§ 289. “Such Other Federal Courts as the Parliament Creates.”

These words impliedly give the Federal Parliament a power to create other federal courts besides the High Court. The words, however, are not mandatory, as in the case of the High Court; they leave it to the Parliament to decide whether any other federal courts are necessary.

In the United States, Congress has established federal Circuit Courts and District Courts, which have been steadily growing in number. There are now about 60 districts —each State consisting of one or more districts—and nine circuits. The Constitution of the United States has been interpreted as denying to the Supreme Court any original jurisdiction in those cases in which appellate jurisdiction was given to it; and Story reasons from this that Congress was bound to create some inferior tribunals in order to vest the whole judicial power:—

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“Congress cannot vest any portion of judicial power of the United States, except in Courts ordained and established by itself; and if, in any of the cases enumerated in the Constitution, the State courts did not then possess jurisdiction, the appellate jurisdiction of the Supreme Court .. could not reach those cases; and consequently, the injunction of the Constitution that the judicial power ‘shall be vested’ would be disobeyed. It would seem, therefore, to follow that Congress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance.” (Story, Comm., § 1593.)

This reasoning does not apply to the Constitution of the Commonwealth. In the first place, the Federal Parliament has power to extend the original jurisdiction of the High Court to any case to which original cognizance under the judicial power of the Commonwealth can extend. And in the second place, the Parliament is expressly empowered to “invest any court of a State with federal jurisdiction.” With these provisions, it is probable that for some time there will be no necessity for the creation of any inferior federal courts, but that all the cases in which the original jurisdiction of the Commonwealth is invoked can be dealt with either by the High Court itself or by Courts of the States.

Under sec. 72, the Justices of federal courts created by the Parliament must be appointed in the same way, and for the same tenure, as Justices of the High Court.

Under sec. 73, the High Court has jurisdiction, “with such exceptions and subject to such regulations as the Parliament prescribes,” to hear and determine appeals from any federal court. It may be noted that the power of “exception and regulation” in this case is not subject to the limitation imposed by sec. 73 with regard to appeals from the Supreme Court of a State, so that the right of appeal from the other federal courts to the High Court is, in the words of Burgess (ii., 331) “very nearly at the mercy of the legislature.”

Under sec. 77, the Federal Parliament may make laws defining the jurisdiction of these federal courts, and defining the extent to which that jurisdiction is exclusive of that of the State Courts. The jurisdiction of these federal courts is thus—unlike that of the High Court—wholly dependent on the gift of the Parliament. This jurisdiction can only be given “with respect to any of the matters mentioned in” secs. 75 and 76— the sections which enumerate the “matters” in respect of which the High Court has, or may have conferred upon it, original jurisdiction. It is not expressly stated in sec. 77 that the jurisdiction in respect of these matters which may be conferred upon the “other federal courts” is original jurisdiction only. (See notes, § 334, infra.)

In the American Constitution, the courts which Congress may create are styled “inferior courts.” It has been held, however, that the Circuit Courts of the United States, though “inferior” in the sense of being subordinate to the Supreme Court, are not “inferior courts” in the common law sense—i.e., “courts of specific and limited jurisdiction, which are erected on such principles that their judgments when taken alone are entirely disregarded, and the proceedings must show their jurisdiction.” (Per Marshall, C.J., Kempe's Lessee v. Kennedy, 5 Cranch 185; and see McCormick v. Sullivant, 10 Wheat. 199.) In other words, the circuit courts are courts of limited, but not of inferior, jurisdiction; and their judgments, if without jurisdiction, cannot be treated as nullities, but are valid unless and until reversed. (See Encyclopedia of American and English Law, sub. tit. “Inferior Courts.”) The rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court but what specifically appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but what is so expressly alleged. (Peacock v. Bell, 1 Saund. 73)

The power to create these courts implies a power to abolish them, or to re-organize them from time to time. This seems to have been definitely settled in the United States (Kent, Comm. i. 303), and follows logically from the plenary nature of the powers of the Parliament, within the sphere allotted to it. A judgeship, however, cannot be abolished so as to destroy the tenure of an occupant. (See notes, § 287, supra.)

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