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§ 323. “In which the Commonwealth, or a Person Suing or being Sued on Behalf of the Commonwealth, is a Party.”

In the United States, the provision that “the judicial power shall extend … to controversies in which the United States shall be a party” confers appellate jurisdiction only.

“It scarcely seems possible to raise a reasonable doubt as to the propriety of giving to the national courts jurisdiction of cases in which the United States are a party. It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts. Unless this power were given to the United States, the enforcement of all their rights, powers, contracts, and privileges in their sovereign capacity would be at the mercy of the States. They must be enforced, if at all, in the State tribunals. And there would not only not be any compulsory power over these courts to perform such functions, but there would not be any means of producing uniformity in their decisions. A sovereign without the means of enforcing civil rights, or compelling the performance, either civilly or criminally, of public duties on the part of the citizens, would be a most extraordinary anomaly. It would prostrate the Union at the feet of the States. It would compel the national government to become a supplicant for justice before the judicature of those who were by other parts of the Constitution placed in subordination to it.” (Story, Comm. § 1674.)

This sub-section, like the others, confers a jurisdiction only, not a right of action. It does not enable actions to be brought by or against the Commonwealth, but only provides that, where any such action lies, the High Court shall be a competent court of original jurisdiction. (See Conv. Deb., Melb., p. 320; and Notes, § 338, infra.) The effect of it is that whenever the Commonwealth has a right to sue—no matter what the subject-matter or character of the suit—it can sue in the High Court; and wherever anybody has a right to sue the Commonwealth, he can sue in the High Court.




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The Commonwealth, being a government, possesses corporate powers, and may sue in its corporate name, and may by its consent be sued. (See United States v. Maurice, 2 Brock. 109; Ableman v. Booth, 21 How. 506.) But the Commonwealth, being the Crown, cannot be sued except by its own consent. (See Kendall v. United States, 12 Pet. 524; Hill v. United States, 9 How. 386.) It has been held that the doctrine, that the United States cannot be sued unless provision has been made by Congress, is limited to suits against the United States directly and by name; and that this plea cannot be raised by officers or agents of the government when sued for property in their hands as such officers or agents. (United States v. Lee, 106 U.S. 196. See Baker, Annot. Const. p. 126.) In Great Britain, and also in the several colonies, the mode of enforcing claims against the Crown is regulated by Statutes. Thus in Great Britain, claims against the Crown in respect of property or contract may be made by petition of right, entitled in the appropriate Court. (Broom's Comm. p. 234.) In most of the Australian colonies, the procedure is by action against a nominal defendant sued on behalf of the Crown; and in some of the colonies the remedy extends to tort as well as contract. (See Notes, § 338, infra.)

The power of the Commonwealth to confer rights of suit against itself was the subject of some debate in the Convention, and is dealt with under sec. 78. The jurisdiction extends, not only to cases in which the Commonwealth is a party, but to cases in which “any person suing or being sued on behalf of the Commonwealth” is a party. This is in order to include cases in which the Commonwealth is the real plaintiff or defendant, but is represented in the suit by a nominal party—for instance, where an information is filed by the Attorney-General on behalf of the Crown, or where a nominal defendant is, in accordance with statutory provision, sued on behalf of the government. But jurisdiction is not given by this sub-section unless the Crown is really and directly the party seeking a remedy, or against whom a remedy is sought; it does not arise merely because the Commonwealth has an interest in the case, or because an officer of the Commonwealth, or a political corporation distinct from the general government of the Commonwealth, and not acting directly on its behalf, is a party. (See Story, Comm. § 1686; Osborn v. Bank of U.S., 9 Wheat. 855. See also remarks by Mr. Barton, Conv. Deb., Melb., p. 1884.)

PARTIES.—“It may be laid down, as a rule which admits of no exception, that in all cases under the Constitution of the United States where jurisdiction depends upon the party, it is the party named on the record.” (Story, Comm. § 1688; Kent, Comm. i. 350; and see Notes, § 324, infra.) This principle seems equally applicable to this Constitution; from which it would seem that, in order that jurisdiction may be given under this sub-section, either the Commonwealth must be a party on the record, or it must appear from the record that one of the parties is suing or being sued “on behalf of the Commonwealth.”

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