transferred to the Executive Government of the Commonwealth."

"By this Constitution" must be taken to include “under the powers of this Constitution." Strictly speaking, the departments of customs and excise alone are transferred by the Constitution; the others become transferred on the proclamation of the Governor-General.

iii. "Other matters declared by this Constitution to be within the exclusive power of the Parliament."

The question whether the power over commerce among the States is an exclusive power is discussed elsewhere.

CHAPTER X.

THE RELATION OF THE LEGISLATIVE AUTHORITIES (THE IMPERIAL PARLIAMENT, THE COMMONWEALTH PARLIAMENT, THE STATE PARLIAMENT) AND THE VALIDITY OF LAWS.

ACTS of non-sovereign legislatures may be unconstitutional on several grounds. If the Legislature is one of special powers, its Act may have dealt with a matter not granted. If the Legislature is one of general powers, its Act may relate to a matter expressly or impliedly excepted from the grant. In either case, the grant. of power may, in respect to any matter, be subject to restrictions upon its exercise-the power is not to be exercised in certain directions, or certain modes or forms are prescribed. And the supreme Legislature may from time to time invade the sphere of the subordinate and exert its paramount authority, in which case it overrides existing laws of the subordinate and offers an obstacle to the making of new laws by the subordinate, which are inconsistent with it.

1. So far as any Act deals with matters not granted to the Legislature, or with matters withheld from it, or exercises power in a forbidden way, it is ultro, vires. But the taint does not go beyond the restriction; an Act may perfectly well be ultra vires as to part only. The test adopted both in the United States and Canada is the separate nature of the enactments or their application. "Whether the other parts of the Statute must also be adjudged void because of

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the association, must depend upon the consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. . . . Where a part of the Statute is unconstitutional, that fact does not authorize the Courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. . . . The point is . . whether they are essentially and inseparably connected in substance." The separation is not necessarily affected by enactment in different sections or in different parts of the Act. On the other hand, connection is not conclusively established by inclusion in the same words; the words of the Act may apply and be unmistakably intended to apply equally to cases within and without the power of the legislature. "A legislative act may be clearly valid as to some classes of cases, and clearly void as to others." 2 A State law, purporting to affect all commerce, might be ultra vires so far as it impaired the freedom of trade, commerce, and intercourse among the States, yet valid so far as its operation upon the internal commerce of the State was concerned. In Macleod v. A.G. for New South Wales, the Privy Council decided that a colonial legislature has no power over crimes committed beyond its territory; accordingly, an Act purporting to deal with offences wheresoever committed, and plainly intended to include crimes committed abroad, would be ultra vires so far as those crimes are concerned. But a person indicted under the Statute for an offence committed in New South Wales would not be entitled to an acquittal on the ground that the Act extended to cases beyond the power of the legislature.

Cooley, Constitutional Limitations, 5th ed., pp. 211, 212. For Canadian cases, see Lefroy, pp. 289-299.

Cooley, p. 215.

[1891] A.C. 455.

In Macleod v. A.G. for N.S.W., the Privy Council held as a matter of construction that the expression, "wheresoever committed," must mean

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The unconstitutional law must operate as far as it can, and it will not be held invalid on the objection of a party whose interests are not affected by it in a manner which the Constitution forbids." 1

2. Legislation by Paramount Authority. The three legislatures-the State Parliament, the Commonwealth Parliament, and the Imperial Parliament-in matters which are within the power of all form a hierarchy.

(1) Control by Imperial Legislation-The Colonial Laws Validity Act, 1865.

The Imperial Parliament remains paramount, and is capable now, as at all times previously, of legislating for this as for all other parts of the dominions of the Crown. Whether an Imperial Act extends to the Commonwealth is a matter of interpretation, upon the principles of which there can hardly be any difference of opinion. The view that obtained some currency in Canada, that the "exclusive" powers of legislation conferred by the British North America Act, 1867, meant exclusive of the Imperial Parliament, is now so far discredited that it is unnecessary to discuss the grounds upon which it is based, especially as "exclusive" powers form so small a part in the Commonwealth Parliament. The subjects upon which there will be some difference of opinion are whether the circumstances which determine the application of an Imperial Act as a matter of "necessary intendment" are the same in the Commonwealth as in the colonies; and, further, whether there is any power in the Parliament of the Commonwealth to repeal or alter laws of the Imperial Parliament applying in the Commonwealth at the date of the establishment of the Commonwealth. The first of these questions relates to future legislation of the Imperial Parliament, the second to

"wheresoever in N.S. W.,” as from the more extended meaning “it would follow as a necessary result that the Statute was ultra vires." Semble, this must be qualified, and can mean no more than that the Statute would, so far as the more extended operation was concerned, be ultra vires. But see U.S. v. Reese, 92 U.S. 214, and the Trade Mark Cases, 100 U.S. 82. 1Cooley, p. 215.

past legislation. Though the questions are distinct, it is obvious that they are governed by considerations which are in general the same or similar.

It is most important in this connection to observe that many of the matters within the power of the Parliament are exactly those matters in which, as being deemed of Imperial or international concern, the legislative power of the Imperial Parliament has been freely exercised, and (it may be presumed) will be exercised in the future. Thus the question of the relation of Commonwealth Acts to Acts of the Imperial Parliament is one of practical importance.

Whether or not the Commonwealth is a "Colony," and the Commonwealth Parliament a "Colonial Legislature," within the terms of the Colonial Laws Validity Act, 1865, future Acts of the Imperial Parliament will of course extend to the Commonwealth whenever they are made applicable by express words or necessary intendment. But what is necessary intendment? The test is a vague one, to be applied in the light of many circumstances, one of which is the status of the place, and the measure of self-government which it enjoys. It may be urged that an exercise of legislative power by the Imperial Parliament in these matters is less lightly to be presumed in the case of the Commonwealth than in the case of the colonies in their separate state;1 that the express grant of power over them indicates a general intention that these matters henceforth are to be deemed primarily within the scope of self-government, and therefore ordinarily outside the exercise of Imperial power. In this, of course, there is no suggestion of any abandonment of legal power. On the other hand, it may be argued

1Cf. Lefroy, Legislative Power in Canada, p. 82 n., citing Gwynne, J., in Maritime Bank, v. The Queen, 17 S.C.R., at pp. 681-2: “I must say that, in my opinion, we make a very great mistake if we treat the Dominion of Canada constituted as it is as a mere colony. The aspirations of the founders of the scheme of confederation will, I fear, prove to be a mere delusion if the Constitution given to the Dominion has not elevated it to a condition much more exalted than and different from the condition of a colony which is a term that, in my opinion, never should be used as designative of the Dominion of Canada."