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9. The Judicature.

Judicial Power and Courts.

71. The judicial power286 of the Commonwealth shall be vested287 in a Federal Supreme Court, to be called the High Court of Australia288, and in such other federal courts as the Parliament creates289, and in such other courts as it invests with federal jurisdiction290. The High Court shall consist of a Chief Justice, and so many other Justices291, not less than two, as the Parliament prescribes.

UNITED STATES.—The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.—Const., Art. III., sec. 1. CANADA.—The Parliament of Canada may, notwithstanding anything in this Act, from time to time provide for the constitution, maintenance, and organization of a General Court of Appeal for Canada, and for the establishment of any additional Courts for the better administration of the laws of Canada.—B.N.A. Act., sec. 101.

HISTORICAL NOTE.—The idea of a federal Supreme Court is as old as the report of Earl Grey's Committee in 1849 (see pp. 83-85, supra). In the Bill of 1891 the Court was called the “Supreme Court of Australia.” Instead of being established by the Constitution, it was left for the Parliament to establish, and the minimum of Justices in addition to the Chief Justice, was fixed at four.—Conv. Deb., Syd. (1891), pp. 779-85.

At the Adelaide Session the clause was drafted in its present form, but with a minimum of four Justices. An amendment by Mr. Carruthers to strike out the minimum was negatived.—Conv. Deb., Adel., pp. 935-43.

At the Melbourne Session a suggestion by the Legislative Council of Tasmania, to insert at the beginning “Until the Parliament otherwise provides,” was negatived; also an amendment by Mr. Glynn that the Court should consist of “a Chief Justice, and until the Parliament otherwise provides, the Chief Justices of the States.” A suggestion by the Legislative Assemblies of New South Wales and Victoria and the Legislative Council of Tasmania, to strike out the minimum, was negatived, and the minimum was altered to “two.” An amendment by Mr. Holder to insert a maximum was negatived on division, by 26 to 14. (Conv. Deb., Melb., pp. 265-308.) Drafting amendments were made after the 4th Report.

§ 286. “The Judicial Power.”

SEPARATION OF POWERS.—The judicial power is the power appropriate to the third great department of government, and is distinct from both the legislative and the executive powers. The judicial function is that of hearing and determining questions which arise as to the interpretation of the law, and its application to particular cases. “The distinction between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes, the law.” Per Marshall, C.J. (U.S.), Wayman v. Southard, 10 Wheat. 46; Cooley's Constitutional Limitations (5th Ed.) 109.




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But though the distinction between the three departments is broad and fundamental, it is difficult to define their powers exactly. Judicial acts have, of necessity, points of contact with both executive and legislative acts. In Great Britain, owing to the supremacy of the legislative power, the distinction has not been the subject of decision in the Courts, though it is recognized by commentators. See Wharton's Judicial Dictionary, sub. tit. Judges.

In this Constitution, however, each power is vested in distinct organs, and it becomes important to define the principles on which the distinction is based. A similar separation of functions is prescribed in the Constitution of the United States, as well as in the Constitutions of the States of the Union; and also, though to a less degree, in the Constitution of the Canadian Dominion. American and Canadian decisions are therefore important, but with some reservation in each case. The Constitution of the United States goes somewhat farther in the separation of powers than this Constitution, because it not only vests them in distinct organs, but contains certain specific limitations, such as the prohibition on Congress and the State legislatures to pass any bill of attainder or ex post facto law, and the prohibition on the State legislatures to pass laws impairing the obligation of contracts. (Art. I., secs. 9, 10.) On the other hand, the British North America Act does not go nearly as far; it does not expressly mention the “judicial power,” and it does not establish a federal judiciary as a co-ordinate department, but merely empowers the Dominion Parliament to establish Courts. See Lefroy, Legislative Power in Canada, p. lvi. Accordingly the tendency of Canadian decisions seems to be that legislation on a subject within the competence of the Dominion Parliament cannot be held to be invalid on the ground that it invades judicial functions. (Id., pp. 124, 279).

This Constitution vests the legislative, executive and judicial powers respectively in distinct organs; and, though no specific definition of these powers is attempted, it is conceived that the distinction is peremptory, and that any clear invasion of judicial functions by the executive or by the legislature, or any allotment to the judiciary of executive or legislative functions, would be equally unconstitutional. Thus it has been held in the United States that “neither the legislative nor the executive branches of the government can constitutionally assign to the judiciary any duties but such as are properly judicial, and to be performed in a judicial manner. Nor can the executive or legislative departments review or sit as a court of errors on the judicial acts or opinions of the courts of the United States.” (Baker's Annot. Const. of the U.S., p. 121.) “Executive power is so intimately connected with legislative, that it is not easy to draw a line of separation; but the grant of the judicial power to the department created for the purpose of exercising it must be regarded as an exclusive grant, covering the whole power, subject only to the limitations which the constitutions impose, and to the incidental exceptions before referred to” [i.e., cases where the exercise of judicial functions by the legislature is warranted by parliamentary usage, and incidental, necessary, or proper to the exercise of legislative authority].—Cooley, Constit. Lim., p. 106.

EXECUTIVE ENCROACHMENTS.—The distinction between judicial and executive functions is not always easy to draw. “Doubtless the non-coercive part of executive business has no affinity with judicial business. … The same may be said, for the most part, of such coercive work of the executive as consists in carrying out decisions of judges; e.g., the imprisonment or execution of a convict. But there are other indispensable kinds of coercive interference which have to be performed before or apart from any decisions arrived at by the judicial organ; and in this region the distinction between executive and judicial functions is liable to be evanescent or ambiguous, since executive officials have to ‘interpret the law’ in the first instance, and they ought to interpret it with as much judicial impartiality as possible.” (Sidgwick, Elements of Politics, p. 358). There may sometimes be a difficulty in deciding whether a particular


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act is ministerial or judicial. “Perhaps we may say that in such cases, where the official has a discretionary power to act or not to act, according to considerations of expediency, the function is properly regarded as executive.” (Id., p. 359.) There are, however, some undoubtedly judicial powers into the exercise of which considerations of expediency may enter; for instance, the power to determine the punishment to be awarded to a convicted criminal.

LEGISLATIVE ENCROACHMENTS.—Nor is there a hard and fast line between judicial and legislative acts. A law which is retrospective, or which declares or modifies existing rights, may often have the effect of a judicial decision. But although the application of the principle to particular facts may sometimes be difficult, the principle itself is clear. “It is said that that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions.” (Cooley, Const. Limitations, p. 91.) “The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the federal and State constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or transfer to another, without trial and judgment in the courts; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislative.” (Newland v. Marsh, 19 Illinois, 383; Cooley, Const. Lim., p. 91.) “That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced.” (Ervine's Appeal, 16 Penn. St. 266; Cooley, Const. Lim., p. 91.) “It is the province of judicial power to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the State. Nor does the passage of private statutes conflict with these principles; because such statutes, when lawful, are enacted on petition, or by the consent of all concerned; or else they forbear to interfere with past transactions and vested rights.”—Merrill v. Sherburne, 1 N. Hamp. 203; cited Cooley, Const. Lim., p. 92.

Great care must, however, be taken in applying American decisions as to the validity or invalidity of declaratory or retrospective legislation. Those decisions are based, not only upon the invasion of judicial power, but also upon certain specific limitations contained in the Federal and State Constitutions—such, for instance, as the prohibition against depriving any person of life, liberty, or property, without due process of law (Amendment V.), and the prohibition against laws impairing the obligation of contracts (Art. I., sec. x. l.). These limitations are the foundation of the rule that “vested rights must not be disturbed” (Cooley, Const. Lim., p. 357.) The length to which these principles are carried in the United States is forcibly stated by Lefroy, Legis. Power in Canada, pp. xlvi.-lx. The practical result is that retrospective or declaratory acts have usually been held void, apart altogether from the question of invasion of the judicial power, so far as they disturbed vested rights. For the definition and extent of this principle, see Cooley, Const. Lim., Ch. XI., on “The Protection to Property by ‘The Law of the Land.’ ” Under this Constitution, however, the principle would seem to have no application : for, although the protection to every man's life, liberty, or property, except as forfeited by the judgment of his peers, or the law of the land, is guaranteed by section 39 of Magna Charta, no constitutional limitation is thereby imposed on the plenary power of a colonial legislature. The propriety of any interference with these rights is a matter of legislative policy and morality, not of constitutional law. It is conceived that the following proposition stated by Lefroy (Legis. Power in Canada, p. 279) is applicable:—

“When once an Act is passed by the Dominion Parliament, or by a provincial legislature, in respect to any matter over which it has jurisdiction to legislate, it is not


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competent for any Court to pronounce the Act invalid because it may affect injuriously private rights, any more than it would be competent for the Courts in England, for the like reason, to refuse to give effect to a like Act of the Parliament of the United Kingdom. If the subject be within the legislative jurisdiction of the Parliament, or of the Provincial Legislatures, respectively, and the terms of the Act be explicit, so long as it remains in force, effect must be given to it in all Courts of the Dominion, however private rights may be affected.”

Apart, however, from questions of vested rights, there remains the principle that “to declare what the law is, or has been, is a judicial power; to declare what the law shall be is legislative.” (Cooley, Const. Lim., p. 94.) It cannot be doubted that any attempt by the Parliament, under cover of a declaratory law or otherwise, to set aside or reverse the judgment of a court of federal jurisdiction, would be void as an invasion of the judicial power.

But what is the application of this principle to a case where the Courts have interpreted the law in one way, and the legislature afterwards, by a declaratory enactment, has laid down a different interpretation? In such a case, the Court, in the exercise of its function as interpreter, has declared what it believes to be the law; and the legislature has in effect declared the judicial interpretation to be unfounded and unwarrantable. Under these circumstances Cooley, Const. Lim., p. 94, offers the following test of the constitutionality of the law :—

“The decision of this question must depend, perhaps, upon the purpose which was in the mind of the legislature in passing the declaratory statute; whether the design was to give to the rule now declared a retrospective operation, or, on the other hand, merely to establish a construction of the doubtful law for the determination of cases that may arise in the future. It is always competent to change an existing law by a declaratory statute; and where the statute is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the future. But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.”

It is submitted that the true test is indicated in the latter part of the above quotation; but that there is no need to refer to anything so vague as the “purpose” or “design” of the legislature. The simple rule would seem to be that, just as the legislature cannot directly reverse the judgment of the court, so it cannot, by a declaratory law, affect the rights of the parties in whose case the judgment was given. A declaratory law must always be in a sense retrospective, and will not be unconstitutional because it alters existing rights; but it will be unconstitutional, and therefore inoperative, so far as it purports to apply to the parties or the subject-matter of particular suits in which judgment has been given. That is to say, the legislature may overrule a decision, though it may not reverse it; it may declare the rule of law to be different from what the courts have adjudged it to be, and may give a retrospective operation to its declaration, except so far as the rights of parties to a judicial decision are concerned. In other words, the sound rule of legislation, that the fruits of victory ought not to be snatched from a successful litigant, is elevated into a constitutional requirement; but the general question of retrospective legislation is left to the discretion of the legislature.

POLITICAL QUESTIONS.—On the other hand, the courts cannot be clothed with legislative or executive powers, or decide questions which in their nature are not judicial, but political. Thus it has been held in the United States that the question whether the constitution of a State has been properly ratified is a political question, and is not cognizable by the federal courts. (Luther v. Borden, 7 How. l.) On the same grounds the courts of the United States have refused to interfere with the exercise of political discretion by the executive department. For instance, when a bill was brought


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by the State of Georgia against the Secretary of War of the United States to restrain him from carrying into execution certain Acts of Congress, on the ground that their execution would overthrow and destroy the corporate existence of the State, the Supreme Court refused to take cognizance of the matter, as it called for the judgment of the court on political questions which did not involve personal or property rights. (Georgia v. Stanton, 6 Wall. 50.) Again, in Mississippi v. Johnson, 4 Wall. 500, the Supreme Court refused to entertain a bill brought to restrain the President from carrying into execution a law alleged to be unconstitutional. “It can hardly be contended that Congress [sic; but query, “the Court”] can interpose, in any case, to restrain the enactment of an unconstitutional law; and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished in principle from the right to such interposition against the execution of such law by the President? The Congress is the legislative department of the Government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance.”

It has also been held in the United States that the political department has exclusive authority to recognize, or not to recognize, a new Government in a foreign country; and therefore that this is not a matter for judicial cognizance; Kennett v. Chambers, 14 How. 38.

The distinction between the judicial and political powers has received recognition by English Courts. Thus it has been decided that political treaties between a foreign State and a subject of the Crown acting as an independent State under powers granted by Charter are not subject to municipal jurisdiction, and a bill founded on such treaties was dismissed. (Nabob of Carnatica v. East India Company, 1 Ves. Jun. 375–393, 2 ib. 56–60.)

LEGISLATION INCIDENTAL TO JUDICIAL POWER.—Sec. 51, subs. xxxix., gives the Parliament power to make laws with respect to “matters incidental to the execution of any power vested by this Constitution in .. the Federal Judicature.” Under this power the Parliament can legislate with respect to the practice and procedure of the Courts, the conduct of appeals, the admission and status of legal practitioners in the courts of federal jurisdiction, and so forth.

§ 287. “Shall be Vested.”

MANDATORY WORDS—These words are imperative, at least so far as the High Court is concerned; and are mandatory on the Parliament to carry the vesting into effect by prescribing the number of Justices of which the Court is to consist, to fix their salaries, and to make provision for their appointment. Under the same words in the United States Constitution there was at one time much discussion whether Congress possessed any discretion as to creating a Supreme Court or investing it with jurisdiction —a discretion which would allow Congress to practically annihilate the judiciary as a co-ordinate department. It has been decided, however, that no such discretion exists. (Story, Comm. § 1590.)

“The language of the [third] article throughout is manifestly designed to be mandatory upon the legislature Its obligatory force is so imperative, that Congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. Could Congress have lawfully refused to create a Supreme Court, or to vest in it the constitutional jurisdiction? … But one answer can be given to these questions; it must be in the negative.” (Martin v. Hunter, 1 Wheat. at p. 328.)

In one sense, it may be said that the judiciary is not exactly a co-ordinate department with the legislature, because before it can come into existence certain action must be taken by the legislature. The same reasoning, however, would show that the


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legislature is not a co-ordinate department with the executive, because before it can come into existence certain action must be taken by the executive. The Judiciary may be fairly called co-ordinate with the legislature, though not absolutely independent of it. The position is concisely expressed by Dr. Burgess, with reference to the United States Constitution:—

“Apparently the Supreme Court is here created by the Constitution, while the inferior Courts depend for their existence on the will of the Legislature. When we come to consider the subject more closely, however, we find that the existence of the Supreme Court itself virtually depends upon the will of the Legislature. The Legislature, in the absence of constitutional provisions, must determine the number of the Judgeships which the Supreme Court shall contain, create the same, and fix the salaries of the judges. It might be thought that, these things once done, the Court would then have a constitutional anchor against the Legislature, since the Constitution provides the term of good behaviour for the judges, and forbids the diminution of the salary of any judge during his continuance in office. But it must be again remembered that at the end of any term, concluded by the death, resignation, or impeachment of any judge, the Legislature may modify or abolish that particular judgeship for the future. It is thus possible for the Legislature virtually to disestablish the Supreme Court at the conclusion of the terms of the judges who may be holding at the time the Legislature may adopt this destructive policy. A sound view of the Constitution would, I think, interpret the constitutional provision in reference to the creation of the judicial department as a command to the Legislature to organize the Supreme Court in such force, and inferior courts in such number and force, as to provide for the transaction of the judicial business of the central government; but the Legislature alone is the authoritative interpreter of the Constitution upon this subject, and the Legislature is here subject to control by the State only. [By “the State” Dr. Burgess means in effect the political organization which has the power of amending the Constitution.] The constituencies may influence the legislators, but the sovereignty alone [i.e., the amending power] can command the Legislature. It will thus be seen that the judicial department, even in the Constitution of the United States, does not really have an equally independent existence with the legislative and executive departments. In order to accomplish this, the Constitution must establish all the courts and all the judgeships thereof, and create means for the selection of the judges without action by the other departments.” (Burgess, Pol. Science, ii. 321.)

“In this respect it is mandatory upon the Legislature to establish Courts of justice commensurate with the judicial power of the union. Congress have no discretion in the case. They were bound to vest the whole judicial power, in an original or appellate form, in the courts mentioned and contemplated in the Constitution, and to provide courts inferior to the Supreme Court, in which the judicial power, unabsorbed by the Supreme Court, might be placed. The judicial power of the United States is, in point of origin and title, equal with the other powers of the government, and is as exclusively vested in the courts created by or in pursuance of the Constitution, as the legislative power is vested in Congress, or the executive power in the President.” (Kent, Comm. i. 292.)

§ 288. “The High Court of Australia.”

The High Court is the crown and apex, not only of the judicial system of the Commonwealth, but of the judicial systems of the States as well. It is in the first place a court of original jurisdiction in certain enumerated matters of specially federal concern (sec. 75), and this jurisdiction may be extended by federal legislation to cover certain other enumerated matters of specially federal concern (sec. 76). In the next place, it is a court of appeal from federal courts and courts exercising federal jurisdiction (sec. 73); and this appellate power is of course confined within the same limits as the original jurisdiction in respect of which it exists—that is to say, within the matters enumerated in secs. 75 and 76. But in the third place, the High Court is a court of appeal from all decisions of the Supreme Courts of the States, utterly irrespective of the subject-matter of the suit or the character of the parties. In this respect it resembles the Supreme Court of Canada, and differs from the Supreme Court of the United States. In the United States there is only an appeal to the Federal Supreme Court in those enumerated cases to which the “judicial power” is expressed to extend. In all cases which do not come within one or other of the enumerated classes, the


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decision of the last court of resort in each State is final. That is because, in the construction of the federal judiciary of the United States, strictly federal principles were adhered to, and the union was given no more power of interfering with the administration of justice in the States than was necessary for national purposes. But in Australia, as in Canada, the appellate jurisdiction is not one of those jealously-guarded State rights which make anything more intimate than a federal union impossible. We are accustomed to a common court of appeal in the shape of the Privy Council: we are so assured of the independence and integrity of the Bench that the advantages of having one uniform Australian tribunal of final resort outweigh all feelings of localism, and the federal tribunal has been entrusted (subject to the rights reserved with respect to the Privy Council) with the final decision of all cases, whether federal or purely local in their nature.

Thus, notwithstanding the differences of laws which may exist in the different States, and the independence of their several judicial systems, there is established a complete unity of interpretation throughout Australia. This is not the case in the United States, where the federal Supreme Court has only a limited appellate jurisdiction, and where, outside the limited “judicial power,” there are as many final courts of appeal as there are States in the Union. “Where the laws of the United States are in question, uniformity is assured by the appellate jurisdiction conferred upon the Supreme Court of the United States, but there is no such common appellate tribunal in the case of questions of State law.” Story, Comm. § 1795, n. The American State Courts are the final interpreters of State laws, except so far as they may conflict with federal laws; and accordingly in cases which are governed by State law, but in which the federal courts get jurisdiction owing to the character of the parties, the federal courts do not claim any right of “independent interpretation” of the law, but follow the decisions of the State courts. In other words, they adopt the principle that the interpretation of the law of a State by its own courts is of itself part of the law of the State. (See Burgess, ii., 328.) Under this Constitution no such distinction arises. The High Court has a right of “independent interpretation” in every case that comes before it. In its jurisdiction as “general court of appeal from the courts of the States,” it is not and cannot be bound to follow the decisions of those courts in any degree whatever.

GUARDIAN OF THE CONSTITUTIONS.—The High Court, like the Supreme Court of the United States, is the “guardian of the Federal Constitution;” that is to say, it has the duty of interpreting the Constitution, in cases which come before it, and of preventing its violation. But the High Court is also—unlike the Supreme Court of the United States—the guardian of the Constitutions of the several States; it is as much concerned to prevent encroachments by the Federal Government upon the domain of the States as to prevent encroachments by the State Governments upon the domain of the Federal Government. (See Notes on “Interpretation,” § 330, infra.)

§ 289. “Such Other Federal Courts as the Parliament Creates.”

These words impliedly give the Federal Parliament a power to create other federal courts besides the High Court. The words, however, are not mandatory, as in the case of the High Court; they leave it to the Parliament to decide whether any other federal courts are necessary.

In the United States, Congress has established federal Circuit Courts and District Courts, which have been steadily growing in number. There are now about 60 districts —each State consisting of one or more districts—and nine circuits. The Constitution of the United States has been interpreted as denying to the Supreme Court any original jurisdiction in those cases in which appellate jurisdiction was given to it; and Story reasons from this that Congress was bound to create some inferior tribunals in order to vest the whole judicial power:—




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“Congress cannot vest any portion of judicial power of the United States, except in Courts ordained and established by itself; and if, in any of the cases enumerated in the Constitution, the State courts did not then possess jurisdiction, the appellate jurisdiction of the Supreme Court .. could not reach those cases; and consequently, the injunction of the Constitution that the judicial power ‘shall be vested’ would be disobeyed. It would seem, therefore, to follow that Congress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance.” (Story, Comm., § 1593.)

This reasoning does not apply to the Constitution of the Commonwealth. In the first place, the Federal Parliament has power to extend the original jurisdiction of the High Court to any case to which original cognizance under the judicial power of the Commonwealth can extend. And in the second place, the Parliament is expressly empowered to “invest any court of a State with federal jurisdiction.” With these provisions, it is probable that for some time there will be no necessity for the creation of any inferior federal courts, but that all the cases in which the original jurisdiction of the Commonwealth is invoked can be dealt with either by the High Court itself or by Courts of the States.

Under sec. 72, the Justices of federal courts created by the Parliament must be appointed in the same way, and for the same tenure, as Justices of the High Court.

Under sec. 73, the High Court has jurisdiction, “with such exceptions and subject to such regulations as the Parliament prescribes,” to hear and determine appeals from any federal court. It may be noted that the power of “exception and regulation” in this case is not subject to the limitation imposed by sec. 73 with regard to appeals from the Supreme Court of a State, so that the right of appeal from the other federal courts to the High Court is, in the words of Burgess (ii., 331) “very nearly at the mercy of the legislature.”

Under sec. 77, the Federal Parliament may make laws defining the jurisdiction of these federal courts, and defining the extent to which that jurisdiction is exclusive of that of the State Courts. The jurisdiction of these federal courts is thus—unlike that of the High Court—wholly dependent on the gift of the Parliament. This jurisdiction can only be given “with respect to any of the matters mentioned in” secs. 75 and 76— the sections which enumerate the “matters” in respect of which the High Court has, or may have conferred upon it, original jurisdiction. It is not expressly stated in sec. 77 that the jurisdiction in respect of these matters which may be conferred upon the “other federal courts” is original jurisdiction only. (See notes, § 334, infra.)

In the American Constitution, the courts which Congress may create are styled “inferior courts.” It has been held, however, that the Circuit Courts of the United States, though “inferior” in the sense of being subordinate to the Supreme Court, are not “inferior courts” in the common law sense—i.e., “courts of specific and limited jurisdiction, which are erected on such principles that their judgments when taken alone are entirely disregarded, and the proceedings must show their jurisdiction.” (Per Marshall, C.J., Kempe's Lessee v. Kennedy, 5 Cranch 185; and see McCormick v. Sullivant, 10 Wheat. 199.) In other words, the circuit courts are courts of limited, but not of inferior, jurisdiction; and their judgments, if without jurisdiction, cannot be treated as nullities, but are valid unless and until reversed. (See Encyclopedia of American and English Law, sub. tit. “Inferior Courts.”) The rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court but what specifically appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but what is so expressly alleged. (Peacock v. Bell, 1 Saund. 73)

The power to create these courts implies a power to abolish them, or to re-organize them from time to time. This seems to have been definitely settled in the United States (Kent, Comm. i. 303), and follows logically from the plenary nature of the powers of the Parliament, within the sphere allotted to it. A judgeship, however, cannot be abolished so as to destroy the tenure of an occupant. (See notes, § 287, supra.)




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§ 290. “Such Other Courts as it Invests with Federal Jurisdiction.”

These words enable the Federal Parliament, instead of or in addition to creating federal courts, to confer upon other courts, not established by the Commonwealth—such as State courts—a federal jurisdiction.

There is no corresponding provision in the Constitution of the United States, with the result that “Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself.” (Story, Comm. § 1593; and see Kent, Comm. i. 397.)

§ 291. “A Chief Justice and so Many Other Justices.”

PRECEDENCE.—The precedence of the Justices inter se may be regulated by the Letters Patent of the Crown; see Re Bedard, 7 Moo. P.C., 23; Webb, Imperial Law in Vic. (2nd Ed.), 94.

JURIES.—The provision that the High Court shall consist of a Chief Justice and other Justices cannot be construed to exclude federal legislation to provide for the trial of issues of fact by juries under the direction of the Justices. The Constitution makes no mention of juries in civil cases; but in criminal cases it expressly provides that trials on indictment “shall be by jury” (sec. 80). The Constitution of the United States similarly made no mention of juries in civil cases, though the seventh amendment, adopted immediately afterwards, provided that “in suits at common law, where the value in controversy shall exceed 20 dollars, the right of trial by jury shall be preserved.”

Under this Constitution there is clearly no obligation to try civil cases with a jury; but it is submitted that the power given by sec. 51—xxxix., to make laws with respect to “matters incidental to the execution of any power vested by this Constitution … in the Federal Judicature,” includes the power to provide for trial of issues of fact by jury in any federal court in all cases in which the Federal Parliament shall think it expedient to do so. The trial of civil issues by juries is such an ancient and established institution of English law, that it may well be deemed not only incidental, but even necessary, to the due administration of justice according to English ideas.

§ 292. “As the Parliament Prescribes.”

The Executive seems clearly precluded by these words from appointing any Justices of the High Court until Parliament has prescribed the number of Justices of which the Court is to consist. It appears, too, that no appointment of a Chief Justice or any other Justice can legally be made until an ascertained salary has been made payable by law; see Buckley v. Edwards (1892), App. Ca. 387, and notes, § 293, infra.

“The Constitution impliedly vests the Congress with the power to create the judgeships of the Supreme Court and endow them. The language of the Constitution is that ‘the judicial power of the United States shall be vested in one Supreme Court,’ &c. The Supreme Court itself seems thus to be created by the Constitution and therefore not subject to any power of Congress to constitute or abolish it; but the Constitution does not itself create the judgeships in this Court nor expressly declare what organ shall do so. Without the judgeships, however, the Court would be only an abstraction. From the clause which alludes to the general power of the Congress to provide for the establishment of all offices not established by the Constitution and for the method of filling the inferior offices, we infer that the Congress is vested with the power to create the judgeships of the Supreme Court in such number as it shall deem proper. Once established, however, and filled, the Congress has no power to abolish them during the good behaviour of the existing incumbents ..... nor to diminish the compensation attached thereto. It is a question whether Congress has the power to abolish the judgeships of this Court at the legal expiration of the respective terms of the existing incumbents. It seems to me that it has, although this might reduce the


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Supreme Court to an abstraction again. The Congress ought, certainly, to maintain these offices in sufficient number to do the business of the Court; but if it should not do so, I see no redress save at the elections. The only imperative command which the Constitution issues to the Congress upon this subject is that there shall be but one Supreme Court. Judicial unity is absolutely required, but everything else is left to the discretion of the legislative body.” (Burgess, ii., 157-8).

Judges' Appointment, Tenure, and Remuneration.

72. The Justices of the High Court and of the other courts created by the Parliament—

  • (i.) Shall be appointed293 by the Governor-General in Council:
  • (ii.) Shall not be removed294 except by the Governor-General in Council295, on an address from both Houses296 of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity297:
  • (iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished298 during their continuance in office.
UNITED STATES.—The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour; and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.—Art. III., sec. 1. CANADA.—The Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor-General on Address of the Senate and House of Commons.— B.N.A. Act, sec. 99.

HISTORICAL NOTE.— The origin of this clause dates from the early constitutional struggles in England between the Crown and the people. Anciently, the judges held their commissions during the King's pleasure, and under the Stuart kings the Bench was systematically packed with partizans of the Crown. As early as Lord Coke's time, indeed, the Barons of the Exchequer were appointed during good behaviour (4 Inst. 117); and at the restoration of Charles II. the Commissions of the Common Law Judges were in this form. (Kent's Commentaries, i., 293.) But there was no statutory restriction on the Crown's pleasure until 1700, when the Act of Settlement (12 and 13 Will. III. c. 2) provided that “judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament, it may be lawful to remove them.” In 1760, by the Act 1 George III. c. 23, it was further provided that judges' commissions should continue notwithstanding the demise of the Crown, and their salaries were secured to them during the continuance of their commissions. These enactments for securing the dignity and independence of the Bench form the basis of the constitutional provisions to a similar effect throughout the British Empire.

In Great Britain, therefore, as well as all the Australian colonies, and in the Dominion of Canada, judges hold their office “during good behaviour,” and can be removed by the Crown for misbehaviour without any address from Parliament; whilst, apart altogether from any question of technical misbehaviour, they can be removed by the Crown upon an address from both Houses. In the Commonwealth Bill of 1891 a new principle was introduced, and it was provided that the Judges should hold office during good behaviour, and that it should “not be lawful for the Governor-General to remove any Judge except upon an address from both Houses of the Parliament praying for such removal.” The intention apparently was to make the Address a necessary part of the procedure in cases of misbehaviour.




  ― 729 ―

In the first draft of the Adelaide Bill this intention was made clear. In Committee, at Mr. Kingston's suggestion, the tenure was still further secured by limiting the Parliamentary power of intervention to cases of “misbehaviour or incapacity.” It was pointed out that in a Federal Constitution, where the Courts were the “bulwarks of the Constitution” against Parliamentary encroachment, the Judges' independence of the Legislature should be specially safe-guarded. (Conv. Deb., Adel., pp. 944-962.)

In the Melbourne session the tenure was still further secured by providing that the Parliamentary addresses must pray for removal “upon the grounds of proved misbehaviour or incapacity;” thus ensuring that the Judge should be heard in defence, and that the charge against him should be alleged in the address. (Conv. Deb., Melb., pp. 308-318.) Drafting amendments were made before the first Report and after the fourth Report.

§ 293. “Shall be Appointed.”

The appointment of Justices is an Executive Act, to be performed by the Governor-General with the advice of the Federal Executive Council. No particular mode of appointment by the Governor-General in Council is prescribed; but the usual, if not universal, mode of appointing colonial Judges is by letters patent under the royal sign manual. (Todd, Parl. Govt. in Col., p. 829.) The sub-section dealing with appointment makes no provision as to tenure; but sub-section 2, prescribing the only mode of removal, shows that the tenure is during “good behaviour,” with special restrictions as to the mode by which misbehaviour or incapacity is to be proved and adjudicated on. “The legal effect of the grant of an office during ‘good behaviour’ is the creation of an estate for life in the office. Such an estate is terminable only by the grantee's incapacity from mental or bodily infirmity, or by his breach of good behaviour. But, like any other conditional estate, it may be forfeited by a breach of the condition annexed to it— that is to say, by misbehaviour.” (Todd, Parl. Govt. in England, p. 857.) This liability to forfeiture is, of course, subject to the provisions as to proof and procedure in the next sub-section. It seems that this section can only be construed as vesting in the Governor-General in Council the appointment of Justices to whom an ascertained salary is payable by law at the time of their appointment. (Buckley v. Edwards [1892], App. Ca. 387.) That was a case decided under the Supreme Court Judges Act, 1858 (N.Z.). Sec. 2 of that Act provided that the Supreme Court of New Zealand should consist of a Chief Justice, “and of such other Judges as His Excellency, in the name and on behalf of Her Majesty, shall from time to time appoint.” Sec. 6 provided that “a salary equal at least in amount to that which, at the time of the appointment of any Judge, shall be then payable by law, shall be paid to such Judge so long as his patent or commission shall continue and remain in force.” The Constitution Act of New Zealand contained a provision that it should not be lawful for the General Assembly to diminish the salary of any Judge during his continuance in office. Lord Herschell, in delivering the judgment of the Privy Council, quoted this provision in the Constitution, and said (p. 394):—“It is manifest that this limitation of the legislative power of the General Assembly was designed to secure the independence of the Judges. It was not to be in the power of the colonial Parliament to affect the salary of any judge to his prejudice during his continuance in office. But if the Executive could appoint a judge without any salary, and he needed to come to Parliament each year for remuneration for his services, the proviso would be rendered practically ineffectual, and the end sought to be gained would be defeated. It may well be doubted whether this proviso does not by implication declare that no judge shall thereafter be appointed save with a salary provided by law, to which he shall be entitled during his continuance in office, and his right to which could only be affected by that action of the New Zealand legislature which is excluded by the Imperial Act.” Apart from this, it was held that a reading of the whole of the New Zealand Act showed that the legislature did not contemplate the


  ― 730 ―
appointment of a judge to whom there was no salary payable by law. The principle of the decision, as well as the strong dictum of Lord Herschell quoted above, seem to be entirely applicable to the appointment of justices under this Constitution.

§ 294. “Shall not be Removed.”

These words exclude all modes of removal other than the one mentioned. Ordinarily a colonial judge may be removed by the Governor and Council of the colony for misbehaviour, subject to a right of appeal to the Privy Council; it being provided by the Imperial Statute 22 Geo. III. c. 75, that if any person holding an office by patent from the Crown shall be wilfully absent without reasonable cause, “or shall neglect the duty of such office, or otherwise misbehave therein,” the Governor and Council may remove him; but if he thinks himself aggrieved, he may appeal to His Majesty in Council. The Judicial Committee of the Privy Council has repeatedly decided that this law applies to colonial judges. (Ex parte Robertson, re Gov. Gen. of N.S.W., 11 Moore P.C. 295; Todd, Parl. Gov. in Col., 46, 829, 837.) But the express words of the Constitution clearly make this statute inapplicable to Justices of the Federal Courts. Again, under the Imperial Statute 3 and 4 Will. IV. c. 41, s. 4, it is ordinarily competent for the Crown to refer to the Judicial Committee a memorial from the legislature of a colony, complaining of the judicial conduct of a judge, and thereupon the judge may be removed by Order in Council (Todd, Parl. Gov. in Col., p. 831); but this procedure also is clearly inapplicable to the Commonwealth. So also the modes of procedure by writ of scire facias to repeal the patent, or by criminal information at the suit of the Attorney. General—which are merely alternative ways of establishing misbehaviour (Todd, Parl. Gov. in England, ii. 859)—are excluded.

§ 295. “Except by the Governor-General in Council.”

The Constitutions of the Australian colonies provide for removal by “Her Majesty;” but this Constitution follows the B.N.A. Act, which provides (sec. 99) for removal “by the Governor-General.” It is argued in Canada (see Todd, Parl. Gov. in Col., 2nd Ed., p. 835) that as the appointment of a Judge begins with the Governor-General (not with the sovereign) it also ends with the Governor-General, and that a right of appeal to the Crown in Council is excluded. This contention seems greatly strengthened, under this Constitution, by the use of the words “Governor-General in Council,” which make the decision that of the Federal Executive. There is, however, no authority directly in point. The cases in which the orders of amotion made by Governors have been referred to the Privy Council were under the Act 22 Geo. III. c. 75, which makes special provision for appeal. By the Constitutions of the Australian colonies, which provide that the Houses of Parliament of the colony may pass an address to “Her Majesty” for the removal of a Judge, the Governor and Executive of the colony give no decision at all. The decision in such a case is entrusted to the Queen, acting on the advice of her Imperial Ministers, and it seems that the dismissal of a Judge is not regarded as a mere ministerial act, but as one involving a grave responsibility, which Her Majesty will not be advised to incur without satisfactory evidence that the dismissal is proper. (Todd, Parl. Gov. in Col., p. 613.) There is then no appeal to the Queen in Council; though the Queen may (as in the case of Judge Boothby, of South Australia) seek the advice of the Judicial Committee before deciding. (Todd, Parl. Gov. in Eng., ii., 899, 906.) Here, however, the responsibility is thrown on the Federal Executive, and in the absence of any provision for an appeal, it would appear that its decision is final. The case in fact appears to be closely analogous to the removal of a British Judge by the Crown on addresses from the Imperial Parliament.

As to the question whether the Governor-General in Council, to whom the power of amotion on address is given, is entrusted with any constitutional discretion as to the exercise of that power, see note on Responsibility of Ministers, § 297, infra.




  ― 731 ―

§ 296. “On an Address from Both Houses.”

The provision as to the address differs from those of the Act of Settlement, the British North America Act, and the Australian Constitutions, by the requirement that the Address must pray for removal “on the grounds of proved misbehaviour or incapacity.” As to the English power, Todd says (Parl. Gov. in Eng., ii., 860):—“This power is not, in a strict sense, judicial; it may be invoked upon occasions when the misbehaviour complained of would not constitute a legal breach of the conditions on which the office is held. The liability to this kind of removal is in fact a qualification of, or exception from, the words creating a tenure during good behaviour, and not an incident or legal consequence thereof. In entering upon an investigation of this kind, Parliament is limited by no restraints, except such as may be self-imposed.” These words are quite inapplicable to the provisions of this Constitution. Parliament is “limited by restraints” which require the proof of definite charges; the liability to removal is not “a qualification of, or exception from, the words creating a tenure,” but only arises when the conditions of the tenure are broken; and though the procedure and mode of proof are left entirely to the Parliament, it would seem that, inasmuch as proof is expressly required, the duty of Parliament is practically indistinguishable from a strictly judicial duty. The importance of this distinction is, however, much diminished by the fact that it is recognised that the procedure under the Act of Settlement ought to be conducted on strictly judicial lines. The matter is discussed, and the proper procedure indicated, by Todd (Parl. Gov. in Eng., ii., 860-875), where it is laid down that “no address for the removal of a Judge ought to be adopted by either House of Parliament, except after the fullest and fairest enquiry into the matter of complaint, by the whole House, or a Committee of the whole House, at the Bar; notwithstanding that the same may have already undergone a thorough investigation before other tribunals”—such as a Royal Commission or a Select Committee.

The substantial distinction between the ordinary tenure of British Judges and the tenure established by this Constitution is that the ordinary tenure is determinable on two conditions; either (1) misbehaviour, or (2) an address from both Houses; whilst under this Constitution the tenure is only determinable on one condition—that of misbehaviour or incapacity—and the address from both Houses is prescribed as the only method by which forfeiture for breach of the condition may be ascertained.

FROM BOTH HOUSES.—Todd (Parl. Gov. in Eng., ii. 872) lays it down as “evident” that while it is equally competent for either House to receive complaints and even to institute enquiries as to the conduct of Judges, yet “a joint address under the statute (i.e. the Act of Settlement) ought properly to originate in the House of Commons, as being peculiarly the impeaching body, and pre-eminently ‘the grand inquest of the High Court of Parliament.’ ” The Parliament of the Commonwealth, however, is neither a High Court nor a body possessing power of impeachment; and however desirable it may be that the House of Representatives should take the initiative, if the unfortunate necessity for a joint address under this section should ever arise, the reasons given by Todd have no application.

§ 297. “On the Ground of Proved Misbehaviour or Incapacity.”

MISBEHAVIOUR OR INCAPACITY.—Misbehaviour means misbehaviour in the grantee's official capacity. “Quamdiu se bene gesserit must be intended in matters concerning his office, and is no more than the law would have implied, if the office had been granted for life.” (Coke, 4 Inst. 117.) “Misbehaviour includes, firstly, the improper exercise of judicial functions; secondly, wilful neglect of duty, or non-attendance; and thirdly, a conviction for any infamous offence, by which, although it be not connected with the duties of his office, the offender is rendered unfit to exercise any office or public franchise.” (Todd, Parl. Gov. in Eng., ii. 857, and authorities cited.)




  ― 732 ―

“Incapacity” extends to incapacity from mental or bodily infirmity, which has always been held to justify the termination of an office held during good behaviour. (See notes, § 294, supra; and Todd, Parl. Gov. in Eng., ii. 857.) The addition of the word does not therefore alter the nature of the tenure of good behaviour, but merely defines it more accurately.

No mode is prescribed for the proof of misbehaviour or incapacity, and the Parliament is therefore free to prescribe its own procedure. Seeing, however, that proof of definite legal breaches of the conditions of tenure is required, and that the enquiry is therefore in its nature more strictly judicial than in England, it is conceived that the procedure ought to partake as far as possible of the formal nature of a criminal trial; that the charges should be definitely formulated, the accused allowed full opportunities of defence, and the proof established by evidence taken at the Bar of each House.

RESPONSIBILITY OF MINISTERS.—The question then arises whether the Address from both Houses practically determines the removal, or whether the Governor-General in Council must exercise a constitutional discretion and incur the final responsibility of action. In England, it is said that an address from the two Houses of the Imperial Parliament ought to recapitulate the acts of misconduct which have occasioned the adoption thereof, “in order to enable the sovereign to exercise a constitutional discretion in acting upon the advice of Parliament.” (Todd, Parl. Gov. in Col., 2nd ed., p. 613). That discretion would, of course, be exercised, like every other executive act, upon the advice of responsible Ministers; so that in England it seems to be recognized that the Executive, notwithstanding the Address, is not relieved of the responsibility of satisfying itself in the matter.

Under this Constitution, however, the procedure differs in two respects. In the first place, the power of removal, upon address, is given, not to the Governor-General, but to the Governor-General in Council; and in the second place, the Address itself can only be passed on the ground of a proved breach of the legal tenure of the office.

The words “in Council,” so far from establishing any difference between the English and Australian systems, seem rather to establish an identity. They indicate that the Governor-General acts in this regard, not as the servant of the Queen, but as the constitutional ruler of Australia; and that the responsibility of his action rests upon the shoulders of his advisers. The real question, therefore, is whether the Executive Council must bear the responsibility themselves, or whether they can rely solely upon the address as the justification of their executive act, and thus leave the whole responsibility with the Houses of Parliament—the body to whom the Constitution entrusts the judicial duty of establishing the proof of misbehaviour or incapacity.

The Letellier case, in Canada, throws some light on this question. M. Letellier was Lieutenant-Governor of the Province of Quebec, and his action in dismissing his Ministers in 1878 led to resolutions in both Houses of the Dominion Parliament condemning his action. By sec. 59 of the British North America Act, a Lieutenant-Governorholds office during the pleasure of the Governor-General, but is not removable within five years after his appointment, except for cause assigned. The Dominion Ministry advised the Governor-General to remove M. Letellier; and on the Governor-General demurring to this policy, the Premier informed him “that it was not at all necessary, in order to justify their advice, to go behind the vote of Parliament; even if their opinion had been adverse to that arrived at by Parliament, it seems clear that they are bound to respect that decision, and to act upon it, as they have done, by advising the removal.” Ultimately the Governor-General, on the suggestion of the Secretary for State, asked the Ministers to review their action, and to satisfy themselves whether it was “necessary for the advantage, good government, or contentment of the Province that so serious a step should be taken as the removal of the Lieutenant-Governor from office.” After “anxious consideration,” they adhered to their advice, and M. Letellier was removed.




  ― 733 ―

With respect to the contention of Ministers in that case that it was unnecessary to go behind the vote of Parliament, Todd observes:—

“This statement involves a complete abnegation of ministerial responsibility, and a surrender of the safeguards over individual rights which ministerial responsibility is intended to afford. We have elsewhere shown that ‘any direct interference by resolution of parliament in the details of government is inconsistent with and subversive of the kingly authority, and is a departure from the fundamental principle of the British Constitution which vests all executive authority in the sovereign, while it ensures complete responsibility for the exercise of every act of sovereignty.’ And that ‘no resolution of either house of parliament which attempts to adjudicate in any case that is within the province of the government to determine has of itself any force or effect.’ Even where parliament has been invested by statute with the direct right of initiating a criminatory proceeding for the removal of a high public functionary, as where a judge is declared to be removable upon an address from the two houses of the Imperial Parliament, constitutional practice requires that, in any such address, ‘the acts of misconduct which have occasioned the adoption thereof ought to be recapitulated, in order to enable the sovereign to exercise a constitutional discretion in acting upon the advice of parliament.’ ” (Todd, Parl. Gov. in Col., 2nd ed., pp. 612-3.)

M. Letellier's case illustrates the general principles of Ministerial responsibility; and, on the authority of Todd, that principle extends to the removal of a Judge after the semi-judicial procedure by Address under the Act of Settlement. This Constitution, however, goes much further than the Act of Settlement by making the decision of the two Houses substantially a judicial one; and it is certainly open to argument that this circumstance goes far to transfer the real responsibility from the Executive Council to the Houses of Parliament.

At the same time, it cannot be ignored that the act of removal is an executive one, and is entrusted by the Constitution to the Executive department—that is, to the Governor-General in Council. It is hard to conceive of a case in which an Address passed by both Houses in the same session, alleging that misbehaviour or incapacity was proved, would not be concurred in by the Executive Council; but if such a case should arise, the members of the Executive Council are the keepers of their own consciences, and the advice which they give to the Governor-General cannot be dictated to them by the Houses of Parliament. For whatever action they take or refuse to take they will be responsible in the ordinary way both to the Parliament and to the people.

SUSPENSION.—The Constitution makes no mention of any power to suspend Justices. It may be argued that the power of amotion carries with it the lesser power of suspension, and that a Justice may be suspended by the same procedure by which he may be removed. (See Todd, Parl. Gov. in Eng., ii. 890-898.) But a more serious question is whether the Governor-General in Council, without a joint address from both Houses alleging “proved misbehaviour or incapacity,” may in any case suspend a Justice of a Federal Court. On the one hand, the Constitution does not expressly prohibit suspension, and “at common law the grantor of an office has the power to suspend the grantee from his duties, though not to affect his salary or emoluments.” (See opinion of Att. Gen. of Vic., cited Todd, Parl. Gov. in Eng., ii. 893; Slingsby's case, 3 Swanston 178.) On the other hand, the English Crown law officers, in the Queensland case cited in Todd, Parl. Gov. in Eng., ii. 896, deny the right of a Governor (even where he possesses power of amotion under 22 Geo. III. c. 75) to suspend a Judge holding office during good behaviour. It would seem that suspension is a temporary removal, and that as the Governor-General in Council has no power of his own motion to remove, he has no power to suspend. Certainly such a power would be open to dangerous abuses, and might endanger the independence of the Bench as a constitutional bulwark against Parliamentary encroachment.

REASONS FOR SECURITY OF JUDICIAL TENURE.—The peculiar stringency of the provisions for safeguarding the independence of the Federal Justices is a consequence of the federal nature of the Constitution, and the necessity for protecting those who


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interpret it from the danger of political interference. The Federal Executive has a certain amount of control over the Federal Courts by its power of appointing Justices; the Federal Executive and Parliament jointly have a further amount of control by their power of removing such Justices for specified causes; but otherwise the independence of the Judiciary from interference by the other departments of the Government is complete. And both the Executive and the Parliament, in the exercise of their constitutional powers, are bound to respect the spirit of the Constitution, and to avoid any wanton interference with the independence of the Judiciary. “Complaints to Parliament in respect to the conduct of the judiciary, or the decisions of courts of justice, should not be lightly entertained. .... Parliament should abstain from all interference with the judiciary, except in cases of such gross perversion of the law, either by intention, corruption, or incapacity, as make it necessary for the House to exercise the power vested in it of advising the Crown for the removal of the Judge.” (Todd, Parl. Gov. in Eng., i. 574.)

§ 298. “The Remuneration shall not be Diminished.”

It has been held in the United States that Congress cannot, under the Constitution, levy a tax on the salary of a judicial officer of a State. (Buffington v. Day, 11 Wall. 113.) It would seem that a tax on the salary of the Justices of the Federal Courts would be equally unconstitutional, as being a diminution of their salary.

Appellate jurisdiction of High Court.

73. The High Court shall have jurisdiction299, with such exceptions and subject to such regulations300 as the Parliament prescribes, to hear and determine appeals301 from all judgments, decrees, orders, and sentences302 —

  • (i.) Of any Justice or Justices exercising the original jurisdiction of the High Court303:
  • (ii.) Of any other federal court, or court exercising federal jurisdiction304; or of the Supreme Court of any State305, or of any other court of any State306 from which at the establishment of the Commonwealth an appeal lies to the Queen in Council:
  • (iii.) Of the Inter-State Commission, but as to questions of law only307:

and the judgment of the High Court in all such cases shall be final and conclusive308.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Common-wealth


  ― 735 ―
an appeal lies from such Supreme Court to the Queen in Council.

Until the Parliament otherwise provides, the conditions of and restrictions on appeals309 to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

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 affecting ambassadors, other public Ministers, and consuls]; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies [between two or more States; between a State and citizens of another State]; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between [a State, or] the citizens thereof, and foreign States, citizens, or subjects. [In all cases affecting ambassadors, other public Ministers, or consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction.] In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.—Const., Art. III., sec.2.

HISTORICAL NOTE.—A General Court of Appeal for Australia was included in the earliest schemes of Federation, from 1849 downwards (see pp. 85, 91, 94 supra.) The Federal Council Act of 1885, however, did not provide for the establishment of a federal Court of Appeal.

In 1870 a Royal Commission was appointed by the Government of Victoria to consider and report upon the expediency of inviting the co-operation of the Australian colonies to provide for intercolonial legislation on various matters and “to establish a court of appeal.” The Commission consisted of Messrs. J. J. Casey (Chairman), Francis Murphy, Jas. A. McPherson, C. Gavan Duffy, J. Macgregor, G. B. Kerferd, G. P. Smith, T. H. Fellows, and George Higinbotham. In April, 1871, the Commission brought up a first Report, which was signed by only seven of the Commissioners—Mr. Fellows being out of the colony, and Mr. Higinbotham having refused to act. The part of this report which deals with the establishment of a court of appeal contains the following passages:—

“Considerations of grave importance suggest the expediency, if not the necessity, that a Court of Appeal, formed of Colonial judges, should be established for the Australasian colonies. The cost and delay occasioned by appeals to the Privy Council would be removed. Judges conversant with colonial life, manners, and laws would adjudicate on matters presenting peculiar and distinct features—the result of colonial habits, industries, and trade. The decisions of the various Supreme Courts of the colonies upon purely colonial affairs would thereby be brought into harmony, and uniformity of law be thus encouraged, to the great advantage of commerce. The first effective step towards the union and consolidation of the colonies would thus, it is thought, be consummated. We recommend that a Court of Appeal for Australasia be formed, consisting of one judge from each colony, and that the Court should sit in each colony successively, or at such places as may be determined upon as occasion required; and that the quorum be regulated in proportion to the number of colonies that appointed judges.”

“Another question arises as to how far the Court of Appeal is to be one of final determination, excluding the appeal to Her Majesty in Council. We deem it advisable to leave to the Legislature of each colony to determine that question for itself, by empowering the colonies to enact suitable laws providing the cases in and the terms upon which an appeal may be had to the Queen.” (Parl. Papers [Vic.], 1871, vol. ii. p. 711.)

To the report was appended the draft of an “Australasian Legislation Bill” to be passed by the Imperial Parliament, providing for intercolonial legislation on several subjects, and for the establishment of a Court of Appeal on the lines indicated. The part of the report dealing with the Court of Appeal was submitted by Lord Kimberley (Secretary of State for the Colonies) to the Lord President of the Privy Council. The reply of the President is contained in a letter from the Registrar of the Privy Council, dated 20th July, 1871, which, after dealing with the Commission's criticisms of the existing appellate system, concludes as follows:—




  ― 736 ―

“The appellate jurisdiction of Her Majesty in Council exists for the benefit of the colonies, and not for that of the mother country; but it is impossible to overlook the fact that this jurisdiction is a part of the prerogative which has been exercised for the benefit of the colonies from the date of the earliest settlements of this country, and that it is still a powerful link between the colonies and the Crown of Great Britain. It secures to every subject of Her Majesty throughout the Empire his right to claim redress from the Throne; it provides a remedy in certain cases not falling within the jurisdiction of ordinary Courts of Justice; it removes causes from the influence of local prepossessions; it affords the means of maintaining the uniformity of the law of England in those colonies which derive the great body of their law from Great Britain; and it enables suitors, if they think fit, to obtain a decision in the last resort from the highest judicial authority and legal capacity existing in the metropolis.

“The power of establishing or remodelling the Colonial Courts of Justice is vested by the 28 and 29 Victoria in the colonial legislatures; and it is undoubtedly desirable that the colonial Courts of Justice should be so constituted as to inspire confidence in their decisions, and to give rise to very few ulterior appeals. That is in fact the case with the Superior Courts of Westminster Hall; and the small number of appeals from the Australian courts is the best testimony to the excellence of those courts also. But the controlling power of the Highest Court of Appeal is not without influence and value, even when it is not directly resorted to. Its power, though dormant, is not unfelt by any Judge in the Empire, because he knows that his proceedings may be made the subject of appeal to it.

“But it by no means follows as a necessary consequence of the powers vested in the colonial Legislatures by the 28 and 29 Victoria that laws should be enacted which would control the exercise of the prerogative of the Crown in the exercise of its Supreme Appellate Jurisdiction.”

Sydney Convention, 1891.—The clause as introduced and passed without discussion in 1891 was substantially identical with this section, with the exception of the provision for an appeal from the Inter-State Commission—a body not provided for by the Bill of 1891.

Adelaide Session, 1897.—At the Adelaide session the clause was introduced in practically the same form, with two additions. After “appeals,” the words “both as to law and fact” were inserted; and a proviso was added that “no fact tried by a jury shall be otherwise re-examined in the High Court than according to the rules of the common law.” (See U.S. Constitution, Amend. vii.) But in Committee Mr. Wise, who was responsible for these additions, moved their omission as being unnecessary, and they were struck out. (Conv. Deb., Adel., pp. 967–8.)

Melbourne Session, 1898.—(See Debates, pp. 322–47, 1885–94, 2276–2325, 2419–22, 2453–6. A great part of the debate on this section turned on the question of appeals to the Privy Council; for which see Historical Note to next section.) The general key to the long and complicated debates on this and the following section, and to the numerous amendments suggested, made, and reconsidered, may be found in a short statement of the dilemma that had to be grappled with. Everyone wanted a federal court of appeal; everyone did not wish to abolish the appeal to the Privy Council; and yet no one wished to multiply appeals. The cumulative right of appeal, first to the High Court and then to the Privy Council, would increase the delay and the cost of litigation. The alternative right of appeal, either to the High Court or the Privy Council, would leave two final tribunals. The opinions of the Convention wavered as one or other aspect of this difficulty became more prominent.

A suggestion of the Parliament of New South Wales, that the High Court should only have jurisdiction to hear appeals “where the parties consent,” was negatived, as practically destroying the appellate jurisdiction of the Court; though in the course of the debate, which discussed the relative merits of the High Court and the Privy Council, opinions in favour of an alternative right were expressed. (Conv. Deb., Melb., pp. 322–31; and see Historical Note to next section.)

The omission of the power of Parliament to make “exceptions” to the appellate jurisdiction of the High Court was twice proposed: first by Mr. Glynn (Debates, Melb., pp. 331–2), and afterwards by Mr. Barton (pp. 1885–94), on the ground that it gave


  ― 737 ―
Parliament too wide and absolute a discretion to cut down the right of appeal. On the other hand, it was argued that to take away the power of exception would go too far, by giving an absolute right of appeal in every trumpery case; and the amendment was accordingly negatived on both occasions. Finally, Mr. Glynn proposed and carried a compromise to the effect that nothing in the section should be construed to prevent the High Court from hearing appeals from the Supreme Court of a State in cases where there now exists a right of appeal from such Supreme Court to the Privy Council. (Debates, pp. 2323–5.) This was ultimately redrafted into the second paragraph of the clause.

Before the Bill was reported a first time, the Drafting Committee, in accordance with an understanding with the Convention, added an appellate jurisdiction from judgments “of the Inter-State Commission.” This caused considerable debate in Committee (pp. 2276–2325). Sir George Turner and Mr. Isaacs, who thought that the questions to be decided by the Commission were political rather than judicial, complained that this gave the control of Inter-State Commerce entirely to the High Court, which was not a tribunal with a suitable knowledge of the questions which would arise. On the other hand it was pointed out that it would not do to make the Commission an irresponsible tribunal, altogether above the Constitution. Mr. Glynn maintained that in the United States the Inter-State Commission was administrative only, not judicial, and that it ought to be the same here. Sir George Turner's amendment to omit the words was negatived; but with a view to meeting his objections the appeal was limited to “questions of law only.”

After the referendum of 1898, both Houses of the New South Wales Parliament included among their suggested amendments a proposal that “the mode of appeal from the Supreme Courts of the States should be made uniform, namely, the appeal should either be to the Privy Council or to the High Court, but not as at present, indiscriminately to either.” The Premier's Conference of 1899, however, declined to recommend any such amendment. (See pp, 217, 220, supra).

Imperial Parliament, 1900.—In the Bill as introduced into the Imperial Parliament, when Clause 74 was omitted, the last paragraph of Clause 73 was detached and placed as new Clause 74. In a schedule of amendments circulated at the time of the second reading, Mr. Chamberlain proposed to insert, after “final and conclusive,” the words “unless the Queen grants special leave to appeal in accordance with section 74;” to restore the last paragraph; and to insert a new Clause 74 allowing an appeal, in questions as to the limits of constitutional powers, by consent of the Executive Governments concerned. (See Hist. Note to sec. 74.) In Committee, however, as part of the final arrangement, this clause was restored to the shape in which it was passed by the Convention.

§ 299. “Shall Have Jurisdiction.”

“Jurisdiction” is a content of the judicial power; it is in fact the power of a Court to entertain an action, suit, or other proceeding.

This section confers upon the High Court a general appellate jurisdiction in all matters decided by the State Courts of last resort, by other federal courts, by Judges of the High Court itself in the exercise of the original jurisdiction of the Court, and (on matters of law only) by the Inter-State Commission. The original jurisdiction of the High Court is limited to matters in which the subject matter of the suit, or the character of the parties, fall under certain specified heads; but the appellate jurisdiction has no such limits. It extends (subject to the excepting and regulating power of the Parliament) not only to all decisions of courts of original federal jurisdiction, but also to all decisions of the Supreme Courts of the States, irrespective of whether the subject-matter of the suit, or the character of the parties, would have brought it within the original jurisdiction of the federal courts. In other words (see § 288, supra) the High Court is not merely a federal, but also a national court of appeal; it occupies the


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provincial as well as the federal sphere, and is the apex of the judicial systems of the States, as well as of the judicial system of the Commonwealth.

The jurisdiction of the High Court as a court of appeal from the State Courts is, however, not exclusive. The Constitution grants a new right of appeal from the State Courts to the High Court; but it does not take away the existing right of appeal from the State Courts to the Privy Council, which therefore remains unimpaired (see Note, § 305, infra). Parties to cases decided by the Supreme Court of a State have therefore an alternative right of appeal either to the Privy Council direct or to the High Court.

A similar alternative right of appeal has for some time existed in New South Wales —and formerly existed in Victoria also—from a single judge, sitting in the equitable jurisdiction of the Supreme Court, either to the Supreme Court in Banco or direct to the Queen in Council. (See Equity Act, 1880 [N.S.W.], secs. 70, 79; Dean v. Dawson, 9 N.S.W. L.R. Eq. 27; 15 Vic. No. 10 [Vic.]; 19 Vic. No. 13 [Vic.], sec. 5; Garden Gully v. McLister, 1 App. Ca. 39; Davis v. Reg., 1 V.L.R. Eq.33; Woolley v. Ironstone Hill Lead Co., 1 V.L.R. Eq. 237.) Under the Supreme Court Act, 1890 (Vic.) this right of appeal from a single judge of the Supreme Court in Victoria does not now exist. (Australian Smelting Co. v. British Broken Hill Propr. Co., 23 V.L.R. 643; 20 A.L.T. 46).

§ 300. “With Such Exceptions and Subject to Such Regulations.”

EXCEPTIONS AND REGULATIONS.—The power to prescribe “exceptions” is the power to limit the jurisdiction by excluding specified cases or classes of cases from it. The power to prescribe “regulations” is the power to regulate the mode in which the jurisdiction shall be exercised. These words give the Parliament power to prescribe both exceptions and regulations. Apart altogether from this section, a power to prescribe regulations is clearly conferred by section 51—xxxix., which empowers the Parliament to make laws with respect to “Matters incidental to the execution of any power vested by this Constitution in … the Federal Judicature.”

The whole appellate jurisdiction is conferred by the Constitution itself, without the need of any intervention by the Parliament. In the absence of any statute prescribing exceptions or regulations, the jurisdiction exists without exception or regulation. This construction, which accords with principle, is now settled with regard to similar words in the United States Constitution. (Durousseau v. United States, 6 Cranch 307; Kent, i. 325; Story, § 1773.) In an earlier decision, however (Wiscart v. Dauchy, 3 Dallas, 321), the Supreme Court considered that its whole appellate jurisdiction depended upon the regulations of Congress, as that jurisdiction was given by the Constitution in a qualified manner. “The Supreme Court was to have appellate jurisdiction, ‘with such exceptions and under such regulations as Congress should make;’ and if Congress had not provided any rule to regulate the proceedings on appeal, the Court could not exercise an appellate jurisdiction.” (Kent, i. 324.) The early Judiciary Acts proceeded on this mistaken principle, and purported to confer jurisdiction affirmatively; but those Acts are now construed not as giving jurisdiction, but as making exceptions by implying a negation of jurisdiction in every case where jurisdiction does not purport to be affirmatively given.

LIMITATION OF EXCEPTING AND REGULATING POWER.—Except as regards appeals from the Supreme Courts of the States in the matters defined in the second paragraph of the section, the power to except and regulate is—as it is in the United States— absolute and unlimited.

“This power of the Legislature over the judiciary is a most serious one. It places the appellate power of the court very nearly at the mercy of the legislature. The legislature has made use of this power in the passage of the several Judiciary Acts, and I do not know that it can be said to have abused it. It seems to me, however, an unnecessary surrender of the independence of the courts to require that things which


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can be better accomplished by the rules of court shall wait upon the pleasure, or, possibly, caprice of the legislature.” (Burgess, Pol. Sci. ii. 331.)

“The Constitution, further, expressly confers upon the Congress the power to regulate the appeal and removal of causes from the Courts of the States, and from the inferior courts of the general government, to the Supreme Court. This is also a discretionary power in the Congress. There is no doubt that Congress is under a stronger moral obligation to act when its action is necessary for the completion and regulation of the government machinery than when it has to deal with questions of policy merely, or even of individual rights; but it is placed under no stronger legal obligations. By inaction it may thus defeat many of the fundamental purposes of the Constitution without any redress, except such as may be secured at the elections.” (Burgess, Pol. Sci. ii. 158.)

The Convention (see Historical Note, supra) took the view that the Parliament ought not to be able to deprive the High Court of an appellate jurisdiction equal to that now exercised by the Privy Council; that no exception or regulation should “prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.”

The strict language of the Constitution seems to refer rather to the right of the High Court to hear and determine appeals, than to the right of the party to have his appeal heard. The Constitution does not expressly forbid the Parliament to prescribe certain exceptions, but declares that exceptions prescribed shall not prevent the High Court from exercising jurisdiction. It may perhaps be argued that an exception of this kind, if prescribed, might be effective to cut down a party's absolute right of appeal, though it would clearly be void so far as it purported to cut down the right of the High Court to hear the appeal, if it thought fit. And it might also be argued that this construction would not be inconsistent with the object of the provision, which aims, not at securing an absolute right of appeal, but at making the jurisdiction of the High Court, within defined limits, independent of Parliamentary interference. It does not seem, however, that this distinction was present to the minds of the framers of the Constitution.

The reference to matters “in which at the time of the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council” makes it necessary to ascertain and define those matters.

It is conceived that the provision refers only to those cases in which, at the establishment of the Commonwealth, an appeal may be brought as a matter of right. The Queen has a prerogative right (see § 310, infra) to review the decisions of all colonial courts, civil and criminal, unless this prerogative has been annulled by charter or statute; but to construe the above provision of the Constitution as extending to this prerogative right of appeal would make it include every decision of the Supreme Courts of the States, and would therefore make the words “in any matter in which … an appeal lies,” &c., mere surplusage.

“An appeal cannot be brought as a matter of right unless the value of the matter actually in dispute in the appeal be such as has been fixed by law for the particular tribunal from which the appeal is brought.” (Macpherson, Privy Council, p. 1.) The appealable amount for appeals from the Supreme Courts has been fixed by Orders in Council made at different times.

From the Supreme Court of New South Wales, by Order in Council of 13th November, 1850, any party may appeal to the Queen in Council from any final judgment, decree, order, or sentence of the Supreme Court, “in case any such judgment, decree, order, or sentence shall be given or pronounced for or in respect of any sum or matter in issue above the amount or value of £500 sterling, or in case such judgment, decree, order, or sentence shall involve directly or indirectly any claim, demand, or question, to or respecting property or any civil right, amounting to or of the value of £500 sterling..”




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The same appealable amount is fixed with regard to the Supreme Court of Victoria by Order in Council of 9th June, 1860; with regard to the Supreme Court of Queensland by Order in Council of 30th June, 1860; with regard to the Supreme Court of South Australia by Order in Council of 10th May, 1860; with regard to the Supreme Court of Western Australia by Order in Council of 11th October, 1861; with regard to the Supreme Court of New Zealand by Order in Council of 9th June, 1860. With regard to the Supreme Court of Tasmania the appealable amount is, by Order in Council of 4th March, 1851, fixed in similar terms at £1000 sterling. (See, for particulars of these several Orders in Council, Macpherson, Privy Council, Appendix.)

To cases within these Orders in Council, therefore, the power to make exceptions, and so exclude an appeal from the Supreme Court of a State to the High Court, will not apply. That is to say, the Federal Parliament cannot exclude appeals from final judgments of the Supreme Courts of the States for matters in issue of the value of £500, or where any property or civil right of the value of £500 is involved (or, in the case of Tasmania, £1000). But the Parliament may exclude or allow an appeal as to all interlocutory orders, or as to final judgments where the amount involved is less than the appealable amount, or in criminal and other cases where no property, or civil right having a money value, is involved.

The limitation on the power of Parliament to prescribe exceptions and regulations applies only to the specified appeals from the Supreme Courts of States. Consequently the excepting power is unlimited with regard to appeals (1) from Justices exercising the original jurisdiction of the High Court; (2) from other federal courts, or courts exercising federal jurisdiction; (3) from State Courts (other than the Supreme Courts) from which an appeal lies to the Queen in Council; (4) from the Inter-State Commission; and (5) from the Supreme Courts of the States, in matters in which, at the establishment of the Constitution, an appeal did not lie to the Queen in Council. With regard to such appeals the appellate jurisdiction is, in the words of Burgess, “very much at the mercy of the Legislature.”

§ 301. “To Hear and Determine Appeals.”

An appeal is a proceeding taken to test the decision of a court, and rectify it if erroneous, by submitting it to a higher Court. The use of the word in this sense is comparatively modern. In English law an appeal formerly meant an “appeal of felony,” or criminal accusation (Norman-Fr. appel, from appeler, to accuse), whilst the terms used for what is now known as appellate jurisdiction were “error” or “rehearing” as the case might be. The modern use of the word “appeal” seems to have been introduced into the temporal courts from the ecclesiastical courts, and to be derived directly from the Latin appellare. (See Sweet, Law Dictionary; Wharton, Law Lexicon, subt it. “Appeal.”)

The word is used without limitation of any kind, and leaves the whole question of the mode of appeal and the procedure on appeal to be regulated by the Parliament. It clearly includes appeals on matters of fact as well as on matters of law. This would be clear from general usage in any case, but is placed beyond doubt by subs. iii., which with regard to appeals from the Inter-State Commission imposes the limitation that the appeal shall be “as to questions of law only,” implying that the appeals mentioned in the other sub-sections may be as to questions of fact as well as law.

The essential attribute of an appeal is that it is a judicial proceeding for the purpose of revising a judicial proceeding.

“The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted in and acted upon by some other court, whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and indeed in any form in which the Legislature may choose to


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prescribe; but still, the substance must exist before the form can be applied to it. To operate at all, then, under the Constitution of the United States, it is not sufficient that there has been a decision by some officer or department of the United States; it must be by one clothed with judicial authority, and acting in a judicial capacity. A power, therefore, conferred by Congress on the Supreme Court, to issue a mandamus to public officers of the United States generally, is not warranted by the Constitution; for it is in effect, under such circumstances, an exercise of original jurisdiction. But where the object is to revise a judicial proceeding, the mode is wholly immaterial; and a writ of habeas corpus, or mandamus, a writ of error, or an appeal, may be used, as the Legislature may prescribe.

“The most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin, and removes a cause, entirely subjecting the fact, as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter in suits at common law tried by a jury.” (Story, Comm. §§ 1761–2.)

§ 302. “From all Judgments, Decrees, Orders, and Sentences.”

These four words, “judgments, decrees, orders, and sentences,” are taken from the Imperial Act, 7 and 8 Vic. c. 69, sec. 1 (which extends the right of appealing to the Privy Council), and from the Orders in Council made thereunder. They are all words which may be used in a general sense, to overlap one another, or in a more limited sense, in contrast to one another. Their cumulative use in this Constitution makes it unnecessary, as a matter of constitutional interpretation, to construe them distributively; but in order to ascertain the combined scope of the words it will be convenient to examine their individual meanings.

“Judgment,” in its widest sense, means any judicial determination, or decision of a court. Under the former practice of the English Superior Courts, the word was usually applied to decisions of the Common Law Courts, the word “decree” being generally used in the Courts of Chancery. As contrasted with an “order,” or direction on matters outside the record, a judgment is a decision pronounced on matters contained in the record. (Stroud, Judicial Dictionary, sub. tit. “Judgment” and “Order.”) In criminal proceedings, “judgment” means the sentence of the Court on the verdict, or on the prisoner's plea of guilty. Judgments may be either interlocutory—i.e., given upon some intermediate proceeding, and not finally determining or completing the suit or action; or final—i.e., putting an end to the suit or action by awarding or refusing to award redress.

“Decree” is the word generally used as equivalent to “judgment” in courts of equitable jurisdiction, and other jurisdictions where the procedure of courts of equity is adopted. A decree, like a judgment, may be either final or interlocutory.

“Order,” generally speaking, means, any direction or command of a court; but it is commonly used, in opposition to “judgment” or “decree,” to describe orders on interlocutory applications.

“Sentence,” in its widest sense, means any judicial determination, but is most commonly used in connection with criminal proceedings, to denote the judgment of the court in a criminal trial upon the verdict of the jury or upon the prisoner's plea of guilty. For further definitions of all these terms, see Wharton's Law Lexicon, Stroud's Judicial Dictionary, and Sweet's Law Dictionary.

The four words taken together are clearly wide enough to include every judicial decision, final or interlocutory, in every jurisdiction, civil or criminal.




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§ 303. “Of any Justice or Justices Exercising the Original Jurisdiction of the High Court.”

Under sec. 79 the federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes, and presumably most of the original jurisdiction of the High Court will be made exercisable by a single Justice, sitting with or without a jury. (See Note, Juries, § 291, supra.) But whether the original jurisdiction is exercised by one Justice or more, there will be—subject to the excepting and regulating power of Parliament—an appeal to the High Court in its appellate jurisdiction. The excepting and regulating power in this respect (see Note, § 300, supra) is unlimited; so that Parliament may make it competent for the High Court to deal finally with any class of matters in the first instance.

§ 304. “Of any other Federal Court, or Court Exercising Federal Jurisdiction.”

“Federal Courts” (see sec. 71) are those created by the Parliament; while “courts exercising federal jurisdiction” comprise those State courts, not created by the Parliament, which the Parliament has invested with federal jurisdiction.

Appeals from these courts are subject to the unlimited excepting and regulating power of the Parliament. (See Note, § 300, supra.)

§ 305. “Of the Supreme Court of any State.”

These are the words which make the High Court not merely a federal court of appeal, but a national court of appeal of general and unlimited jurisdiction. Appeals from any Justice or Justices of the High Court itself in its original jurisdiction, and from other federal courts or courts of federal jurisdiction, can, of necessity, only arise in the specific cases where original jurisdiction is granted by the Constitution, or may be conferred by the Parliament; but appeals from the Supreme Courts of the States extend to all cases, without regard to the subject matter or the character of the parties.

The excepting and regulating power of Parliament extends to appeals from the Supreme Courts of the States, but subject to a special limitation (see Note, § 300, supra) which gives the High Court a constitutional right to entertain appeals in all cases where there is now an appeal as of right to the Queen in Council. Thus the position of the High Court, not only as the “guardian of the Constitution,” but as a general court of appeal for Australia, is constitutionally secured.

This section confers a new right of appeal, and a new jurisdiction, but it does not take away the existing right of appeal from the Supreme Courts of the States direct to the Privy Council. The latter right therefore remains in force; and accordingly the High Court, though a general court of appeal for Australia, is not the sole court of appeal. (See Note, § 299, supra.)

The words “judgments” &c. “of the Supreme Court of any State” are not necessarily restricted to judgments of the “Full Court,” or Court sitting Banco; they may apply to orders of the Court made by a single Judge. There may thus be in some cases an alternative right of appeal from the decision of a Judge in a Court of first instance either to the “Full Court” of the State or direct to the High Court. A similar alternative appeal existed, before the establishment of the Constitution, from a Judge of the Supreme Court of N.S.W. or Victoria, sitting in Equity, either to the “Full Court” or to the Privy Council. (See Note, § 299, supra.)

§ 306. “Or of Any Other Court of Any State,” &c.

The only court, other than the Supreme Court of a State, from which at the establishment of the Constitution an appeal lies to the Privy Council, seems to be the “Local Court of Appeal” in South Australia—an anomalous tribunal to which an


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appeal lies from the Supreme Court of South Australia, and from which an appeal lies to the Privy Council. This Court was established by Act No. 31 of 1855–6, sec. 14, and consists of the Governor and all the members of the Executive Council except the Attorney-General. It has practically fallen into desuetude, but as it still exists, the right of appeal from it to the Privy Council was preserved.

“I propose this amendment merely because of the condition of things in our own colony, in which there is another Court of Appeal from which an appeal now lies to the Privy Council, an intermediate Court of Appeal which is seldom availed of, but which exists.” (Mr. Symon, Conv. Deb., Melb., p. 332.)

The Imperial Act 7 and 8 Vic. c. 69 provides (sec. 1) “That it shall be competent for Her Majesty, by any order to be from time to time for that purpose made with the advice of Her Privy Council, to provide for the admission of any appeal or appeals to Her Majesty in Council from any judgments, sentences, decrees, or orders of any court of justice within any British colony or possession abroad, although such court shall not be a court of error or a court of appeal within such colony or possession.”

The orders made under this Act with respect to Australian colonies seem all to have been limited to appeals “from any final judgment, decree, order, or sentence of the Supreme Court” of a colony (see § 300, supra).

§ 307. “Of the Inter-State Commission, but as to Questions of Law Only.”

The Inter-State Commission is to have “such powers of adjudication and administration as the Parliament deems necessary” for executing and maintaining the constitutional provisions and federal laws relating to trade and commerce. (See Notes to sec. 101.) So far as it is invested with powers of adjudication it will be in effect a part of the federal judiciary; and to prevent any exception being made to that uniform interpretation of the law which it is the aim of the Constitution to ensure, an appeal from its decisions on questions of law is given to the High Court. On the other hand, the questions of fact which it will have to investigate are left to the final decision of the Commission.

LAW AND FACT.—The precise definition of “questions of law,” and of its antithesis “questions of fact,” is not easy; for though the distinction between the two is broad and fundamental, there is a region of “mixed questions” which partake of the nature of both. Broadly speaking, a question of law is the question whether there is a rule of law which governs certain ascertained circumstances; a question of fact is the question whether, in any particular case, those circumstances exist. (See Sweet, Dictionary of Law, sub. tit. “Fact.”) The distinction, in English law, has been chiefly worked out in defining the respective functions of the judge and the jury; the recognized principle being that questions of law are to be decided by the judge, questions of fact by the jury. In the case of the Inter-State Commission the position is somewhat different; the Commission is itself both Judge and Jury in the first instance; but its decisions as a jury are final, whilst its decisions as a judge are subject to review. It is conceived, however, that this difference is immaterial, so far as the distinction between “law” and “fact” is concerned, and that the phrase “question of law” in this section has precisely the same signification as it has in the general law of evidence. For general discussions on this subject, see Taylor on Evidence, § 26; Best on Evidence, §§ 80–82.

The admissibility of evidence is a question of law. (Taylor, § 23; Best, § 80.) How far the Inter-State Commission, sitting as a judicial tribunal, will be bound by the strict rules of evidence, is a matter of procedure to be determined by the Federal Parliament; but, whatever rules of evidence may be prescribed, it would seem that an infringement of those rules, by the wrongful acceptance of inadmissible evidence, or rejection of admissible evidence, would be a good ground of appeal.




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On the other hand, the weight or value of evidence is a question, not of law, but of fact. (Taylor, § 25 A; Best, § 80.) Where there is a conflict of evidence, it is the duty of the jury to balance the evidence of the opposing witnesses, and to decide what the facts of the case really are. The restriction of the right of appeal to “questions of law only” prevents any decision of the Commission from being reviewed on the ground that it is against the weight of evidence.

The question whether there is any evidence on which a verdict can properly be given in favour of the party on whom the burden of proof lies—or, as it is sometimes put, upon which a jury could as reasonable men find such a verdict—is a question of law. (Taylor, § 25 A; Best, § 82.) “Whether there be any evidence, is a question for the Judge. Whether sufficient evidence, is for the jury.” (Per Bullen, J., Carpenter's Co. v. Hayward, 1 Dougl. 375.) These propositions are perfectly consistent, though their application may be difficult. The determination whether there is any evidence upon which a verdict could reasonably be founded does not involve a balancing of the weight of evidence; on the contrary, it assumes that full weight must be given to the evidence of the party—that the facts alleged by him are true; and it is for the court, and not the jury, to say whether, on that assumption, there is reasonable justification for a finding.

“As the decisions of tribunals on questions of fact ought to be based on reasonable evidence, and when the facts are undisputed, the decision as to what is reasonable is matter of law, and consequently within the province of the court—it follows that it is the duty of the court to determine whether, assuming all the facts proved by the party on whom the burden of proof lies to be true, there is any evidence on which the jury could properly—i.e., without acting unreasonably in the eye of the law—decide in his favour.” (Best, § 82.)

The most important application of these principles is in connection with the duty cast on the Inter-State Commission (sec. 102) of deciding whether the facts which may be proved before it constitute a “preference or discrimination,” or whether a preference or discrimination is “undue and unreasonable, or unjust to any State,” or whether “due regard” has been had to the financial responsibilties of a State. All these are “mixed cases,” which it is rather hard—apart from authority—to classify as either questions of law or questions of fact.

“If the question be whether a certain party had probable cause for doing an act, or whether he has done an act within a reasonable time, or with due diligence, it is difficult to say whether the definition of what constitutes probable cause, reasonable time, or due diligence, be for the judge or jury, and specious arguments will not be wanting in favour of the claims of either party. On the one hand, it may be said that these terms are as capable of judicial interpretation as the words ‘conversion’ or ‘asportation,’ which must be clearly explained by the Judge; while on the other hand it may be urged that they seem rather addressed to the practical experience of practical men, than to the legal knowledge of the lawyer; that, being terms of degree, their meaning is subject to indefinite fluctuation, according to the varying circumstances of each particular case, and that consequently they defy all attempts to compress them within exact a priori definitions.” (Taylor on Ev. § 26.)

The authorities as to whether the reasonableness of conduct, under any given circumstances, is a question for the court or the jury, are somewhat conflicting; but the guiding principle seems to be that if the question is one on which the court is likely to be more competent than the jury to form an opinion, it will be treated as a question of law; and vice versa. Thus in an action for malicious prosecution, the question whether, on the fact proved, there was probable cause for prosecution is a question for the judge—who is assumed to be a more competent judge of the question than a jury. So, as we have seen, the question whether there is reasonable evidence is a question for the judge. On the other hand, in most actions, the reasonableness of the belief on which the defendant has acted is a question for the jury. Questions of reasonable time— except in cases, such as the dishonour of a bill, where precise rules have been adopted as to what is reasonable—are usually left to the jury; as are also questions of reasonable skill or care, due diligence, and gross negligence. (Taylor on Evidence, § § 26–38.)




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Whether “reasonableness” is a question of law or a question of fact seems therefore to depend on the assumed competence of the tribunals to which questions of law and fact are respectively assigned. It may be said that this is a somewhat arbitrary and unscientific test of classification; but it must be remembered that all classifications are more or less arbitrary; and this classification has at least the merit of endeavouring to assign each question to the most suitable tribunal.

Applying these principles to the Inter-State Commission, it is necessary to take into consideration the special character of that body, and the purposes for which it is constituted. The function of the Commission, in its judicial capacity, is to decide upon a class of questions involving the consideration of an intricate multitude of facts, and upon which a body of commercial experts are able to form a better opinion than a Bench of judges. Accordingly it is contemplated that the Inter-State Commission will consist of competent experts in the questions which will arise. It is a jury, but a jury of a very special character; a jury who are also judges—who are selected on account of their competence, and are secured in their tenure of a responsible position. The spirit as well as the letter of the Constitution would seem to indicate that the question whether a preference or discrimination is “undue and unreasonable, or unjust to any State”—or whether “due regard” has been had to the financial responsibilities of a State—are questions on which the decision of the Commission is absolutely final.

This conclusion is supported by decisions under the English Railway and Canal Traffic Acts, and the American Inter-State Commerce Act (see Notes, secs. 101, 102). The English Railway and Canal Traffic Act, 1888 (51 and 52 Vic. c. 25, s. 17), provides an appeal from the Railway and Canal Commission to the Court of Appeal, “but not on any question of fact or locus standi.” In Phipps v. London and N.W.R. Co. (1892) 2 Q B. 229, it was held that the question whether a preference was undue or unreasonable was a question of fact for the Commission. (See also Palmer v. London and S.W.R. Co., L.R. 1 C.P. 593; Denaby Main Colliery Co. v. Manchester, &c., R. Co., 14 Q.B.D. 209, per Selborne, L.C.) “As there is nothing in the (Inter-State Commerce) Act which defines what shall be held to be due or undue, reasonable or unreasonable, such questions are questions not of law, but of fact.” (Texas and Pac. R. Co. v. Inter-State Commerce Commission, 162 U.S. at p. 219. And see Inter-State Commerce Commission v. Alabama Midland R., 168 U.S. 145; and notes to sec. 102, infra.)

In two particular cases the judgment of the Commission is expressly made final. If the Commission decides that a rate is not undue, unreasonable, or unjust (sec. 102), that settles the question finally; and if the Commission decides that any railway rate of a State is “necessary for the development of the territory of the State,” nothing in the Constitution can render the rate unlawful. It does not appear, however, that the mention of these two cases raises any presumption that an appeal lies in other cases not mentioned. These two provisions were inserted, not so much to prevent an appeal to the High Court, as to provide a tribunal independent of the Parliament; their object was to guard against the decision of a judicial question by a political body. They are so absolute in terms that they clearly make the opinion of the Commission, in these cases, final; but they do not seem to raise any presumption which would affect the interpretation of the words “questions of law.”

But although the questions of what is unreasonable, what is unjust, what is undue, are for the Inter-State Commission alone, the interpretation of such words as “preference” and “discrimination”—like the interpretation of any other words in the Constitution— involves a question of law. The question whether the proved facts constitute a preference or discrimination, within the meaning of the Constitution, would seem to be wholly a question of law; though, if a preference or discrimination were held to exist, its reasonableness or unreasonableness would be a question of fact.

“Questions of law” include questions arising not only upon the laws of the Commonwealth, but upon the laws of the States. It may be that in the Courts of a State (and even on appeal from the Courts of that State) the laws of another State may


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have to be proved as matters of fact (see Notes to sec. 118); but it is clear that the Inter-State Commission, having the duty not only of executing—and in the first instance interpreting—the Constitution and the laws of the Commonwealth, but also of adjudicating upon the “laws and regulations” of the States, must act as judicial interpreters of the latter as well as of the former. On the same principle it has been decided in the United States that the federal courts, in the exercise of their original jurisdiction, take judicial notice, without proof, of the laws of all the States. (Chicago and Alton R. Co. v. Wiggins Ferry Co., 119 U.S. 615.)

§ 308. “Final and Conclusive.”

The words “final and conclusive” mean, primarily and generally, that there is no appeal. (Waterhouse v. Gilbert, 15 Q.B.D. 569; Bryant v. Reading, 17 Q.B.D. 128; Lyon v. Morris, 19 Q.B.D. 139.)

A right of appeal may mean one of two things: the right of a party to claim an appeal to a higher court; or the right of a higher court to grant leave to appeal. In the case of the High Court, the only higher court of which there is any question is the Queen in Council; so that the discussion of rights of appeal from the High Court resolves itself into (1) the right of a party to claim an appeal to the Queen in Council; (2) the prerogative right of the Queen to grant leave of appeal to herself in Council.

APPEAL AS OF RIGHT.—An appeal as of right can only be created by statute; and the words of this section expressly negative the existence of such an appeal.

“The creation of a new right of appeal is plainly an act which requires legislative authority. The Court from which the appeal is given, and the Court to which it is given, must both be bound, and that must be the act of some higher power. It is not competent to either tribunal, or to both collectively, to create any such right. Suppose the Legislature to have given to either tribunal, that is, to the Court of the First Instance, and to the Court of Error or Appeal respectively, the fullest power of regulating its own practice or procedure, such power would not avail for the creation of a new right of appeal, which is in effect a limitation of the jurisdiction of one Court and an extension of the jurisdiction of another.” (Per Westbury, L.C., Att.-Gen. v. Sillem, 10 H.L.C., p. 720. See also Mayor of Montreal v. Brown, 2 App. Ca. 174, 184.

It has been held by the Privy Council in Canadian cases that the words “final and conclusive,” or the word “final” only, are apt words, even in a Canadian statute, to take away an appeal “as of right” to the Queen in Council, and to prevent the Court of Appeal in Canada from granting leave to prosecute such appeal. In Cushing v. Dupuy (5 App. Ca. 409), it was held that a provision in a Dominion Act that the judgment of the Court of Appeal in matters of insolvency should be “final,” excluded appeals “as of right” to the Privy Council, though it did not take away the Queen's prerogative right to grant leave of appeal. Sir Montague E. Smith, in the course of delivering the judgment of the Privy Council, said (at p. 416):—

“Then it was contended that if the Parliament of Canada had the power, it did not intend to abolish the right of appeal to the Crown. It was said that the word ‘final’ would be satisfied by holding that it prohibited an appeal to the Supreme Court of Canada, established by the Dominion Act of the 38 Vic. c. 11. Their Lordships think that the effect of the word cannot be so confined. It is not reasonable to suppose that the Parliament of Canada intended to prohibit an appeal to the Supreme Court of Appeal recently established by its own legislation, and to allow the right of immediate appeal from the Court of Queen's Bench to the Queen to remain. Besides the word ‘final’ has been before used in colonial legislation as an apt word to exclude in certain cases appeals as of right to Her Majesty. (See the Lower Canada Statute, 34 Geo. III., c. 30.) Such an effect may, no doubt, be excluded by the context, but there is none in the enactment in question to limit the meaning of the word. For these reasons their Lordships think that the Judges below were right in holding that they had no power to grant leave to appeal.” (See also Johnston v. Minister of St. Andrew's Church, Montreal, 3 App. Ca. 159.)

APPEAL AS OF GRACE.—The law however is clear that the Queen's prerogative to entertain appeals from colonial courts (see Note, § 310, infra) cannot be taken away without express words. Cuvillier v. Aylwin, 2 Knapp 72, which seems an authority to


  ― 747 ―
the contrary effect, was questioned in Re Louis Marois, 15 Moore P.C. 189, and may be considered as overruled on that point. The true principle was laid down clearly in an Indian case, Modee Kaikhooscrow Hormusjee v. Cooverbhaee, 6 Moo. Ind. App. 448, and is now well established (see Theberge v. Laudry, 2 App. Ca. 102; Johnston v. Minister of St. Andrew's Church, Montreal, 3 App. Ca. 159). The authorities are reviewed in Cushing v. Dupuy, 5 App. Ca. 409 (cited above) when Sir Montague E. Smith, delivering the judgment of the Privy Council, after holding that the appeal as of right was taken away, went on to say (p. 416):—“The question of the power of the Queen to admit the appeal, as an act of grace, gives rise to different considerations. It is, in their Lordships' view, unnecessary to consider what powers may be possessed by the Parliament of Canada to interfere with the royal prerogative, since the 28th section of the Insolvency Act does not profess to touch it; and they think, upon the general principle that the rights of the Crown can only be taken away by express words, that the power of the Queen to allow this appeal is not affected by that enactment.”

The Canadian Act establishing the Supreme Court (38 Vic. c. 2, sec. 47) provides that its judgments shall be “final and conclusive, saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal prerogative.” In Johnston v. Ministers of St. Andrew's Church, Montreal, 3 App. Ca. 159, no attempt was made to argue that the saving words preserved anything more than the appeal as of grace.

§ 309. “The Conditions of and Restrictions on Appeals.”

By “conditions of appeals” seems to be meant the conditions or requirements which have to be satisfied before an appeal is admitted, the terms on which leave will be given, and the terms on which its prosecution will be allowed; by “restrictions on appeals,” the limitations as to the judgments from which an appeal will lie, the appealable amount, the time for appealing, and so forth. Both expressions, from different points of view, must at least be construed to extend to so much of the rules and practice of the several Supreme Courts and of the Privy Council as go to the questions whether leave to appeal can be given, on what terms it ought to be given, and subject to what conditions it ought to be prosecuted. How far the words incorporate the rest of the existing practice and procedure of Privy Council appeals may be a matter of some doubt; but it would certainly be prudent on the part of litigants to conform to that practice in every possible way.

The effect of the provision is practically to adopt, as a piece of preliminary federal legislation, separate codes of rules to govern appeals to the High Court from each State. As a matter of fact, these separate codes are to a great extent identical, so that there will from the outset be a considerable degree of uniformity; but complete uniformity can only be secured by federal legislation.

The Parliament has power, under this section, to prescribe exceptions to, and regulations for, the right of appeal. By virtue of the words “until the Parliament otherwise provides,” it has also (sec. 51—xxxvi.) power to legislate as to “conditions of and restrictions on appeals;” but the latter power seems to be wholly included in the former. The Parliament also has (sec. 51—xxxix.) power to legislate on matters incidental to the execution of any part of the judicial power. It therefore has full power to regulate the right of appeal, both by direct legislation, and by empowering the Judges of the High Court to frame rules of practice and procedure.

In the meantime, appeals from the Supreme Court of any State to the High Court will be subject, under this section, to the same “conditions and restrictions” as appeals from such Court to the Privy Council. For information as to these, the reader is referred to Macpherson's Practice of the Privy Council, and to the text-books on the practice of the Supreme Courts in the several colonies.




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Appeal to Queen in Council310.

74. No appeal shall be permitted311 to the Queen in Council from a decision of the High Court312 upon any question, howsoever arising313, as to the limits inter se of the Constitutional powers314 of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify315 that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative316 to grant special leave of appeal from the High Court to Her Majesty in Council317. The Parliament may make laws limiting the matters in which such leave may be asked318, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure319.

CANADA.—The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any court of appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard; saving any right which Her Majesty may be graciously pleased to exercise by virtue of her royal prerogative.— Dominion Statute, 38 Vic. c. 2, sec. 47 (establishing Supreme Court).

HISTORICAL NOTE.—The Commonwealth Bill of 1891 provided that the Federal Parliament might require that any appeals which have hitherto been allowed from the State Courts to the Queen in Council should be brought to the Federal Supreme Court. The judgment of the Supreme Court was to be final, but the Queen was to have some power to grant leave of appeal to herself “in any case in which the public interests of the Commonwealth, or of any State, or of any other part of the Queen's dominions, are concerned.” The limitation of the prerogative right to grant leave of appeal was objected to by Mr. Wrixon, who moved the omission of the words, but the amendment was negatived on division. (Conv. Deb., Syd., 1891, pp. 785–7 [and see Historical Note, sec. 73].)

Adelaide Session, 1897 (Debates, pp. 968–89, 1202).—The clause as framed at the Adelaide Convention prohibited any appeal to the Privy Council, either from the State Courts or the federal Courts, “except that the Queen may, in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of Her Dominions, are concerned, grant leave of appeal to the Queen in Council from the High Court.” This meant that appeals from the State Courts direct to the Privy Council were to be abolished altogether; that there was to be no appeal “as of right” from the High Court to the Privy Council; and that the Queen's right to grant leave of appeal was to be limited to the cases specified.




  ― 749 ―

A proposal by Sir George Turner to omit the words “in any matter in which the public interests, &c.… are concerned,” and so leave a right to grant leave of appeal in all cases, was negatived by 17 votes to 14. A general debate on the clause followed. Sir Edward Braddon and Sir Joseph Abbott appealed strongly for the retention of an appeal to the Privy Council, on the grounds that this was one of the last links with the Empire, that it represented the right of the people of Australia to approach the throne, and that the decisions of the Privy Council would command greater respect than those of the High Court. On the other hand, Mr. Symon and Sir John Downer led the argument in favour of a final federal court of appeal. The clause was eventually carried by 22 votes to 12.

Melbourne Session, 1898 (Debates, pp. 333–48, 2286–2341, 2415–9; 2453–6).—A suggestion by the Legislative Councils of New South Wales and Victoria to omit (in the preceding section) the words making the judgment of the High Court “final and conclusive” was negatived (Debates, p. 333). No one attempted to argue that there should be an appeal from the High Court to the Privy Council “as a matter of right,” and the retention of these words embodied the decision of the Convention that—whatever right might be reserved to the Queen (i.e., the Privy Council), to grant leave of of appeal “as of grace”—the parties should have no absolute right of appeal.

Sir George Turner, however, while not wishing to make the right of appeal to the Privy Council absolute, wished to vest in the High Court itself, as well as in the Queen in Council, a power to grant leave of appeal; and accordingly he moved to add, after “final and conclusive,” the words “saving in cases where an appeal may be allowed either by the Queen in Council or the High Court.” Mr. Wise proposed to amend this suggestion so as to read “saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her royal prerogative”—thus placing the prerogative right of granting leave to appeal on the basis of the Canadian Act of 1875. Mr. Symon opposed this, and wished to take away the prerogative right altogether, on the ground that the Privy Council, as a court of appeal for the colonies, was “an anachronism and an absurdity.”

Mr. Wise's amendment of Sir George Turner's proposal was agreed to, but when the amended proposal was put to the vote it was easily defeated (pp. 333–47). All these proceedings took place in connection with the words “final and conclusive” in the preceding clause. The “Appeals to Privy Council” clause was immediately afterwards passed without amendment; so that the result was that at this stage the question of appeal was left precisely as it had been at Adelaide. (Conv. Deb., Melb., pp. 333–48.)

The whole question came up again on recommittal after the second report (pp. 2286–2341). Sir Joseph Abbott moved again that after “final and conclusive” (in the preceding section) should be added the words “saving any right that Her Majesty may be pleased to exercise by virtue of Her royal prerogative.” The whole question of appeal to the Privy Council was debated over again, the argument in its favour being now supported by a number of petitions from various Chambers of Commerce and Manufactures, and other associations representing mercantile interests. Mr. Symon again led the opposition to the amendment, while Mr. Carruthers supported it. Mr. O'Connor pointed out that the question was not that of abolishing appeals to the Privy Council, because the following clause expressly allowed them in certain cases; it was a question of limiting them. He could see no consistency in the limitation as it stood, because it allowed an appeal to the Privy Council in the very cases which were specially of a kind to be finally decided in Australia—cases, namely, in which the interpretation of the Constitution was involved; and he announced himself ready to support a proposition to the effect that no appeal to the Privy Council should be allowed in those cases; a suggestion which Mr. Kingston also heartily approved. (For an earlier suggestion to the same effect, see a paper read by Mr. R. R. Garran before the Australasian Association for the Advancement of Science, Proceedings, 1895, p. 694.) Eventually, Sir Joseph Abbott's amendment was carried by a majority of one. A


  ― 750 ―
proviso was then added, on Mr. Symon's motion, “that the right saved is that of granting leave to appeal, and shall continue only until Parliament otherwise provides.”

The above debate was on the preceding section. On the consideration of this section (“Appeals to Queen in Council”) Sir Joseph Abbott moved the omission of the limiting words “in which the public interests . ...are concerned.” This was agreed to without division; and then Mr. Symon proposed to insert, in place of the words omitted, “not involving the interpretation of the Constitution of the Commonwealth or of a State.” This, at Mr. Barton's suggestion, was amended by adding the words “or in any matter involving the interests of any other part of Her Majesty's dominions;” the intention being to allow an appeal in every case in which some other part of the British dominions was concerned, notwithstanding that the interpretation of the Constitution of the Commonwealth or of a State might be involved. After debate, Mr. Symon's amendment, as amended, was carried by a majority of four. (Conv. Deb., Melb., pp. 2325–35.)

Mr. Symon next moved an amendment providing “that no appellant to the High Court shall afterwards appeal to the Privy Council in the matter of the same appeal,” the intention being that when an appellant had elected to go to the High Court instead of to the Privy Council direct, he should be bound by its decision; though the respondent, who had had no right of election, might appeal from the decision. There was a strong feeling in the Convention that some such provision would be desirable; but finally, on the suggestion that the Drafting Committee should endeavour to carry out this idea, Mr. Symon withdrew his amendment. No such provision, however, was afterwards incorporated in the Bill. (Conv. Deb., Melb., pp. 2336–41.)

On recommittal after the third report, Mr. Barton brought up the redraft of the Drafting Committee. Mr. Glynn then moved a further amendment in order to prevent appeals direct from a State Court to the Privy Council, to preserve the prerogative right of appeal to the Privy Council in all cases—whether constitutional or not—and to prevent that right from being cut down by the Parliament. This was negatived on division by a majority of three. (Conv. Deb., Melb., pp. 2415–22.) Some final drafting amendments were made after the fourth report.

Imperial Parliament.—In the Bill as introduced into the Imperial Parliament, clause 74 was omitted altogether, and in covering clause 5 were inserted words preserving the prerogative of appeal with respect to all decisions of the High Court and of the Supreme Courts of the States. (See pp. 242, 346, supra.)

To meet the protests of the Delegates, Mr. Chamberlain afterwards proposed a new clause allowing an appeal from decisions of the High Court on questions as to “the limits inter se of the constitutional powers” of the Commonwealth and the States, or of any two or more States. (See p. 245, supra.) To meet criticisms from the Delegates and from Australia, this clause was subsequently redrafted. (See p. 247, supra.) Finally, the clause as it now stands was suggested by Mr. Chamberlain, and agreed to by the Governments of the colonies; and in Committee the Bill was amended accordingly. (See pp. 247–9, supra.)

§ 310. “Appeal to Queen in Council.”

THE PREROGATIVE RIGHT.—The preceding section negatives any right of litigants in the High Court to claim an appeal to the Queen in Council “as a matter of right,” and what is dealt with in this section is the prerogative right of the Crown, through the Judicial Committee of the Privy Council, to grant “special leave of appeal,” as a matter of grace.

“The Queen has authority, by virtue of her prerogative, to review the decisions of all colonial courts, whether the proceedings be of a civil or criminal character, unless. Her Majesty has parted with such authority.” (Falkland Islands Co. v. Queen, 1 Moo. P.C.N.S. 312; and see Reg. v. Bertrand, L.R. 1 P.C. 520; Macpherson, P.C. Practice, p. 60; Todd, Parl. Gov. in Colonies, p. 220.)




  ― 751 ―

The ancient right of the King, as the fountain of justice, to dispense justice in his Council survived even after the establishment of Courts of Common Law. (See Anson, Law of Constitution, ii. 86.) In 1640 the Long Parliament, by the Act 16 Car. I c. 10, which abolished the Star Chamber, enacted that neither the King nor his Privy Council should have jurisdiction over any man's estate, but that “the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law.” But the King in Council, though his original jurisdiction within England was taken away, was still the resort of suitors in the dependencies, and continued to hear petitions from the plantations. The result was that down to 1833 all petitions from beyond the seas were dealt with “by an open Committee of the Privy Council, which advised the Crown as the order to be made in each case.” (Anson, Law of Const. ii. 442.)

THE JUDICIAL COMMITTEE.—In 1833, by the Act 3 and 4 Wm. IV. c. 41, the Judicial Committee of the Privy Council was constituted, and it was enacted (sec. 3) that “all appeals or complaints in the nature of appeals which either by virtue of this Act or of any law statute or custom may be brought before His Majesty or His Majesty in Council” from the decision of any Court or Judge should thenceforth be referred to the Judicial Committee. It was also enacted (sec. 4) that His Majesty might refer to the Judicial Committee “any such other matters whatsoever as His Majesty shall think fit.” The Judicial Committee was also given various necessary powers of a Court of Justice, with regard to the examination of witnesses, compelling their attendance, making rules of practice, and so forth.

The composition of the Judicial Committee has been the subject of statutory change from time to time. It now consists of the Lord President, such Privy Councillors as hold or have held “high judicial office” (defined to mean the office of Lord Chancellor, of a paid Judge of the Judicial Committee, or of a Judge of one of the Superior Courts of Great Britain and Ireland), the Lords Justices of Appeal, and two other persons being Privy Councillors whom the Queen may appoint. There may also be one or two paid members, who have held judicial office in the East Indies. (See Appellate Jurisdiction Acts, 1876 and 1887, 39 and 40 Vic. c. 59; 50 and 51 Vic. c. 70; Judicial Committee Act, 1881, 44 and 45 Vic. c. 3.) It is now provided by the Judicial Committee Amendment Act, 1895 (58 and 59 Vic. c. 44), that if any person being or having been Chief Justice or a Judge of the Supreme Court of Canada, or of a Supreme Court in any province of Canada, or of any of the Australasian Colonies, or of Cape Colony or Natal, or of any other Superior Court in the Queen's Dominions which might be named by Order in Council, is a member of the Privy Council, he shall be a member of the Judicial Committee; but such colonial members of the Judicial Committee must not exceed five.

Although the Acts relating to the Judicial Committee require the Queen's prerogative right of admitting appeals to be exercised through a particular court, of definite statutory composition, they do not limit the extent of that prerogative right. It is however capable of being limited to any extent, or of being abolished altogether, by the sovereign British Parliament, whose sovereignty extends to the prerogative as to everything else. (See Dicey, Law of the Const., p. 60.) “The prerogative appears to be, both historically and as a matter of actual fact, nothing else than the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.” (Id.. p. 352.) To say that the right of granting leave to appeal to the Queen in Council is a “prerogative right” is therefore merely to say that it has not yet been legally taken out of the hands of the Crown.

This prerogative right of the Crown is sometimes spoken of, somewhat inaccurately, as a sacred constitutional right of the individual subject. See for instance a petition presented to the Melbourne Convention (cited Conv. Deb., Melb., p. 2298), where it is spoken of as “this right of approach to the Sovereign which all her other subjects (i.e., other than Australian) possess.” Language such as this is due to a confusion of the right of appeal with the general right of petitioning the Crown for the redress of grievances—a right which belongs to every subject in every part of the Empire, and is


  ― 752 ―
not taken away by limiting the right of appeal in matters of litigation. (See Blackstone's Commentaries, i. 143.) The right of appeal to the Privy Council is not in any sense a right of approaching the person of the Sovereign, but merely a right of appealing to one of the Queen's Courts—a Court which is not a Court of Appeal for the whole Empire, but only for the colonies and dependencies of the Empire. See remarks on this subject by Mr. Symon (Conv. Deb., Melb., pp. 2295, seqq). The extent to which a right of appeal to the Queen in Council ought to be retained is purely a question of political expediency.

LIMITATIONS PRESCRIBED BY PRIVY COUNCIL.—Though the right of the Queen to grant leave to appeal to herself in Council has not hitherto been legally limited, very definite limitations as to the cases in which such leave will be granted have been laid down by the Privy Council itself. Thus in criminal cases, leave will only be granted in special circumstances, where it is shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done. (Reg. v. Bertrand, L.R. 1 P.C. 520; Re Dillet, 12 App. Ca. 459; Exp. Deeming, 1892, App. Ca. 422; Kops v. Reg., 1894, App. Ca. 650; Exp. Carew, 1897, App. Ca. 719.)

In applications for special leave to appeal to the Queen in Council from decisions of the Supreme Court of Canada, or of the Courts of Appeal in the Provinces, the Privy Council has laid down limitations which had an important influence on the Convention in determining the provisions of this section, and which are further of importance as laying down rules which will undoubtedly guide the Privy Council in the exercise of the right to grant special leave under this Constitution.

In Johnston v. Ministers of St. Andrew's Church, Montreal, 3 App. Ca. 159, special leave of appeal from the Supreme Court of Canada was refused in a case where the amount at issue was only £300, and where the issue between the parties related simply to the legal construction and effect of a particular contract, and where no general principle was involved, and no other cases were necessarily affected by the decision complained of. The judgment of Lord Cairns, L.C., concluded as follows:—

“It appears to their Lordships that it would be a departure from the principles which should guide them when advising Her Majesty as to when an appeal should be allowed, to advise that an appeal should be allowed merely for the purpose of testing the accuracy of the construction put upon a particular document, which document, if it affects any number of other cases, can be altered at the will of the party who asks for the exercise of the prerogative in allowing an appeal. Their Lordships, therefore, cannot, either from the magnitude of the particular case, or from the effect which this decision may have on a number of other cases, think that this is a case in which they should advise Her Majesty to allow the appeal which is asked for.”

In Valin v. Langlois, 5 App. Ca. 115, an important constitutional question was involved as to the validity of a Dominion Act; but special leave to appeal from two concurrent judgments of the Courts in Canada, affirming the validity of the Act, was refused, it appearing that there was no substantial question to be decided, nor any doubt of the soundness of the decisions, nor any reason to apprehend difficulty or disturbance from leaving the decisions untouched. Lord Selborne, delivering the judgment of the Court, said (at p. 117):—

“Their Lordships must remember on what principles an application of this sort should be granted or refused. It has been rendered necessary, by the legislation which has taken place in the colony, to make a special application to the Crown in such a case for leave to appeal; and their Lordships have decided on a former occasion that a special application of that kind should not be lightly or very easily granted; that it is necessary to show both that the matter is one of importance, and also that there is really a substantial question to be determined. It has been already said that their Lordships have no doubt about the importance of this question, but the consideration of its importance and the nature of the question tell both ways. On the one hand those considerations would undoubtedly make it right to admit an appeal, if it were shown to their Lordships, prima facie at all events, that there was a serious and a substantial question requiring to be determined. On the other hand, the same considerations make


  ― 753 ―
it unfit and inexpedient to throw doubt upon a great question of constitutional law in Canada, and upon a decision in the Court of Appeal there, unless their Lordships are satisfied that there is, prima facie, a serious and substantial question requiring to be determined. Their Lordships are not satisfied in this case that there is any such question, inasmuch as they entertain no doubt that the decisions of the Lower Courts were correct. It is not to be presumed that the Legislature of the Dominion has exceeded its powers, unless upon grounds really of a serious character.”

In Prince v. Gagnon, 8 App. Ca. 103, which was a suit involving a question of a sum of £1000, Lord Fitzgerald, delivering the judgment of the Court, said:—

“Their Lordships, having looked into the case, see that it involves nothing whatever beyond this £1000. There is no grave question of law or of public interest involved in its decision that carries with it any after-consequences, nor is it clear that beyond the litigants there are any parties interested in it … Their Lordships are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal to Her Majesty in Council from the Supreme Court of the Dominion, save where the case is of gravity involving matter of public interest or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character.”

In Montreal v. Ecclesiastiques de St. Sulpice, 14 App. Ca. 660, the unwillingness of the Privy Council to grant special leave was still further illustrated. Lord Watson, delivering judgment, referred to the provision of the Canadian Supreme Court Act, that the decision of the Court should be “final and conclusive,” saving the Queen's prerogative, and declined to formulate any general rule as to when leave to appeal would be given. “In some cases,” he said, “as in Prince v. Gagnon [supra] their Lordships have had occasion to indicate certain particulars, the absence of which will have a strong influence in inducing them to advise that leave should not be given, but it by no means follows that leave will be recommended in all cases in which these features occur. A case may be of a substantial character, may involve matter of great public interest, and may raise an important question of law, and yet the judgment from which leave to appeal is sought may appear to be plainly right, or at least to be unattended with sufficient doubt to justify their Lordships in advising Her Majesty to grant leave to appeal.” (See, for these and other cases in which special leave was granted or refused, Wheeler, Confed. Law, pp. 440–482; Wheeler, Privy Council Law, Part II.)

§ 311. “No Appeal shall be Permitted.”

These words are a limitation of the Queen's prerogative right to admit appeals from any colonial court. Such a limitation is within the competence of the Imperial Parliament. (Dicey, Law of the Const., p. 60; and Notes, supra, § 310.)

The prohibition is directed against appeals by special leave of the Privy Council. Appeals as of right from decisions of the High Court are already taken away by the provision of sec. 73 that the judgment of the High Court shall be “final and conclusive” (see Note, 308, supra). The prohibition is limited—

  • (1) to appeals from decisions of the High Court;
  • (2) to appeals upon questions as to the limits inter se of the constitutional powers—
    • (a) of the Commonwealth and those of any State or States; or
    • (b) of any two or more States;
  • (3) by the qualification that an appeal will lie “if the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.”

The limited extent of the prohibition against appeals to the Privy Council is confirmed by the concluding paragraph of the section, which expressly saves the royal prerogative to grant special leave of appeal “except as provided in this section.” Accordingly the prerogative right of the Queen in Council to grant special leave to appeal from judgments of the State courts is not affected by the Constitution; and the


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right of appeal from the Supreme Courts of the States, under the Orders in Council, in matters over the appealable amount—a right which is derived from statute, not from prerogative—is of course also untouched. (See Notes, § § 299, 300, supra.)

§ 312. “From a Decision of the High Court.”

DECISION.—For the meaning of the words “decision upon any question,” see Note, § 313, infra.

OF THE HIGH COURT.—The section as it stands differs from the Bill as adopted by the Convention in not forbidding appeals from the State Courts to the Privy Council on constitutional questions. The clause as orginally drafted by the Judiciary Committee at the Adelaide session began:—“No appeals shall be allowed to the Queen in Council from any court of a State, or from the High Court, or any other federal court, except,” &c. As redrafted at the Melbourne session, after the third report, and adopted at the fourth report, it began:—“Notwithstanding anything in the last section, an appeal to the Queen in Council from a court of a State, or from the High Court, or from any other federal court, shall not be allowed in any matter,” &c. Before the final stage, it was redrafted to read:—“No appeal shall be permitted to the Queen in Council in any matter,” &c. There was certainly no intention on the part of the Convention to limit the clause to appeals from the High Court, the general words “no appeals shall be permitted” being understood to include appeals from all courts, State or federal.

In some quarters, however, the cause was understood as referring to appeals from the High Court alone; and Mr. Chamberlain's first proposed compromise (p. 245, supra), providing that no question as to the limits of constitutional powers should be “capable of decision except by the High Court,” was objected to by Sir Samuel Griffith, amongst others, on the ground that this was a substantial alteration of the Bill, and a curtailment of a right of appeal from the State Courts to the Privy Council which had been expressly reserved by the Convention. The Chief Justices of all the Australian colonies, being consulted by Mr. Chamberlain, seem to have expressed opinions adverse to any curtailment of the right of appeal from the State courts to the Privy Council; and as a consequence of these representations the clause as finally passed by the Imperial Parliament left this right untouched.

The Convention, therefore, meant that on constitutional questions the High Court should be the sole, as well as the final, court of appeal; but under the Constitution as it stands, any judgment of the Supreme Court of a State may, even if it involves constitutional questions, be appealed from to the Privy Council direct; though, if the appellant chooses to adopt the alternative of appealing to the High Court instead of to the Privy Council, there can be no further appeal to the Privy Council unless the High Court certifies that such an appeal is proper.

This result does not appear to be altogether satisfactory. Whatever view may be taken of the expediency of retaining a right of appeal to the Privy Council in constitutional questions, it would at least seem that the Privy Council ought not to be required to decide any such question without having, for its assistance, the judgment of the highest Court in Australia. As it is, the decision of the High Court on a certain class of constitutional questions is final, unless the High Court certifies, for special reasons, that an appeal ought to be allowed to the Privy Council; but if any such question arises in a Supreme Court of a State, an appeal may be had direct to the Privy Council, passing by the High Court altogether. There is thus a lack of unity in the system of interpreting the fundamental law of the Commonwealth. There is also a lack of consistency; the principle that the interpretation of the Constitution, as between Commonwealth and State, ought to rest with the Australian courts, is affirmed by the provision which makes the decision of the High Court in such cases ordinarily final, and denied by the reservation of the full right of appeal from the State courts to the Privy Council.




  ― 755 ―

This anomaly, however, can, if inconvenience is found to arise, be removed in either of two ways—by the Imperial Government, or by the Federal Parliament. The statutory right of appeal from the State Courts to the Privy Council is defined by the Orders in Council already cited (§ 300, supra); and it is competent at any time for the Queen in Council (i.e., the Imperial Government) to promulgate new orders, abolishing this right of appeal in questions as to the limits of constitutional powers. If that course should not commend itself, the Federal Parliament has power to deal with the matter in another way. Under sec. 76, the Parliament may confer original jurisdiction on the High Court in several classes of cases, including “cases arising under this Constitution, or involving its interpretation.” Under sec. 77, it can confer a similar jurisdiction on any federal court other than the High Court, and can declare the jurisdiction of any federal court (including the High Court), to be exclusive of that belonging to the courts of the States. The Federal Parliament can therefore, by making the federal jurisdiction exclusive in cases arising under the Constitution, ensure that all such cases shall be brought in the first instance into the federal courts, when they will of course be subject to the exclusive appellate jurisdiction of the High Court. That is to say, the Federal Parliament—though it cannot interfere with the right of appeal from the Supreme Courts of the States to the Privy Council—can under sec. 77 reserve to the federal courts exclusive original jurisdiction in cases “arising under the Constitution,” and thus prevent such cases being brought in the courts of the States.

§ 313. “Upon any Question, Howsoever Arising.”

DECISION UPON A QUESTION.—The appeals forbidden by this section are appeals “from a decision of the High Court upon any question” of a certain character. The distinction should be noted between the phrase “decision of the High Court” in this section and the phrase “judgment of the High Court” in sec. 73. A judgment of the court is its order upon a case; a decision of the court is its finding upon a question of law or fact arising in a case A decision upon a question is not of itself a judgment, but is the basis of a judgment; and one judgment may be based on the decision of several questions.

This section, then, forbids not an appeal from a judgment, but an appeal from the decision of a question. Where a judgment is based upon the decision of several questions, one of which is a question as to the limits of constitutional powers, the section does not forbid the Privy Council to grant special leave of appeal from the judgment; what it does is to forbid the Privy Council from disturbing the decision of the High Court on that particular question. It may be that, apart from the constitutional question, there are other questions of law or of fact which the Privy Council may hold to have been erroneously decided by the High Court, and which are material to the judgment. The Privy Council has power to deal with the whole matter, except that it cannot disturb the decision of the High Court on the constitutional question unless the High Court has ertified that the question ought to be determined by the Privy Council.

AMERICAN ANALOGY.—The provision, which denies to the Privy Council the power of “independent interpretation” of the limits of the constitutional powers of the Commonwealth and the States, bears an interesting analogy to the doctrine laid down by the federal courts in the United States, that those courts have no right of “independent interpretation” of State Constitutions and laws unless national rights or authorities are affected.

“The same reasons which require that the final decision upon all questions of national jurisdiction should be left to the national courts will also hold the national courts bound to respect the decisions of the State courts upon all questions arising under the State Constitutions and laws, where nothing is involved of national authority, or of right under the Constitution, laws, or treaties of the United States; and to accept the State decisions as correct, and to follow them whenever the same questions arise in the national Courts.” (Cooley, Const. Lim. p. 13; and see Burgess, Pol. Sci. ii. 328.)




  ― 756 ―

This Constitution draws no such distinction as between the States and the Commonwealth. The fact that the High Court is made a general court of appeal implies a right of “independent interpretation” of State Constitutions and laws. But as between the Empire and the Commonwealth—that is, as between the Privy Council and the High Court—the right of “independent interpretation” is limited in a way somewhat resembling the American doctrine. It is to be noted, however, that the limitation expressed by the United States doctrine is wider, and it includes the laws as well as the Constitutions of the States.

HOWSOEVER ARISING.—The object of these words is to make it clear that the section refers, not only to questions arising in cases to which the Commonwealth or a State is a party, but also to questions arising in litigation between private individuals. The experience of the United States, as well as of England, shows that the most important constitutional cases have usually arisen in cases between individuals. Thus the great case of Marbury v. Madison—the leading American authority as to the right to obtain a mandamus against a federal officer—was brought by a private citizen against the Secretary of State; and the English case of Ashby v. White—the leading authority upon the maxim “ubi jus, ibi remedium”—was brought by a voter against a returning officer who had refused to allow his vote.

When Mr. Chamberlain's first compromise was suggested (p. 245, supra) doubts were expressed by critics in Australia as to whether the clause (which forbade appeals on questions “howsoever arising” as to the limits of constitutional powers, “unless by the consent of the Executive Government or Governments concerned”) applied to cases where the parties were private citizens. The clause was clearly intended so to apply, but doubts were supposed to arise from the words “Executive Government or Governments concerned,” which might be construed to mean that the Executive Governments must be directly concerned as parties. In the section as it now stands no such doubt exists.

§ 314. “The Limits Inter Se of the Constitutional Powers.”

LIMITS INTER SE.—The two classes of questions as to which appeals to the Privy Council are forbidden, except by leave of the High Court, are questions as to the limits inter se

  • (a) of the constitutional powers of the Commonwealth and those of any State or States; and
  • (b) of the constitutional powers of any two or more States.

Each of these classes refers to two sets or categories of powers, which are placed in mutual opposition to each other by the words “inter se.” Thus in class (a) we have (1) the constitutional powers of the Commonwealth on the one hand, and (2) the constitutional powers of any State or States on the other hand; and the question is as to the limits “between themselves” of these two categories of powers. In class (b), we have (1) the constitutional powers of any State or States on the one hand, and (2) the constitutional powers of any other State or States on the other hand; and the question is as to the limits “between themselves” of these two categories of powers. The question in each case is as to the limits “inter se” of the two categories; that is to say, as to whether a particular power belongs to the one category or to the other.

The word “limit,” taken by itself, is not altogether free from ambiguity; it may mean either (1) the boundary of a contained area, or (2) the extent of a contained area. But the phrase “limits inter se,” applied to two mutually opposed categories, can hardly mean anything else than the dividing line between them. Thus the questions referred to in this section are questions as to the distribution of constitutional powers—




  ― 757 ―
  • (a) between the Commonwealth on the one hand, and any State or States on the other; or
  • (b) between any State or States on the one hand, and any other State or States on the other.

In other words, it is not enough, in order to constitute a “question as to the limits inter se of constitutional powers,” that this is a question as to the extent of the powers of the Commonwealth or of a State; there must also be mutual opposition, either between the powers of the Commonwealth and those of a State, or between the powers of one State and those of another. There must be a question, not merely whether one of them has the power, but which of the two has the power. Thus a question as to the extent of the federal power to legislate with respect to trade and commerce, is a question as to the limits inter se of the powers of the Commonwealth and the States, because any increase of the power of the Commonwealth in that respect involves a diminution, either actual or potential, of the power of the States. On the other hand, a question as to the extent of the federal power to legislate in respect of fisheries beyond territorial limits is not such a question, because the States have no power in that respect, and the extent of the federal power does not affect the powers of the States in any way whatever.

Before discussing the application of the section as between (a) the Commonwealth and the States, and (b) two or more States, it will be advisable to analyse the phrase “constitutional powers.”

CONSTITUTIONAL POWERS.—The word “constitutional” need not refer exclusively to the Constitution of the Commonwealth; it may refer also to the Constitutions of the States. In Clause 74 as adopted by the Convention, the matters as to which an appeal to the Privy Council were forbidden were matters “involving the interpretation of this Constitution or of the Constitution of a State”—with an exception in cases where the public interests of some part of the Queen's dominions outside the Commonwealth were involved. This Constitution, by secs. 106 and 107, expressly saves the Constitutions of the States, and the Constitutional powers of the State Parliament, so far as they are not affected by the Constitution of the Commonwealth. It is conceivable, therefore, that questions may arise as to the limits of the constitutional powers of the States, as defined by their respective Constitutions, as well as the limits of their constitutional powers as defined by the Constitution of the Commonwealth.

The word “powers” is wide enough to include all the powers of government. It includes the legislative power of the Commonwealth (sec. 1), the executive power of the Commonwealth (sec. 61), and the judicial power of the Commonwealth (sec. 71); and also the corresponding legislative, executive, and judicial powers of the States, as defined by their respective Constitutions.

QUESTIONS AS TO LIMITS OF POWERS.—We may now proceed to discuss the nature of questions “as to the limits inter se” (a) of the constitutional powers of the Commonwealth and of the States, and (b) of the constitutional powers of two or more States.

(a) As between the Commonwealth and the States.—Questions “as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States” are questions which arise in connection with the federal distribution of power between the Commonwealth on the one hand and the States on the other. Such questions, it may fairly be assumed, will be numerous and important. One of the most fundamental features of the Constitution is the distribution of the sum-total of quasi-sovereign governmental powers—legislative, executive, and judicial—between the Federal Government and the State Governments. The legislative powers given to the Federal Parliament by sections 51 and 52, and in other parts of the Constitution, are necessarily expressed in broad and general terms; and the interpretation of these, and their application to individual cases, is one of the most important and responsible duties which will devolve upon the High Court. In the United States, the various legislative powers of the Union


  ― 758 ―
—and especially the wide power to “regulate trade and commerce with foreign nations, and among the several States”—have received an immense amount of judicial interpretation, the effect of which is to define in detail the exact limits of the powers of the Union on the one hand, and of the States on the other. A similar process of judicial development of the Constitution may be expected to occur in Australia. In the case of nearly every one of the subjects of legislation assigned to the Federal Parliament, cases may arise as to the meaning and extent of the federal power, as to the consequent limitation of the powers of the States, and as to conflicts between Federal and State laws.

Not only in the field of legislation, but also in the fields of administration and adjudication, the system of the federal distribution of power may lead to conflicts of authority and jurisdiction which will become subjects of judicial determination. The exact limits between the executive power of the Commonwealth and those of the several States, and the exact limits of the jurisdiction of the Federal and State courts respectively, will have to be determined by the Courts from time to time, whenever questions arise in the course of litigation as to the meaning or application of the provisions of the Constitution upon these subjects.

(b) As between State and State.—Questions “as to the limits inter se of the constitutional powers of any two or more States” are of a different character, and are likely to be neither so important nor so numerous. In the case of the distribution of power between the Commonwealth and the States, we have to deal with two sets of governing organs, operating upon the same territory and upon the same people, but exercising different sets of powers; and the delimitation of their respective spheres of action is necessarily somewhat difficult and intricate. But in the case of two States, we have two sets of governing organs, exercising similar powers, but operating upon different territories and upon different people. The delimitation in this case is chiefly territorial, and is therefore much simpler. Questions of disputed boundaries, and questions of disputed territorial jurisdiction, would clearly come within the scope of this provision; but it is not quite apparent what other questions could arise as to the limits inter se of the constitutional powers of two States. A State might indeed make unconstitutional discriminations against another State or the residents therein (sec. 117); but a question arising out of any such discrimination would hardly be a question of the limits inter se of the constitutional powers of both States; it would rather be a question of the constitutional powers of one State and the constitutional rights of the other. A breach by one State of the obligation to give full faith and credit to the laws, public acts or records, or judicial proceedings of another State (sec. 118), might perhaps raise a question as to the limits inter se of constitutional powers.

GENERAL SCOPE OF THE PROHIBITION.—A consideration of this section shows that the general scope of the questions as to which an appeal to the Privy Council is forbidden is far narrower than under the clause as adopted by the Convention, which forbade such an appeal “in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests of some part of Her Majesty's Dominions, other than the Commonwealth or a State, are involved.” That provision made the High Court the final arbiter of all questions of constitutional interpretation, except where the interests of some other part of the Empire were concerned. But there are many questions of constitutional interpretation, involving no interests outside the Commonwealth, which do not come within the range of the questions defined in this section. The Constitution, besides distributing powers between the Federal and State Governments, grants to the Federal Parliament certain new powers not previously exercised by the Parliaments of the States, and also prescribes the structure of the several departments of the Federal Government, and the mode in which the powers conferred are to be exercised. Questions may arise as to the valid exercise of some of these new powers, or as to the constitution of one of the organs of the Federal Government—such as the Inter-State Commission, or the High Court—or as to the proper procedure for the exercise of an admitted federal power. These would not be questions


  ― 759 ―
as to the limits inter se of constitutional powers, and would be subject to the Queen's prerogative right of granting leave to appeal.

The duty of defining the class of questions in which the prerogative of appeal is taken away will devolve chiefly upon the Judicial Committee of the Privy Council, upon applications for special leave. The High Court, upon an application for a certificate under this section, will also have to interpret the section; but it must clearly be governed, in the matter of interpretation, by the decisions of the Privy Council. (See note, § 315, infra.)

§ 315. “Unless the High Court shall Certify.”

When it is desired to appeal from a decision of the High Court upon a constitutional question of the kind described in this section, special leave to appeal must first be obtained, not, as in other cases, from the Privy Council, but from the High Court itself. This principle of making the right to appeal dependent upon the leave of the court whose decision is appealed against is not novel. For instance, in England, appeals from the county courts and other inferior courts are determined by the Divisional Court, and the decision of the Divisional Court is final unless leave to appeal is given by the Divisional Court. (Supreme Court of Judicature Act, 1873; 36 and 37 Vic. c. 66, sec. 45.)

DISCRETION TO GRANT OR REFUSE.—The High Court has an absolute discretion to grant or refuse a certificate; the only direction given by the Constitution being that the court must be satisfied that for some “special reason” the certificate should be granted. This discretion, however, like every judicial discretion, is not to be exercised capriciously nor arbitrarily, but on judicial grounds and for substantial reasons. (Per Jessel, M.R., re Taylor, 4 Ch. D. 160; per Lord Blackburn, Doherty v. Allman, 3 App. Ca. 728.) “Discretion is a science or understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.” (Lord Coke, in Rooke's case, 5 Rep. 100a.) “Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular.” (Per Lord Mansfield, Rex v. Wilkes, 4 Burr. 2539.)

The provision that “the High Court may so certify if satisfied that for any special reason the certificate ought to be granted” not only shows that the court has a discretion, but indicates to some extent the principles which ought to guide the exercise of that discretion. A certificate is not to be granted as a matter of course to every would-be appellant; it is not even to be granted in every case in which the Court can see some show of reason for an appeal; it is only to be granted if the Court is satisfied that for some “special reason” it ought to be granted. The use of these words seem to suggest that the certificate of the High Court, granted for “special reason,” is intended to be analogous to the “special leave” of the Privy Council. That is to say, in this particular class of constitutional questions, “special leave” to appeal must be obtained, not as in other cases from the Privy Council, but from the High Court. It seems probable, therefore, that the High Court, in granting or refusing a certificate, will be guided by the principles laid down by the Privy Council in granting or refusing special leave of appeal. (See Notes, § 310, supra.)

In this view it appears that this section, whilst technically it impairs a prerogative of the Queen, in reality only alters the channel through which the prerogative is to be exercised. The royal prerogative of granting leave to appeal from colonial courts to the Queen in Council has long ceased to be exercised personally by the Queen, and has been vested in a particular Court of the Empire—the Judicial Committee of the Privy Council. That prerogative, so far as certain kinds of Australian constitutional questions are concerned, is now transferred to another of Her Majesty's Courts—the High Court of Australia. The exercise of a prerogative which only affects the Commonwealth has


  ― 760 ―
been entrusted to the Queen's servants in the Commonwealth. So far from being novel or revolutionary, this is merely an application of a principle which has always guided the development of the self-governing powers of British colonies.

Except as specially authorized by this section, the High Court is not required to grant, and cannot grant, leave to appeal from its own decisions (see Cushing v. Dupuy, 5 App. Ca. at p. 416).

REFUSAL TO GRANT A CERTIFICATE.—In the cases mentioned in this section, if the High Court refuses to grant a certificate, its decision will be absolutely final. In connection with this subject, one interesting possibility may be referred to. The High Court can only grant a certificate when the decision appealed from involves a question of the limits inter se of constitutional powers. It is possible that, on an application for a certificate, the High Court may refuse the certificate on the ground that the question at issue is not of the specified kind, and that the proper course is to apply to the Privy Council for special leave. If the appellant then applies to the Privy Council, it is possible that the Privy Council may differ from the High Court, and hold that the question is a question of the limits inter se of constitutional powers, and that without a certificate from the High Court there can be no appeal. In such a case though the Privy Council could not set aside the discretionary order of the High Court, the High Court would clearly for the future be bound, as a matter of judicial propriety, to follow the interpretation put upon the section by the Privy Council.

WITHOUT FURTHER LEAVE.—When a certificate has been obtained under this section in respect of a particular “question,” an appeal lies to the Privy Council “on the question” without further leave. But if the appellant desires to appeal, not only on the one question, but also on some other question which does not come within the scope of this section, it would seem that he would have to obtain special leave from the Privy Council for such further appeal.

§ 316. “Shall not impair any Right which the Queen may be pleased to Exercise, by virtue of Her Royal Prerogative.”

The prerogative cannot be affected without express words, so that even if this declaration had been omitted, it would in effect have been read into the section. It was, however, thought advisable to prevent any possibility of it being contended that the words “final and conclusive” in sec. 73 meant conclusive as against the Queen's right to grant special leave of appeal.

For the nature and extent of the prerogative right, apart from the limitations of this section, see notes, § 310, supra. In addition to the specific limitation of the prerogative in the first paragraph, there is a potential limitation in the last words of the section.

APPEALS FROM STATE COURTS TO PRIVY COUNCIL.—This Constitution, whilst giving an alternative right of appeal to the High Court, does not interfere with the existing right of appeal direct from the State Courts to the Privy Council (see Notes, § 299, supra); and therefore there is still an appeal as of right in those cases which come within the terms of the Orders in Council in force in the respective States. This section makes it clear that there is also an appeal “as of grace” by special leave in every case.

It may be taken for granted, however, that appeals as of grace from the State Courts direct to the Privy Council will not be encouraged, and that special leave for such appeals will rarely be granted—at least in cases in which an appeal lies to the High Court. An Australian Court of Appeal having been established, the Privy Council will assuredly be reluctant to grant special leave to appeal from a State Court until the remedies available in Australia have been exhausted. There seem to be very few cases, since the establishment of the Supreme Court of Canada in 1875, in which special leave to


  ― 761 ―
appeal from a provincial Court has been either given or refused. (Theberge v. Laudry, 2 App. Ca. 102; Cushing v. Dupuy, 5 App. Ca. 409; Carter v. Molson, 8 App. Ca. 530; Allan v. Pratt, 13 App. Ca. 780. See Att.-Gen. of Quebec v. Murray, cited Wheeler, Confed. Law of Canada, p. 482. See also remarks by Mr. Symon, Conv. Deb., Melb., p. 2455.) These observations, of course, only apply to cases where special leave to appeal to the Privy Council is needed. The appeal as of right from a State Court to the Privy Council is, as already shown, not interfered with by this Constitution.

Where a decision of the Supreme Court of a State is appealable either to the High Court or to the Privy Council, the choice of tribunal lies with the appellant. It is conceivable that one party to a suit might appeal to the High Court, and another to the Privy Council; but this inconvenience can be remedied by regulation. Even in the absence of regulation, the High Court would presumably have a discretionary power to stay proceedings pending the decision of the Privy Council. In New South Wales, since the Equity Act of 1880, and in Victoria under the Act 19 Vic. No. 13, there has existed a similar alternative right of appeal from the Supreme Court in its Equitable Jurisdiction either to the Full Court or direct to the Privy Council. (See Notes, § 299, supra.)

§ 317. “Special Leave of Appeal from the High Court to Her Majesty in Council.”

“When a party desires to appeal, but cannot do so as of right, he presents a petition to the Queen in Council for leave to appeal, which ought to disclose in the fullest and frankest manner the circumstances under which the leave is sought, and to contain a statement of the proceedings sufficiently full and precise to enable the Committee to form an opinion: the petition is referred to the Privy Council, who advise the Crown as to the propriety of granting or withholding permission.” (Macpherson, P.C. Appeals, p. 22; Lyall v. Jardine, 7 Moo. P.C. N.S. 116; L.R. 3 P.C. 318.)

From the Supreme Courts of the States there is (in cases within the Orders in Council) an appeal as of right; but from the High Court there is no appeal whatever except by special leave of the Queen in Council, or by a certificate of the High Court under this section. The prerogative right of the Queen in Council to grant special leave is preserved, subject to the limitations in this section. (See Notes, supra, § 310; infra, § 318.)

The leading principles according to which leave will be granted or refused have already been indicated. (Notes, § 310, supra.)

§ 318. “The Parliament may make Laws Limiting the Matters in which such Leave may be Asked.”

It would seem that apart from this provision, the Federal Parliament, notwithstanding the assent of the Crown, would have been unable to impose any further limitation on the Prerogative; and tbere is some doubt whether colonial Legislatures generally have such power. In Cushing v. Dupuy, 5 App. Ca. 409, the question of the power of a colonial Legislature to affect prerogative rights was raised, but not decided. In the report of Cuvillier v. Aylwin, in Stuart's R., p. 527, there is a note of Brougham's opinion:—“I am clearly of opinion that no such limitation is valid to bar an appeal to the King in Council. I should greatly doubt if any colonial Act, though allowed by the Crown, if unconfirmed by Act of Parliament (i.e., of the Imperial Parliament) has power to take from the subject this right. But a colonial Act never allowed, can clearly have no effect.” The Canadian Parliament, however, passed in 1888 an Act (51 Vic. c. 43) providing that “notwithstanding any royal prerogative” no appeal should lie to the Privy Council in criminal cases. Exception was taken to this by the Imperial authorities, and though it was not disallowed, it seems to be of doubtful


  ― 762 ―
validity. (See Bourinot, Fed. Gov. in Can. p. 68 n.; Wheeler, Confed. Law of Can. p. 34.)

When the Commonwealth Bill was before the Imperial Parliament, the Delegates, in their first memorandum (see p. 231, supra) contended that the Legislatures of the Australian colonies already had power to limit the prerogative right of granting leave of appeal.

“The concluding sentence of the clause, it is conceived, confers on the Commonwealth a right to do that which each State at present has power to do, subject to reservation of the Bill as affecting the prerogative, in accordance with the ordinary vice-regal instructions. See Instructions to Australian Governors, dated July, 1892, Clause viii., paragraph 7, under which the Governor is to reserve for the signification of the royal pleasure ‘any Bill of an extraordinary nature and importance, whereby our Prerogative, or the rights and property of our subjects not residing in the colony, or the trade and shipping of the United Kingdom and its dependencies may be prejudiced.’ The framers of the Instructions clearly appear to have considered that the colonies had full rights of legislation in such matters as sec. 7, just quoted, sets forth, subject only to reservation for the royal pleasure; and then only when previous instructions upon the particular Bill had not been obtained through one of the principal Secretaries of State, or when the Bill did not contain a clause suspending its operation until the signification of the royal pleasure. The last sentence of the clause, therefore, seems merely to confer on the Federation that legislative power which has long been possessed by each of the constituent States.” (Memo. of Delegates, House of Com. Paper, May, 1900, p. 16.)

The Imperial Government at first objected to this power, but they ultimately acquiesced in the contention of the Delegates. In moving the second reading of the Bill Mr. Chamberlain said:—

“The delegates pointed out to us that this right is inherent in the powers of every Parliament in Australia. The Parliament of every single State in Australia has, in its general powers to make laws for the peace, order, and good government of the country, the power, if it pleases, to make laws limiting the right of appeal, and that power is subject to the right of Her Majesty to disallow or to have reserved any Bill dealing with the subject. The delegates contended that as their Constitution specifically refers to the subjects which alone can be treated by the Federal Parliament, it was necessary specifically to mention this subject, or else the Federal Parliament would have less power than the Parliaments of the constituent States. The reasonableness of that we fully acknowledged, but we felt that if we specifically gave this power by the Constitution we might be assumed to be giving away the right of reservation with regard to this subject. It appears to us to be quite possible that hereafter we might be accused of breach of faith if, when the Federal Parliament had legislated, we had reserved a Bill under the powers given to us in another section of the Constitution.” (Hans., 21 May, 1900, vol. 83, pp. 762–3.)

This provision expressly confers on the Federal Parliament a power in the widest terms to “limit the matters in which such leave may be asked,” and thus, it may be argued, practically to abolish altogether the appeal from the High Court to the Privy Council.

It is to be noted, however, that the power of Parliament to limit the prerogative right only applies to “such leave”—i.e., special leave of appeal from the High Court. The right of appeal from the Courts of the States to the Privy Council—whether as a matter of right or by special leave—cannot be interfered with by the Federal Parliament.

The essence of this provision was contained in an amendment added at Mr. Symon's instance to the words saving the prerogative. Mr. Symon's words were:—“Provided that the right saved is that of granting special leave of appeal, and shall continue only until Parliament otherwise provides.” (Conv. Deb., Melb., p. 2325; Historical Note, supra.) In this form it would have given the Federal Parliament an absolute and direct power over the prerogative right to grant leave of appeal. At the final stage the Drafting Committee altered the provision to the form in which it now stands, and a short debate took place on the effect of the words. (Conv. Deb., Melb., pp. 2453–6.) Mr. Glynn suggested that the clause gave the Parliament power to “abolish appeals” from the High Court to the Privy Council. Mr. Barton explained that the provision gave effect, in a more polite form, to the decision of the Convention. “We cannot give


  ― 763 ―
the Parliament direct power to interfere with the prerogative—at least we do not think it would be right to do so—but we give the Parliament a power to limit the matters in which a subject may petition for leave of appeal. In that respect we carry out Mr. Symon's amendment. The right to grant special leave to appeal is only to continue until Parliament otherwise provides.” The debate then proceeded as follows:—

MR. SYMON: “The clause as it stands will probably give effect to what has been the intention of the Drafting Committee throughout. I would suggest, however, to Mr. Barton that he should insert some words in clause 74 after the word ‘matters.’ If I may say so, I think this is a more dexterous, and, to use an expression which we have already heard, more mannerly way of putting the power of the Federal Parliament into the clause than before. I would suggest that after the word ‘matters’ the following words be inserted: ‘If any,’ so as to make it clear that the amendment I moved gives this power to the Commonwealth Parliament if they choose to exercise it. They might so limit it as to limit it away altogether. A reader of the clause, who has interest in seeing that the Federal Parliament has this power, might not so readily understand it as it is.”

MR. BARTON: “The hon. member means that if Parliament goes on limiting such matters until the end, and there is only one left, it might leave out that one.”

MR. SYMON: “I do not say that a lawyer would say that.”

MR. BARTON: “I think that would only occur to a lawyer. I think that there is a reasonable construction which a court will have to put upon these words, and that there will be no difficulty.”

MR. KINGSTON: “This will have to be considered by lawyers.”

MR. BARTON: “Of course. I have no doubt as to the construction.”

It appears therefore that the original decision of the Convention was to empower the Parliament to abolish the prerogative right of granting leave to appeal; that this was afterwards passed in “a more mannerly way” by empowering the Parliament, not to forbid the Queen to grant leave, but to limit the matters in which a subject might ask leave; that Mr. Symon wished to make it read “matters, if any”—to make it clear to the lay mind that the power extended to limiting it away altogether; but that Mr. Barton thought there was no doubt about the construction.

The power to “limit the matters” is indeed given in the widest terms; but at the same time the power given is a power to limit, and not to abolish. To limit means “to apply a limit to, or set a limit for; to terminate, circumscribe, or restrict, by a limit or limits.” (Webster's Internat. Dict.) A limit necessarily implies a content—an area within the limit. It is conceived that a law of the Federal Parliament, purporting to abolish the right of asking for leave in all matters whatever, would be outside the scope of the Constitution. On the other hand, the power to “limit the matters” in which leave might be asked could undoubtedly, if Parliament thought fit, be exercised to such an extent as to leave very little for the prerogative right to operate upon.

The power to “limit matters” may be compared with the power to “prescribe exemptions” in sec. 73 (see Notes, § 310, supra). They both enable a right of appeal to be cut down; but they deal with the subject from opposite standpoints. The power to prescribe exceptions contemplates the definition of the excluded area; whilst the power to limit the matters in which leave may be asked seems rather to contemplate the definition of the included or circumscribed area.

§ 319. “Shall be Reserved … for Her Majesty's Pleasure.”

By section 58, any proposed law passed by the Houses of the Federal Parliament may be reserved by the Governor-General for the Queen's assent. By this section, any proposed law limiting the matters in which special leave to appeal may be asked must be so reserved. Even without this express provision, the Governor-General could have safeguarded Imperial interests in this respect by reserving such proposed laws, in the exercise of his discretion, for the signification of Her Majesty's pleasure (see Note,


  ― 764 ―
§ 267 supra). Even should that safeguard prove insufficient, and the Bill be assented to by the Governor-General, the Queen could always, within one year, exercise her power of disallowance—the supreme check on the enactment of laws invading the prerogative or affecting Imperial interests (sec. 59). The object of embodying this direction in the Constitution itself was to secure a constitutional recognition of the fact that laws of this kind were matters of special Imperial concern; so that, even if the right of withholding the royal assent, in matters of ordinary federal legislation, should fall into comparative disuse, these particular laws should stand upon a different footing.

Original jurisdiction of High Court.

75. In all matters320—

  • (i.) Arising under any treaty321:
  • (ii.) Affecting consuls or other representatives of other countries322:
  • (iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party323:
  • (iv.) Between States, or between residents of different States, or between a State and a resident of another State324:
  • (v.) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth325:

the High Court shall have original jurisdiction326.

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 this authority; to all cases affecting ambassadors, other public ministers, and consuls; [to all cases of admiralty and maritime jurisdiction]; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens or subjects. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (Const. Art. iii. sec. 2.)

HISTORICAL NOTE.—The corresponding provision framed and adopted without debate by the 1891 Convention was as follows: —

“In all cases affecting public ministers, consuls, or other representatives of other countries, and in all cases in which the Commonwealth, or any person suing or being sued on behalf of the Commonwealth, or is a party, or in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth, and in all cases of controversies between States, the Supreme Court of Australia shall have original as well as appellate jurisdiction.” (These cases, with others, were also recapitulated in a clause defining the jurisdiction which might be given to other federal courts. See Historical Note, sec. 77.)

As framed in the Adelaide session, the clause was divided into sub-clauses; the word “matters” was used to cover all the sub-clauses, in place of “cases” and


  ― 765 ―
“controversies;” and the sub-clause “arising under any treaty” was added—or rather, transferred from the subjects as to which Parliament had power to give jurisdiction. There was no debate.

At the Melbourne session, part of the debate on the words of this clause occurred on the consideration of a clause defining the “judicial power,” in which these sub-sections were repeated. Some debate was raised on the word “matters.” Mr. Glynn moved the omission of the sub-clause “arising under any treaty,” on the ground that it was outside the proper scope of the judicial power. Mr. Symon explained that the power might be needed, and the sub-clause was agreed to. The sub-clause dealing with “mandamus and prohibition” was struck out, on the ground that it might possibly operate as a limitation, and exclude by implication some other kinds of procedure. (Conv. Deb., Melb., pp. 319–21, 349.) Subsequently, on recommittal after the first report, the matter was re-considered (pp. 1875–85), and Mr. Barton moved the re-insertion of the sub-clause, with the addition of the words “or an injunction.” Mr. Glynn and Mr. Kingston feared that this might allow the judiciary to interfere in matters of politics; but Mr. Symon pointed out that the clause only conferred a jurisdiction, not a right. Dr. Quick and Mr. Isaacs, on the other hand, feared that the enumeration of certain writs might be construed to operate as a limitation. The sub-clause was agreed to. The words “or between residents of different States, or between a State and a resident of another State” were also added at this stage. (Conv. Deb., Melb., pp 1875–85.) After the fourth report the section was verbally amended by the Drafting Committee. (Conv. Deb., Melb., p. 2456.)

§ 320. “In all Matters.”

ALL.—One important difference between this section and the corresponding section of the United States Constitution is that the word “all” applies to every sub-section; whereas in the United States Constitution part of the section extends “to all cases” and part “to controversies”—not all controversies. Interpretation in the United States has turned on this distinction (see Martin v. Hunter's Lessee, 1 Wheat. 304; Story, Comm., § 1748; Kent, Comm., i. 318.)

MATTERS.—The word “matters” was chosen by the Judiciary Committee at Adelaide as the widest word to embrace every possible kind of judicial procedure that could arise within the ambit of the section. (See Conv. Deb., Melb., pp. 319–20.) The United States Constitution uses two expressions—“cases in law and equity,” and “controversies.”

“The Supreme Court has defined the phrase, ‘case in law or equity,’ to mean the submission of a subject to the judicial department by a party who asserts his rights in the form prescribed by law, i.e., ‘a suit instituted according to the regular course of judicial proceedings,’ and has distinguished cases from controversies by the limitation of the latter term to civil suits. According to this distinction, the Constitution has conferred no criminal jurisdiction upon the United States Courts wherever it denominates the suit a controversy.” (Burgess, Pol. Sci., ii. 325.)

The word “matters” is used in the Privy Council Act, 3 and 4 Will. IV. c. 41, which empowers the Judicial Committee (in addition to its functions as a court of appeal from inferior courts of law) to hear or consider “any such other matters whatsoever” as the Crown thinks fit to refer to it. “It has, however, been decided that this clause will not justify a reference to the Judicial Committee of anything whatever that could not be properly entertained by, or come before, the Crown in Council. For example, this Committee could not advise upon questions of general or political policy, for that is the especial province of the Cabinet council; neither could it advise in criminal matters, in which, except in certain colonial cases, no appeal to the Privy Council is allowed by law.” (Todd, Parl. Gov. in Colonies, pp. 305–6. See Hans. Deb. vol. 209, pp. 977, 984.)

EXTRA-JUDICIAL OPINIONS.—The important question arises whether any power exists or can exist under the Constitution for the Parliament or the Executive to refer to the


  ― 766 ―
Court, for its opinion, questions not actually arising in the course of any judicial proceeding. The subject of extra-judicial opinions is one of considerable constitutional importance, and reference may be made to English, American, and Canadian constitutional practice.

In England, till the end of the 17th century, it was not uncommon for the King to ascertain the opinions of his Judges on a question before it came judicially before him. (See Broom, Const. Law, pp. 143–6.) This objectionable practice of extra-judicially anticipating judicial decisions in cases pending in the courts was generally condemned by jurists as tending to sap the independence and impartiality of the Bench, and has fallen completely into disuse. The House of Lords, however, when sitting in its judicial capacity, may still submit to the Judges questions bearing on any case sub judice; and even when sitting in its legislative capacity, it may constitutionally propound to the Judges abstract questions of law. (Broom, Const. Law, p. 147.) Thus before the passing of Fox's Libel Act, in 1792, a series of questions relating to the existing law of libel were submitted to and answered by the Judges. The Judges will, however, decline to answer a question put by the House of Lords, unless it is confined to the strict legal construction of existing laws. Re Westminster Bank, 2 Cl. and F. 191, where the Judges declined to answer a question whether the provisions of a certain Bill then before the House were consistent with the statutory rights of the Bank of England.

In the United States, the strict separation of the judicial from the other departments makes it unconstitutional for the Courts to perform extra-judicial duties.

“By law the President possesses the right to require the written advice and opinions of his cabinet ministers upon all questions connected with their respective departments. But he does not possess a like authority in regard to the judicial department. That branch of the Government can be called upon only to decide controversies brought before them in a legal form; and therefore are bound to abstain from any extra-judicial opinions upon points of law, even though solemnly requested by the executive.” (Story, Comm. § 1571; and see Bryce, Amer. Comm., i. 257.)

“The functions of the Judges of the Courts of the United States are strictly and exclusively judicial. They cannot therefore be called upon to advise the President in any executive measures, or to give extra-judicial interpretations of law, or to act as Commissioners in cases of pensions or other like proceedings.” (Id. § 1777.)

Thus in Hayburn's Case, 2 Dall. 409 (and see ibid. 410–412) an Act assigning ministerial duties to the Circuit Courts was held to be unconstitutional, and it was laid down that Congress cannot constitutionally assign to the judicial power any duties which are not strictly judicial. In Dewhurst v. Coulthard, 3 Dall. 409, while an action was pending in a circuit court, the opinion of the Supreme Court was prayed on an agreed statement of facts; but the Court declared that it could not take cognizance of any suit or controversy not brought before it by regular process of law.

The Constitutions of some of the American States expressly provide for extra-judicial opinions on the validity of proposed laws; but in the absence of such provision the State Courts have held that the separation of powers implicitly prohibits advisory opinions. (Amer. and Eng. Encyc. of Law, 2nd Ed., vi. 1067.)

“In a few of the States, indeed, the legislative department has been empowered by the Constitution (i.e., of the State) to call upon the courts for their opinion upon the constitutional validity of a proposed law, in order that, if it be adjudged without warrant, the legislature may abstain from enacting it. But those provisions are not often to be met with, and judicial decisions, especially upon delicate and difficult questions of constitutional law, can seldom be entirely satisfactory when made, as they commonly will be under such calls, without the benefit of argument at the bar, and of that light upon the questions involved which might be afforded by counsel learned in the law, and interested in giving them a thorough investigation.” (Cooley, Const. Lim. 40.)

In Canada it is provided by a Dominion statute (54 and 55 Vic. c. 25, s. 4) that “important questions of law or fact touching provincial legislation … or touching the constitutionality of any legislation of the Parliament of Canada, or touching any


  ― 767 ―
other matter with reference to which he sees fit to exercise this power,” may be referred by the Governor in Council to the Supreme Court for hearing. Persons interested are entitled to be notified and to be heard by counsel, and the Judges must give their reasons; but the opinions of the court are advisory only, although they are appealable to the Privy Council. Ontario has a similar enactment. (See Wheeler, Confed. Law in Canada, pp. 394–5, 401–2, 405–6.)

Under this Constitution it is clear that, as in the United States, the functions of the federal Justices are “strictly and exclusively judicial,” and that no duties can be cast upon them of an essentially extra-judicial kind. (See Notes to sec. 81.) They cannot be called upon to advise on questions of a political nature, or as to the constitutionality of proposed legislation. But whether they could be called upon by the Parliament—or by the Executive acting under a law of the Parliament—to deliver opinions on the “strict legal construction of existing laws,” is a more difficult question. The answer seems to depend on the scope and meaning of the word “judicial.” Would such opinions be judicial, or extra-judicial? The true answer would seem to be that the function of advising on a matter of law, where there is no regular judicial proceeding before the Court to declare the rights of parties, or to enforce remedies, is no part of the duty of a Judge, and is not contemplated in the gift of the judicial power. In England, the advisory duties of the Judges were very exceptional, and only exercised, by virtue of ancient custom, at the request of the House of Lords—itself a judicial as well as a legislative body. In the Australian colonies no such practice is known; whilst the advisory duties which are cast upon the Canadian judges by statute are clearly extra-judicial. The giving of advisory opinions “is not the exercise of the judicial function at all, and the opinions thus given have not the quality of judicial authority.” (Prof. J. B. Thayer, article on the Origin and Scope of the American Doctrine of Constitutional Law, 7 Harvard L. Rev. 129, 153; cited Kent, Comm. I. 296.)

“Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the Act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity for the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.” (Per Brewer, J., Chicago and Grand Trunk R. Co. v. Wellman, 143 U.S. at p. 345.)

The argument from policy is very strong in support of this view. Ex parte interpretations of the law, without the thorough examination of interested parties and their counsel, are apt to be unsatisfactory and unauthoritative. It might indeed happen that the persons interested might be represented and heard upon a reference; but the practice would be, at least, open to serious abuse. The one advantage it would have—that of obtaining a prompt decision upon questions which are in doubt, but which no one is ready to litigate—is more than balanced by other considerations. The Judges would be liable to be hindered in the discharge of their appropriate duties by being employed, in a manner, as the law advisers of the Crown—a position which might lead to the undesirable entanglement of the Bench in political matters. Seeing that the Supreme Court is not solely the servant of the Federal Government, but is also the final arbiter between the Commonwealth and the States, it is of the highest constitutional importance that it should interpret the scope of its judicial duties in the strictest possible way.

Nor do the debates of the Convention justify the supposition that it was intended to permit such a practice. In the Bill of 1891 the jurisdiction of the Federal Courts was confined to “cases” and “controversies,” as in the United States. The Judiciary Committee at Adelaide substituted the word “matters,” with a view, not of extending the scope of the clause to extra-judicial opinions, but of including every kind of judicial


  ― 768 ―
process, whether civil or criminal, and whether there were opposing parties or not. At Melbourne (Debates, 319–20) Mr. Isaacs and Dr. Quick raised this very question. Mr. Symon (Chairman of the Judiciary Committee) replied:—

“We want the very widest word we can procure in order to embrace everything that can possibly arise within the ambit of what are comprised under the sub-section. … I think we are using the best word here. The word ‘matters’ merely indicates the scope within which the judicial power is to be exercised, but no matter can be dealt with until it comes before the authorities in the form of a case or some judicial process which will be regulated by the Judiciary Acts. It does not strike me that the word is too wide.”

Mr. Barton added:—“I think the word ‘matters’ means such matters as can arise for judicial determination.” (See also Conv. Deb., Melb., p. 1680.)

§ 321. “Arising Under any Treaty.”

TREATY.—A treaty is a compact between two or more independent and sovereign States. The power of making treaties is by English law vested in the Crown as a part of the prerogative. (Stephen's Comm. ii. 491.)

“It is a rule of international law, that none but Supreme and independent sovereign powers are competent to contract treaties with foreign nations. The only exception to this rule is where the right to conclude treaties in its own behalf, with other States or foreign powers, has been expressly delegated to a subordinate government by the Crown and Parliament of the mother country. But responsibility for the exercise of such delegated power continues to rest upon the Imperial authority, to the same extent as for any acts of any other accredited public agents of the Crown.” (Todd, Parl. Gov. in Col. p. 247.)

Accordingly, though treaties with foreign powers are uniformly recognized as matters of Imperial concern, concessions have been made to the Dominion of Canada as regards the negotiation of treaties between Her Majesty and the United States on matters specially concerning Canadian interests. (Todd, Parl. Gov. in Col. pp. 268–275.) From 1871–3 claims were put forward by some of the Australian colonies to enter into independent reciprocal treaties with foreign States; but the Imperial Government refused to part with the control of the foreign relations. (See pp. 106–7, 634, supra; and Todd, Parl. Gov. in Col. p. 257.)

Similarly the Commonwealth, being a dependent part of the Empire, has no power to make treaties except so far as such power may be expressly delegated to it by the Imperial Government. This Constitution does not itself contain any such delegation of a treaty-making power. The Bill of 1891 contained a power to legislate as to “external affairs and treaties,” and in the covering clauses it was provided that “all treaties made by the Commonwealth” should be binding. These provisions were repeated in the Adelaide draft of 1897; but afterwards, at Sydney and Melbourne respectively, references to treaties were struck out. (Conv. Deb, Syd., pp. 239–40; Melb., p. 30.) But though no power to make treaties is expressly conferred, there is nothing to prevent the Crown from delegating to the Commonwealth the power of negotiating treaties, on behalf of the Empire, to any extent which may be deemed advisable. (See Note, § 214, p. 634, supra.)

The corresponding clause in the Bill of 1891 was limited to treaties “made by the Commonwealth with another country;” but in 1897 these limiting words were not introduced, and the clause therefore applies to all treaties of which Australian courts can take judicial cognizance. The constitutional right of the Crown to make treaties includes the right to make them binding on all parts of the Empire; and although it is a recognized principle that participation in the benefits of a treaty entered into with any nation does not extend to the colonial possessions of such nation when they are not expressly named, yet as a matter of fact the commercial treaties now in force between Great Britain and other countries are in most instances expressly made applicable to the colonies. (Todd, Parl. Gov. in Col. pp. 265–6.)




  ― 769 ―

MUNICIPAL RIGHTS UNDER TREATIES.—Treaties themselves are matters of international law, and the primary rights and obligations which arise under them, between the high contracting parties, are matters with which courts of law have nothing to do. As a rule, a treaty does not of itself create legal relations between individuals; and the municipal courts can neither enforce its observance, nor decide whether it has been violated. (Elphinstone v. Bedreechund, 1 Knapp, 340.)

“A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honour of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens.” (Per Miller, J., Head Money Cases, 112 U.S. at p. 598.)

As the words “arising under any treaty” are adopted from the United States Constitution, and as light is thrown upon their scope by American cases, it is necessary to point to the fundamental distinction between the nature of a treaty under American and English law. The United States Constitution expressly declares that treaties, as well as the Constitution and laws of the union, are the supreme law of the land; and therefore treaties, when they are self-executing, are on a level with federal statutes, and may become the subject of judicial cognizance without direct legislative sanction from Congress. They in fact derive their legislative validity from the Constitution itself.

“A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either party engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court.” (Per Marshall, C.J., Foster v. Neilson, 2 Pet. 314.)

“A treaty to which the United States is a party is a law of the land, of which all courts, state and national, are to take judicial notice, and by the provisions of which they are to be governed, so far as they are capable of judicial enforcement.” (United States v. Rauscher, 119 U.S. 407.)

“A treaty is primarily a contract between two or more independent nations … For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.” (Whitney v. Robertson, 124 U.S., at p. 194. See also United States v. Forty-three gallons of Whiskey, 93 U.S. 188; Chinese Exclusion Case, 130 U.S. 581, 600; Horner v. United States, 143 U.S. 570; Fong Yue Ting v. United States, 149 U.S. 698.)

In England, on the other hand, a treaty does not of itself have legislative effect, and cannot, it seems, be a subject of judicial cognizance until it has been carried into effect either by the Parliament or—where the Crown either by statute or prerogative has the requisite authority—by the Crown. Thus a treaty of cession does not operate to change the national character of a place until some act of possession has been performed by the Crown. (The Fama, 5 Rob. Adm. 106.) Commercial treaties are frequently executed by Act of Parliament which gives them legislative effect; see for instance the Imperial Act 37 Geo. III. c. 97, carrying into effect a treaty between Great Britain and the


  ― 770 ―
United States. Extradition treaties are carried into effect by Orders in Council under the Imperial Extradition Acts, 1870 and 1873; international arrangements as to Copyright by Orders in Council under the International Copyright Acts. (See Note, § 214, supra.)

“The responsibility of determining what is the true construction of a treaty, made by Her Majesty with any foreign power, must remain with the Imperial Government, who can alone decide how far Great Britain should insist upon the strict enforcement of treaty rights, whatever opinions may be entertained upon the subject in any colony especially concerned therein.” (Todd, Parl. Gov. in Colonies, p. 272.)

“On the other hand, the legislature in any colony is free to determine whether or not to pass laws necessary to give effect to a treaty entered into between the Imperial Government and any foreign power, but in which such colony has a direct interest.” (Ib. p. 275.)

The power of making laws to give effect to treaties, so far as they concern the Commonwealth, must be deemed to be included in sec. 51—xxix.—“External affairs.” The sub-section as originally framed was “External affairs and treaties,” but at the Melbourne Convention (Debates, p. 30) the last words were struck out—apparently lest they should be construed as involving a claim of power to make treaties. The words “external affairs” are, however, wide enough to confer on the Federal Parliament the legislative power proper to a colonial legislature in respect of treaties. Compare sec. 132 of the B.N.A. Act, which gives the Parliament and Government of Canada “all powers necessary or proper for performing the obligations of Canada or of any Province thereof as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries.” Under that section it was held that the (Imperial) Extradition Act, 1870, applied to Canada, and was not inconsistent with the section; and that the (Canadian) Extradition Act, 1869, must be read with it. (Exp. Charles Worms, 22 Lower Can. Jur. 109.)

CASES ARISING UNDER TREATIES.—When a treaty has been duly carried into effect by legislative or executive authority, legal rights and liabilities may arise under it which may be the subject of judicial cognizance, and the treaty itself may become the subject of judicial interpretation. For instances in which treaties have thus been interpreted by the courts, see cases cited in Phillimore Intern. Law, ii. 125 (2nd Ed.). Also Exp. Marks, 15 N.S.W. L.R. 159; 10 W.N. 224; Exp. Rouanet, 15 N.S.W. L.R. 269; 11 W.N. 55; National Starch Manuf. Co. v. Munn's Patent Maizena Co., 13 N.S.W. L.R. Eq at p. 116.

To give jurisdiction under this section it is not necessary that rights should be created by the treaty ; it is enough if they are protected by the treaty, from whatever course they may spring. (New Orleans v. De Armas, 9 Pet. 224.) The fact that the matter in controversy in a suit is a sum received as an award, under the treaty providing for the submission of claims to arbitration, does not “draw in question the validity of the construction of a treaty.” (Borgmeyer v. Idler, 159 U.S. 408. See Note, § 329 infra, “Arising under this Constitution.”)

“It has been made a question as to what was a case arising under a treaty. In Owings v. Norwood's Lessee (5 Cranch. 344) there was an ejectment between two citizens of Maryland, for lands in that State; and the defendant set up an outstanding title in a British subject, which he contended was protected by the British treaty of 1794. … The Supreme Court of the United States held that not to be a case within the appellate jurisdiction of the Court, because it was not a case arising under the treaty. The treaty itself was not drawn in question, either directly or incidentally. The title in question did not grow out of the treaty, and as the claim was not under the treaty, the title was not protected by it; and whether the treaty was an obstacle to the recovery, was then a question exclusively for the State Court.” (Kent, Comm. i. 325–6.)




  ― 771 ―

§322. “Affecting Consuls, or Other Representatives of Other Countries.”

CONSULS.—The officers mentioned in the corresponding provision of the United States Constitution are “ambassadors, other public ministers, and consuls.” The relations of the Commonwealth with foreign powers being not diplomatic, but almost wholly commercial, the words “ambassadors” and “public ministers” were inapplicable. Thus “consuls,” who in the American provision are mentioned last in order, are the main subject of this sub-section.

Consuls, unlike ambassadors and other public ministers, are not protected by the law of nations, but are subject, both in civil and criminal cases, to the laws of the country in which they reside. (Kent, Comm. i. 44.)

“Consuls, indeed, have not in strictness a diplomatic character. They are deemed as mere commercial agents, and therefore partake of the ordinary character of such agents, and are subject to the municipal laws of the countries where they reside. Yet, as they are the public agents of the nation to which they belong, and are often entrusted with the performance of very delicate functions of State, and as they might be greatly embarrassed by being subject to the ordinary jurisdiction of inferior tribunals, State and national, it was thought highly expedient to extend the original jurisdiction of the Supreme Court to them also. The propriety of vesting jurisdiction in such cases in some of the national courts seems hardly to have been questioned by the most zealous opponents of the Constitution.” (Story, Comm. § 1660.)

The words of the Constitution, coupling consuls with “other representatives of other countries,” seem to contemplate that jurisdiction shall only be conferred under this sub-section when the consul or other representative is affected in his official or representative capacity. (See Conv. Deb., Melb., p. 2456.) This construction is in harmony with the position of a consul as a public agent of the country which he represents. So far as his public position is concerned, the special protection of the federal jurisdiction is thrown over him; but where his public position is not affected there is no need to differentiate him from any ordinary citizen.

It would seem that the words of the United States Constitution—“affecting ambassadors, other public ministers, and consuls”—are interpreted differently as extending to the private as well as the public capacity of those dignitaries. Moreover the American Judiciary Acts make the jurisdiction exclusive of the State Courts, so that the dignitaries named can only be sued in the Courts of the Union. “This is not a mere personal privilege; it is a privilege of the foreign Sovereign, that his representative should be sued only in the Courts of the United States, with which Government alone he has relations ; and it is not waived by an omission to plead it to the action.” (Davis v. Packard, 7 Pet. 275. See also Kent, Comm. i. 45.)

“AFFECTING.”—It has been held in the United States that an indictment for offering violence to the person of a public minister is not a case “affecting” the minister.

“It is that of a public prosecution, instituted and conducted by and in the name of the United States, for the purpose of vindicating the law of nations and that of the United States, offended, as the indictment charges, in the person of a public minister, by an assault committed on him by a private individual. It is a case, then, which affects the United States and the individual whom they seek to punish; but one in which the Minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution or in the costs attending it.” (Per Washington, U.S. v. Ortega, 11 Wheat. at p. 469. See Story, Comm. § 1661 ; Kent, Comm. i. 39, 315.)

It seems, however, that the words of the Constitution are broad enough to cover cases where the consul or other representative is not a party, but may be affected in interest.

“If a suit be brought against a foreign minister, the Supreme Court [of the United States] alone has original jurisdiction ; and this is shown on the record. But suppose a suit to be brought which affects the interests of a foreign minister, or by which the person of his servant, or of his secretary, is arrested. The minister does not, by the


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mere arrest of his secretary or his servant, become a party to this suit; but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed; not because he is a party to it, but because it affects him. The language of the Constitution in the two cases is different. This court can take cognizance of all cases ‘affecting’ foreign ministers; and therefore jurisdiction does not depend on the party named in the record. But this language changes when the enumeration proceeds to States. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reasons which all comprehend, to give the national courts jurisdiction over all cases by which they were in any manner affected. In the case of States, whose immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only to which they were actual parties.” (Per Marshall, C.J., Osborn v. Bank of U.S., 9 Wheat. at p. 854. See Story, Comm. § 1662.)

“The Court has, I think, indicated that the phrase ‘affecting ambassadors,’ &c., includes all cases where the ambassador, &c., is either party to the suit or is directly affected and bound by the judgment.” (Burgess, Pol. Sci. ii. 329.)

OTHER REPRESENTATIVES.—The phrase “other representatives of other countries” is somewhat vague, but would presumably include all persons officially accredited to the Commonwealth by foreign governments. The expression, “other countries” occurs again in sec. 51—i., where trade and commerce “with other countries” means trade or commerce with persons outside the limits of the Commonwealth; but a representative of a country can hardly mean anything else than an accredited representative of the government of the country. The parallel expression in sec. 51 leads to the inference that the expression “other countries,” in this section as in that, includes all countries outside the Commonwealth, whether British or foreign.

PROOF OF JURISDICTION.—The mode in which the facts which give rise to jurisdiction are to be proved is a matter of procedure, to be regulated by the Parliament. (For U.S. cases, see Re Baiz, 135 U.S. 403: Ex p. Hitz, 111 U.S. 766; Kent, Comm. i. 39.)

§ 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.”

§ 324. “Between States, or between Residents of Different States, or between a State and a Resident of Another State.”

The original jurisdiction of the High Court extends to “all matters between States,” &c.—words which are wide enough to include controversies of all kinds between a State or a resident of a State on the one hand, and another State or a resident of another State on the other hand. In cases of this class “the jurisdiction depends entirely on the character of the parties. … If these be the parties, it is entirely unimportant what may be the subject of the controversy. Be it what it may, these parties have a constitutional right to come into the courts of the union.” (Per Marshall, C.J., Cohens v. Virginia, 6 Wheat. at p. 378.)

COMPARISON WITH UNITED STATES.—The whole of this provision is adapted with important modifications from the Constitution of the United States; and for a proper


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application of the American authorities it is necessary to examine the points of difference between the words of the two Constitutions.

The provision in the Constitution of the United States is a gift of “judicial power,” and in 1793 it was held (Chisholm v. Georgia, 2 Dall. 419) that it enabled a State to be sued in assumpsit by a citizen of another State. This decision gave such intense dissatisfaction that the eleventh amendment was passed declaring that the judicial power should not be construed to extend to any suit brought against a State by citizens of another State, or by aliens. Notwithstanding this amendment, however, a State can still be sued by another State of the Union, though enjoying immunity from being sued by citizens of such other State. The result of this distinction was that attempts were made by States, whose citizens had claims against another State, to prosecute these claims on behalf of their citizens; but these attempts were defeated, it being held that a State could not in this way create a controversy with another State. (New Hampshire v. Louisiana, New York v. Louisiana, 108 U.S. 76.) The provisions of this Constitution, however, make no distinction between a plaintiff State and a plaintiff resident of that State.

Again, though the Supreme Court of the United States has original jurisdiction in cases where a State is a party, it has only appellate jurisdiction in cases “between citizens of different States.” Accordingly in an action of ejectment between citizens of different States in respect of land over which both States claimed jurisdiction, it was held that the Supreme Court had no original jurisdiction, inasmuch as a State was neither nominally nor substantially a party; and it was not sufficient that the State might be consequentially affected by having to compensate its grantee. (Fowler v. Lindsey, 3 Dall. 411; see Kent, Comm. i. 323.)

The judicial power of the United States extends to controversies “between a State, or the citizens thereof, and foreign States, citizens, or subjects.” In this Constitution there is no such provision.

SUITS AGAINST A STATE.—It is submitted that — notwithstanding Chisholm v. Georgia, cited above—this sub-section, like the rest of the section, only confers a jurisdiction, and not a right of action where no right of action existed before; that it does not extend the category of cases in which a State, or a resident of a State, may be sued, but merely enables certain suits, which might otherwise have been brought in some other court, to be brought in the High Court. (See remarks of Messrs. Barton, Symon, and Isaacs in connection with mandamus; Conv. Deb., Melb., pp. 1875–85.) Apart from express words in the Constitution, a State would not be suable without its own consent. This section does not appear to affect this immunity; but an important limitation has been put upon it by sec. 78, which provides that “in respect of matters within the limits of the judicial power” the Federal Parliament may make laws conferring rights to proceed against a State. The express provision that the Parliament may confer these rights seems to show that they are not conferred by the Constitution itself; and there is thus a guide to the intention of the framers which was absent in the Constitution of the United States. It seems, therefore, that no suit can be brought against a State, either by another State or by a resident of another State, except (1) by consent, expressed by legislation or otherwise, of the State sued, or (2) under a right given by the Federal Parliament under sec. 78.

It has been decided in the United States that a State may waive its immunity, and by appearing in a Federal court, in a suit in which it has an interest, does waive it. (Clark v. Barnard, 108 U.S. 436.) And a State may be sued with its own consent. (Hans v. Louisiana, 134 U.S. 1.) Such consent may be given on such terms and conditions as the State chooses to impose, and may be withdrawn. (Re Ayers, 123 U.S. 505; Railroad Co. v. Tennessee, 101 U.S. 337; Beers v. Arkansas, 20 How. 527.)

“When a State submits itself, without reservation, to the jurisdiction of a Court in a particular case, the jurisdiction may be used to give full effect to what the State has, by its act of submission, allowed to be done; and if the law permits coercion of the


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public officers to enforce any judgment that may be rendered, then such coercion may be employed for that purpose. But this is very far from authorizing the courts, when a State cannot be sued, to set up their jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power in their administration of the finances of the State.” (Per Waite, C.J., Louisiana v. Jumel, 107 U.S. at p. 728.)

PARTIES.—Jurisdiction under this sub-section depends on the character of the parties; and where that is the case, it has been held in the United States that only the parties on the record must be looked to. (See Story, Comm. §§ 1685–8; Kent, Comm. i. 350; and Notes, § 323, supra.)

BETWEEN STATES.—It seems that this jurisdiction, except by consent of the defendant State, can only be exercised under the authority of federal legislation conferring the right to sue a State. (See Notes, supra; and § 338, infra.)

“The spectacle of a people submitting public controversies to the same mode of settlement as private law suits, and acquiescing in the decisions, has set an example which foreign nations are about to imitate, not only in internal discords, but in those which are international.” (Foster, Const. of the U.S. i. 45.)

“This power seems to be essential to the preservation of the union,” says Story, Comm. § 1679. After illustrating this from the experience of the Confederation, he proceeds:—

“Some tribunal exercising such authority is essential to prevent an appeal to the sword and a dissolution of the government. That it ought to be established under the national, rather than under the State government, or, to speak more properly, that it can be safely established under the former only, would seem to be a position self-evident, and requiring no reasoning to support it. It may justly be presumed that under the national government, in all controversies of this sort, the decision will be impartially made according to the principles of justice; and all the usual and most effectual precautions are taken to secure this impartiality, by confiding it to the highest judicial tribunal.” (§ 1681.)

In the United States, this jurisdiction has been chiefly employed in cases of disputed boundaries. (See opinion of the Court in Wisconsin v. Pelican Insurance Co., 127 U.S. 265.) It has been decided that the Supreme Court of the United States has jurisdiction to determine questions of boundary between States, and that the jurisdiction is not defeated because of the fact that in deciding the question the court must examine and construe compacts between States, or because the jurisdiction affects the territorial limits of the political jurisdiction and sovereignty of the States. (Virginia v. West Virginia, 11 Wall. 39; Rhode I. v. Massachusetts, 12 Pet. 657; and see other cases cited by Baker, Annot. Const. p. 138.)

The Courts of the United States have declined, as between States, to compel the performance of obligations which, between independent nations, could not have been enforced judicially, but only through the political departments. (Kentucky v. Dennison 24 How. 66; New York v. Louisiana, 108 U.S. 76; and see Wisconsin v. Pelican Ins. Co., 127 U.S. 265.)

In a recent case, it was held that the words “controversies between States” were intended to include something more than controversies over territory or jurisdiction; but that the jurisdiction was of so delicate and grave a character that its exercise was not contemplated save when the necessity was absolute and the matter itself properly justiciable. To maintain jurisdiction, the controversy must arise directly between the States, and must not be a controversy in the vindication of grievances between private individuals. A bill by the State of Louisiana against the State of Texas, complaining that Texas by unnecessary and unreasonable quarantine regulations was intentionally and absolutely interdicting inter-state commerce, was held to be bad, as its gravamen was not a special and peculiar injury such as would sustain an action by a private person, but Louisiana presented herself in the attitude of parens patriœ, trustee, guardian, or representative of her citizens. Nor could the bill be sustained as a controversy between a State and the citizens of another State. (Louisiana v. Texas [1899], 176 U.S. 1.)




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BETWEEN RESIDENTS OF DIFFERENT STATES.—These words (and also those following—“between a State and a resident of another State”) were only inserted at a late stage in the Convention. (See Conv. Deb., Melb., p. 1885.) They are taken from the United States Constitution, with the substitution of the word “residents” for “citizens.” The reasons for the jurisdiction being given in the United States are explained by Story, Comm. §§ 1690–2, and are based on the advantage of giving the parties in such cases recourse to a national and impartial tribunal.

The word “resident” is undefined, and must be interpreted according to the scope and spirit of the Constitution. (See Notes, § 131, supra, and § 463, infra.) There are numerous English and colonial cases defining “residence” differently for the purpose of different enactments. Thus where residence is required for an electoral qualification, the guiding principle is that a voter should have some local interest. (Beal v. Ford, 3 C.P.D. at p. 78.) Where jurisdiction depends upon the residence of the defendant (as in County or District Court Acts) the principle is that of seeking out the defendant in his own jurisdiction—in the forum rei. Here the considerations are somewhat different from both; the principle is that of providing a forum which is neither solely the plaintiff's nor solely the defendant's, but belongs impartially to both. The object of the jurisdiction, in fact, is to avoid any suggestion of partiality which might arise if a litigant with a resident in another State had no option but to resort to the courts of that State. The jurisdiction is thus based on the existence of those local citizenships and local patriotisms which are characteristic of a Federation. Residence in a State, for the purposes of this section, should therefore be interpreted as involving a suggestion of State membership, and perhaps even of domicile.

An instructive parallel expression occurs in sec. 117, where “a subject of the Queen resident in any State” is protected from disabilities in other States. That clause as it stood in the Bill of 1891, and also in the Adelaide draft of 1897, referred to the privileges and immunities of “citizens” of the States (see Notes to sec. 117); but at the Melbourne Convention (Debates, pp. 664–691) difficulties were raised in connection with the meaning of the clause, and it was struck out—many members expressing the opinion that citizenship, both of the Commonwealth and of the States, should be defined in the Constitution. Afterwards (Debates, pp. 1750–68) Dr. Quick proposed to give the Federal Parliament power to make laws as to “Commonwealth citizenship.” Some members thought this power unnecessary, whilst others still thought that the proper plan was to define citizenship. On Mr. Symon's motion to reinsert a provision for protecting the rights of citizens (Debates, pp. 1780–1802; and see Historical Note, sec. 117) Dr. Quick proposed a definition of Commonwealth citizenship; but this was struck out. Considerable objection being made to the use of the word “citizen,” the phrase “subject of the Queen resident in any State” was substituted. It was after the adoption of that phrase that the words “between residents,” &c. (adapted from the American “between citizens,” etc.) were inserted.

It appears then that the residence in a State contemplated by the Constitution is such residence as, if combined with British nationality, would constitute citizenship of the State, in the general sense of the term. It is not meant by this that the residence should be such as is required by the laws of the particular State for the exercise of any political franchise, but merely that it should be of a character to identify the resident to some extent with the corporate entity of the State.

For the meaning of citizenship of a State in the United States, see Story, Comm. §§ 1693–5; Kent, Comm. i. 345. In its broad sense, the word “citizen” is synonymous with “subject” and “inhabitant,” and is understood as conveying the idea of membership of a nation and nothing more. (Minor v. Happerset, 21 Wall. 162.)

The question arises whether, in order to give jurisdiction under this sub-section, it is necessary that all the plaintiffs should be residents in a different State or States from all the defendants. The American decisions turn not only on the words in the Constitution, “between citizens of different States,” but also on the more precise words


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of the Judiciary Act, which give the Circuit Courts jurisdiction “where the suit is between a citizen of the State where the suit is brought, and a citizen of another State.” It has been held that those words mean that each distinct interest must be represented by persons all of whom are entitled to sue, or liable to be sued, in the Federal Courts. (Strawbridge v. Curtiss, 3 Cranch, 267; Coal Co. v. Blatchford, 11 Wall. 172.) Where jurisdiction depends on the parties, the parties to the record are meant, and not the parties in interest. (See Note, § 323, supra.) Trustees and executors are no exception; their residence, and not the residence of the beneficiaries whom they represent in the suit, is material. (Coal Co. v. Blatchford, 11 Wall. 172.) In the United States, an allegation that the plaintiffs “as such executors” were citizens of a State was held insufficient, inasmuch as citizenship was a personal, not an official quality. (Amory v. Amory, 95 U.S. 186.) Where, however, a party to the record is wholly formal, and has no interest in or control over the suit, but is a mere “conduit”—as where a sheriff's bond had to be sued out in the name of the Governor of the State—the residence of the party interested, and not of the formal party, is material. (McNutt v. Bland, 2 How. 9.) And jurisdiction cannot be ousted by the joinder of a mere nominal defendant, who has not the requisite character. (Carneal v. Banks, 10 Wheat. 181; Walden v. Skinner, 101 U.S. 577; Kent, Comm. i. 346.) Where jurisdiction depends on the residence of the parties, the jurisdiction must appear on the record. (Bingham v. Cabot, 3 Dall. 382; Abercrombie v. Dupuis, 1 Cranch 343; Kent, Comm. i. 344.)

The federal courts have no jurisdiction of a suit between a resident of a territory and a resident of a State; nor where a resident of the federal district is a party. (New Orleans v. Winter, 1 Wheat. 91; Barney v. Baltimore, 6 Wall. 280.)

CHANGE OF RESIDENCE.—If a resident of one State changes his domicile to another State, with a bona fide intention to reside there, even though his object was to avail himself of the federal jurisdiction, he may sue as a resident of the latter State. (Jones v. League, 18 How. 76; Kent, Comm. i. 345.) But a merely colourable conveyance will not give jurisdiction. (Ib.)

RESIDENCE OF CORPORATION.—In the United States, it was held in some early cases that a corporation aggregate was not, in its corporate capacity, a citizen, and that its right to sue in the federal courts depended on the citizenship of its members, which must be averred on the record. (Hope Ins. Co. v. Boardman, 5 Cranch 57; Bank of U.S. v. Deveaux, 5 Cranch 61.) These decisions were reviewed and overruled in Louisville R. Co. v. Letson, 2 How. 497, where it was held that a corporation created and doing business in a State is an inhabitant of the State, capable as being treated as a citizen for all purposes of jurisdiction. And the mischief of the earlier decision is now whittled away by a legal fiction; the members of a corporation being conclusively presumed, for purposes of jurisdiction, to be citizens of the State in which the corporation was created. (Steamship Co. v. Tugman, 106 U.S. 118; Memphis, &c., R.R. Co. v. Alabama, 107 U.S. 581; Kent, Comm. i. 346.) “It is well settled that a corporation created by a State is a citizen of the State, within the meaning of those provisions of the Constitution and statutes of the United States, which define the jurisdiction of the federal courts.” (Wisconsin v. Pelican Ins. Co. 127 U.S. p. 287.) But such a corporation is not a citizen of the State, so as to be “entitled to all privileges and immunities of citizens in the several States.” (Blake v. McClung, 172 U.S. 239.)

A corporation may clearly be a “resident” within the meaning of this section. “Residents” are resident persons; and by the (Imperial) Interpretation Act, 1889 (which governs this constitution), the expression “person,” unless the contrary intention appears, includes any body of persons corporate or unincorporate. (Sec. 19.)

According to writers on International Law, supported by English decisions, the residence of an incorporated company is determined by the place in which its administrative business is chiefly carried on. (See Westlake, Priv. Internat. Law, 285; Lindley, Company Law, p. 910.)




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BETWEEN A STATE AND A RESIDENT OF ANOTHER STATE.—The object of this jurisdiction also is to avoid partiality, or the suspicion of partiality. (Story, Comm. § 1682; Kent, Comm. i. 323; Wisconsin v. Pelican Ins. Co., 127 U.S. p. 265.) In that case it was held that similar words do not give federal jurisdiction in an action by a State upon a judgment recovered by it, in one of its own courts, against a citizen of another State. “The grant is of ‘judicial power’ and was not intended to confer upon the courts of the United States jurisdiction of a suit or prosecution by the one State, of such a nature that it could not, on the settled principles of public and international law, be entertained by the judiciary of the other State at all.” (Per Gray, J., at p. 289.)

“The courts of no country execute the penal laws of another.” (Per Marshall, C.J., The Antelope, 10 Wheat. 123.) This rule “applies not only to prosecutions and sentences for crimes and misdemeanours, but to all suits in favour of the State for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue or other municipal laws, and to all judgments for such penalties.” (Wisconsin v. Pelican Ins. Co., cited above.)

§ 325. “In which a Writ of Mandamus or Prohibition, or an Injunction, is Sought Against an Officer of the Commonwealth.”

The Convention was in considerable doubt as to whether this sub-section was necessary or not. It was included (except so far as injunctions are concerned) in the Bill of 1891; and it reappeared in the Adelaide draft of 1897. At Melbourne (Debates, pp. 320–1) it was omitted, at Mr. Barton's suggestion, on the ground that the words were unnecessary, and might operate as a limitation. On reconsideration (Debates, pp. 1875–85) it was thought advisable to restore the words, owing to principles laid down in American decisions, which show that the power of the Supreme Court of the United States to grant a writ of mandamus is very limited.

AMERICAN DECISIONS.—In order to explain the reasons for inserting the words, and to answer the objections which were urged against them, it is necessary first to examine the American decisions. The Constitution of the United States gives original jurisdiction to the Supreme Court only in “cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party.” Nor has Congress any power whatever to extend the original jurisdiction of the Supreme Court. The Judiciary Act of 1789, which created the Federal Courts, after declaring that the Supreme Court should have appellate jurisdiction from the Circuit Courts and Courts of the several States, in certain cases, provided that it should have power to issue writs of mandamus, in cases warranted by the principles and usages of law, “to any courts appointed, or persons holding office, under the authority of the United States.” (See Re Green, 141 U.S. 325.) In Marbury v. Madison, 1 Cranch 137, this Act was held to be unconstitutional so far as it purported to give the Supreme Court power to issue a mandamus against an officer of the United States (a proceeding which involves the exercise of original jurisdiction) in cases not within the original jurisdiction granted by the Constitution. Marbury had been duly appointed a justice of the peace, and his commission had been duly signed and sealed; but the Secretary of State refused to issue it. The Court held (see Kent, i. 322) that this was a violation of a vested legal right, for which the plaintiff was entitled to a remedy by mandamus; but held also that the mandamus could not constitutionally issue from the Supreme Court.

“To enable this Court to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction or to be necessary to enable them to exercise appellate jurisdiction. … It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that


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paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary, in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to the Supreme Court, by the Act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution.” (Per Marshall, C.J., Marbury v. Madison, 1 Cranch at p. 175.)

The principles established in Marbury v. Madison are very clear. When a writ of mandamus is sought, the first question is whether “the principles and usages of law” warrant the issue of a mandamus as the proper remedy in the case; and if that question is answered in the affirmative, the question remains whether the Supreme Court has jurisdiction over the parties or the subject-matter. If the mandamus is sought against a non-judicial officer, it is an exercise of original jurisdiction, and the court can only act if the matter comes within the scope of its original jurisdiction. If the mandamus is sought against a court, it is an exercise of appellate jurisdiction, and the court can only act if the matter comes within the scope of its appellate jurisdiction.

It is submitted that, in the absence of this sub-section, the American decisions would be completely applicable to this Constitution, and that no mandamus could issue from the High Court against a non-judicial officer of the Commonwealth except in cases which came within the scope of the original jurisdiction of the Court. There is, of course, the difference that the original jurisdiction of the High Court under this Constitution is wider than that of the Supreme Court of the United States, and that this jurisdiction can, within certain limits, be further enlarged by the Parliament; but that is a difference which does not affect the principle. That principle is that the original jurisdiction of the High Court is limited, and that its power to grant mandamus, prohibition, or injunction—or, for the matter of that, any other remedy whatever—is ordinarily confined, so far as that remedy involves an exercise of original jurisdiction, within precisely the same limits. The difference made by this sub-section is that whenever any person seeks any one of those three remedies against an officer of the Commonwealth, the High Court will have original jurisdiction in the matter—whether or not it is a matter “arising under a treaty,” or “affecting consuls,” or “between States,” &c.

OBJECTIONS ANSWERED.—It was suggested by Mr. Isaacs (Conv. Debates, Melb., pp. 1879, 1882) that the words were unnecessary, inasmuch as the jurisdiction proposed to be given was already covered by sub-sec. iii., which gave original jurisdiction where “the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.” It seems clear, however, that that sub-section only applies where the Commonwealth is the real party, and some person sues or is sued as representing the Commonwealth. (See Note, § 323, supra; and Mr. Barton's remarks, Conv. Deb., Melb., p. 1884.) In applications for mandamus, that is never the case, because a mandamus cannot issue against the Crown, or against any person representing the Crown. (See Note on Mandamus, infra.) A suit “against an officer of the Commonwealth” is a very different thing to a suit against “a person sued on behalf of the Commonwealth.”

Another objection urged was that the mention of these particular remedies might raise the implication that the High Court had no jurisdiction with respect to other remedies not mentioned — such as writs of habeas corpus, certiorari, &c. This argument is practically answered by the foregoing statement of the purport of the provision. The High Court, apart from this sub-section, would have had power to grant the remedies of mandamus, &c., whenever it was incident or necessary to the exercise of their original jurisdiction. This sub-section expressly extends that jurisdiction in the case of three remedies “which are specially in their nature addressed to persons who may be carrying out the provisions of the statute law” (Conv. Deb., Melb., 1885); but as regards all other remedies it leaves the jurisdiction of the court unaltered. That jurisdiction, it is submitted, will be just as extensive as it is in the United States.

“All the courts of the United States have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and


  ― 780 ―
usages of law. So the judges of the Supreme Court, as well as the judges of the District Courts, may, by habeas corpus, relieve the citizens from all manner of unjust imprisonment occurring under or by colour of the authority of the United States, or for acts done, or omitted to be done, in pursuance of a law of the United States, or of a judicial authority of any court or judge thereof.” (Kent, Comm. i. 300; and see Story, Comm. § 1341.)

The well-recognized principle is, that in the exercise of its lawful jurisdiction the court may employ all appropriate remedies; and that principle is not affected by the fact that in a certain class of cases the nature of the remedy sought is made the ground of jurisdiction.

Another objection urged was that the sub-section might enable the judiciary to interfere in political matters, and control the executive acts of the government. A sufficient answer to this is that this sub-section, like all the others, confers a jurisdiction only, not a right of action. It provides that resort may be had to the High Court when a mandamus, &c., is sought against an officer of the Commonwealth; but, as was explained by Mr. Symon, “it does not give any right to get mandamus or prohibition. … It merely gives a jurisdiction in certain applications.” (Conv. Deb., Melb., p. 1877.)

GENERAL JURISDICTION IN MANDAMUS, &c.—Two things must combine in order to give jurisdiction under this sub-section in any matter:—(1) That a mandamus, prohibition, or injunction is sought; and (2) that such remedy is sought against an officer of the Commonwealth. If the nature of the remedy sought, and the character of the party against whom it is sought, answer this description, the High Court has original jurisdiction, irrespective of what the subject of the suit may be.

It must not be supposed, however, that the High Court has no power to issue mandamus, prohibition, or injunction except under this sub-section. Whenever the Court has jurisdiction, original or appellate, in any matter, it has power to grant all remedies necessary or appropriate to the exercise of that jurisdiction. (See United States cases cited, supra.) That is to say, in cases where the person against whom a mandamus, prohibition, or injunction is sought is not an officer of the Commonwealth, then if the character of the parties or the subject-matter of the suit give the High Court original jurisdiction in the matter, the High Court has authority to grant any such writ or remedy in the matter as may be necessary to the exercise of that jurisdiction.

A WRIT OF MANDAMUS OR PROHIBITION.—A writ is a document in the Queen's name, and under the seal of the Crown, or of a court or officer of the Crown, commanding the person to whom it is addressed to do or forbear from doing some act. (Sweet's Law Dictionary.)

Writs are either prerogative or of right. A prerogative writ is one which issues, not of strict right, but in the discretion of the Court. (Shortt, Mandamus, p. 223.)

Mandamus and prohibition are prerogative writs. There are other prerogative writs known to English law, such as habeas corpus, certiorari, procedendo, and quo warranto. The mention in this section of mandamus and prohibition alone is not meant to exclude or limit any jurisdiction which the High Court may otherwise have with regard to other writs; the object was to make it perfectly clear that the courts should have original jurisdiction in every case in which either of these writs, or an injunction, was sought against an officer of the Commonwealth: these three proceedings being selected because they are “specially in their nature addressed to persons who may be carrying out the provisions of the Statute law.” (Conv. Deb., Melb., pp. 1876–85.)

MANDAMUS.—“A writ of mandamus is, in general, a command issuing in the King's name from the court of King's Bench, and directed to any person, corporation, or inferior court of judicature within the King's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of King's Bench has previously determined, or at least supposes, to be consonant to right and justice. It is a high prerogative writ, of a most extensive remedial nature: … it issues in all cases where the party hath a right to have anything done, and hath no other specific means of compelling its performance.” (Blackstone, Comm. iii. 110. See also Steph. Comm. iii. 615; Shortt, Mandamus, 223.)




  ― 781 ―

Besides the prerogative writ of mandamus, there are various kinds of statutory mandamus; especially the mandamus in a civil action, first introduced by the (Imperial) Common Law Procedure Act, 1854, and subsequently adopted in the colonial Common Law Procedure Acts. (See Steph. Comm. iii. 619.) This sub-section appears chiefly to contemplate the prerogative writ; but it is submitted that it is wide enough to include any statutory mandamus which may be authorized by federal legislation.

In the colonies, the courts which exercise a jurisdiction corresponding to that of the Queen's Bench have always exercised the right of issuing the prerogative writ of mandamus. It appears that, in the absence of prohibitive Imperial legislation, the Court of Queen's Bench can exercise jurisdiction in every part of the Queen's Dominions, even in colonies in which an independent legislature has been established. “Writs not ministerially directed (sometimes called prerogative writs, because they are supposed to issue on the part of the King), such as writs of mandamus, prohibition, habeas corpus, certiorari, are restrained by no clause in the constitution of Berwick; upon a proper case they may issue to every dominion of the Crown of England. There is no doubt as to the power of this court (i.e., the court of King's Bench), where the place is under the subjection of the Crown of England; the only question is as to the propriety.” (Per Mansfield, C.J., Rex v. Cowle, 2 Burr. 855.) In 1861, a writ of habeas corpus ad subjiciendum was issued from the court of Queen's Bench to certain officers in Upper Canada. (Re John Anderson, 30 L.J.Q.B. 129.)

A mandamus only lies where the applicant has a legal right to the performance of some public duty, and where there is no other adequate remedy. (See Shortt, Mandamus.)

The mandamus provided for in this sub-section is only “against officers of the Commonwealth.” Without express words, the High Court has original jurisdiction to issue a mandamus against any person, corporation, or public officer in any matter coming within the scope of its original jurisdiction; and the power to issue a mandamus to any State or Federal Court is incident to the general appellate jurisdiction of the High Court. (Marbury v. Madison, 1 Cranch 137; and see notes, supra.)

This sub-section merely gives a jurisdiction, and does not confer any right to a mandamus in cases where it did not exist before. (Conv. Deb., Melb., pp. 1875–85.) Consequently the jurisdiction where a mandamus is sought against an officer of the Commonwealth must be read in the light of established authority. It is a clear principle of English law that a mandamus is never granted against the Crown, or the officers or servants of the Crown as such. “That there can be no mandamus to the Sovereign there can be no doubt, both because there would be an incongruity in the Queen commanding herself to do an act, and also because the disobedience to a writ of mandamus is to be enforced by attachment.” (Per Denman, C.J., Reg. v. Powell, 1 Q.B. 361.) The principle, which is laid down clearly in English, Colonial, and American cases, is this: that a mandamus will lie against an officer of the Crown to compel him to perform an act which he is under a statutory or other legal duty to perform; but not to compel him to perform an act in which he has any discretion, or in which he is subject to the commands of the Crown. Thus, in Reg. v. Lords Commissioners of the Treasury, L.R. 7 Q.B. 387, it was held that no mandamus lies to the Lords of the Treasury to compel them to issue a Treasury minute authorizing certain payments.

“I take it, with reference to that jurisdiction, we must start with this unquestionable principle, that when a duty has to be performed (if I may use that expression) by the Crown, this court cannot claim even in appearance to have any power to command the Crown; the thing is out of the question. Over the sovereign we can have no power. In like manner where the parties are acting as servants of the Crown, and are amenable to the Crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction. (Per Cockburn, C.J., at p. 394.)

“The question remains whether there is any statutable obligation cast upon the Lords of the Treasury to do what we are asked to compel them to do by mandamus, namely, to issue a minute to pay that money: because it seems to me clear that we


  ― 782 ―
ought to grant a mandamus if there is such a statutory obligation. … The general principle, applicable not merely to mandamus but running all through the law, is that where an obligation is cast upon the principal and not upon the servant, we cannot enforce it against the servant as long as he is merely acting as servant. Where the intention of the legislature shows that Her Majesty should be advised to do a thing, and where the obligation, if I may use the word, is cast upon the servants of Her Majesty so to advise, we cannot enforce that obligation against the servants by mandamus merely because the sovereign happens to be the principal.” (Per Blackburn, J., at p. 397.)

In Exp. Mackenzie, 6 S.C.R. (N.S.W.) 306, the Supreme Court of New South Wales refused to issue a mandamus against the Colonial Treasurer to compel him to issue a warrant for the payment of certain moneys voted by Parliament. In Exp. Cox, 14 S.C.R. (N.S.W.) 287, a mandamus against the Secretary for Mines commanding him to hand over to the applicant a mineral lease executed by the Governor, under the Mining Act, was refused by the same court on the ground that the Act did not impose on the Secretary for Mines any such duty. (See also Exp. Krefft, 14 S.C.R. [N.S.W.] 446.) In Exp. Gibson, 2 N.S.W. L.R. 202, the Supreme Court of New South Wales held that a mandamus would lie against the Colonial Treasurer for the issue of a license under the Licensing Act of 1862, on the ground that the Act left the Treasurer no discretion; but the court in its own discretion refused the mandamus.

The American cases are to exactly the same effect, and decide that a mandamus will lie to compel the performance of a merely ministerial duty, but not of a discretionary duty. Thus in U.S. ex rel. Boynton v. Blaine, 139 U.S. 306, the principle was stated by the Court as follows:—

“The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an Executive department in the discharge of an executive duty involving the exercise of judgment or discretion. (U.S. ex rel. Redfield v. Windom, 137 U.S. 636, 644.) When by special statute, or otherwise, a mere ministerial duty is imposed upon the executive officers of the Government; that is, a service which they are bound to perform without further question; then, if they refuse, the mandamus may be issued to compel them. (U.S. ex rel. Dunlap v. Black, 128 U.S. 40, 48.) The writ goes to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act.” (Brownsville Commissioners v. Loague, 129 U.S. 493, 501.)

So in Decatur v. Paulding, 14 Pet. 497, it was held that a mandamus would not lie against the Secretary of the Navy to compel him to sign a warrant for payment. (See Brashear v. Mason, 6 How. 92.) No power can be asserted by the Supreme Court of the United States “to command the withdrawal of a sum or sums of money from the Treasury of the United States to be applied in satisfaction of disputed or controverted claims against the United States.” (U.S. ex rel. Goodrich v. Guthrie, 17 How. 284. See Kent, Comm. i. 322.) Where a public officer refuses to perform a mere ministerial duty, mandamus is the proper remedy. (Roberts v. United States, 176 U.S. 221.)

PROHIBITION.—“The writ of prohibition issues out of a superior court of law, and is directed to the judge of an inferior court, or the parties to a suit therein, or both conjointly, requiring that the proceedings which have been commenced therein be either conditionally stayed or peremptorily stopped. The object of the writ is the keeping of the court to which it is directed within its proper jurisdiction, or to repress the assumption of authority by any pretended court.” (Broom, Com. Law, p. 216. See also Blackstone Comm. iii. 112; Shortt, Mandamus, &c., p. 426.) The general rule is that prohibition only lies where the inferior tribunal acts either without jurisdiction, or in excess of its jurisdiction, or where its procedure has violated the rules of justice. (See Shortt, 436.)

The writ of prohibition will issue, not only to the regular Courts, but to various public bodies exercising powers of a judicial nature—such, for instance, as the Tithe Commissioners and the Railway Commissioners in England. (See Shortt, p. 433.) In a case relating to the Local Government Board, though the power to prohibit was not decided, Brett, L.J., observed:—“I think I am entitled to say this, that my view of the power of prohibition at the present day is that the Court should not be chary of


  ― 783 ―
exercising it, and that wherever the legislature entrusts to any body of persons, other than to the superior courts, the power of imposing an obligation upon individuals, the Court ought to exercise, as widely as they can, the power of controlling those bodies of persons, if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament.” (Reg. v. Local Government Board, 10 Q.B.D. 321.) But a prohibition will only be granted where the proceedings to be prohibited are of a judicial character. (Shortt, p. 439.) Thus it may be argued that prohibition will lie against the Inter-State Commission when acting in its judicial capacity.

Seeing that a writ of prohibition lies against the parties to a suit, as well as against the judge, it would appear that where an “officer of the Commonwealth” is party to a suit in a State court, a prohibition may issue against him out of the High Court, on the suit of the proper party. It would seem that a prohibition directed to the judge of an inferior court is rather an exercise of appellate than of original jurisdiction, inasmuch as it involves the assumption of an authority to control and revise, in certain respects, the proceedings of the inferior court. So it has been held in the United States that a writ of prohibition cannot issue from the Supreme Court where there is no appellate power given by law, nor any special power to issue the writ. (Exp. Gordon, 1 Black, 503.) And the Judiciary Act of 1789 authorizes the Supreme Court to issue prohibitions to the federal District Courts when proceeding as courts of Admiralty. (Exp. Christy, 3 How. 292; Exp. Graham, 10 Wall. 541.) This jurisdiction could not have been conferred if a prohibition had been thought to involve the exercise of original jurisdiction, because the Supreme Court of the United States has no original jurisdiction in Admiralty cases.

But whether a writ of prohibition be regarded as an original or an appellate proceeding seems immaterial under this Constitution. If appellate, the jurisdiction to issue prohibitions to all federal courts, or courts of federal jurisdiction, is given by s. 73; if original, it would seem that the justices of such courts are “officers of the Commonwealth” within the meaning of this section.

INJUNCTION.—An injunction is a remedy of an equitable nature. It used to be “a writ remedial, issuing out of a court of Equity, in those cases in which a plaintiff is entitled to equitable relief, by restraining the commission or continuance of some act of the defendant.” (Joyce on Injunctions, p. 1.) Injunctions are also issued in some cases by courts of common law, acting on equitable principles. The writ of injunction is now generally abolished, injunctions being obtained by order; though the writ of injunction survives in the common law courts of those colonies where the old Common Law Procedure Acts are still in force.

The necessity for the mention of injunctions here is not quite apparent. An injunction is on a different footing altogether from mandamus and prohibition; it is an ordinary remedy in private suits between party and party. It was probably added because of the analogy which exists, in effect, between a mandamus and an injunction.

IS SOUGHT.—The Constitution gives original jurisdiction to the High Court in all matters in which a mandamus, prohibition, or injunction “is sought” against the Commonwealth. It does not follow, however, that the plaintiff in any suit against an officer of the Commonwealth in which the substantial relief sought does not come within this sub-section can bring the proceeding within the jurisdiction of the High Court by adding an untenable claim for a mandamus, prohibition, or injunction. It is submitted that in such a case the same principle would apply as when a plaintiff endeavours to bring a common law dispute into a Court of Equity by alleging an untenable equity. (See Want v. Moss, 12 N.S.W. L.R. Eq. at p. 108.)

AGAINST AN OFFICER OF THE COMMONWEALTH.—The ministers of State are officers appointed to administer Departments of State (sec. 64), and are clearly “officers of the Commonwealth.” So are officers of the transferred departments who are retained in the service of the Commonwealth (sec. 84). So are the “officers of the Executive Government


  ― 784 ―
of the Commonwealth” mentioned in sec. 67. And so also, it is submitted, are the members of the Inter-State Commission, and even the Justices of the High Court and of the other federal courts. It is not clear whether the Judges of a State Court invested with federal jurisdiction can be called, in relation to the duties so imposed upon them, “officers of the Commonwealth.” The Commonwealth investiture acts upon the court; the Judges of that Court are appointed, removed, controlled, and paid by the States alone. They are officers of the States exercising functions conferred on them by the Commonwealth.

For the term “officer of the United States” see Robb v. Connolly, 111 U.S. 624. “An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.” (United States v. Hartwell, 6 Wall. at p. 393.)

This section does not confer any right of action against officers of the Commonwealth. The High Court is given jurisdiction only; it has to determine in each case, according to the principles of law, whether an action lies. (See Notes, above.) The principles that no action lies against the Crown except by its consent, given by legislation or otherwise, and that no action lies against a judge for anything done in his judicial capacity, are not affected.

§ 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


  ― 785 ―
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,”




  ― 787 ―

“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


  ― 788 ―
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.

§ 327. “Laws Conferring Original Jurisdiction."

In the absence of federal legislation, the original jurisdiction of the High Court will be limited to the cases mentioned in the five sub-sections of sec. 75; but this section empowers the Federal Parliament to extend that jurisdiction to any or all of the cases mentioned in the four sub-sections. The Federal Parliament has no power to confer original jurisdiction upon the High Court except what is given to it by this section; the affirmation of the power in particular cases excluding it in all others. (See Story,


  ― 790 ―
Comm. § 1703; Kent, Comm. i. 316. The High Court is therefore prohibited by the Constitution from taking original cognizance of any matter not within the scope of this and the preceding section.

The cases mentioned in this section are cases in which the Convention did not think it absolutely essential, at the outset, that the High Court should have original jurisdiction; but in which, on the other hand, such jurisdiction was appropriate and might prove to be highly desirable. While confirming within narrow limits the original jurisdiction actually given by the Constitution, they entrusted to the Parliament the power of extending that jurisdiction to other cases of a specially Federal or inter-state character.

§ 328. “In Any Matter.”

These words mean, evidently, “in any class of matter.” It is not intended that the Parliament should have power to legislate in respect of particular matters of litigation, but that it should be able to extend the original jurisdiction of the High Court to any class or classes of matters coming within the scope of this section. The reason for using the singular “any matter” instead of the plural “all matters” is apparently to avoid the possibility of construing the section to mean that the Parliament must give the whole of this jurisdiction or none.

§ 329. “Arising under this Constitution.”

The words “arising under this Constitution” are taken from the Constitution of the United States; the words “or involving its interpretation' are new, and seem to have been added, in the Adelaide draft of 1897, with the view of incorporating the result of judicial decisions as to the meaning of the preceding words.

“Cases arising under the Constitution, as contradistinguished from those arising under the laws of the United States, are such as arise from the powers conferred, or privileges granted, or rights claimed, or protection secured, or prohibitions contained in the Constitution itself, independent of any particular statute enactment Many cases of this sort may be easily enumerated. Thus ...... if a State should coin money, or make paper money a tender; if a person tried for a crime against the United States, should be denied a trial by jury, or a trial in the State where the crime is charged to be committed; . . … in these, and many other cases the question to be judicially decided would be a question arising under the Constitution.” (Story, Comm. § 1647.)

Substituting “Commonwealth” for “United States,” the above illustrations by Story are applicable to this Constitution; and many others may be given. Thus, if a subject of the Queen, resident in one State, were subjected in another State to any disability or discrimination in contravention of sec. 117; if a religious test were required as a qualification for any office or public trust under the Commonwealth; if the Commonwealth were to impose any tax on the property of a State, or vice versa; or if a question arose as to the rights of an officer of a transferred department under sec. 84: all these would be matters arising under the Constitution.

In Cohens v. Virginia, 6 Wheat. 264, it was contended that a case only arose under the Constitution where the plaintiff relied on some provision in the Constitution to support his case; but the Court refused to adopt this narrow construction. Marshall, C.J., in delivering the judgment of the court, said (at p. 379): “If it [the intention] be to maintain that a case arising under the Constitution, or a law, must be one in which a party comes into court to demand something conferred on him by the Constitution or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either.” It seems, therefore, that the words “or involving its interpretation” add little or nothing to the meaning of the preceding words, as construed by the courts of the United States.




  ― 791 ―

§ 330. “Its Interpretation.”

INTERPRETATION.—The interpretation of a written document is the process of ascertaining the meaning and intention expressed in it. Sometimes “interpretation,” as contrasted with “construction,” is used in a narrower sense, to signify the process of explaining particular provisions in which there is some ambiguity; whilst “construction” is used to signify the process of comparing different parts of the document, and gathering the intent from a survey of the whole. In other words, “interpretation” is thus used in an analytic, and “construction” in a synthetic sense. (See Story, Comm. § 397, et seqq.) The word “interpretation” is clearly used here in the most general sense, as including both the analytic and the synthetic processes.

This sub-section empowers the Federal Parliament to give the High Court original jurisdiction in any matter arising under this Constitution, or involving its interpretation. But apart altogether from this sub-section, both State and Federal Courts have the duty of interpreting the Constitution, which is the supreme law of the Commonwealth, in every case in which they have jurisdiction and in which rights or obligations arising under the Constitution are involved; and the High Court, as the general appellate tribunal, has the duty of reviewing the interpretations of State Courts. It is necessary to discuss the questions (1) who are the interpreters of the Constitution? (2) what are the leading principles on which its interpretation should be based?

THE INTERPRETERS OF THE CONSTITUTION.—The Constitution, like every other law, is directly binding on every individual and every governmental agency within the Commonwealth. Every person, every officer, every political organ, has the duty of complying with its provisions and must in the exercise of that duty interpret its provisions, in the first instance, to the best of his ability and on his own responsibility. Every citizen is entitled to the protection of the Constitution and is bound not to infringe it; every officer and department of every Government—State or Federal—has similar rights and obligations; and the Federal Parliament and the State Parliaments alike are bound not to exceed the authority conferred or reserved by the Constitution. But the provisions of the Constitution may, wittingly or unwittingly, be transgressed; rights arising under it may be denied; obligations may be evaded. Every person under these circumstances has recourse to the appropriate courts to defend his own rights and to enforce the obligations of others; and thus, without any express provision, the courts of the States, and the Federal Courts, whenever they have jurisdiction over a case, have the duty of interpreting the Constitution so far as it affects the rights of the parties. From the Supreme Courts of the States, as well as from inferior federal courts, an appeal lies to the High Court, whose decisions are “final and conclusive,” unless special leave to appeal to the Privy Council is obtained either from the Privy Council or from the High Court itself, as the case may be. It may therefore be said that every court of competent jurisdiction is an interpreter of the Constitution; and that the High Court — subject to exceptional review by the Privy Council—is the authoritative and final interpreter of the Constitution.

In the exercise of the duty of interpretation and adjudication not only the High Court, but every court of competent jurisdiction, has the right to declare that a law of the Commonwealth or of a State is void by reason of transgressing the Constitution. This is a duty cast upon the courts by the very nature of the judicial function. The Federal Parliament and the State Parliaments are not sovereign bodies; they are legislatures with limited powers, and any law which they attempt to pass in excess of those powers is no law at all it is simply a nullity, entitled to no obedience. The question whether those powers have in any instance been exceeded is, when it arises in a case between parties, a purely judicial question, on which the courts must pronounce. This doctrine was settled in the United States in 1803 by the great case of Marbury v. Madison, 1 Cranch 137, where it was held that the authority given by the Judiciary Act to the Supreme Court of the United States, to issue writs of mandamus to public officers, was not warranted by the Constitution.




  ― 792 ―

“The Supreme Court of the United States … has asserted the power of the United States judiciary to stand between the constitution and the legislature, and to pronounce an act of the legislature null and void whenever it comes into conflict with such private rights or private property as, according to the interpretation placed upon the constitution by the judiciary, are guaranteed in that instrument. The Court, on the other hand, declines to claim any such transcendent power where the legislative act does not come into conflict with private rights or private property. Of course, the Court asserts the same power over against executive interference with private rights or private property. A fortiori, it claims the same power over against the acts of the States. The Court must itself determine when the case is one primarily affecting private rights or private property, and when, on the contrary, it is primarily a political question. The Court bases this position, in principle, upon the provision of the constitution which vests in the judiciary jurisdiction over all cases arising under the constitution.” (Burgess, Political Sci. ii. 326-7. See Civil Rights Cases, 109 U.S. 3; Luther v. Borden, 7 How. 1.)

The effect of a judicial decision is primarily only to determine the rights of the parties; but inasmuch as such a decision, unless challenged, is a precedent for future decisions, and a law which the courts refuse to enforce has no sanction and therefore is without one of the fundamental attributes of a law, it follows that a rule established by the highest Court of Appeal must be recognized as authoritative, and that the decisions of that Court must be acquiesced in and conformed to by all persons as the final interpretation of the law.

“The judicial interpretation of the constitution is therefore the ultimate interpretation; but it must be given through the form of a case, and can therefore be given only upon such questions as form a proper subject for a case. Now, a case is a suit, and a suit can be brought only when some private relation is directly involved. The conclusion of political science from this view, held by the Court itself, must be that the decision of the Court really affects only the particular case and that the executive power may, without violating the Constitution, go on enforcing the nullified law in all instances where it is not successfully resisted through the courts. The general respect for judicial decision in the United States has, however, given to any particular judgment of the Supreme Court of the United States the force of a general rule, and has made it a part of our constitutional custom that the executive shall cease to undertake the further enforcement of a statute pronounced unconstitutional in any case.” (Burgess, Political Sci. ii. 327. See also Pomeroy, Const. Law, §§ 138-9.)

PRINCIPLES OF INTERPRETATION.—The rules of interpretation and construction of documents in general are outside the scope of this work. But the character of this Constitution involves certain special principles of construction which may be briefly alluded to. It has to be interpreted (1) as an Act of the Imperial Parliament; (2) as a Constitution; (3) as a Federal Constitution.

(1.) As an Imperial Act.—The Constitution of the Commonwealth is enacted as an Act of the Imperial Parliament, and is to be construed in accordance with the rules which regulate the construction of these Acts. (See Maxwell, Interpretation of Statutes; Hardcastle, Construction of Statutes.) In addition to the numerous rules which have been laid down by judicial decision, the Imperial Parliament has itself, by enactments which are now consolidated in the Interpretation Act, 1889 (52 and 53 Vic. c. 63), laid down certain rules by which the provisions of every Act of Parliament are, “unless the contrary intention appears,” to be interpreted and construed. Only a few of the provisions of that Act are applicable to the Constitution of the Commonwealth; and before enumerating them it may be well to observe that the history of the Constitution, and current Australian usage with respect to any words or phrases found therein, may be important elements in ascertaining whether such “contrary intention” appears. The provisions of the Interpretation Act, 1889, which are likely to be of practical application to this Constitution are as follows:—

  • 1. (1) In … every Act passed … after the commencement of this Act, unless the contrary intention appears—
    • (a) words importing the masculine gender shall include females; and
    • (b) words in the singular shall include the plural, and words in the plural shall include the singular.



  •   ― 793 ―
  • 3. In every Act passed … after the commencement of this Act, the following expressions shall, unless the contrary intention appears, have the meanings hereby respectively assigned to them, namely,— The expression “month” shall mean calendar month.
  • 8. Every section of an Act shall have effect as a substantive enactment without introductory words.
  • 12. In every Act passed … after the commencement of this Act, the following expressions shall, unless the contrary intention appears, have the meanings hereby respectively assigned to them, namely,—
    • (5) The expression “The Privy Council” shall … mean the Lords and others for the time being of Her Majesty's Most Honourable Privy Council.
  • 18. In every Act … passed after the commencement of this Act, the following expressions shall, unless the contrary intention appears, have the meanings hereby respectively assigned to them, namely,—
    • (2) The expression “British possession” shall mean any part of Her Majesty's dominions exclusive of the United Kingdom, and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one British possession.
    • (3) The expression “colony” shall mean any part of Her Majesty's dominions exclusive of the British Islands, and of British India, and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one colony.
  • 19. In this Act and in every Act passed after the commencement of this Act, the expression “person” shall, unless the contrary intention appears, include any body of persons corporate or unincorporate.
  • 32. (1) Where an Act passed after the commencement of this Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.
  • 34. In the measurement of any distance for the purposes of any Act passed after the commencement of this Act, that distance shall, unless the contrary intention appears, be measured in a straight line on a horizontal plane.

(2.) As a Constitution.—Though an Act of Parliament, this Constitution is an Act of a very special character. It is a constitutional charter for a great and practically self-governing people; framed by them, accepted by them, amendable by them, and interpretable by them. As such a charter, it is of necessity expressed in broad and general terms, it deals with abstract political conceptions, it affects the most important individual and social relations; and it is of the most vital importance that it should receive, not a narrow and technical, but a broad and liberal construction.

“The Constitution unavoidably deals in general language. It did not suit the purpose of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications which at the present might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.” (Per Story, J., Martin v. Hunter's Lessee, 1 Wheat. at p. 326.)

“A Constitution, to contain an accurate detail of all the sub-divisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and would scarcely be embraced by the human mind. It would probably never be understood by the public.


  ― 794 ―
Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” (Per Marshall, C.J., McCulloch v. Maryland, 4 Wheat at p. 407.)

“Nor can it be questioned that, when investigating the nature and extent of the powers conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. This is a universal rule of construction applied alike to statutes, wills, contracts, and constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose, and so as to subserve it. In no other way can the intent of the framers of the instrument be discovered. And there are more urgent reasons for looking to the ultimate purpose in examining the powers conferred by a constitution than there are in construing a statute, a will, or a contract. We do not expect to find in a Constitution minute details. It is necessarily brief and comprehensive. It prescribes outlines, leaving the filling up to be deduced from the outlines. (Per Strong, J., Legal Tender Cases, 12 Wall. at p. 531.)

“In the practical application of legal principles in the common affairs of life, the written agreement, the deed, the testament, the statute, are construed by the aid of the same rules, simply because they are written. The written Constitution, merely because it is written, can form no exception. The most that can be said is, that as greater interests are involved which affect the State rather than the individual, all narrow and technical construction should, as far as possible, be avoided; the nature of the writing as an organic law should be allowed its full effect.” (Pomeroy, Const. Law, § 18.)

(3.) As a Federal Constitution.—The Constitution of the Commonwealth is a Federal Constitution; it establishes a government of limited and enumerated powers. The Federal Parliament is not, like the British Parliament, sovereign; it is not even, like the Parliament of the colonies before Federation, invested with powers which, within its territorial jurisdiction, are practically sovereign; its authority is limited to specified subjects. The Constitution draws a line between the enumerated powers assigned to the Federal Government and the residue of powers reserved to the State Governments. Both sets of Governments are limited in their sphere of action; but within their several spheres they are supreme. (See Note, “Plenary Nature of Powers,” § 160, supra.) The canons of interpretation applicable to such a Constitution as this, in order to determine the existence and extent of a power, have been clearly and logically laid down by Chief Justice Marshall and other American Judges. The guiding principle may be thus stated:—The Federal Government can have no power which, on a reasonable construction of the whole Constitution, has not been given expressly or by necessary implication. But when once it has been determined that the Federal Government has power over the subject matter, the scope of the power, and mode of giving effect to it, will receive a broad and liberal construction. The power of the Federal Parliament, though limited to specified objects, is plenary as to those objects. (Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat. 1.)

“The government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grows out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.” (Per Story, J., Martin v. Hunter's Lessee, 1 Wheat. at p. 326.)

“If any one proposition could command the universal assent of mankind, we might expect that it would be this: that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all.” (Per Marshall, C.J., McCulloch v. Maryland, 4 Wheat. at p. 405.)

“We admit as we must all admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will


  ― 795 ―
enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” (Per Marshall, C.J., ib. at p. 421.)

“This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, congress is authorized ‘to make all laws which shall be necessary and proper’ for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the constitution is to be expounded. As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee; but is an investment of power for the general advantage, in the hands of agents selected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.” (Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat. at p. 187.)

“Now the doctrines laid down by Chief Justice Marshall, and on which the courts have constantly since proceeded, may be summed up in two propositions.

“1. Every power alleged to be vested in the National government, or any organ thereof, must be affirmatively shown to have been granted. There is no presumption in favour of the existence of a power; on the contrary; the burden of proof lies on those who assert its existence, to point out something in the Constitution which, either expressly or by necessary implication, confers it. Just as an agent, claiming to act on behalf of his principal, must make out by positive evidence that his principal gave him the authority he relies on; so Congress, or those who rely on one of its statutes, are bound to show that the people have authorized the legislature to pass the statute. The search for the power will be conducted in a spirit of strict exactitude, and if there be found in the Constitution nothing which directly or impliedly conveys it, then whatever the executive or legislature of the National government, or both of them together, may have done in the persuasion of its existence, must be deemed null and void, like the act of any other unauthorized agent.

“2. When once the grant of a power by the people to the National government has been established, that power will be construed broadly. The strictness applied in determining its existence gives place to liberality in supporting its application. The people—so Marshall and his successors have argued—when they confer a power, must be deemed to confer a wide discretion as to the means whereby it is to be used in their service. For their main object is that it should be used vigorously and wisely, which it cannot be if the choice of methods is narrowly restricted; and while the people may well be chary in delegating powers to their agents, they must be presumed, when they do grant these powers, to grant them with confidence in the agents' judgment, allowing all that freedom in using one means or another to attain the desired end which is needed to ensure success.” (Bryce, Amer. Comm. I. 368–9.)




  ― 796 ―

AMERICAN CASES.—For the way in which these principles have been applied to incidental and implied powers, see Notes, § 226, supra. A few other principles of construction laid down in leading American cases may be briefly noted.

Validity of Law.—“It is not on slight implication and vain conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatability with each other.” (Per Marshall, C.J., Fletcher v. Peck, 6 Cranch 87; and see Commonwealth v. Smith, 4 Binney [Penns.], 123.)

“It is incumbent, therefore, upon those who affirm the unconstitutionality of an Act of Congress to show clearly that it is in violation of the provisions of the Constitution. It is not sufficient for them that they succeed in raising a doubt.” (Per Strong, J., Legal Tender Cases, 12 Wall. at p. 531. See also United States v. Harris, 106 U.S. 629.)

It is a settled rule that statutes which are unconstitutional in part only will be upheld so far as they do not conflict with the Constitution, if the parts which are unconstitutional are separable. (Austin v. Aldermen of Boston, 7 Wall. 694; State Freight Tax Case, 15 Wall. 232; Packet Co. v. Keokuk, 95 U.S 80; Trade Mark Cases, 100 U.S. 582; Railroad Companies v. Schutte, 103 U.S. 118; Unity v. Burrage, 103 U.S. 447; Penniman's Case, 103 U.S. 714; Supervisors v. Stanley, 105 U.S. 305; Presser v. Illinois, 116 U.S. 252.) But this will not be done unless the valid and invalid parts are capable of separation so that each can be read by itself. (United States v. Reese, 92 U.S. 214; United States v. Harris, 106 U.S. 629; Virginia Coupon Cases, 114 U.S. 269; Baldwin v. Franks, 120 U.S. 678.) If the unconstitutional part cannot be rejected without giving to the rest of the statute a meaning which was not contemplated, the whole statute is void. (Spraigue v. Thompson, 118 U.S. 90. Baker, Annot. Const. p. 229.)

Restriction by Implication.—It is well established that when a power comes within the reasonable intendment of one clause in the Constitution, an express gift of a portion of the power, in another clause, will not be taken to cut the power down by implication. Thus in the Legal Tender Cases, 12 Wall. 457, it was held that the clause giving Congress express power “to coin money, regulate the value thereof, and of foreign coin,” did not contain an implication that Congress had no other powers over the currency.

“If by this is meant that because certain powers over the currency are expressly given to Congress, all other powers relating to the same subject are impliedly forbidden, we need only remark that such is not the manner in which the Constitution has always been construed. On the contrary it has been ruled that power over a particular subject may be exercised as auxiliary to an express power, though there is another express power relating to the same subject, less comprehensive.” (Per Strong, J., Legal Tender Cases, 12 Wall. at p. 544. See also United States v. Marigold, 9 How. 560; Rhode Island v. Massachusetts, 12 Pet. 657.)

Exception Marks Extent of Power.—“It is a rule of construction acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to except from a granted power that which was not granted — that which the words of a grant could not comprehend.” (Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat. at p. 191. See also Rhode Island v. Massachusetts, 12 Pet. 657.

Nature and Objects of the Power.—The Court should look to the nature and objects of the power, in the light of contemporary history, and give to the words of the Constitution such operation, consistent with their legitimate meaning, as to fairly attain the ends proposed. (Prigg v. Pennsylvania, 16 Pet. 539; Gibbons v. Ogden, 9 Wheat. 1) Consequently, though it is a general rule in the construction of statutes that extrinsic evidence, such as reference to the proceedings in Parliament, is not admissible to vary or add to the terms of a statute (Reg. v. Hertford College, 3 Q.B.D. 693; Richards v. M‘Bride, 8 Q.B.D. 119), it would seem that the Debates of the Convention, or other contemporary records, may be referred to as a guide to the construction of the Constitution.




  ― 797 ―

§ 331. “Arising Under Any Laws made by the Parliament.”

In this sub-section the words of the United States Constitution have been accepted without the addition (as in sub-s. i.) of the words “or involving their interpretation;” but the difference seems not to affect the scope of the provision.

“Cases arising under the laws of the United States are such as grow out of the legislation of Congress, within the scope of their constitutional authority, whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted.” (Story, Comm. § 1647.) A case may arise under the laws of the Commonwealth in a criminal as well as in a civil suit; and a case arises under a law when it arises under the implication of the law. (Tennessee v. Davis, 100 U.S. 257.)

§ 332. “Of Admiralty and Maritime Jurisdiction.”

Secs. 2 and 3 of the (Imperial) Colonial Courts of Admiralty Act, 1890 (53 and 54 Vic. c. 27) contain the following provisions:—

  • 2. (1) Every court of law in a British possession which is for the time being declared in pursuance of this Act to be a court of Admiralty, or which, if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a court of Admiralty, with the jurisdiction in this Act mentioned, and may for the purpose of that jurisdiction exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty.…
  • (2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, be over the like places, persons, matters and things, as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise, and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that court to international law and the comity of nations.
  • (3) Subject to the provisions of this Act, any enactment referring to a Vice-Admiralty Court, which is contained in an Act of the Imperial Parliament or in a Colonial law, shall apply to a Colonial Court of Admiralty, and be read as if the expression “Colonial Court of Admiralty” were therein substituted for “Vice-Admiralty Court,” or for other expressions respectively referring to such Vice-Admiralty Courts or the judge thereof, and the Colonial Court of Admiralty shall have jurisdiction accordingly; provided as follows:—
    • (a) Any enactment in an Act of the Imperial Parliament referring to the Admiralty jurisdiction of the High Court in England, when applied to a Colonial Court of Admiralty in a British possession, shall be read as if the name of that possession were therein substituted for England and Wales; and
    • (b) A Colonial Court of Admiralty shall have under the Naval Prize Act, 1864, and under the Slave Trade Act, 1873, and any enactment relating to prize or the slave trade, the jurisdiction thereby conferred on a Vice-Admiralty Court, and not the jurisdiction thereby conferred exclusively on the High Court of Admiralty or the High Court of Justice; but, unless for the time being duly authorized, shall not by virtue of this Act exercise any jurisdiction under the Naval Prize Act, 1864, or otherwise in relation to prize; and
    • (c) A Colonial Court of Admiralty shall not have jurisdiction under this Act to try or punish a person for an offence which, according to the law of England, is punishable on indictment; and



    •   ― 798 ―
    • (d A Colonial Court of Admiralty shall not have any greater jurisdiction in relation to the laws and regulations relating to Her Majesty's Navy at sea, or under any Act providing for the discipline of Her Majesty's Navy, than may be from time to time conferred on such court by Order-in-Council.
  • (4) Where a court in a British possession exercises in respect of matters arising outside the body of a county or other like part of a British possession any jurisdiction exercisable under this Act, that jurisdiction shall be deemed to be exercised under this Act and not otherwise.

3. The legislature of a British possession may by any Colonial law

  • (a) declare any court of unlimited civil jurisdiction, whether original or appellate, in that possession to be a Colonial Court of Admiralty, and provide for the exercise by such court of its jurisdiction under this Act, and limit territorially, or otherwise, the extent of such jurisdiction; and
  • (b) confer upon any inferior or subordinate court in that possession such partial or limited Admiralty jurisdiction under such regulations and with such appeal (if any) as may seem fit. Provided that any such Colonial law shall not confer any jurisdiction which is not by this Act conferred upon a Colonial Court of Admiralty.

By s. 15 the expression “unlimited civil jurisdiction” is defined as meaning “civil jurisdiction unlimited as to the value of the subject matter at issue, or as to the amount that may be claimed or recovered.”

By s. 16 it was provided that the Act should not come into force in New South Wales and Victoria until Her Majesty should so direct by Order-in-Council—which has not been done with respect to either colony. With these exceptions (and others which do not affect Australia) it was to come into force in “every British possession” on 1st July, 1891.

Accordingly, in New South Wales and Victoria there is still a Vice-Admiralty jurisdiction exercised by Imperial Courts under the Vice-Admiralty Courts Act, 1863 (26 and 27 Vic. c. 24), and the Vice-Admiralty Courts Act Amendment Act, 1867 (30 and 31 Vic. c. 45). For the history and extent of this jurisdiction see Webb, Imperial Law in Vic., p. 68. In every other Australian colony the Colonial Courts of Admiralty Act, 1890, has superseded and repealed the Vice-Admiralty Acts, and the Supreme Court of the colony is a Colonial Court of Admiralty accordingly. It remains to discuss the combined effect of this Constitution and of the Colonial Courts of Admiralty Act, 1890— both being Imperial statutes — on the jurisdiction of the States and of the Commonwealth in Admiralty matters.

JURISDICTION OF COURTS IN STATES.—Until the Federal Parliament legislates under this section, the sole original jurisdiction in admiralty matters will rest with the Courts of Admiralty or Vice-Admiralty, as the case may be, in the several States. It seems clear that the constitution of those courts is not in any way affected by the establishment of the Commonwealth. The Constitution of each State, and the laws in force in each State, continue, subject to this Constitution (secs. 106, 108); and the identity of each State as a “British possession” remains unchanged notwithstanding the establishment of the Commonwealth.

“The object of the (British North America) Act was neither to weld the Provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each Province retaining its independence and autonomy.” (Per Lord Watson, delivering judgment of the Privy Council, Liquidators of Maritime Bank of Canada v. Receiver-General of New Brunswick (1892), App. Ca. at p. 441.) It seems clear that the above-mentioned Imperial Acts relating to Vice-Admiralty and Admiralty Courts continue to apply to the States individually, and that the existing Admiralty and Vice-Admiralty Courts may exercise the same jurisdiction as before. But the provisions of those Acts, so far as


  ― 799 ―
they apply to colonies which become States of the Commonwealth, are in some respects over-ridden by the words of the Constitution.

In those States where, under the Colonial Courts of Admiralty Act, 1890, the Supreme Courts have an Admiralty jurisdiction, that jurisdiction is clearly subject to the provisions as to appeal contained in this Constitution, and the provisions as to appeal contained in the Colonial Courts of Admiralty Act are superseded and impliedly repealed with respect to such States. Moreover, the Admiralty jurisdiction of the Supreme Courts of the States is subject to sec. 77 of the Constitution; so that the Federal Parliament may, after investing the federal courts with such jurisdiction, make that jurisdiction to any extent exclusive, and thereby to a corresponding extent deprive the State courts of jurisdiction.

With respect to the Vice-Admiralty Courts at present established in New South Wales and Victoria, the application of sections 73 and 77 is more difficult. Does an appeal lie from these Vice-Admiralty Courts to the High Courts, and can the Federal Parliament, under sec. 77, deprive these Courts of any part of their jurisdiction? The answer to these questions depends on the question whether these courts are included in the expressions “any other court of any State” in sec. 73, and “the courts of the States” in sec. 77. Now it does not seem that either of these Vice-Admiralty Courts can, without an undue stretching of the words, be called a Court “of a State.” “The Vice-Admiralty Court is an Imperial Court, established by Commission of the Admiralty. The jurisdiction exercisable by it is an Imperial one, and is altogether independent of that of the Supreme Court and of a different nature—and it is not competent for the local legislature to deal either with the extent thereof or the practice and procedure observed therein.” (Webb, Imperial Law in Vic., p. 68; Vice-Admiralty Courts Amendment Act, 1867 [Imp.], s. 16.) In short it would seem that the Vice-Admiralty Courts is an Imperial Court “in” a State, and not, in any strict sense of the word, a court “of” a State; and therefore that there is nothing in sec. 73 to give the High Court an appellate jurisdiction. The same reasoning would apply to exclude the Vice-Admiralty Courts from liability to have their jurisdiction cut down under sec. 77. This construction is strengthened by the general presumption against ousting existing jurisdiction, or creating new jurisdictions. (See Maxwell, Interpr. of Statutes, Chap. V.) The difficulty, of course, may be removed at any time by the issue of Orders in Council, under the Imperial Act of 1890, directing the Act to be in force in New South Wales and Victoria, and thus superseding the Vice-Admiralty Courts altogether. On this question the case of Attorney-General of Canada v. Flint, 3 S.C. (Nova Scotia) 453; 16 S.C.R. (Can.) 707, and cited in Wheeler, Confed. Law of Canada, pp. 68–9, is instructive. A Dominion law, conferring jurisdiction on the Vice-Admiralty Court of Nova Scotia in prosecutions for certain penalties incurred under the Inland Revenue Act, was held to be constitutional. Henry, J., said (16 S.C.R. [Can.] p. 713):—

“Although the Vice-Admiralty Court is established by the authority of England, still I see nothing to prevent the Parliament of Canada, inasmuch as that Court sits within the jurisdiction of that Parliament, to give it power and authority to try Inland Revenue cases or cases connected with the customs. I would say, however, I do not think that Court could be obliged to perform such duty, and that it is a Court that could very well wrap itself up in its authority and say, ‘Our other duties prevent us from assuming the functions assigned to us by the Parliament of Canada;’ but it is ready to adopt the duty, and I see no reason why the Parliament of Canada should not have the power to impose it.”

ORIGINAL JURISDICTION OF HIGH COURT.—The question next arises whether, in conferring original jurisdiction on the High Court, the Parliament is limited by the provisions of the Colonial Courts of Admiralty Act, 1890. Sec. 3 of that Act (cited above) empowers the Legislature of a British possession to “declare any court of unlimited civil jurisdiction, whether original or appellate, in that possession to be a Colonial Court of Admiralty.” Under this provision, the Dominion Parliament in Canada has passed an Act (54 and 55 Vic. c. 29) declaring the Exchequer Court of Canada to be a “Colonial Court of Admiralty.”




  ― 800 ―

Under this Constitution, however, the Parliament has power, independently of the Colonial Courts of Admiralty Act, to confer Admiralty and maritime jurisdiction on the High Court; and it seems clear that the limitations imposed by that Act on the jurisdiction of “Colonial Courts of Admiralty” within the meaning of that Act, and upon colonial Parliaments legislating under the powers conferred by that Act, cannot be read into the plenary powers conferred by this section. Nevertheless, whatever may be the legal powers of the Commonwealth, it would probably be inexpedient, in conferring Admiralty jurisdiction on the High Court or other courts of federal jurisdiction, to go outside the limits defined by that Act, which may be taken as a guide to the reasonable limits of the jurisdiction.

EXTENT OF JURISDICTION.—For the extent of the Admiralty jurisdiction in England, see Story, Comm. §§ 1663–73; Kent, Comm. i. 304, 354–80.

“The jurisdiction claimed by the Courts of Admiralty, as properly belonging to them, extends to all acts and torts done upon the high seas, and within the ebb and flow of the sea, and to all maritime contracts, that is, to all contracts touching trade, navigation, or business upon the sea, or the waters of the sea, within the ebb and flow of the tide. Some part of this jurisdiction has been matter of heated controversy between the courts of common law and the High Court of Admiralty in England, with alternate success and defeat. But much of it has been gradually yielded to the latter, in consideration of its public convenience, if not its paramount necessity.… The Admiralty and maritime jurisdiction (and the word ‘maritime’ was, doubtless, added to guard against the narrow interpretation of the preceding word ‘Admiralty’) conferred by the Constitution, embraces two great classes of cases—one dependent upon locality, and the other upon the nature of the contract. The first respects acts or injuries done upon the high sea, where all nations claim a common right and common jurisdiction; or acts and injuries done upon the coast of the sea; or, at furthest, acts and injuries done within the ebb and flow of the tide. The second respects contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation. The former is again divisible into two great branches—one embracing captures, and questions of prize arising jure belli; the other embracing acts, torts, and injuries strictly of civil cognizance, independent of belligerent operations.” (Story, Comm. §§ 1665–6.)

In the United States, it has been held that the grant in the Constitution is neither to be limited to or interpreted by what were cases of Admiralty jurisdiction in England when the Constitution was adopted, but extends the powers so as to cover every expansion of such jurisdiction. (Waring v. Clarke, 5 How. 441.)

All the navigable waters of the Atlantic coast which empty into the sea, or into bays and gulfs that form a part of the sea, are as much within the admiralty and maritime jurisdiction of the United States as is the sea itself. (Transportation Co. v. Fitzhugh, 1 Black, 574.) The jurisdiction is not confined to tide waters, but extends to all lakes and rivers where commerce is carried on between States or with foreign nations. (The Genessee Chief v. Fitzhugh, 12 How. 443.) All previous decisions limiting the Admiralty jurisdiction to tide waters are overruled, and the broad doctrine is announced that jurisdiction as conferred by the Constitution exists wherever ships float and navigation successfully aids commerce, whether internal or external. (The Hine v. Trevor, 4 Wall. 555.)

For other American cases on the Admiralty and maritime jurisdiction, see Baker, Annot. Const. pp. 124–6; also Commentaries of Story and Kent, passages cited above.

§ 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


  ― 801 ―
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.




  ― 802 ―

§ 334. “With Respect to any of the Matters Mentioned in the Last Two Sections.”

This section supplements the legislative powers given to the Parliament by the last section with respect to conferring jurisdiction on federal and State courts and limiting the concurrent jurisdiction of the State Courts. By these preliminary words the whole operation of the section is limited to the nine classes of matters enumerated in secs. 75 and 76. The cases in which jurisdiction may be given to the inferior federal courts and to the courts of the States are precisely the same as the cases in which original jurisdiction has been given, or may be given, to the High Court. It is to be observed, however, that the jurisdiction which may be given under this section is not restricted to “original jurisdiction.” The matters in which jurisdiction may be given are those enumerated in the “original jurisdiction” clauses; but the jurisdiction which may be given in these matters, under this section, is apparently either original or appellate. (See Martin v. Hunter's Lessee, 1 Wheat. 304; Kent, Comm. i. 319; Story, Comm. § 1732.) It is thus possible that the inferior courts created by the Parliament may come to play a very important part in the federal judiciary. There may be established, not only courts of original jurisdiction corresponding to the District Courts of the United States, but also courts of appellate as well as original jurisdiction, corresponding to the Circuit Courts of the United States.

§ 335. “Defining the Jurisdiction of any Federal Court other than the High Court.”

This sub-section deals with the jurisdiction of “such other federal courts as the Parliament creates” (s. 71). The High Court is created, and a great part of its jurisdiction is conferred, by the Constitution itself; but the inferior courts will depend wholly, for their existence and for their jurisdiction, on federal legislation. And of course the jurisdiction so given must be within the limits allowed by the Constitution. The following quotation from the opinion of the Supreme Court of the United States in Mayor v. Cooper, 6 Wall. at p. 252, is completely applicable:—“As regards all courts of the United States inferior to this tribunal, two things are necessary to create federal jurisdiction, whether original or appellate. The Constitution must have given the court the capacity to take it, and an act of Congress must have supplied it.”

§ 336. “Defining the Extent to which the Jurisdiction of any Federal Court shall be Exclusive.”

The Constitution, whilst it confers jurisdiction, or enables jurisdiction to be conferred, on the federal courts in certain cases, does not take away the pre-existing jurisdiction of the State courts in any of those cases. The consequence is that there remains a concurrent jurisdiction in the courts of the States in all those cases of federal jurisdiction which would have been within the competence of the courts of the States if no federal courts had existed. (See Note, § 326, supra.) It is obvious that some federal control over this concurrent jurisdiction is necessary; and in the United States it has been definitely settled that wherever the judicial power of the United States is not in its nature exclusive of State authority, it may at the election of Congress be made so. (See Kent, Comm. i. 397; Cooley, Const. Lim. 18.) This provision is, therefore, merely an explicit enactment of what in the Constitution of the United States is held to be implied.

The power to make the federal jurisdiction exclusive means the power to take jurisdiction away from the courts of the States, in all cases in which jurisdiction is given to the courts of the Commonwealth. But this power of taking away jurisdiction is confined, not only within the limits of “the matters mentioned in the last two sections,”


  ― 803 ―
but within the narrower limits of the jurisdiction actually conferred on Federal Courts under those sections. That is to say, the Parliament can at once take away the jurisdiction of the State courts in matters enumerated in sec. 75; but it cannot take away the jurisdiction of the State courts in any matter enumerated in sec. 76 until it has first conferred that jurisdiction upon a federal court. The exclusion of the State jurisdiction must be founded on the establishment of the federal jurisdiction.

CONCURRENT JURISDICTION.—If a case be within the ordinary jurisdiction of a State Court, the Court may take cognizance of it notwithstanding that it arises under rights acquired by the Constitution or a law of the Commonwealth, provided of course that the jurisdiction of the State Court has not been excluded under this section. “State Courts may, in the exercise of their ordinary, original, and rightful jurisdiction, incidentally take cognizance of cases arising under the Constitution, the laws and treaties of the United States.” (Kent, Comm. i. 397.) In Claflin v. Houseman, (93 U.S. 130) it was held that an assignee in bankruptcy, under the federal bankrupt law, might sue in a State Court. It was laid down that the laws of the United States are, within the limits of a State, as much the law of the land as are the laws of the State itself; and that therefore the Courts of the State are competent to adjudge rights under them if the matter is otherwise within their jurisdiction and if Congress has not excluded that jurisdiction. The jurisdiction of the State Court in such cases was held not to be a new jurisdiction conferred by Congress, but a jurisdiction derived from the Constitution and laws of the State. (See Calhoun v. Lanaux, 127 U.S. 634.)

This doctrine applies to criminal as well as civil matters. In the case of offences against the laws of the Commonwealth, it appears that the Courts of a State may exercise jurisdiction in cases authorized by the laws of the State, and not prohibited by the exclusive jurisdiction of the Federal Courts. (Kent, Comm. i. 399.)

Where a Federal and a State Court have concurrent jurisdiction of a criminal matter, it has been held in the United States that a sentence either of acquittal or conviction by either court may be pleaded in bar of a prosecution before the other; and the same principle applies in civil cases. (Houston v. Moore, 5 Wheat. 1; Kent, Comm. i. 399). A doubt arose in the same case whether, in case of a conviction by a State Court for a crime against the United States, the Governor of the State would have power to pardon, and so control the law and policy of the United States. It is submitted that in Australia such right would be undoubted. The prerogative of mercy rests with the Queen's Representative in the States as well as with her Representative in the Commonwealth; and in the case of a sentence of a State Court must belong to the Governor of the State. (See sec. 70.)

§ 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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§ 338. “Rights to Proceed against the Commonwealth or a State.”

REMEDIES AGAINST THE CROWN.—“It is an ancient and fundamental principle of the English Constitution, that the king can do no wrong.” (Broom's Maxims, p. 53.) One consequence of this principle is that no suit or action, even in respect of civil matters, can—apart from statute—be brought against the sovereign. “Indeed, his immunity, both from civil suit and from penal proceeding, rests on another subordinate reason also, viz., that no court can have jurisdiction over him. For all jurisdiction implies superiority of power, and proceeds from the Crown itself. But who, says Finch. shall command the king?” (Steph. Comm. ii. 480.) In England there are ancient remedies by petition of right and by monstrans de droit, by which a subject who has a claim against the Crown, in respect of property or arising out of contract, may obtain redress as a matter of royal grace. In 1860, by the (Imperial) Act 23 and 24 Vic. c. 34, the remedy by petition of right was practically assimilated to the ordinary procedure by action at law or suit in equity, and was made triable in any Superior Court of appropriate jurisdiction; so that in cases where a petition of right lies, there is substantially a right of suit against the Crown, in the guise of a petition.

In some of the Australasian colonies more extended rights of proceeding against the Crown have been conferred. Thus in New South Wales, under the Claims Against the Colonial Government Act, 1876, any person making a claim against the Government may petition the Governor to appoint a nominal defendant, and in default of such appointment the Colonial Treasurer shall be the nominal defendant. The claimant may sue the nominal defendant at law or equity in any competent court, may obtain judgment or costs as in an ordinary case between subject and subject, and in default of payment may levy execution upon the property of the Government. In Queensland, the Claims Against Government Act, 1866, is to the same effect. For the history of these Acts, see Sydney Morning Herald, 10 August, 1867, 17 April, 1875. It has been held by the Privy Council that under the New South Wales Act an action will lie for torts committed by the servants of the Crown. (Bowman v. Farnell, 7 N.S.W. L.R. 1; sub nomine Farnell v. Bowman, 12 App. Ca. 643.) Sir Barnes Peacock, delivering the judgment of the Judicial Committee, made the following pertinent remarks on the policy of allowing suits against the Crown in the colonies:—

“It must be borne in mind that the local Governments in the colonies, as pioneers of improvements, are frequently obliged to embark in undertakings which in other countries are left to private enterprise, such, for instance, as the construction of railways, canals, and other works for the construction of which it is necessary to employ many inferior officers and workmen. If, therefore, the maxim that ‘the king can do no wrong’ were applied to colonial governments in the way now contended for by the appellants, it would work much greater hardship than it does in England.” (12 App. Ca. at p. 649.)

In New Zealand, under the Crown Suits Act, 1881, actions may be maintained against the Crown for breach of any contract entered into by the Government, and also for torts committed under the authority of the Government in connection with any public work. (See Reg. v. Williams, 9 App. Ca. at p. 432.) In Western Australia, the Crown Suits Act, 1898, is to a similar effect.

In Tasmania, under the Crown Redress Act, 1891, any one having a claim against the Queen in respect of any contract entered into by the Government of Tasmania, or in respect of any act or omission of any officer, agent, or servant of the Government, which would between subject and subject be the ground of an action at law or a suit in equity, may file in any court of competent jurisdiction a supplication in the form of a declaration at law or bill in equity, which is to be pleaded to by the Attorney-General, and tried like an action or suit between subjects. If judgment is against the Crown, no execution is to issue, but the suppliant is entitled to a certificate of judgment, which authorizes payment of damages and costs out of the Consolidated Revenue Fund.




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In Victoria and South Australia there is no remedy against the Crown for torts, and the remedy in contract is by petition. (See Crown Remedies and Liability Act, 1890 [Victoria], and Claims Against Government Act, 1853 [South Australia].)

The Governments both of the Commonwealth and the States represent the authority of the sovereign in the Commonwealth and in the States respectively; and a suit against the Commonwealth or a State is therefore a suit against the Crown. Without the consent of the Crown, given in the proper way, no such suit would lie.

SUITS AGAINST THE COMMONWEALTH.—That the Federal Parliament should have the power to make laws conferring rights to proceed against the Commonwealth is a proposition which will hardly be disputed. Probably it would have had such power, even without express words; inasmuch as the prerogative right of the Crown in the Commonwealth exempting it from suit is a right which can be waived by the consent of the Crown, and legislation by the Federal Parliament, of which the Crown is a part, would be an appropriate mode of giving such consent. Thus in the United States it has never been disputed that Congress has power to consent by law to the federal government being sued. (Per Marshall, C.J., Cohens v. Virginia, 6 Wheat. 412; Kendall v. United States, 12 Pet. 524; Hill v. United States, 9 How. 386; Kent, Comm. i. 297.) But it is unnecessary to consider whether this would have been among the implied legislative powers of the Parliament; because this section gives the power in express terms.

SUITS AGAINST A STATE.—It is clear that each State retains the power which it has always possessed to make laws conferring rights of procedure against itself. That, however, is not sufficient. Under the Constitution, there are duties cast upon the States which the federal judiciary ought to have power to enforce at the suit of any person injured; such for instance as the duty of not subjecting the residents of other States to disabilities or discriminations (sec. 117), and the duty of giving full faith and credit to the laws, &c., of every State (sec. 118). If each State were free to allow or not to allow itself to be sued in matters of federal jurisdiction, the federal courts might find themselves powerless in such matters; and therefore the Federal Parliament has been empowered to confer rights of proceeding against a State in respect of matters “within the limits of the judicial power.”

The Constitution of the United States was formerly silent on this point, and in the famous case of Chisholm v. Georgia, 2 Dall. 419, the question arose whether the Constitution conferred the right to sue a State. It was decided that it did; but the decision aroused such a storm of indignation in Georgia and in the other States that the eleventh amendment was passed, declaring that the judicial power should not be construed to extend to suits against a State by citizens of another State, or by citizens or subjects of a foreign State. (See § 324, supra; Kent, Comm. i. 297; Story, Comm. § 1683.)

§ 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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§ 340. “The Trial on Indictment.”

THE TRIAL.—It has been held in the United States that the word “trial” means the trying of the cause by the jury, and not the arraignment and pleading preparatory to such trial. (United States v. Curtis, 4 Mason 232.),

It would seem that this provision is only intended to apply to trials in federal courts, and courts exercising federal jurisdiction; and not to extend to the courts of the States in those cases in which they may have a concurrent jurisdiction to try offences against the laws of the Commonwealth. With regard to the corresponding provision of the Constitution of the United States (set out above), Miller, J., in Eilenbecker v. District Court, 134 U.S. at p. 35, said:—

“This article is intended to define the judicial power of the United States, and it is in regard to that power that the declaration is made that all crimes … shall be by jury. It is impossible to examine the accompanying provisions of the Constitution without seeing very clearly that this provision was not intended to be applied to trials in the State Courts.”

“As the Constitution of the United States was ordained and established by the people of the United States, for their own government as a nation, and not for the government of the individual States, the powers conferred, and the limitations on power contained in that instrument, are applicable to the Government of the United States, and the limitations do not apply to the State Governments unless expressed in terms.” (Kent Comm. i. 407; Barron v. Baltimore, 7 Peters, 243.)

ON INDICTMENT.—The constitutional requirement of trial by jury only applies when the trial is “on indictment;” and there is no provision, corresponding to the Fifth Amendment of the United States Constitution, that all capital or infamous crimes must be tried on indictment. As was pointed out by Mr. Isaacs (Conv. Deb., Melb., p. 1894), “it is within the powers of the Parliament to say what shall be an indictable offence and what shall not. The Parliament could, if it chose, say that murder was not an indictable offence, and therefore the right to try a person accused of murder would not necessarily be by jury.”

It is submitted that, according to general usage in Australia, “indictment” includes an information filed by the Attorney-General or other proper officer for the prosecution of an indictable offence. In England, an indictment in the strict sense is “a written accusation of one or more persons of a crime presented upon oath by a jury of twelve or more men, termed a grand jury.” (Chitty, Crim. Law, i. 167.) An indictment by a grand jury is in England “the most usual and constitutional course for bringing offenders to justice on criminal charges” (Broom, Com. Law, p. 1047); whilst an ex officio information by the Attorney-General is only employed in the case of offences of peculiar public danger. Accordingly it has been held that the word “indictment” occurring in a particular statute did not include an ex officio information. (Reg. v Slator, 8 Q.B.D. 267.) In some Acts, however, for instance, 14 and 15 Vic. c. 100, s. 30, “indictment” is defined as including information. And “indictment” includes inquisition. (2 Hale, 155; Withipole's Case, Cro. Car. 134; Maxwell, Interpr. of Stat. p. 456.)

In New South Wales and Van Diemen's Land, by the Constitution Act of 1828 (9 Geo. IV. c. 83, s. 5) it was provided that “until further provision be made as hereinafter directed for proceeding by juries,” all offences cognizable in the Supreme Courts of those colonies should be “prosecuted by information in the name of His Majesty's Attorney-General, or other officer duly appointed for such purpose by the Governor of New South Wales and Van Diemen's Land respectively,” and that such information should be tried before a Judge and seven naval or military officers. By sec. 10 the Legislatures of the two colonies respectively were authorized to “extend and apply the form and manner of proceeding by grand and petit juries.” It was doubtless contemplated that when the colonies became ripe for the jury system, the procedure by information would be superseded by indictment before a grand jury; but in both colonies an information in the name of the Attorney-General continues to be the usual mode of prosecuting indictable offences, and the information is called, in the


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Statute book and in common parlance, an “indictment.” The same is the case in Queensland. (See Crim. Law Amendment Act of 1883 [N.S.W.], s. 3; Crim. Practice Act, 1865 [Queensland], s. 76.) In South Australia and Western Australia grand juries were instituted for a time, but were abolished in 1865 and 1883 in those colonies respectively, an information by the Attorney-General, in lieu of a grand jury, being substituted. In Victoria there is provision made for indictment by grand juries; but the most usual form of prosecuting indictable offences is by “presentment” by the Attorney-General. (See Crimes Act 1890 [Vic.], ss. 387–9.)

In all the Australian colonies, therefore, indictable offences are prosecuted in the name of the Attorney-General by a procedure variously known as information, presentment, or indictment, and chiefly differing from an indictment in being found by a law officer instead of by a grand jury. It seems clear that the words “on indictment” would extend to any such form of prosecution as this. The distinction intended by the section is between indictable offences and offences punishable in a summary way; and its operation ought, therefore, to extend to all prosecutions which are substantially in the nature of an indictment.

§ 341. “Any Offence Against any Law of the Commonwealth.”

OFFENCE.—The word “offence” has no special technical meaning in law. It is a general word signifying a public wrong, and includes all crimes and misdemeanours, whether indictable or punishable by summary conviction.

ANY LAW OF THE COMMONWEALTH.—The phrase “any law of the Commonwealth” includes, in the first place, the Constitution itself; which is not only a law of the Commonwealth, but in a sense, and with the reservation of the supremacy of the British Parliament, may be called the supreme law of the Commonwealth. It includes, in the next place, the laws of the Federal Parliament; which, together with the Constitution, are “binding on the courts, judges, and people of every State, and of every part of the Commonwealth.” (Constitution Act, clause v.)

Common Law Offences.—It is submitted that the words “offence against any law of the Commonwealth” would cover also any common law offence against the Commonwealth which the Federal Courts may have jurisdiction to try. (See sec. 326, supra.) So far as the common law can be relied upon by the Commonwealth and in relation to the affairs of the Commonwealth, it would seem to be, equally with federal statutes, the law of the Commonwealth. As examples of common law offences against the Commonwealth which might be indictable, even in the absence of federal legislation, the following are suggested:—Bribery of a public officer is a common law offence, and indictable as a misdemeanour. (Reg. v. Lancaster, 16 Cox, 737.) Any act of fraud upon a public officer, with intent to deceive, whereby a matter required by law for the accomplishment of an act of a public nature is illegally obtained, is an indictable misdemeanour. (Reg. v. Chapman, 2 Car. and K. 846; 1 Den. 432; 18 L.J. M.C. 152.) Being in possession of coining tools, with intent to use them, is a common law misdemeanour. (Rex v. Sutton, 1 East P.C. 172.) So is procuring base coin, with intent to utter it. (Rex v. Fuller, R. and R. 308.)

Acts Prohibited.—The Constitution is an Imperial Statute, and both it and the laws of the Parliament made under it are the law of the land. Accordingly the wilful doing of any act expressly prohibited by the Constitution or laws, even though not declared punishable, is a misdemeanour.

“Where an offence is not so at common law, but made an offence by Act of Parliament, an indictment will lie where there is a substantive prohibitory clause in such statute, though there be afterwards a particular provision and a particular remedy given. Thus, an unqualified person may be indicted for acting as an attorney contrary to the 6 and 7 Vic. c. 73, sec. 2, although sec. 35 and sec. 36 enact that in case any person shall so act he shall be incapable of recovering his fees, and such offence shall be


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deemed a contempt of court, and punishable accordingly.” (Russell on Crimes, 5th ed. i. 192.)

“Wherever a statute forbids the doing of a thing, the doing of it wilfully, although without any corrupt motive, is indictable.” (Id; Rex. v. Sainsbury, 4 T.R. 457.) Accordingly the provision that “each elector shall vote only once” (secs. 8, 30) is an express provision against plural voting, and any elector voting more than once at a federal election will be guilty of a misdemeanour. (Conv. Deb., Adel., p. 1183.)

§ 342. “By Jury.”

This provision guarantees not merely the form of trial by jury, but all the substantial elements of trial by jury, as they exist at common law. (Walker v. New Mexico and S.P. Railroad, 165 U.S. 593.) “Unanimity was one of the peculiar and essential conditions of trial by jury at the common law. No authorities are needed to sustain this proposition. Whatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys this substantial and essential feature thereof is one abridging the right.” (American Publishing Co. v. Fisher, 166 U.S. at p. 467; Springville v. Thomas, 166 U.S. 707.) “Trial by jury, in the primary and usual sense of the term at common law and the American Constitution, is a trial by a jury of 12 men, in the presence and under the superintendence of a judge empowered to instruct them upon the law and to advise them upon the facts, and (except upon acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the evidence.” (Capital Traction Co. v. Hof, 174 U.S. 1.) In the last-mentioned case it was also decided that the provisions of the Constitution as to trial by jury extend to the federal district of Columbia.

A jury means a jury composed, as at common law, of twelve men. (Thompson v. Utah, 170 U.S. 343; Maxwell v. Dow, 176 U.S. at p. 586.)

“The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbours, fellows, associates, persons having the same legal status in society, as that which he holds. Blackstone, in his Commentaries, says:—‘The right of trial by the jury, or the country, is a trial by the peers of every Englishmen, and is the grand bulwark of his liberties, and is secured to him by the Great Charter.’ ” (Strauder v. West Virginia, 100 U.S. 303.)

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