"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.)

§ 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 then 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

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 appointed 293 by the Governor-General in Council:

(ii.) Shall not be removed except by the GovernorGeneral 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 incapacity 297:

(iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished 298 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.

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 GovernorGeneral 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 itthat 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

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.

66

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 AttorneyGeneral-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 GovernorGeneral (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.