§ 337. “Investing any Court of a State with Federal Jurisdiction.”

Under the Constitution of the United States, the Congress cannot vest federal jurisdiction in any courts except those of its own creation—or at least, it cannot compel those courts to entertain such jurisdiction; and acts of Congress purporting to vest such jurisdiction have been held unconstitutional. (See Kent, Comm. i. 400–404; and compare Attorney-General of Canada v. Flint 3 S.C. [Nova Scot.] 453; 16 S.C.R. [Can.] 707; cited Wheeler, Conf. Law of Canada, pp. 68–9.) This Constitution supplies the omission by giving the Federal Parliament a very full and complete power to invest the State Courts with jurisdiction in any or all of the matters enumerated in secs. 75 and 76.

It will be practicable under this section, should the Parliament so desire, to dispense altogether, at the outset, with the creation of any federal courts other than the High Court, and to assign to the courts of the States such federal jurisdiction as may be necessary in order to secure the proper administration of the judicial business of the Commonwealth. In this way it will be possible to dispense with unduly cumbersome

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judicial machinery in the early years of the Commonwealth, and only develop and extend the national judicial system to meet the gradually increasing requirements of the people. But whilst federal functions may thus be exercised under federal authority, by State tribunals, the Federal Parliament can at any time revoke the authority, and transfer the whole of this subsidiary jurisdiction to courts of its own creation.

It is noteworthy that in this section, as elsewhere in the Constitution, the judicial department of the Commonwealth is more national, and less distinctively federal, in character, than either the legislative or the executive departments. The High Court, as has already been pointed out (§§ 288, 299, supra), is not only a federal, but a national court of appeal; it has appellate jurisdiction in matters of the most purely provincial character as well as in matters of federal concern. Confidence in the integrity and impartiality of the Bench prevents any jealousy or distrust of this wide federal jurisdiction; and the same confidence makes it possible to contemplate without misgiving the exercise of federal jurisdiction by State courts—subject, of course, to the controlling power of the Federal Parliament.

Proceedings against Commonwealth or State.

78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State338 in respect of matters within the limits of the judicial power339.

UNITED STATES.—The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. (Amendment xi.)

HISTORICAL NOTE.—The Commonwealth Bill of 1891 contained the following clause (Ch. iii. sec. 7):—

“Nothing in this Constitution shall be construed to authorize any suit in law or equity against the Commonwealth, or any person sued on behalf of the Commonwealth, or against a State, or any person sued on behalf of a State, except by the consent of the Commonwealth, or of the State, as the case may be.”

At the Adelaide session, 1897, at the instance of the Judiciary Committee, the clause of the 1891 Bill was adopted verbatim; but in committee, Mr. Barton proposed its omission. Mr. Glynn, who had prepared an amendment to allow Parliament to deal with the matter, fell in with this suggestion. No one defended the clause, and it was struck out. (Conv. Deb, Adel., pp. 989–90.)

At the Melbourne session, Mr. Glynn moved the insertion of a new clause as follows:—

“Proceedings may be taken against the Commonwealth or a State in all cases, within the limits of the judicial power, in which a claim against a subject might be maintained.”

Mr. Symon thought the clause dangerously wide, and that the proper course was to give Parliament power to legislate with regard to proceedings against the Crown. He argued, however (dissenting from Mr. Glynn and Mr. Barton) that the Parliament would have this power even in the absence of express provision, as it was a mere matter of procedure. Sir John Downer supported the clause, as very properly abolishing the maxim “the Queen can do no wrong”—just as had been done in New South Wales by the Claims against Government Act, 1876. Mr. Dobson preferred the clause as it stood to Mr. Symon's suggestion. Mr. O'Connor thought it a matter not of procedure merely, but of prerogative right, which could not be taken away without express words; and he proposed, as an amendment to Mr. Glynn's proposition, the clause which now stands in the Constitution. After further debate, Mr. O'Connor's amendment was carried. (Conv. Deb., Melb., pp. 1653–79.)

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