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§ 326. “The High Court Shall Have Original Jurisdiction.”

What is given by this section is jurisdiction merely, not a right of action. If a plaintiff has a legal claim which comes within any of the classes named, the section gives him the right to prosecute his suit in the High Court, and gives the High Court power to entertain his suit; but it does not affect his right to relief. (See notes, §§ 323–324 supra.)

The section confers a jurisdiction on the High Court, but it does not take away any jurisdiction from the State Courts. It does not provide that the jurisdiction of the High Court, or of the federal courts, shall be exclusive; though sec. 77 enables the Parliament to make the jurisdiction of any federal court exclusive of the jurisdiction of the State courts to any extent which may be desired. In the absence of such federal legislation, there will be concurrent jurisdiction over all matters within this section, so far as they also come within the jurisdiction of any court of a State. There may, however, be some cases—such as criminal offences against the Constitution or federal laws—in which the jurisdiction is necessarily exclusive. “It is only in those cases where, previous to the Constitution, State tribunals possessed jurisdiction independent of national authority that they can now constitutionally exercise a concurrent jurisdiction.” (Story, Comm. § 1754; Kent, Comm. i. 319. See also Federalist, No. 82; Story, §§ 1748–54; Kent, i. 395–404.)

The gift of original jurisdiction does not exclude the appellate jurisdiction of the High Court in cases mentioned in this section. The words of the Constitution of the United States have been construed to give appellate but not original jurisdiction in some cases, and original but not appellate jurisdiction in others. (See Story, Comm. §§ 1706–21; Kent, Comm. i. 318.) The reasoning by which this interpretation was arrived at has no application to this Constitution, the extent of the appellate jurisdiction being clearly defined. In the Bill of 1891, and also in the Adelaide draft of 1897, the words were “shall have original as well as appellate jurisdiction;” but at Melbourne, after the fourth Report, the words in italics were struck out at the instance of the Drafting Committee, as being unnecessary.

It has been held in the United States that the jurisdiction of a federal court will not be presumed, as in the case of a common law English Court, or American State court; but that the record must show the jurisdiction affirmatively. (Dred Scott case, 19 How. 393; Exp. Smith, 94 U.S. 455.) The consent of parties cannot give jurisdiction


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where it does not exist (Mansfield, &c., R. Co. v. Swan, 111 U.S. 379; and see Bac. Abr., Courts (B); Broom's Comm. 43). But the parties may admit facts showing jurisdiction. (Railway Co. v. Ramsey, 22 Wall. 322.)

“Objections to the jurisdiction of the court below, when they go to the subject-matter of the controversy, and not to the form merely of its presentation or to the character of the relief prayed, may be taken at any time. They are not waived because they were not made in the lower court.” (Boom Co. v. Patterson, 98 U.S. at p. 406.)

Where the original jurisdiction of the Court is invoked, it must appear in the declaration or bill of the party suing that the case is one of federal jurisdiction. (Metcalf v. Watertown, 128 U.S. 586; Colorado Central Mining Co. v. Turck, 150 U.S. 138.)

COMMON LAW JURISDICTION.—The great question whether there is a common law of the Commonwealth involves three distinct enquiries: (1) whether the common law, as existing in the several States, is a “law of the Commonwealth;” (2) whether there is a federal jurisdiction over common law offences; (3) whether there is a common law federal jurisdiction in civil cases.

(1) Is the Common Law a Law of the Commonwealth?—In the United States the federal courts follow the decisions of the highest court of a State in questions concerning merely the laws of that State, and only claim a right of “independent interpretation” where the law of the Union is involved. Accordingly the question whether the common law is United States law has arisen in connection with the question whether the United States judiciary, in the exercise of its jurisdiction, has the right of independent interpretation of the law. To this question the Supreme Court of the United States—true to its character as a federal, not a national court—has given the following answer:—

“It has asserted this right in all cases in which jurisdiction is established by the character of the subject matter of the suit; but when jurisdiction is based solely upon the character of the parties to the suit, it has enunciated the principle that the United States Courts, in interpreting the local law which governs the case, must follow the interpretation placed upon the law by the State court of highest instance. This doctrine rests upon the assumption that all purely State law is finally interpreted by the State courts, and that the common law is purely State law (Wheaton v. Peters, 8 Pet. 591), i.e., that the United States has no common law. The court has not itself been able to hold to this doctrine in its practice. In many cases where the jurisdiction of the United States courts rests wholly upon the character of the parties to the suit, it has rendered decisions contradicting the decisions of the highest courts of the States concerned. Such action can be rationally explained only upon the theory that the United States has a common law; that the United States courts are quite as independent in their interpretation of this common law as in the interpretation of the Constitution, statutes, and treaties, of the United States; and that, in many cases where the jurisdiction of the United States court rests apparently only upon the character of the parties to the suit, the question involved is one of United States common law.” (Burgess, Pol. Sci. ii. 328; see also Kent, Comm. i. 342, notes.)

This test of the existence of a federal common law is wholly inapplicable to the Commonwealth, because the High Court, as a national and not a federal court of appeal, has not only the right, but the duty of “independent interpretation” of the common law in all cases that come before it. In the United States, the decision of the courts of each State being final as to what the common law of the State is, the common law in one State may come in time to be widely different from the common law in another State. Throughout the Commonwealth of Australia, the unlimited appellate jurisdiction of the High Court will make it — subject to review by the Privy Council—the final arbiter of the common law in all the States. The decisions of the High Court will be binding on the courts of the States; and thus the rules of the common law will be—as they always have been—the same in all the States. In this sense, that the common law in all the States is the same, it may certainly be said that there is a common law of the Commonwealth.

(2.) Jurisdiction over Common Law Offences.—This question has been the subject of much discussion in the United States, chiefly in relation to criminal cases. In the case of United States v. Worrall, 2 Dall. 384 (cited Kent, I. 331), the question arose whether


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an indictment would lie in a Circuit Court for an attempt to bribe the Commissioner of the Revenue. Congress had provided by law for the punishment of various crimes, and even for the punishment of bribery in the case of certain public officers; but in the case of the Commissioner of the Revenue, the Act of Congress did not create or declare the offence. Bribery of a public officer was a common law offence, but the Constitution contained no reference to a common law authority; and though Congress had power to make such an act criminal, it had not done so. The question arose whether it was an offence arising under the Constitution or laws of the United States.

“The Court were divided in opinion on this question. In the opinion of the Circuit Judge, an indictment at common law could not be sustained in the Circuit Court. It was admitted, that Congress were authorized to define and punish the crime of bribery; but as the act charged as an offence in the indictment had not been declared by law to be criminal, the courts of the United States could not sustain a criminal prosecution for it. The United States, in their national capacity, have no common law, and their courts have not any common law jurisdiction in criminal cases, and Congress have not provided by law for the offence contained in the indictment; and until they defined the offence, and prescribed the punishment, he thought the court had not jurisdiction of it. The District Judge was of a different opinion, and he held that the United States were constitutionally possessed of a common-law power to punish misdemeanours, and the power might have been exercised by Congress in the form of a law, or it might be enforced in the course of a judicial proceeding. The offence in question was one against the well-being of the United States, and from its very nature cognizable under their authority. This case settled nothing, as the court were divided; but it contained some of the principal arguments on each side of this nice and interesting constitutional question.” (Kent, Comm. i. 332-3.)

In 1807 the question came before the Supreme Court of the United States in the case of United States v. Hudson and Goodwin, 7 Cranch 32. The defendants had been indicted in a Circuit Court for a libel on the President of the United States, and the question was whether there was a common law jurisdiction.

“A majority of the Supreme Court decided, that the circuit courts could not exercise a common law jurisdiction in criminal cases. Of all the courts which the United States, under their general powers, might constitute, the Supreme Court was the only one that possessed jurisdiction derived immediately from the Constitution. All other courts created by the general government possessed no jurisdiction but what was given them by the power that created them, and could be invested with none but what the power ceded to the general government would authorize them to confer; and the jurisdiction claimed in that case has not been conferred by any legislative act. When a court is created, and its operations confined to certain specific objects, it could not assume a more extended jurisdiction. Certain implied powers must necessarily result to the courts of justice from the nature of their institution, but jurisdiction of crimes against the State was not one of them. … To exercise criminal jurisdiction in common-law cases was not within their implied powers, and it was necessary for Congress to make the act a crime, to affix a punishment for it, and to declare the court which should have jurisdiction.” (Kent, Comm. i. 334-5.)

In both the above cases it was held, independently of whether a common-law offence could exist, that the courts had no jurisdiction over the case in question. “If that were so, the common law certainly could not give them any. The cases were, therefore, very correctly decided upon the principle assumed by the Court.” (Kent, Comm. i. 338.) But the case of United States v. Coolidge (1 Gallison, 488, 1 Wheat. 415) went further. That was an indictment for an offence on the high seas, and was clearly a case of admiralty jurisdiction, over which the courts of the United States have general and exclusive jurisdiction. The Circuit Court judge held that there was jurisdiction. He did not think it necessary to consider the broad question whether the United States had entirely adopted the common law. He admitted that the courts of the United States were courts of limited jurisdiction and could not exercise any authority not expressly confided to them. But he insisted that when an authority was once given, its extent and the mode of its exercise must be regulated by the common law, and that if this distinction were kept in sight it would dissipate the whole obscurity of the subject. Under the Judiciary Act, the circuit courts had exclusive cognizance of “crimes and offences cognizable under the authority of the United States,”




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“This means all crimes and offences to which, by the Constitution of the United States, the judicial power extends; and the jurisdiction could not be given in more broad and comprehensive terms. To ascertain what are crimes and offences against the United States, recourse must be had to the principles of the common law, taken in connection with the Constitution. Thus, Congress had provided for the punishment of murder, manslaughter, and perjury, under certain circumstances, but had not defined those crimes. The explanation of them must be sought in and exclusively governed by the common law; and upon any other supposition, the judicial power of the United States would be left in its exercise to arbitrary discretion … It was accordingly concluded that the circuit courts had cognizance of all offences against the United States, and what those offences were depended upon the common law applied to the powers confided to the United States, and that the circuit courts, having such cognizance, might punish by fine and imprisonment,where no punishment was specially provided by statute.” (Kent, Comm. i. 336-8)

This case was brought up to the Supreme Court, but was not argued. There being still a difference of opinion, the Court merely said that they did not choose to review their decision in U. S. v. Hudson and Goodwin, or draw it into doubt. The decision was for the defendant, and against the claim to any common law jurisdiction in criminal cases. It seems to be now regarded as settled that in the criminal law there are no common law offences against the United States. (United States v. Britton, 108 U.S. 199; United States v. Eaton, 144 U.S. 677. Kent Comm. i. 331, Notes.) “The jurisdiction of the United States courts depends exclusively on the Constitution and laws of the United States, and they can, neither in criminal nor in civil cases, resort to the common law as a source of jurisdiction." (Re Barry, 136 U.S. at p. 607.)

Chancellor Kent does not regard the total denial of a common law jurisdiction in criminal cases as based upon satisfactory principles; and he cites with approval Du Ponceau's opinion in favour of the distinction drawn by the Court below in United States v. Coolidge (supra). Du Ponceau maintains “that we have not, under our Federal Government, any common law considered as a source of jurisdiction; while on the other hand, the common law, considered merely as the means or instrument of exercising the jurisdiction, conferred by the Constitution and laws of the Union, does exist, and forms a safe and beneficial system of national jurisprudence. The courts cannot derive their right to act from the common law. They must look for that right to the Constitution and law of the United States. But when the general jurisdiction and authority is given, as in cases of admiralty and maritime jurisdiction, the rules of action under that jurisdiction, if not prescribed by statute, may and must be taken from the common law, when they are applicable, because they are necessary to give effect to the jurisdiction.” (Kent, Comm. i. 339.)

Kent admits that it would be dangerous to leave it altogether to the courts to say what is an offence against the law of the United States, when the law has not specifically defined it; but he suggests that the sound doctrine is that jurisdiction exists in criminal cases, not only as to statute offences duly defined, but as to cases within the express jurisdiction given by the Constitution. In other words, he contends that jurisdiction extends to all cases within the judicial power of the United States.

“Though the judiciary power of the United States cannot take cognizance of offences at common law, unless they have jurisdiction over the person or subject-matter given them by the Constitution or laws made in pursuance of it; yet, when the jurisdiction is once granted, the common law, under the correction af the Constitution and statute law of the United States, would seem to be a necessary and a safe guide, in all cases, civil and criminal, arising under the exercise of that jurisdiction and not specially provided for by statute. Without such a guide, the courts would be left to a dangerous discretion, and to roam at large in the trackless field of their own imaginations.” (Kent, Comm. i. 341. See also Story, Comm. § 158, Note.)

It seems therefore that the doctrine that there are no common law offences against the United States, but that every offence must be declared and made punishable by statute, has been hesitatingly adopted by the Courts, and does not meet with universal acceptance. The reasons for denying the existence of a federal common law do not satisfy such writers as Chancellor Kent and Dr. Burgess; and it is submitted to be the sounder


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doctrine that, within the scope of the judicial power, the common law may be resorted to, to give effect to the jurisdiction conferred by the Constitution. And in this connection it is to be noticed that the original jurisdiction of the High Court extends to “all matters in which the Commonwealth or a person suing … on behalf of the Commonwealth, is a party.” The corresponding provision in the United States Constitution is “controversies to which the United States shall be a party;” and it is held (see Notes, § 320, supra) that “controversies” do not include criminal cases. “Matters,” however, is applicable to criminal as well as civil cases, and therefore it seems clear that the High Court has jurisdiction over every offence against the Commonwealth which is prosecuted by or on behalf of the Commonwealth. For examples of common law offences against the Commonwealth see Note, § 341, infra. Acts prohibited by a statute, though not expressly stated to be misdemeanours or punishable, are indictable. (See Notes, § 341, infra.)

(3) Common Law Jurisdiction in Civil Cases.—In civil, as in criminal cases, the common law cannot be relied on as the source of jurisdiction. (Re Barry, 136 U.S. at p. 607.) But “though the common law cannot be the foundation of a jurisdiction not given by the Constitution and laws, that jurisdiction, when given, attaches, and is to be exercised according to the rules of the common law. Were it otherwise there would be nothing to exempt us from an absolute despotism of opinion and practice.” (Kent, Comm. i. 343, Note; and see Story, § 1645.)

“The Supreme Court of the United States, in Robinson v. Campbell (3 Wheaton 212, 10 Id. 159), went far towards the admission of the existence and application of the common law to civil cases in the federal courts.” (Kent, Comm. i. 341.) Under the Judiciary Acts of 1789 and 1792, the remedies in the federal courts, at common law and equity, were to be, not according to the practice of State courts, but “according to the principles of common law and equity, as distinguished and defined in that country from which we derived our knowledge of those principles.”

“In this view of the subject, the common law may be cultivated as part of the jurisprudence of the United States. In its improved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty; and it is in no instance disgraced by such a slavish political maxim as that with which the Institutes of Justinian are introduced. Quod principi placuit legis habet vigorem.) It is the common jurisprudence of the United States, and was brought with them as colonists from England, and established here, so far as it was adapted to our institutions and circumstances. It was claimed by the Congress of the united Colonies, in 1774, as a branch of those ‘indubitable rights and liberties to which the respective colonies are entitled.’ It fills up every interstice, and occupies every wide space which the statute law cannot occupy. Its principles may be compared to the influence of the liberal arts and sciences; adversis perfugium ac solatium proebent; delectant domi non impediunt foris; pernoctant nobiscum, peregrinantur, rusticantur.” (Kent, Comm i. 342-3.)

“We live in the midst of the common law, we inhale it at every breath, imbibe it at every pore; we meet with it when we wake and when we lay down to sleep, when we travel and when we stay at home: and it is interwoven with the very idiom that we speak; and we cannot learn another system of laws without learning, at the same time, another language.” (Du Ponceau on Jurisdiction, p. 91; cited Kent, Comm. i. 343.)




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Additional original jurisdiction.

76. The Parliament may make laws conferring original jurisdiction327 on the High Court in any matter328–

  • (i.) Arising under this Constitution329, or involving its interpretation330:
  • (ii.) Arising under any laws made by the Parliament331:
  • (iii.) Of Admiralty and maritime jurisdiction332:
  • (iv.) Relating to the same subject-matter claimed under the laws of different States333.
UNITED STATES.—The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; … to all cases of admiralty or maritime jurisdiction; to controversies … between citizens of the same State claiming lands under grants of different States. (Const., Art. III., see.ii., sub-sec. i.) (The jurisdiction in the above cases is appellate only; see Notes to sec. 75.)

HISTORICAL NOTE.—The Bill of 1891 contained a similar provision, but in a different form. Added to the “original jurisdiction” clause was a power to the Parliament to confer original jurisdiction in “such other of the cases enumerated in the last preceding section as it thinks fit.” The “preceding section” was that enumerating all the cases in which jurisdiction could be given to the other federal courts, and including those in which the Supreme Court already had federal jurisdiction; so that the ascertainment of the cases to which the power applied involved a process of subtraction. The cases to which the power applied were practically the same as in this section, except that they also included cases arising “under any treaty made by the Commonwealth with another country”—a class of cases, which, in a wider form, is now included in the original jurisdiction of the High Court (sec. 75).

At the Adelaide session, 1897, a somewhat different form of expression was adopted. This provision, instead of referring expressly to a “preceding section,” empowered Parliament to confer original jurisdiction “in other matters within the judicial power;” and the section which had enumerated the cases in which jurisdiction might be given to the federal courts other than the High Court was now transformed into a section which purported to enumerate the cases to which “the judicial power shall extend.” This arrangement, however, was unsatisfactory, as it involved the use of the phrase “judicial power” with exclusive reference to original jurisdiction, and therefore in a different sense from that which it bears in section 71. It was taken from the United States Constitution, in which the appellate and the original jurisdictions are both limited to certain classes of cases. (See Note, § 339, infra.)

At the Melbourne session, on recommittal after the fourth Report, this provision, and the “judicial power” section introduced in Adelaide, were recast to form sections 76 and 77 respectively.

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