
while
the
judgment
of
the
Supreme
Court
in
the Gobitis
case
still
stood.'
3
The
Australian
case
involved
other
questions,
but
the
whole
Court
took
the
view
that
the
Commonwealth
Parliament
was
not
restrained
from
making
laws
prohibiting
the
advocacy
of doctrines
or
principles
which,
though
advocated
in
pursuance
of
religious
conviction,
were
prejudicial
to
the
prosecution
of
the war
in which
the Commonwealth
was
engaged.
The
opinion
which
Frankfurter
wrote
for
the
Court
in
the
Gobitis
case
was
of
course
much
canvassed
during
the argument
before
the High
Court
and
there
is
much
indeed
in
the
Australian
judgments
inconsistent
with
any
view
but
that
taken
in
that
majority
opinion.
But
before
the
final
report
of
the
decision
of
the
High
Court
was published
West
Virginia
Bd.
of
Educ.
v.
Barnette
14
had
been
decided,
and
a
terse
but
unrelenting
reference
to
that
case
was
added
by
Starke
J.,
to the
report
of
his judgment.
To
an
Australian
it
seems
a
pity
that
Frankfurter
had
no
opportunity
(such
was
the timing)
of
adding
to
his
dissenting
opinion
some
extracts
from
the
reasons
of
the
High
Court,
that
is
assuming
that
he
deemed
them
auxiliaries
worthy
of
enlisting
in
support
of his
view.
The
Commonwealth
Constitution
includes
a
full
faith
and
credit
clause
16
and
accordingly
the
two
cases
of
Williams
v.
North
Carolina
have
taken
their
place
in
Australia
as
part
of
the
esoteric
writings
wherein
is
held
the
key
to
that
constitutional
puzzle.'
6
Fullagar
J.,
now
of
the
High
Court
of
Australia
but
formerly
a
judge
of
the
Supreme
Court
of
Victoria,
wrote
in
the
latter
capacity
the
judgment
in
Harris
v.
Harris.
7
It
is
a judgment
that
has
proved
of
wide
interest.
This
is
not
the
place
to discuss
the
case,
a
thing
that
has
been
done
by
Professor
Erwin
Griswold.'
8
The
case
is
referred
to
here
because
it
provides
another
example
of
the
importance
which
judges
in
Australia
attach
to
an opinion
of
Frankfurter.
Fullagar
J.,
notes
that
in
the
first
Williams
case
there
were
left
open
the
questions
of
the
reality
of
the
domicil
in
Nevada,
the
possible
effect
of
residence
in
the
jurisdiction
where
the
decree
was
granted
and the
power
of
the Court
of
North
Carolina
to
refuse
full
faith
and
credit
to
the
decree
of
Nevada
because,
contrary
to
the
finding
made
by
the
Court
of
the
11.
AusTR.
CONST.
§
116.
12.
Adelaide
Co.
of
Jehovah's
Witnesses,
Inc.
v. Commonwealth,
67
Commw.
L.R.
116
(Austr.
1943).
13.
Minersville
School
Dist.
v.
Gobitis,
310
U.S.
586
(1940).
14.
319
U.S.
624
(1943).
15.
AUSTR.
CONST.
§
118.
16.
617
U.S.
287
(1942)
;
325
U.S.
226
(1945).
17.
[1947]
Vict.
L.R.
44
(Austr.
1946).
18.
Griswold,
Divorce
Jurisdiction
and
Recognition
of
Divorce
Decrees-A
Com-
parative
Study,
25
Ausm.
L.J.
248,
261-62
(1951).
[Vol.
67:179
A
TRIBUTE FROM AUSTRALIA
latter
state,
the
Court
of
North
Carolina
found
that
no domicil
existed.'
9
He
then
proceeds-"Although
the
important
questions
mentioned
were
expressly
left
open
by
Williams
v.
North
Carolina,
a
careful
reader
of the
judgments
might,
I
think,
not
unreasonably
have
prophesied
that,
if
and
when
those
ques-
tions
demanded
determination,
they
would
be
determined
in
favour
of
the
validity
of
the
decrees.
But
it
seems
to
be
the
contrary
view
that
has
ultimately
found
acceptance."
20
He
turns
finally
to
the
statement
of
Frankfurter--"In
short,
the
decree
of
divorce
is
a
conclusive
adjudication
of
everything
except
the jurisdictional
facts
upon
which
it
is
founded,
and
domicil
is
a
jurisdictional
fact."
'21
Again-"To
permit
the
necessary
finding
of
domicil
by
one
State
to
foreclose
all
States
in
the
protection
of
their
social
institutions
would
be
in-
tolerable.
'
2
2
You
will
see
Frankfurter's
name again
and
again
in
the
reports
of
the
con-
stitutional
decisions
of
the
High
Court.
When
you
find
in
judicial
writings
repeated
reliance
upon
the
words
of
a
contemporary
judge,
especially
of
an-
other
country,
you
may
safely
infer
that
his
opinions
tend
to
throw
new
light
in
dark
places
and
to
comfort
other
judicial
wayfarers
by
giving
apt
and
re-
assuring
pointers
to
a
true
deliverance.
Sometimes
there
has
been
more
than
mere
quotation;
Frankfurter's
view
of
the
working
of
principle
in
some
respect
has
been
treated
as
confirmatory
of
specific
reasoning
adopted
in
the
High
Court.
Some
mention
has
already
been
made
of
Graves
v.
New
York.
In
two
cases
of
great
importance
in
Australia
the
High
Court
decided
that
Commonwealth
legislation
affecting
banking
was
ultra
vires.
In
the
first
a
provision
that
without
the
consent
of
the
federal
Treasurer
no
bank
should
conduct
any
banking
business
for
a
State
was held
void
as
a
discriminatory
interference
with
a
State
which
the
legislative
power
with
respect
to
banking
did
not
justify.
23
In
this
decision
the
several
judg-
ments
delivered
in
the
High
Court
made
much
use
of
Graves
v.
New
York
and
of
the
opinion
of
Frankfurter
in
the
Saratoga
Springs
case.
24
The
principles
to
which
this
decision
gave
effect
were
not
those
of
the
aban-
doned
doctrine
of
mutual
noninterference.
Some
attempt
to
mark
the
distinc-
tion
had
been
made
years
before.
2
5
But
the
opinion
of
Frankfurter
in
the
Saratoga
Springs
case
was
welcomed
as
a
timely exposition
of
the
whole
sub-
ject.
The
views
he
expressed
both
on
that
occasion
and
in
Graves
v.
New
York
have
accordingly
been
much
considered
in
the
High
Court.
That
fact
may
be seen
reflected
in
the
citations
of
the
two
opinions
which
the
Judges
of
the
High
Court
make
in
the
reasons
which
they
severally
delivered.
These
reasons
went
over
ground
that
in
the
United
States
would
not
be
regarded
as
19.
[1947]
Vict.
L.R.
at
52.
20.
Id.
at
53.
21.
Id.
at
54.
22.
Ibid.
23.
Melbourne
Corp.
v. Commonwealth,
74
Commw.
L.R.
31
(Austr.
1947).
24.
New
York
v.
United
States,
326
U.S.
572
(1946).
25.
West
v.
Commissioner,
56
Commw.
L.R.
657,
681-82
(Austr.
1937).
19571