§ 333. “Relating to the same Subject-matter claimed under the Laws of Different States.”

The corresponding words in the Constitution of the United States are:—“Controversies between citizens of the same State, claiming lands under grants of different States.” The provision in this Constitution is considerably wider. It refers not to land alone, but to anything which may be the subject-matter of a suit; and the claim need not be made under grants of different States, but under “the laws of different States” generally. The absence of such words as “between citizens (or residents) of the same

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State” not only simplifies the procedure, by requiring no allegation or proof of citizenship or residence, but extends the jurisdiction to cases where either party is not a citizen or resident of any State.

“The Federalist has remarked that the reasonableness of the agency of the national courts in cases in which the national tribunals cannot be supposed to be impartial speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favour of the grants of the State to which they belonged. And where this has not been done, it would be natural that the judges, as men, should feel a strong predilection for the claims of their own Government. And, at all events, the providing of a tribunal having no possible interest on the one side more than the other, would have a most salutary tendency in quieting the jealousies and disarming the resentments of the State whose grant should be held invalid.” (Story, Comm. § 1696.)

It has been held in the United States that “this jurisdiction attaches not only to grants made by different States which were never united, but also to grants made by different States which were originally united under one jurisdiction, if made since the separation, although the origin of the title may be traced back to an antecedent period.” (Story, Comm. § 1696; Town of Pawlet v. Clark, 9 Cranch 292; Colson v. Lewis, 2 Wheat. 377.) Under the wider terms of this sub-section, the jurisdiction would seem to attach, in such a case, even though the grant had been made before the separation, if the claim at the time of action depended on the laws of different States.

Power to define jurisdiction.

77. With respect to any of the matters mentioned in the last two sections334 the Parliament may make laws—

  • (i.) Defining the jurisdiction of any federal court other than the High Court335:
  • (ii.) Defining the extent to which the jurisdiction of any federal court shall be exclusive336 of that which belongs to or is invested in the courts of the States:
  • (iii) Investing any court of a State with federal jurisdiction337.

HISTORICAL NOTE.—In a somewhat different form, the whole of this section (except sub-s. iii.) was substantially contained in the Bill of 1891 (Ch. III. sec. 7), which enumerated the cases in which jurisdiction might be given.

At the Adelaide session, 1897, the clause was cast practically into its present form, except that the introductory limitation was worded “within the limits of the judicial power”—the “judicial power” referred to being defined in a previous clause. (Conv. Deb., Adel., p. 1203. See Historical Note, sec. 76)

At the Melbourne session, on recommittal after the fourth Report, the section was altered by the Drafting Committee to accord with the two preceding sections. (Conv. Deb., Melb., pp. 348–9.)

The word “invested,” in sub-s. ii., seems to have been substituted per incuriam in the Imperial Parliament, for “vested,” which was the word in the Draft Bill.

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