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Limitations Upon Constitutional Provisions as to Judicial Power.

The general vesting of the judicial power of the Commonwealth in Courts, whose justices are protected under section 72, may raise the question whether any judicial power may be exercised, except by courts constituted as required by section 72. In the United States it is accepted, notwithstanding the general terms used, that a certain amount of


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judicial power has been commonly, and perhaps necessarily, associated with certain offices; and that this power is exerciseable under the United States by the like officers, though they are not protected under the terms of the Constitution. It has been said that the Constitution, in speaking of courts and judges, means “those who exercise all the regular and permanent duties which belong to a court in the ordinary popular signification of the terms.note The Justices of the Peace under the authority of the United States, exercising duties partly judicial and partly executive and ministerial, are not regarded as “courts” within the Constitution. There are in fact many officers who are called on, in the ordinary course of their duties, to discharge functions which blend the judicial and administrative, as masters, chief clerks, and some other officers of court. These officers will not be within the Constitutional provision. The same may be said of the Inter-State Commission and of courts martial, administering military law over persons in the defence forces of the Commonwealth. Of courts martial of the United States, Winthropnote says, that “although their legal sanction is no less than that of the federal courts, being equally with these authorized by the Constitution, they are, unlike these, not a portion of the judiciary of the United States, and are thus not included among the ‘inferior courts’ which Congress may from time to time establish.”.… Not belonging to the judicial branch of the Government, it follows that courts martial must appertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as commander-in-chief, to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives.note

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