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§ 287. “Shall be Vested.”

MANDATORY WORDS—These words are imperative, at least so far as the High Court is concerned; and are mandatory on the Parliament to carry the vesting into effect by prescribing the number of Justices of which the Court is to consist, to fix their salaries, and to make provision for their appointment. Under the same words in the United States Constitution there was at one time much discussion whether Congress possessed any discretion as to creating a Supreme Court or investing it with jurisdiction —a discretion which would allow Congress to practically annihilate the judiciary as a co-ordinate department. It has been decided, however, that no such discretion exists. (Story, Comm. § 1590.)

“The language of the [third] article throughout is manifestly designed to be mandatory upon the legislature Its obligatory force is so imperative, that Congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. Could Congress have lawfully refused to create a Supreme Court, or to vest in it the constitutional jurisdiction? … But one answer can be given to these questions; it must be in the negative.” (Martin v. Hunter, 1 Wheat. at p. 328.)

In one sense, it may be said that the judiciary is not exactly a co-ordinate department with the legislature, because before it can come into existence certain action must be taken by the legislature. The same reasoning, however, would show that the


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legislature is not a co-ordinate department with the executive, because before it can come into existence certain action must be taken by the executive. The Judiciary may be fairly called co-ordinate with the legislature, though not absolutely independent of it. The position is concisely expressed by Dr. Burgess, with reference to the United States Constitution:—

“Apparently the Supreme Court is here created by the Constitution, while the inferior Courts depend for their existence on the will of the Legislature. When we come to consider the subject more closely, however, we find that the existence of the Supreme Court itself virtually depends upon the will of the Legislature. The Legislature, in the absence of constitutional provisions, must determine the number of the Judgeships which the Supreme Court shall contain, create the same, and fix the salaries of the judges. It might be thought that, these things once done, the Court would then have a constitutional anchor against the Legislature, since the Constitution provides the term of good behaviour for the judges, and forbids the diminution of the salary of any judge during his continuance in office. But it must be again remembered that at the end of any term, concluded by the death, resignation, or impeachment of any judge, the Legislature may modify or abolish that particular judgeship for the future. It is thus possible for the Legislature virtually to disestablish the Supreme Court at the conclusion of the terms of the judges who may be holding at the time the Legislature may adopt this destructive policy. A sound view of the Constitution would, I think, interpret the constitutional provision in reference to the creation of the judicial department as a command to the Legislature to organize the Supreme Court in such force, and inferior courts in such number and force, as to provide for the transaction of the judicial business of the central government; but the Legislature alone is the authoritative interpreter of the Constitution upon this subject, and the Legislature is here subject to control by the State only. [By “the State” Dr. Burgess means in effect the political organization which has the power of amending the Constitution.] The constituencies may influence the legislators, but the sovereignty alone [i.e., the amending power] can command the Legislature. It will thus be seen that the judicial department, even in the Constitution of the United States, does not really have an equally independent existence with the legislative and executive departments. In order to accomplish this, the Constitution must establish all the courts and all the judgeships thereof, and create means for the selection of the judges without action by the other departments.” (Burgess, Pol. Science, ii. 321.)

“In this respect it is mandatory upon the Legislature to establish Courts of justice commensurate with the judicial power of the union. Congress have no discretion in the case. They were bound to vest the whole judicial power, in an original or appellate form, in the courts mentioned and contemplated in the Constitution, and to provide courts inferior to the Supreme Court, in which the judicial power, unabsorbed by the Supreme Court, might be placed. The judicial power of the United States is, in point of origin and title, equal with the other powers of the government, and is as exclusively vested in the courts created by or in pursuance of the Constitution, as the legislative power is vested in Congress, or the executive power in the President.” (Kent, Comm. i. 292.)

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