Besides the prerogative writ of mandamus, there are various kinds of statutory mandamus; especially the mandamus in a civil action, first introduced by the (Imperial) Common Law Procedure Act, 1854, and subsequently adopted in the colonial Common Law Procedure Acts. (See Steph. Comm. iii. 619.) This sub-section appears chiefly to contemplate the prerogative writ; but it is submitted that it is wide enough to include any statutory mandamus which may be authorized by federal legislation.

In the colonies, the courts which exercise a jurisdiction corresponding to that of the Queen's Bench have always exercised the right of issuing the prerogative writ of mandamus. It appears that, in the absence of prohibitive Imperial legislation, the Court of Queen's Bench can exercise jurisdiction in every part of the Queen's Dominions, even in colonies in which an independent legislature has been established. "Writs not ministerially directed (sometimes called prerogative writs, because they are supposed to issue on the part of the King), such as writs of mandamus, prohibition, habeas corpus, certiorari, are restrained by no clause in the constitution of Berwick; upon a proper case they may issue to every dominion of the Crown of England. There is no doubt as to the power of this court (i.e., the court of King's Bench), where the place is under the subjection of the Crown of England; the only question is as to the propriety." (Per Mansfield, C.J., Rex v. Cowle, 2 Burr. 855.) In 1861, a writ of habeas corpus ad subjiciendum was issued from the court of Queen's Bench to certain officers in Upper Canada. (Re John Anderson, 30 L.J.Q.B. 129.)

A mandamus only lies where the applicant has a legal right to the performance of some public duty, and where there is no other adequate remedy. (See Shortt, Mandamus.)

The mandamus provided for in this sub-section is only "against officers of the Commonwealth." Without express words, the High Court has original jurisdiction to issue a mandamus against any person, corporation, or public officer in any matter coming within the scope of its original jurisdiction; and the power to issue a mandamus to any State or Federal Court is incident to the general appellate jurisdiction of the High Court. (Marbury v. Madison, 1 Cranch 137; and see notes, supra.)

This sub-section merely gives a jurisdiction, and does not confer any right to a mandamus in cases where it did not exist before. (Conv. Deb., Melb., pp. 1875-85.) Consequently the jurisdiction where a mandamus is sought against an officer of the Commonwealth must be read in the light of established authority. It is a clear principle of English law that a mandamus is never granted against the Crown, or the officers or servants of the Crown as such. "That there can be no mandamus to the Sovereign there can be no doubt, both because there would be an incongruity in the Queen commanding herself to do an act, and also because the disobedience to a writ of mandamus is to be enforced by attachment.” (Per Denman, C.J., Reg. v. Powell, 1 Q.B. 361.) principle, which is laid down clearly in English, Colonial, and American cases, is this: that a mandamus will lie against an officer of the Crown to compel him to perform an act which he is under a statutory or other legal duty to perform; but not to compel him to perform an act in which he has any discretion, or in which he is subject to the commands of the Crown. Thus, in Reg. v. Lords Commissioners of the Treasury, L.R. 7 Q. B. 387, it was held that no mandamus lies to the Lords of the Treasury to compel them to issue a Treasury minute authorizing certain payments.

The

"I take it, with reference to that jurisdiction, we must start with this unquestionable principle, that when a duty has to be performed (if I may use that expression) by the Crown, this court cannot claim even in appearance to have any power to command the Crown; the thing is out of the question. Over the sovereign we can have no power. In like manner where the parties are acting as servants of the Crown, and are amenable to the Crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction. (Per Cockburn, C.J., at p. 394.)

"The question remains whether there is any statutable obligation cast upon the Lords of the Treasury to do what we are asked to compel them to do by mandamus, namely, to issue a minute to pay that money: because it seems to me clear that we

ought to grant a mandamus if there is such a statutory obligation. The general principle, applicable not merely to mandamus but running all through the law, is that where an obligation is cast upon the principal and not upon the servant, we cannot enforce it against the servant as long as he is merely acting as servant. Where the intention of the legislature shows that Her Majesty should be advised to do a thing, and where the obligation, if I may use the word, is cast upon the servants of Her Majesty so to advise, we cannot enforce that obligation against the servants by mandamus merely because the sovereign happens to be the principal." (Per Blackburn, J., at p. 397.)

In Exp. Mackenzie, 6 S.C.R. (N.S. W.) 306, the Supreme Court of New South Wales refused to issue a mandamus against the Colonial Treasurer to compel him to issue a warrant for the payment of certain moneys voted by Parliament. In Exp. Cox. 14 S.C.R. (N.S. W.) 287, a mandamus against the Secretary for Mines commanding him to hand over to the applicant a mineral lease executed by the Governor, under the Mining Act, was refused by the same court on the ground that the Act did not impose on the Secretary for Mines any such duty. (See also Exp. Krefft, 14 S.C.R. [N.S.W.] 446.) In Exp. Gibson, 2 N.S. W. L. R. 202, the Supreme Court of New South Wales held that a mandamus would lie against the Colonial Treasurer for the issue of a license under the Licensing Act of 1862, on the ground that the Act left the Treasurer no discretion; but the court in its own discretion refused the mandamus.

The American cases are to exactly the same effect, and decide that a mandamus will lie to compel the performance of a merely ministerial duty, but not of a discretionary duty. Thus in U.S. ex rel. Boynton v. Blaine, 139 U.S. 306, the principle was stated by the Court as follows :-

"The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an Executive department in the discharge of an executive duty involving the exercise of judgment or discretion. (U.S. ex rel. Redfield v. Windom, 137 U.S. 636, 644.) When by special statute, or otherwise, a mere ministerial duty is imposed upon the executive officers of the Government; that is, a service which they are bound to perform without further question; then, if they refuse, the mandamus may be issued to compel them. (U.S ex rel. Dunlap v. Black, 128 U.S. 40, 48.) The writ goes to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act." (Brownsville Commissioners v. Loague, 129 U.S. 493, 501.)

So in Decatur v. Paulding, 14 Pet. 497, it was held that a mandamus would not lie against the Secretary of the Navy to compel him to sign a warrant for payment. (See Brashear v. Mason, 6 How. 92.) No power can be asserted by the Supreme Court of the United States "to command the withdrawal of a sum or sums of money from the Treasury of the United States to be applied in satisfaction of disputed or controverted claims against the United States." (U.S. ex rel. Goodrich v. Guthrie, 17 How. 284. See Kent, Comm. i. 322.) Where a public officer refuses to perform a mere ministerial duty, mandamus is the proper remedy. (Roberts v. United States, 176 U.S. 221.)

PROHIBITION. — -"The writ of prohibition issues out of a superior court of law. and is directed to the judge of an inferior court, or the parties to a suit therein, or both conjointly, requiring that the proceedings which have been commenced therein be either conditionally stayed or peremptorily stopped. The object of the writ is the keeping of the court to which it is directed within its proper jurisdiction, or to repress the assumption of authority by any pretended court." (Broom, Com. Law, p. 216. See also Blackstone Comm. iii 112; Shortt, Mandamus, &c., p. 426.) The general rule is that prohibition only lies where the inferior tribunal acts either without jurisdiction, or in excess of its jurisdiction, or where its procedure has violated the rules of justice. Shortt, 436.)

(See

The writ of prohibition will issue, not only to the regular Courts, but to various public bodies exercising powers of a judicial nature-such, for instance, as the Tithe Commissioners and the Railway Commissioners in England. (See Shortt, p. 433.) In a case relating to the Local Government Board, though the power to prohibit was not decided, Brett, L.J., observed :-"I think I am entitled to say this, that my view of the power of prohibition at the present day is that the Court should not be chary of

exercising it, and that wherever the legislature entrusts to any body of persons, other than to the superior courts, the power of imposing an obligation upon individuals, the Court ought to exercise, as widely as they can, the power of controlling those bodies of persons, if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament." (Reg. v. Local Government Board, 10 Q.B.D. 321.) But a prohibition will only be granted where the proceedings to be prohibited are of a judicial character. (Shortt, p. 439.) Thus it may be argued that prohibition will lie against the Inter-State Commission when acting in its judicial capacity.

Seeing that a writ of prohibition lies against the parties to a suit, as well as against the judge, it would appear that where an "officer of the Commonwealth" is party to a suit in a State court, a prohibition may issue against him out of the High Court, on the suit of the proper party. It would seem that a prohibition directed to the judge of an inferior court is rather an exercise of appellate than of original jurisdiction, inasmuch as it involves the assumption of an authority to control and revise, in certain respects, the proceedings of the inferior court. So it has been held in the United States that a writ of prohibition cannot issue from the Supreme Court where there is no appellate power given by law, nor any special power to issue the writ. (Exp. Gordon, 1 Black, 503.) And the Judiciary Act of 1789 authorizes the Supreme Court to issue prohibitions to the federal District Courts when proceeding as courts of Admiralty. (Exp. Christy, 3 How. 292; Exp. Graham, 10 Wall. 541.) This jurisdiction could not have been conferred if a prohibition had been thought to involve the exercise of original jurisdiction, because the Supreme Court of the United States has no original jurisdiction in Admiralty cases.

But whether a writ of prohibition be regarded as an original or an appellate proceeding seems immaterial under this Constitution. If appellate, the jurisdiction to issue prohibitions to all federal courts, or courts of federal jurisdiction, is given by s. 73 ; if original, it would seem that the justices of such courts are "officers of the Commonwealth" within the meaning of this section.

INJUNCTION.-An injunction is a remedy of an equitable nature. It used to be "a writ remedial, issuing out of a court of Equity, in those cases in which a plaintiff is entitled to equitable relief, by restraining the commission or continuance of some act of the defendant." (Joyce on Injunctions, p. 1.) Injunctions are also issued in some cases by courts of common law, acting on equitable principles. The writ of injunction is now generally abolished, injunctions being obtained by order; though the writ of injunction survives in the common law courts of those colonies where the old Common Law Procedure Acts are still in force.

The necessity for the mention of injunctions here is not quite apparent. An injunction is on a different footing altogether from mandamus and prohibition; it is an ordinary remedy in private suits between party and party. It was probably added because of the analogy which exists, in effect, between a mandamus and an injunction.

IS SOUGHT.-The Constitution gives original jurisdiction to the High Court in all matters in which a mandamus, prohibition, or injunction "is sought" against the Commonwealth. It does not follow, however, that the plaintiff in any suit against an officer of the Commonwealth in which the substantial relief sought does not come within this sub-section can bring the proceeding within the jurisdiction of the High Court by adding an untenable claim for a mandamus, prohibition, or injunction. It is submitted that in such a case the same principle would apply as when a plaintiff endeavours to bring a common law dispute into a Court of Equity by alleging an untenable equity. (See Want v. Moss, 12 N.S. W. L.R. Eq. at p. 108.)

AGAINST AN OFFICER OF THE COMMONWEALTH.-The ministers of State are officers appointed to administer Departments of State (sec. 64), and are clearly "officers of the Commonwealth." So are officers of the transferred departments who are retained in the service of the Commonwealth (sec. 84). So are the "officers of the Executive Govern

ment of the Commonwealth" mentioned in sec. 67. And so also, it is submitted, are the members of the Inter-State Commission, and even the Justices of the High Court and of the other federal courts. It is not clear whether the Judges of a State Court invested with federal jurisdiction can be called, in relation to the duties so imposed upon them, "officers of the Commonwealth." The Commonwealth investiture acts upon the court; the Judges of that Court are appointed, removed, controlled, and paid by the States alone. They are officers of the States exercising functions conferred on them by the Commonwealth.

For the term "officer of the United States" see Robb v. Connolly, 111 U.S. 624. "An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties." (United States v. Hartwell, 6 Wall. at p. 393.)

This section does not confer any right of action against officers of the Commonwealth. The High Court is given jurisdiction only; it has to determine in each case, according to the principles of law, whether an action lies. (See Notes, above.) The principles that no action lies against the Crown except by its consent, given by legislation or otherwise, and that no action lies against a judge for anything done in his judicial capacity, are not affected.

§ 326. "The High Court Shall Have Original

Jurisdiction."

If a

What is given by this section is jurisdiction merely, not a right of action. plaintiff has a legal claim which comes within any of the classes named, the section gives him the right to prosecute his suit in the High Court, and gives the High Court power to entertain his suit; but it does not affect his right to relief. (See notes, §§ 323-324 supra.)

The section confers a jurisdiction on the High Court, but it does not take away any jurisdiction from the State Courts. It does not provide that the jurisdiction of the High Court, or of the federal courts, shall be exclusive; though sec. 77 enables the Parliament to make the jurisdiction of any federal court exclusive of the jurisdiction of the State courts to any extent which may be desired. In the absence of such federal legislation, there will be concurrent jurisdiction over all matters within this section, so far as they also come within the jurisdiction of any court of a State. There may, however, be some cases-such as criminal offences against the Constitution or federal laws-in which the jurisdiction is necessarily exclusive. "It is only in those cases where, previous to the Constitution, State tribunals possessed jurisdiction independent of national authority that they can now constitutionally exercise a concurrent jurisdiction." (Story, Comm. § 1754; Kent, Comm. i. 319. See also Federalist, No. 82; Story, S$ 1748-54; Kent, i. 395-404.)

The gift of original jurisdiction does not exclude the appellate jurisdiction of the High Court in cases mentioned in this section. The words of the Constitution of the United States have been construed to give appellate but not original jurisdiction in some cases, and original but not appellate jurisdiction in others. (See Story, Comm. §§ 170621; Kent, Comm. i. 318.) The reasoning by which this interpretation was arrived at has no application to this Constitution, the extent of the appellate jurisdiction being clearly defined. In the Bill of 1891, and also in the Adelaide draft of 1897, the words were shall have original as well as appellate jurisdiction;" but at Melbourne, after the fourth Report, the words in italics were struck out at the instance of the Drafting Committee, as being unnecessary.

It has been held in the United States that the jurisdiction of a federal court will not be presumed, as in the case of a common law English Court, or American State court; but that the record must show the jurisdiction affirmatively. (Dred Scott case, 19 How. 393; Exp. Smith, 94 U.S. 455.) The consent of parties cannot give jurisdiction

where it does not exist (Mansfield, &c., R. Co. v. Swan, 111 U.S. 379; and see Bac. Abr., Courts (B); Broom's Comm. 43). But the parties may admit facts showing jurisdiction. (Railway Co. v. Ramsey, 22 Wall. 322.)

"Objections to the jurisdiction of the court below, when they go to the subjectmatter of the controversy, and not to the form merely of its presentation or to the character of the relief prayed, may be taken at any time. They are not waived because they were not made in the lower court." (Boom Co. v. Patterson, 98 U.S. at p. 406.)

Where the original jurisdiction of the Court is invoked, it must appear in the declaration or bill of the party suing that the case is one of federal jurisdiction. (Metcalf v. Watertown, 128 U.S. 586; Colorado Central Mining Co. v. Turck, 150 U.S. 138.)

COMMON LAW JURISDICTION.—The great question whether there is a common law of the Commonwealth involves three distinct enquiries: (1) whether the common law, as existing in the several States, is a "law of the Commonwealth;" (2) whether there is a federal jurisdiction over common law offences; (3) whether there is a common law federal jurisdiction in civil cases.

(1) Is the Common Law a Law of the Commonwealth? -In the United States the federal courts follow the decisions of the highest court of a State in questions concerning merely the laws of that State, and only claim a right of " independent interpretation where the law of the Union is involved. Accordingly the question whether the common law is United States law has arisen in connection with the question whether the United States judiciary, in the exercise of its jurisdiction, has the right of independent interpretation of the law. To this question the Supreme Court of the United States— true to its character as a federal, not a national court--has given the following answer :

"It has asserted this right in all cases in which jurisdiction is established by the character of the subject matter of the suit; but when jurisdiction is based solely upon the character of the parties to the suit, it has enunciated the principle that the United States Courts, in interpreting the local law which governs the case, must follow the interpretation placed upon the law by the State court of highest instance. This doctrine rests upon the assumption that all purely State law is finally interpreted by the State courts, and that the common law is purely State law (Wheaton v. Peters, 8 Pet. 591), i.e., that the United States has no common law. The court has not itself been able to hold to this doctrine in its practice. In many cases where the jurisdiction of the United States courts rests wholly upon the character of the parties to the suit, it has rendered decisions contradicting the decisions of the highest courts of the States concerned. Such action can be rationally explained only upon the theory that the United States has a common law; that the United States courts are quite as independent in their interpretation of this common law as in the interpretation of the Constitution, statutes, and treaties, of the United States; and that, in many cases where the jurisdiction of the United States court rests apparently only upon the character of the parties to the suit, the question involved is one of United States common law.” (Burgess, Pol. Sci. ii. 328; see also Kent, Comm. i. 342, notes.)

This test of the existence of a federal common law is wholly inapplicable to the Commonwealth, because the High Court, as a national and not a federal court of appeal, has not only the right, but the duty of "independent interpretation" of the common law in all cases that come before it. In the United States, the decision of the courts of each State being final as to what the common law of the State is, the common law in one State may come in time to be widely different from the common law in another State. Throughout the Commonwealth of Australia, the unlimited appellate jurisdiction of the High Court will make it- subject to review by the Privy Council-the final arbiter of the common law in all the States. The decisions of the High Court will be binding on the courts of the States; and thus the rules of the common law will be-as they always have been-the same in all the States. In this sense, that the common law in all the States is the same, it may certainly be said that there is a common law of the Commonwealth.

(2.) Jurisdiction over Common Law Offences. -This question has been the subject of much discussion in the United States, chiefly in relation to criminal cases. In the case of United States v. Worrall, 2 Dall. 384 (cited Kent, I. 331), the question arose whether