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§ 339. “Within the Limits of the Judicial Power.”

“The judicial power” here has a narrower meaning than in sec. 71, where it includes the whole appellate power of the High Court—a power not limited in respect of “matters.” It must in fact be taken as equivalent to the expression in sec. 77, “in respect of matters mentioned in the last two sections”—in other words, as referring to matters in which original jurisdiction may be given to the federal courts. As a matter of fact, in the Adelaide draft the words “within the limits of the judicial power” were used in both this and the preceding section, and the words “judicial power” were used in the original jurisdiction clauses. It was recognized, however, that the expression— though apt enough in the Constitution of the United States, where the scope of the whole judicial power, appellate as well as original, is strictly limited—was inapt in this Constitution, where the appellate power is general; and therefore in secs. 75–77 the Drafting Committee substituted words which made it clear that original jurisdiction only was referred to. In this section, however, the phrase was left, apparently by an


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oversight. In sec. 71 the phrase “judicial power” is correctly applied as meaning the whole of the power vested in the federal judiciary (see § 286, supra); here it is used somewhat loosely. There can be no doubt, however, as to the meaning of the section. The power of the Federal Parliament to confer rights of proceeding against a State is strictly limited to those cases of specially federal cognizance enumerated in secs. 75 and 76.

Number of judges.

79. The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.

HISTORICAL NOTE.—The clause was originally framed by the 1891 Convention, and has only been verbally amended since then. (Conv. Deb., Adel., p. 787; Melb., pp. 349–50.)

Trial by jury.

80. The trial on indictment340 of any offence against any law of the Commonwealth341 shall be by jury342, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

UNITED STATES.—The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.—Const., Art III., sec. 2, sub-s. 3.

No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall anyperson be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law. (Amendment V.)

HISTORICAL NOTE.—The first part of the clause, as framed and passed in 1891, ran “The trial of all indictable offences cognizable by any Court established under the authority of this Act shall be by jury.”

At the Adelaide session, 1897, the clause was introduced almost verbatim as in 1891. Mr. Higgins opposed the clause, on the ground that the question of trial by jury might safely be left to the Federal Parliament; but it was agreed to. (Conv. Deb., Adel., pp. 990–1.)

At the Melbourne session an amendment suggested by the Legislative Assembly of South Australia, to omit the requirement that trial should be by jury, was supported by Mr. Glynn and Mr. Higgins. Mr. Wise supported the clause, as a necessary safeguard of individual liberty. Mr. Isaacs thought the clause afforded little guarantee, as it might be evaded by a technicality. After further debate, the amendment was negatived on division by 17 votes to 8. An amendment by Mr. Higgins, to insert “unless Parliament otherwise provides” before the words “be held in the State where,” was negatived. Before the first report, the clause was verbally amended by the Drafting Committee. (Conv. Deb., Melb., pp. 350–4.) On recommittal after the first report, the words “trial of all indictable offences” were, on Mr. Barton's motion, altered to “trial on indictment of any offence.” The object was to allow summary punishment of minor offences and contempts, even though they might be indictable. Mr. Isaacs thought that the clause, in either form, would have little real effect. (Conv. Deb., Melb., pp. 1894–5.)




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