§ 291. “A Chief Justice and so Many Other Justices.”
PRECEDENCE.—The precedence of the Justices inter se may be regulated by the Letters Patent of the Crown; see Re Bedard, 7 Moo. P.C., 23; Webb, Imperial Law in Vic. (2nd Ed.), 94.
JURIES.—The provision that the High Court shall consist of a Chief Justice and other Justices cannot be construed to exclude federal legislation to provide for the trial of issues of fact by juries under the direction of the Justices. The Constitution makes no mention of juries in civil cases; but in criminal cases it expressly provides that trials on indictment “shall be by jury” (sec. 80). The Constitution of the United States similarly made no mention of juries in civil cases, though the seventh amendment, adopted immediately afterwards, provided that “in suits at common law, where the value in controversy shall exceed 20 dollars, the right of trial by jury shall be preserved.”
Under this Constitution there is clearly no obligation to try civil cases with a jury; but it is submitted that the power given by sec. 51—xxxix., to make laws with respect to “matters incidental to the execution of any power vested by this Constitution … in the Federal Judicature,” includes the power to provide for trial of issues of fact by jury in any federal court in all cases in which the Federal Parliament shall think it expedient to do so. The trial of civil issues by juries is such an ancient and established institution of English law, that it may well be deemed not only incidental, but even necessary, to the due administration of justice according to English ideas.