in considering the legislative power of the Provincial Legislatures pointed out the difference between their constitution and that of the Legislative Council of India.

66

They are in no sense delegates of, or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its Legislative Assembly should have exclusive authority to make laws for the Province, and for provincial purposes in relation to the matters enumerated in sect. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sec. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect. It is obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail. The very full and very elaborate judgment of the Court of Appeal contains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience. It was argued at the bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its power intact, and can, whenever it pleases, destroy the agency it has created, and set up another, or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for Courts of Law, to decide. (Per Sir B. Peacock : Hodge v. The Queen, App. Ca. 132.)

Applying the principles established in the foregoing cases to the Constitution of the Commonwealth, we may draw the conclusions: (1) As the words of the Imperial Act, creating the Federal Parliament and conferring on it legislative powers, are similar in substance and intent to those of the British North America Act, conferring exclusive legislative authority, it follows that the Federal Parliament is in no sense a delegate or agent of, or acts under any mandate from, the Imperial Parliament. (2) Its authority within the limits prescribed by the Constitution are as plenary and ample as the Imperial Parliament in its plenitude possessed and could bestow. (3) Within those limits the Federal Parliament can do what the Imperial Parliament could do, and among other things it can entrust to a body of its own creation power to make by-laws and regulations respecting subjects within its jurisdiction.

LIMITATIONS OF FEDERAL LEGISLATIVE POWER.-As we proceed with an analytical examination of section 51 it will be seen that whilst several of its sub-sections contain grants of legislative power in general and unlimited terms, the grants conveyed by other sub-sections are qualified or subject to restraints. These are known as constitutional limitations. Take sub-section 1. There, the Federal Parliament is assigned power to legislate respecting trade and commerce "with other countries and among the States;" the words quoted are words of limitation excluding from Federal control the internal commerce of each State. This is obviously a federal limitation, justifiable by considerations of federal policy. It is not founded on any distrust of the Federal Legislature; it is not designed for the protection of individual citizens of the Commonwealth against the Federal Legislature. It is, in fact, one of the stipulations of the federal compact. So the condition annexed to the grant of taxing power is, that there must be no discrimination between States in the exercise of that power. This, again, is not a limitation for the protection of private citizens of the Commonwealth against the unequal use of the taxing power; it is founded on federal considerations; it is a part of the federal bargain, in which the States and the people thereof have acquiesced, making it one of the articles of the political partnership, as effectually as other leading principles of the Constitution. Another federal limitation annexed to a grant of legislative power is that bounties granted by the Federal Parliament “shall be uniform throughout the Commonwealth.” The authority of the Federal Parliament over bounties is fettered in the same manner and for the same reasons that its authority to tax is fettered.

§§ 160-161]

POWERS OF THE PARLIAMENT.

Attention having been drawn to federal limitations to be found in grants of power contained in sec. 51, the subject may be here further elucidated by the statement that sec. 51 is not the only section of the Constitution in which limitations to the grants therein But this rule is not made are to be found. Logically, if not for perspicuity, the limitation of a power ought to be associated with or in proximity to the conveyance of power. uniformally observed in the drafting of Constitutions. Thus the grant of power over trade and commerce in sec. 51-i. is subject to further qualifications and restrictions By sec. 92, the Federal Parliament, in common with contained in subsequent sections. By sec. 98, the the State Parliaments, is restrained from interfering with the freedom of inter-state trade and commerce, after the imposition of uniform duties of customs. Federal Parliament is unable to pass commercial regulations which may give preference to one State over another State. In like manner the taxing power is subject to other The Federal Parliament cannot impose a tax which qualifications and restrictions. would operate in derogation of the freedom and equality of inter-state trade and comIt cannot impose a tax on property of any kind belonging to a merce; secs. 92 and 98. State; sec. 114.

The first part of sec. 115 declares that the Commonwealth (Federal Parliament) shall not make a law establishing any religion. This is an absolute prohibition, an absolute denial of power, which stands in contrast to a limitation or cutting down of a power which is granted. There is, in the Constitution, no express or implied grant of power over religion which the first part of this section can possibly qualify or limit (see Note § 462). The last part of the section, providing that "no religious test shall be required as a qualification for any office or public trust under the Commonwealth," is a true and legitimate limitation of a power granted by sec. 69; yet that limitation cannot be described as a federal limitation, warrantable and explainable by federal considerations. It is a notable instance of a national, as compared with federal, limitation. It See also Lefroy, Legisl. is an example of the limitation of power founded on what Mr. Lefroy calls "distrust of Legislatures." (Law Quarterly Review, July, 1899, p. 286. Power in Canada, Introd. p. xlv.)

NATURE AND DISTRIBUTION OF POWERS. It was competent for the people to invest the Federal government with all the powers they might deem proper and necessary, to extend or restrain these powers, and to give them a paramount authority. (Martin v. Hunter's Lessee, 1 Wheat. 304; Baker, Annot. Const. p. 15.)

The Federal government can claim no powers not granted to it by the Constitution : powers actually granted must be such as are given expressly or by necessary implication. The instrument is to have a reasonable construction according to the import of its terms; where a power is expressly given in general terms it is not to be contined to particular cases, unless that construction grows out of the context or by necessary implication. (Id.)

The Constitution deals in general language. It does not provide for minute speci fications of powers or declare the means by which those powers shall be carried into execution. (Id.)

"I now pass to that which is, perhaps, the most delicate and most important part of this measure, the distribution of powers between the central government and the local authorities; in this, I think, is comprised the main theory and constitution of Federal Government; on this depends the principal working of the new system; the real object which we have in view is to give to the central government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured on those questions that are of common import to all the provinces, and at the same time to retain for each Province such an ample measure of municipal liberty and self-government as will allow, and indeed compel, them to exercise those local powers which they can exercise with great advantage to the community." (Lord Carnarvon, in presenting the Canadian Constitution to the House of Lords, 1867.)

$161. "Peace, Order, and Good Government."

These, or words nearly similar, have been used in most of the Constitutional Act passed by the Imperial Parliament, conferring local legislatures on British colonies. The Act 14 Geo. III. c. 83, s. 12, authorized the legislative body appointed thereunder to make

ordinances for "the peace, welfare, and good government " of the province of Quebec. The Act 31 Geo. III. c 31 established legislatures for Upper Canada and Lower Canada respectively, with power to make laws for "the peace, welfare, and good government" thereof. The Act 3 and 4 Vic. c. 35, which united the Upper and Lower Provinces established a Parliament of two Houses with power to make laws for "the peace. welfare, and good government" of Canada. The British North America Act, 1867, (30 and 31 Vic c. 3) gave the Parliament of the Dominion of Canada power to make laws for "the peace, order, and good government of Canada," in relation to matters not exclusively assigned to the Provinces. By the Act of 9 Geo. IV. c. 83, s. 20, 1829, his Majesty was empowered to constitute, in the colonies of New South Wales and Van Diemen's Land respectively, Councils to make laws for "the welfare and good government" of the said colonies. By the Act 10 Geo. IV. c. 22, 1829, his Majesty was enabled to authorize any three or more persons resident in the settlement then known as Western Australia, to make and ordain laws, institutions and ordinances for "the peace, order, and good government" of the settlement. The Act 3 and 4 Vic. c. 62, s. 3, 1840, authorized Her Majesty to appoint a Legislative Council in any colony or colonies which might be erected in any islands comprised within the dependencies of New South Wales, and such Council was to be authorized to make laws for "the peace, order, and good government" of such colony. By 5 and 6 Vic. c. 76, 1842, there was created a legislative Council in and for New South Wales, with power to make laws for "the peace, welfare, and good government" of the colony. In the Act 13 and 14 Vic. c. 59, s. 14, 1850, the Governors and Legislative Councils of Victoria. Van Diemen's Land, South Australia, and Western Australia, established, or to be established under that Act, were authorized to make laws "for the peace, welfare, and good government" of the said colonies. By the Constitution Act of New South Wales, scheduled to 18 and 19 Vic. c. 54, a new legislature was created to make laws for the " peace, welfare and good government of the colony. The Victorian Constitution Act, scheduled to 18 and 19 Vic. c. 55, established a legislature to make laws in and for Victoria in "all cases whatsoever." The Constitution Act of Tasmania (then Van Diemen's Land) of 1st Nov., 1854, called into existence a new legislature which was declared "to have and to exercise all the powers and functions of the Legislative Council" which it superseded. The Constitution Act of South Australia, No. 2, 1855-6, was similarly worded. The Order in Council of 6th June, 1859, creating a legislature in and for the colony of Queensland, authorized it to make laws for the good government of the colony, and to alter or repeal the Order in Council. By the Act to consolidate the law relating to the Constitution of Queensland dated 28th Dec., 1867, it was declared that Her Majesty by and with the advice and consent of the Council and Assembly could make laws for “the peace, welfare, and good government of the colony in all cases whatsoever."

SIGNIFICANCE OF THE WORDS.-The Federal Parliament has not general power to make laws for "the peace, order, and good government of the Commonwealth," but only with respect to matters that are specifically enumerated in the section. The question has been raised as to whether the words ". 'peace, order, and good government" may be construed so as to qualify, limit, or restrict the grant of power. Another question has been raised as to whether they will tend to increase, enlarge, or magnify the grant of power. These two questions will be found referred to in the extracts and cases given below.

Reference may be here made to a third question which has been raised, as to whether the words "for the peace, order, and good government of the Commonwealth will prevent the Federal Parliament from passing a law which may be contined in its operation to a particular State. On this point some assistance may be derived from several leading Canadian cases. In Russell v. The Queen (1882), 7 App. Cas. 829, the Privy Council held that the Canada Temperance Act, 1878, which was passed by the Dominion Parliament, in order to abolish the retail traffic in intoxicating liquor within every provincial area, or local option district, in which a majority of the electors adopted

the Act, was a general law relating to the order, safety, and good morals of the Dominion, and was therefore within the power conferred upon the Dominion Parliament to make laws for "the peace, order, and good government of Canada." In Huson v. South Norwich (1895), 24 S. C. R. (Can.) p. 146, Strong, C.J., said "It is established by Russell v. The Queen that the Dominion, being invested with authority by section 91 to make laws for the peace, order, and good government of Canada, may pass what are denomi nated local option laws. But, as I understand that decision, such Dominion laws must be general laws, not limited to any particular Province."

In the Liquor Prohibition Appeal Case, which came before the Privy Council (1896), App. Ca. 348, these observations of the Chief Justice were quoted by Mr. Haldane, when the following remarks were made:-Lord Watson: "I do not know that they must be general laws, not limited to any particular Province, that they must be for the benefit of the whole of the Provinces." Lord Herschell : "But to legislate in a matter which is a local matter, for one Province only, and merely say we thought it would be for the benefit of all Canada that Ontario should be made a sober place, would be to my mind legislation about which there would be a good deal of question. I think it is too narrow to say that the law must extend to every Province; but, on the other hand, it must not be local legislation in a particular Province." Lord Morris: "I think the Chief Justice is only dealing with the local option laws. It is the local option laws, and I think

he is strictly right." (Printed Report of Case, pp. 149-50.)

Mr. Lefroy considers that Mr. Edward Blake's argument on the appeal contains a correct summary of the whole matter:-"You have," said Mr. Blake, "the powers limited, when you come to the Province, by the area and the objects; provincial area and provincial objects are the scope. I think each one of the provincial powers is indicated in itself to be for provincial purposes. Instead of setting that out generally at the commencement, in each one of the articles it is specifically stated. But you find, on the contrary, unlimited, save by the express exception, general powers both as to scope, area, and objects in the Dominion. There is, therefore, as I submit, nothing whatever to indicate in the least degree that the power of the Parliament of Canada was so limited as to those subjects on which it might enact that it could not, if the welfare of the whole community in its opinion demanded, enact with reference to particular parts of that community, the legislation which the conditions of that part might, in the interest of all, specially demand. It is quite true that it was hoped and expected, and it was a reasonable hope and expectation, that, as a rule, the legislation would be general, extending over the whole area, the subjects being common. But there is nothing in these powers which prescribes any such limitation, and it is perfectly clear that the peace, welfare, and good government of the whole community may demand, within the undisputed bounds of the legislative powers of the Dominion, an Act of Parliament affecting directly not the whole area, not the whole community, but some part of that community, as to these matters on which the Dominion has power to legislate for all." (Lefroy, Leg. Pow. in Canada, p. 580.)

"These words are copied from the several Acts of the Imperial Parliament providing for the establishment of legislatures in the various Australian colonies, and are perfectly appropriate when used in reference to the establishment of the legislature which is to possess plenary legislative powers, and have unlimited jurisdiction on all questions relating to the protection of life and property, and the enforcement of contractual rights of every kind; but it is very doubtful if they ought to find a place in connection with the definition and delegation of limited legislative powers which do not include matters relating to the daily protection of life and property, or to enforcement of private rights and obligations in general. It is true that they find a place in the 91st section of the British North America Act, which establishes a federal constitution for Canada; but the primary object of that Act is to limit the powers and jurisdiction of the provincial legislatures, and to vest the residuum of legislative authority in the Dominion of Canada in the federal parliament. The words in question may, therefore, fitly find a place n that Act, and they were relied upon in the case of Attorney-General of Canada v. the Attorney-General of Ontario, which was decided by the Privy Council last year (App. Ca. 1896) to uphold the Act of the Dominion Parliament, which had been challenged on

the ground that it had encroached upon the domain of the provincial legislatures. That decision, in effect, appears to me to be an argument against the insertion of the words in question in connection with the definition and delegation of the legislative powers of the Parliament of the Commonwealth, because they might, in some unforeseen and unexpected controversy, afford ground for an argument in favour of the jurisdiction of the Parliament of the Commonwealth in matters which the several States might claim to be wholly within their own legislative powers. It cannot be contended that they are required for the purpose of giving the Parliament of the Commonwealth full power to legislate with regard to all subjects mentioned in the sub-sections of section 51; and, if they are not required for that purpose, they must inevitably encourage the contention that they are inserted for some additional purpose. But, if their insertion is not intended to add in any way to the powers of Parliament, in relation to the matters mentioned in the subsections of section 51, then they violate the canon of drafting, which requires that no unnecessary words should be used in giving expression to the intention of the legislature. They are very properly inserted in section 52, because that section confers upon the Parliament of the Commonwealth plenary and exclusive powers in regard to the several matters mentioned in the sub-sections of that section. But their presence in section 51 tends to create a resemblance in the scope of the powers conferred by the two sections, whereas it would be much more desirable to make the difference in the purport of each section as apparent and emphatic as possible." (Memorandum by the Hon. A. Inglis Clark, M.P.. Attorney-General for Tasmania, presented to the Federal Convention, Sydney Session, 1897.)

"I should like to submit for the consideration of the leader of the Convention the question whether the words which the legislature of Tasmania have proposed to omit might not raise the question whether legislation of the Federal Parliament was in every instance for the peace, order, and good government of the Commonwealth. Take, for instance, navigation laws. Might it not be contended that certain navigation laws were not for the peace, order, and good government of the Commonwealth, and might there not be litigation upon the point? We are giving very full powers to the Parliament of the Commonwealth, and might we not very well leave it to them to decide whether their legislation was for the peace, order, and good government of the Commonwealth? Surely that is sufficient, without our saying definitely that their legislation should be for the peace, order, and good government of the Commonwealth. I hope the leader of the Convention will give the matter full consideration with a view to seeing whether these words are not surplusage, and whether, therefore, they had better not be left out of the bill altogether." (Mr. N. E. Lewis, Conv. Deb., Syd., 1897, p. 1037.)

The point submitted for consideration by Mr. Clark and Mr. Lewis did not lead to any debate in the Convention. Mr. Barton stated he had read the reasons through very carefully, and he had been unable to discover that any of the evils which his hon. and learned friend Mr. Clark feared might be expected from leaving those words as they The powers were powers of legislation for the peace, order, and good government of the Commonwealth in respect of the matters specified. No construction in the world could confer any powers beyond the ambit of those specified.

were.

In the case Riel v. The Queen, 10 App. Ca. 675, the question was raised as to the validity of a Canadian Act, 43 Vic. c. 25, providing for the administration of criminal justice in the North-west Territories. This Act was passed by the Dominion Parliament under the British North America Act, 1871, 34 and 35 Vic. c. 28, s. 4, which provided that that Parliament might, from time to time, make laws for the administration of peace, order, and good government, of any territory, not for the time being included in any Province. In delivering the judgment of the Privy Council, Lord Halsbury, L.C., said :

"It appears to be suggested that any provision differing from the provisions which in this country have been made for administration, peace, order, and good government cannot, as matters of law. be provisions for peace, order, and good government in the territories to which the statute relates; and, further, that if a court of law should come to the conclusion that a particular enactment was not calculated as a matter of fact and policy to secure peace, order, and good government, that they would be entitled to regard any statute directed to these objects, but which a court should think likely to fail of that effect, as ultra vires and beyond the competency of the Dominion Parliament to enact. Their lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure, as it is known and practised in this