as to his powers by the letters-patent which constitute his office, and the instructions which inform him in detail of the manner in which his duties are to be fulfilled'. But its explanation in the Bill is no doubt to be found in the recent Victorian case of Toy v. Musgrove 2, in which the Chief Justice and one other judge upheld the contention raised that the Governor of Victoria was vested with all prerogative powers relating to the local affairs of the colony by virtue of the Constitution Act, though not expressly therein conferred, while the four remaining judges took the view that certain of such prerogatives and no others were by the Constitution Act and his commission conferred upon the Governor as representative of the Queen. The case was appealed to the Privy Council in England but went off on a different point 3. A similar contention, however, was, curiously enough, about the time this case was decided in Australia, being raised by the Ontario Government in Canada *, namely, that 'The Lieutenant-Governor is entitled virtute officii, and without express statutory enactment, to exercise all prerogatives incident to executive authority in matters over which provincial legislatures have jurisdiction, as the Governor-General is entitled, virtute officii, and without any statutory enactment, to exercise all prerogatives incident to executive authority in matters within the jurisdiction of the federal parliament.' This theory also was mooted in a case in the Canadian courts still more recently 5. It was not necessary, however, for the determination of the case that the point should be decided, and the contention was only supported by the obiter dicta of one judge. The matter may be deemed, perhaps, rather one of theory than of practical importance, but it is, I submit, a thing of importance in itself, when a thread of theory is discoverable in the constitutional law of the empire, to preserve it unimpaired, and it has always been held that a colonial governor under the British system is not a viceroy, but is vested with an authority limited by the terms of his commission and instructions, and of course by the terms of any valid statute conferring authority upon him, or regulating his powers. At any rate, the framers of the Australian Bill have deemed the matter of sufficient importance to make an express declaration with regard to it.

Passing on to the provisions relating to the constitution of the Federal Parliament, I referred in my former article to the democratic character of the Senate. In accordance with the same democratic spirit the House of Representatives (section 28) is to continue only for three years from the first meeting of the House, whereas the

1st ed. at p. 260.

3 '91, A. C. 272.

2

14 Victoria Law R. 349.

Ontario Sess. Pap. 1888, No. 37, pp. 20-2.

5 Attorney-General of Canada v. Attorney-General of Ontario, 22 Ont. R. 222, 19 Ont. App. R. 31, 23 Sup. Ct. R. 458.

Dominion House of Commons continues for five years1. In this part of the Bill two provisions tending to purity of government are to be noticed which are not embodied in either the United States or the Canadian constitution, although an Act of the Dominion Parliament excludes from the House of Commons and the Senate persons undertaking any contract for which money is to be paid by the government of Canada. Under section 44, any person is to be incapable of being chosen or of sitting as a senator or a member of the House of Representatives who has any direct or indirect pecuniary interest in any agreement with the public service of the Commonwealth, otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons,' and by section 46, if any such person does so sit, he shall, for every day on which he so sits, be liable to pay £100 to any person who sues for it in any court of competent jurisdiction. And under section 45, if a senator or member of the House of Representatives directly or indirectly takes or agrees to take any fee or honorarium for services rendered in the Parliament to any person or State,' his place shall thereupon become vacant. Comment has arisen before now in Canada over cases in which certain members of the Dominion Parliament were supposed to receive fees from powerful railway companies for working in their interests in the House. Probably, however, in every legislative body there are lawyers of eminence who take large retainers from corporations or individuals, although the discharge of their duties as members of parliament may be thereby influenced or affected; and this section of the Commonwealth Bill obviously does not touch that matter.

To continue, section 49 also calls for a word of notice. Under it 'the powers, privileges, and immunities of the Senate and of the House of Representatives and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom and of its members and committees at the establishment of the Commonwealth.' The Australian Federal Parliament is thus not to be subject to the peculiar restriction imposed in this respect upon the Dominion Parliament, the existence of which, so far as I know, has never been satisfactorily explained, and by which, though that Parliament may define by Act the privileges, immunities, and powers to be held, enjoyed, and exercised by its members, it can only do so so that the same shall never exceed 'those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United

B. N. A. Act, 1867, s. 50.

6

Kingdom of Great Britain and Ireland, and by the members thereof1.' This restriction in Canada seems all the more anomalous because the Judicial Committee decided in 18962 that the various provincial legislatures may, under the power given them 3 to amend the constitution of the province, except as regards the office of Lieutenant-Governor,' pass Acts for defining the powers and privileges of the provincial legislatures, free from any such restriction.

6

We now come to the sections conferring legislative powers, and the large number of federal powers specified, thirty-nine as against twenty-nine in Canada +, is no doubt to be accounted for by the fact that no general power of legislation, as in Canada, is conferred upon the Federal Parliament. Of the powers thus to be granted to the Parliament of the Commonwealth the first two, viz. those over (1)' trade and commerce with other countries, and among the States,' and (2) taxation; but so as not to discriminate between States and parts of States,' are obviously taken from the constitution of the United States, by preference to that of Canada. The first, which by virtue of section 97 extends to navigation and shipping, and to railways the property of any State,' is similar to the power of Congress to regulate commerce with foreign nations, and among the several States,' and differs from the power of the Dominion Parliament to make laws in relation to the regulation of trade and commerce,' extending as the latter does not only to external but to internal trade and commerce, though in its construction the broad comprehensiveness of the words has to be limited by reason of certain powers conferred upon the provincial legislatures in Canada over matters closely connected with the operations of trade and commerce. The second of these powers recalls that given to Congress to lay and collect taxes, duties, imposts, and excises, but so that all duties, imposts, and excises shall be uniform throughout the United States 5,' and, also, the other provision in the United States constitution, that representative and direct taxes shall be apportioned among the several States which may be included within the Union, according to their respective numbers,' and differs from the broad unfettered Dominion power to make laws in relation to the raising of money by any mode or system of taxation.'

6

And I may observe generally that the framers of the Australian Bill show a tendency, characteristic also of the United States constitution, and in a constantly increasing degree of the various State

Imp. 38-39 Vict. c. 38, amending B. N. A. Act, 1867, s. 18.

Fielding v. Thomas, '96, A. C. 600, at pp. 610-1.

2

B. N. A. Act, 1867, s. 92, No. 1.

These Dominion powers are to be found in section 91 of the B. N. A. Act, 1867. 5 Art. 1, s. 8 (1).

Art. 1, s. 2 (3).

constitutions in America, to fetter the free use of legislative powers conferred. Thus the very next federal power conferred on the Commonwealth Parliament is to make laws with respect to bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth.' In like manner section 55 provides that 'laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect,' and that such laws 'except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only': while section 98 says that the Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof'; and section 115, in marked similarity to a provision in the constitution of the United States, enacts that the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.' On the other hand, the framers of the Canadian Federation Act, in conformity with their expressed desire to adhere to the principles of the British constitution so far as was possible under federal conditions, when conferring legislative powers whether on Dominion Parliament or provincial legislatures over specific subject-matters, conferred them absolutely, and unfettered by any such restrictions. The British Parliament is supreme, and the British North America Act made Canadian legislatures also supreme over the internal affairs of Canada, each within its own sphere of jurisdiction. None of the distrust of legislatures, which is a marked and increasing American characteristic, is shown in the Canadian constitution, but it is to a considerable degree displayed in the Australian Bill.

Returning to the list of powers conferred upon the Parliament of the Commonwealth, there follow a number which are almost identical with the powers possessed by the Dominion Parliament, and in most cases also by Congress, namely, to make laws with respect to borrowing money, on the public credit of the Commonwealth,' 'postal, telegraphic, telephonic, and other like services' (the Canadian power is confined to postal services, and that of Congress to establishing post offices and post roads), 'the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth' (but by section 68 the command-in-chief of

the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative; in Canada it is declared to continue and be vested in the Queen 1'), 'lighthouses, lightships, beacons and buoys,'' quarantine,'' census and statistics,' 'currency, coinage, and legal tender,' banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money' (all banking is exclusively a Dominion subject in Canada), 'weights and measures,' 'bills of exchange and promissory notes,' 'bankruptcy and insolvency,' 'copyrights, patents of inventions and designs, and trade marks,' ' naturalization and aliens,'' marriage, divorce and matrimonial causes' (which last is a wise preference of the Dominion over the United States precedent), 'immigration and emigration,' and 'the influx of criminals.'

In connexion with this list it is to be noted that, as in the United States, the general criminal law is not made a Federal subject, though it is so in Canada, but, as it is provided that the Commonwealth Parliament may make laws with respect to 'matters incidental to the execution of any power vested by this constitution in the Parliament or in either House thereof,' presumably this would authorize criminal provisions in respect to all federal matters. It must also be remembered with regard to the above list that, as already pointed out, where powers in relation to such matters are conferred upon the Dominion Parliament, they are conferred exclusively, so that the provincial legislatures may not legislate upon them at all, whereas the above powers of the Australian Parliament are not thus exclusive, any more than those of Congress, though in the latter two cases federal laws when made override State laws in pari materia.

In addition to the above Federal powers in the Australian Bill are the following, which are not to be found among the specific powers of the Dominion Parliament, though they might probably all come within the general power of legislation over non-provincial subjects possessed by the latter. These are powers to make laws with respect to 'astronomical and meteorological observations,' 'insurance other than State insurance; also State insurance extending beyond the limits of the State concerned,' 'invalid and old-age pensions,' and 'conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.' Power is also given to make laws in respect to 'the control of railways with respect to transport for the naval and military purposes of the Commonwealth,' and, as already mentioned, by section 97 the power of Parliament over trade 1 B. N. A. Act, 1867, s. 15.