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 power 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.

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

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 sections the Parliament may make laws

334

(i.) Defining the jurisdiction of any federal court other than the High Court 335:

(ii.) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that

336

which belongs to or is invested in the courts

of the States:

(iii) Investing any court of a State with federal

jurisdiction 37.

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.

$ 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.”

66

§ 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,"

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

Freelings against Cremicwealth or State

78. The Parlament may make laws conferring rights to against the Commonwealth or a State in respect of Latters within the limits of the judicial power

this Crostituto la shill he sostrued to anthinze any suit in law or STYLEDevelith, or any tena kind re khalf of the Commonwealth, LEATS DEPNG szed in herald of a State, except by the consent of the OMCL or of the State, as the lase may be.

At the A lelle sest.c, 187, at the instance of the J. Lary Committee, the clause the 18. 5 was a ptel weis: 22.ttee, Mr. Barton proposed its Mr. Glynn, why had prepared an aber iment to All: Parlament to deal Ne defended the lasse, and it was

ith the matter, fell in with the saggett a

Coer. De3, Alek, pp. 9842

A: the Melbourne sess: a, Mr. Gya mured the inertia of a new clause as

"Proceedings may be taken against the C mm wealth or a State in all cases,
the limits of
ja trial power, in
in against a subject might be
tained."

Mr. Sym a thight the Cause anger asly wile, and that the proper course was to gve Parliament power to legislate with regard to proceedings against the Crown. He argued, however dissenting from Mr. Glynn an i Mr. Barton that the Parliament would have this power even in the absence of express proviston, as it was a mere matter of pexedure. Sir John Dowzer supported the clause, as very properly abolishing the maxim "the Queen can do no wrong"-just as hai 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, Melk, pp. 1653-79.