$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.

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 r. 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.

66

"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

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 Commonwealth shall be by jury-342, 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.)

$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

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. r. 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 e. 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