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Judicature as
Adviser.

of the parties, or the acts which give rise to the action have been done for the purpose of creating an issue to be tried." The English Courts, on the other hand, have frequently heard and decided such "friendly" suits. The reason for the different attitude of the English and American Courts is no doubt the fact that the English Courts have only to determine the construction or meaning of a law about whose constitutionality there can be no question; whereas the American Courts are constantly asked to say in effect whether a given law passed by the Legislature is constitutional or not. And here again the position of a Court established under a Union of British Colonies is between that of the United States and the British Courts. Thus in Canada the practice has arisen of questions affecting the constitutionality of legislative enactments being taken up by the public authorities. For instance, Professor Moore cites the case of The Attorney-General for Ontario vs. Mercer, "where the contest was virtually as to whether certain prerogative rights in land belonged to the Crown in right of Ontario or of the Dominion of Canada. The defendant was content with the judgment of the Court of first instance, but the Dominion of Canada appealed in the name of the defendant, and was heard in the Supreme Court and in the Judicial Committee [of the Privy Council]. The latter treated the public character of the case as reason for making no order as to costs."

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Closely related to this point of Canadian practice is the question whether either the Legislative or Executive departments of government can take the advice of the Judicature as to their constitutional powers. In Great Britain the House of Lords has power to consult the Judges, and the Crown can refer to the Judicial Committee of the Privy Council for hearing or consideration any matters which may seem fit. In Canada, also, as is stated in Appendix C, the GovernorGeneral in Council, as well as either House of Parliament, may refer to the Supreme Court certain specific matters. The hearing of such a reference by the Dominion Supreme Court takes the form of a judicial proceeding; parties interested may be represented by counsel, and the finding of the Court is practically a declaratory judgment, on which an appeal may be taken to the Queen in Council." In certain States of the United States a similar provision for reference to the Judicature has been made. But" such opinions [says Professor Moore] are never regarded by the Judges themselves as authoritative, and may be departed from by the Courts even when constituted by the Judges who have given the opinion; they are given under an obvious disadvantage, since the Judges have not the assistance of the arguments of counsel." On the other hand, the Supreme Court of the United States has set its face against the decision of matters brought before it merely on reference; and Professor Moore is of the opinion that "in the Commonwealth [of Australia], as in the United States, it is judicial power which is vested in the Courts, and it is clear that the advisory function is not included in that power, even when the Court may hear evidence and arguments to aid it in giving advice."+

*1883. A.C., 767.

"The Commonwealth of Australia," p. 242.

CHAPTER XI.

ESTABLISHMENT AND JURISDICTION OF A CENTRAL JUDICATURE.

1. ESTABLISHMENT:

The Canadian Constitution contains no provision for the actual Canada. establishment of Central Courts, though Sec. 101 of the British North America Act says that "the Parliament of Canada may, notwithstanding anything in this Act, from time to time provide for the constitution, maintenance, and organisation 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."

Under the power given by this Section, the Supreme Court of Supreme Court. Canada was established in 1875 by the Dominion Act 38 Vict., cap. II. [Since amended by the Revised Statutes of the Dominion of Canada, 1886, cap. 135, and by 54 and 55 Vict., cap. 25.]* It holds its sittings three times a year at Ottawa-in February, May and October. It is presided over by a Chief Justice and five Puisne Judges, two of whom must have been members of the Quebec Bar, and all of whom must reside within five miles of the city of Ottawa. Its jurisdiction is detailed in Appendix C.

"The Exchequer Court is presided over by a single Judge, and Exchequer can sit anywhere in Canada. It is also a Colonial Court of Court. Admiralty [54 and 55 Vict. (Dom.) c. 29], having jurisdiction throughout Canada and its waters, whether tidal or non-tidal, or naturally navigable or artificially made so, and all persons shall have all rights and remedies in all matters connected with navigation, shipping, trade or commerce, as may be had or enforced in any Colonial Court of Admiralty under the Imperial Colonial Court of Admiralty Act, 1890, 53 and 54 Vict., c. 27. Local Courts of Admiralty have been established in accordance with the Dominion Act in Quebec, Nova Scotia, New Brunswick, British Columbia and Toronto district, the limits of which are elastic and may be altered by the Governor-in-Council." [Wheeler: "Confederation Law of Canada," p. 395.j

In contrast to that of Canada, the Constitutions of the United United States States and of Australia specifically provide for the establishment and Australia. of Central Courts. Thus Article III., Sec. 1 of the United States Constitution says that :

A summary of the history, constitution and powers of the Provincial Courts in Canada is given by Wheeler: "Confederation Law of Canada," pp. 396-404.

Comparison.

"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. 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."

Similarly, Sec. 71 of the Australian Constitution enacts :—

"The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates and in such other Courts as it invests with Federal jurisdiction. The High Court shall consist of a Chief Justice and so many other Justices, not less than two, as the Parliament prescribes."

And Section 72 provides that the Justices of the High Court and the other Federal Courts established by the Parliament are to be appointed by the Governor-General in Council; cannot be removed except by the same agency acting on an address from both Houses of Parliament in the same session [which address alleges proved misdemeanour or incapacity]; and are to receive such remuneration as the Parliament may fix, which remuneration cannot be diminished during their continuance in office.

Comparing the relative provisions of the Constitution of the United States with that of Australia, it will be seen that there are two important points of difference. In the first place the Australian Constitution adds the words "and in such other Courts as [the Parliament] invests with Federal jurisdiction." The American Constitution makes no provision for the granting of Federal jurisdiction to existing State Courts. It follows from this omission, according to Story [" Commentaries," Sec. 1593]:

That Congress is 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." [See below under "Jurisdiction."]

Whereas the Federal Parliament of Australia can grant Federal jurisdiction to existing State Courts, and there is, therefore, no necessity for the creation of inferior Federal Courts. In the United States there are two classes of inferior Federal Courts, viz., nine Circuits, in which Courts are held annually, to each of which there is assigned one Circuit Judge and one Judge of the Supreme Court; and about sixty District Courts, each presided over by a District Judge.

In the second place, under the American Constitution the whole apparel of the Federal Courts-number, personality and removal of Judges, etc.-is left to Congress. In the Australian Constitution, on the other hand, there is a distinction between the method of decision as to the number and as to the personality of the Judges of the Federal High Court. Their number is fixed by the Constitution at two at least and as many more as the Parliament prescribes, whereas their appointment is left to the Governor-General in Council, and their removal can be carried out by the Governor-General in Council only if he is acting upon the prayer of Parliament acting as one body and on specified grounds.

II. JURISDICTION:

Between the Jurisdiction of the Federal Courts in the United States United States. and Australia there are also very important differences. Article III., Secs. 2 and 3, of the United States Constitution gives the Supreme Court original and exclusive jurisdiction "in all cases affecting ambassadors, other public ministers and Consuls, and those in which a State shall be a party"; whilst in regard 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; all cases of admiralty and maritime jurisdiction; controversies to which the United States shall be a party; 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"; the Supreme Court has "appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make."

This brief summary of the jurisdiction of the Supreme Court of the United States must be taken as subject to the provisions of the XIth amendment, viz. :

"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."

This amendment was passed as a consequence of the decision of the Supreme Court in the case of Chisholm vs. State of Georgia [2 Dall. 419] in which it was held that "a State could be sued in assumpsit by a citizen of another State; that service of process on the Governor and Attorney-General of the defendant was sufficient to confer jurisdiction upon the United States Court; and that the State failing to appear after such summons, judgment by default could be rendered against it." [Vide Baker: "Annotated Constitution, United States," p. 127.] In the case of "In re Ayers "* [123 U.S. at p. 505], the object of this amendment was discussed by Mr. Justice Matthews :

"The very object and purpose of the XIth amendment were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instigation of private parties. It was thought to be neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons whether citizens of other States or aliens, or that the course of their public policy and the administration of their public affairs should be subject to, and controlled by the mandates of judicial tribunals without their consent, and in favour of individual interests."

Besides the bearing of the XIth Amendment, there has been a mass of legal decision in the United States with which it is impossible-even if it were necessary-to attempt to deal here. A condensed summary of the cases on the point will be found in * Quoted by Baker: Ann. Const. U.S., p. 206.

Australia.
Original
Jurisdiction.

Baker's "Annotated Constitution," and the subject is discussed in a connected and reasoned manner by Story: "Commentaries" (4th Ed., Chap. XXXVIII.). All that can be done here is to quote Baker's summary of a few of the outstanding cases in which questions of principle were decided-thus:

Dodge vs. Woolsey [18 How. 331]. "The Constitution vests in the Supreme Court a jurisdiction for its final interpretation and for the laws passed by Congress, to give them an equal operation in all of the States. Also to determine when the laws of the States conflict with the Federal Constitution and with the laws of Congress." [B. p. 122.]

Kentucky vs. Dennison [24 How. 66]." The Supreme Court of the United States may exercise its original jurisdiction in suits against a State, under the authority conferred by the Constitution, without any further Act of Congress to regulate its process. The Court may regulate and mould the process it uses in such manner and form as in its judgment is promotive of justice." [B. p. 137.]

Martin vs. Hunter's Lessee [1 Wheat. 304]. "The appellate jurisdiction of the Supreme Court of the United States extends to a final judgment or decree in any suit in the highest Court of Law or Equity of a State, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favour of their validity; or the construction of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party under such clause of the Constitution, treaty, statute or commission.

Such judgment or decree may be re-examined by writ of error in the same manner as if rendered in a Circuit Court.

"If the cause has been once remanded, and the State Court refuses or declines to carry into effect the mandate of the Supreme Court thereon, this Court will proceed to final decision of the same and award execution thereon. "If the validity or construction of a treaty of the United States is drawn in question, and the decision is against its validity, or the title specially set up by either party under the treaty, this Court has jurisdiction to ascertain that title and determine its legal validity, and is not confined to the abstract construction of the treaty itself." [B. p. 139.]

The Sections of the Australian Constitution defining the original jurisdiction of the High Court are Nos. 75, 76 and 77. The Constitution itself confers upon the High Court original jurisdiction :

"In all matters:

(1) "Arising under any treaty.

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(2) "Affecting Consuls or other representatives of other countries.
(3) In which the Commonwealth, or a person suing or being sued on
behalf of the Commonwealth, is a party.

(4) "Between States, or between residents of different States, or between
a State and a resident of another State.

(5) "In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth." [Sec. 75.]

On the other hand, the Constitution gives the Federal Parliament power to make laws conferring on the High Court orig nal jurisdiction:

"In any matter:

(1) "Arising under this Constitution or involving its interpretation.

(2) "Arising under any laws made by the Parliament.

"

(3) Of Admiralty and maritime jurisdiction.

(4) "Relating to the same subject-matter claimed under the laws of different States." [Sec. 76.]

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