enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." (Per Marshall, C.J., ib. at p. 421.)

This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives counteuance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, congress is authorized to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the constitution is to be expounded. As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, it retained by himself, or which can enure solely to the benefit of the grantee; but is an investment of power for the general advantage, in the hands of agents selected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred." (Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat. at p. 187.)

"Now the doctrines laid down by Chief Justice Marshall, and on which the courts have constantly since proceeded, may be summed up in two propositions

"1. Every power alleged to be vested in the National government, or any organ thereof, must be affirmatively shown to have been granted. There is no presumption in favour of the existence of a power; on the contrary; the burden of proof lies on those who assert its existence, to point out something in the Constitution which, either expressly or by necessary implication, confers it. Just as an agent, claiming to act on behalf of his principal, must make out by positive evidence that his principal gave him the authority he relies on; so Congress, or those who rely on one of its statutes, are bound to show that the people have authorized the legislature to pass the statute. The search for the power will be conducted in a spirit of strict exactitude, and if there be found in the Constitution nothing which directly or impliedly conveys it, then whatever the executive or legislature of the National government, or both of them together, may have done in the persuasion of its existence, must be deemed null and void, like the act of any other unauthorized agent.

2. When once the grant of a power by the people to the National government has been established, that power will be construed broadly. The strictness applied in determining its existence gives place to liberality in supporting its application. The people-so Marshall and his successors have argued when they confer a power, must be deemed to confer a wide discretion as to the means whereby it is to be used in their service. For their main object is that it should be used vigorously and wisely, which it cannot be if the choice of methods is narrowly restricted; and while the people may well be chary in delegating powers to their agents, they must be presumed, when they do grant these powers, to grant them with confidence in the agents' judgment, allowing all that freedom in using one means or another to attain the desired end which is needed to ensure success. (Bryce, Amer. Comm. I. 368-9.)

AMERICAN CASES.-For the way in which these principles have been applied to incidental and implied powers, see Notes, § 226, supra. A few other principles of construction laid down in leading American cases may be briefly noted.

Validity of Law." It is not on slight implication and vain conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatability with each other." (Per Marshall, C.J., Fletcher v. Peck, 6 Cranch 87; and see Commonwealth v. Smith, 4 Binney [Penns.], 123.)

"It is incumbent, therefore, upon those who affirm the unconstitutionality of an Act of Congress to show clearly that it is in violation of the provisions of the Constitution. It is not sufficient for them that they succeed in raising a doubt." (Per Strong, J., Legal Tender Cases, 12 Wall. at p. 531. See also United States v. Harris, 106 U.S. 629.)

It is a settled rule that statutes which are unconstitutional in part only will be upheld so far as they do not conflict with the Constitution, if the parts which are unconstitutional are separable. (Austin v. Aldermen of Boston, 7 Wall. 694; State Freight Tax Case, 15 Wall. 232; Packet Co. v. Keokuk, 95 U.S 80; Trade Mark Cases, 100 U.S. 582; Railroad Companies". Schutte, 103 U.S. 118; Unity v. Burrage, 103 U.S. 447; Penniman's Case, 103 U.S. 714; Supervisors v. Stanley, 105 U.S. 305; Presser v. Illinois, 116 U.S. 252.) But this will not be done unless the valid and invalid parts are capable of separation so that each can be read by itself. (United States v. Reese, 92 U.S. 214; United States v. Harris, 106 U.S. 629; Virginia Coupon Cases, 114 U.S. 269; Baldwin v. Franks, 120 U.S. 678.) If the unconstitutional part cannot be rejected without giving to the rest of the statute a meaning which was not contemplated, the whole statute is void. (Spraigue v. Thompson, 118 U.S. 90. Baker,

Annot. Const. p. 229.)

Restriction by Implication.-It is well established that when a power comes within the reasonable intendment of one clause in the Constitution, an express gift of a portion of the power, in another clause, will not be taken to cut the power down by implication. Thus in the Legal Tender Cases, 12 Wall. 457, it was held that the clause giving Congress express power to coin money, regulate the value thereof, and of foreign coin,” did not contain an implication that Congress had no other powers over the currency.

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"If by this is meant that because certain powers over the currency are expressly given to Congress, all other powers relating to the same subject are impliedly forbidden, we need only remark that such is not the manner in which the Constitution has always been construed. On the contrary it has been ruled that power over a particular subject may be exercised as auxiliary to an express power, though there is another express power relating to the same subject, less comprehensive." (Per Strong, J., Legal Tender Cases, 12 Wall. at p. 544. See also United States v. Marigold, 9 How. 560; Rhode Island. Massachusetts, 12 Pet. 657.)

Exception Marks Extent of Power.-"It is a rule of construction acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to except from a granted power that which was not granted - that which the words of a grant could not comprehend." (Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat. at p. 191. See also Rhode Island v. Massachusetts, 12 Pet. 657.

Nature and Objects of the Power. --The Court should look to the nature and objects of the power, in the light of contemporary history, and give to the words of the Constitution such operation, consistent with their legitimate meaning, as to fairly attain the ends proposed. (Prigg v. Pennsylvania, 16 Pet. 539; Gibbons v. Ogden, 9 Wheat. 1 ) Consequently, though it is a general rule in the construction of statutes that extrinsic evidence, such as reference to the proceedings in Parliament, is not admissible to vary or add to the terms of a statute (Reg. r. Hertford College, 3 Q.B.D. 693; Richards v. M'Bride, 8 Q.B.D. 119), it would seem that the Debates of the Convention, or other contemporary records, may be referred to as a guide to the construction of the Constitu

tion.

§ 331. "Arising Under Any Laws made by the

Parliament."

In this sub-section the words of the United States Constitution have been accepted without the addition (as in sub-s. i.) of the words "or involving their interpretation ;" but the difference seems not to affect the scope of the provision.

"Cases arising under the laws of the United States are such as grow out of the legislation of Congress, within the scope of their constitutional authority, whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted." (Story, Comm. § 1647.) A case may arise under the laws of the Commonwealth in a criminal as well as in a civil suit ; and a case arises under a law when it arises under the implication of the law. (Tennessee v. Davis, 100 U.S. 257.)

§ 332.

"Of Admiralty and Maritime Jurisdiction."

Secs. 2 and 3 of the (Imperial) Colonial Courts of Admiralty Act, 1890 (53 and 54 Vic. c. 27) contain the following provisions :

2. (1) Every court of law in a British possession which is for the time being declared in pursuance of this Act to be a court of Admiralty, or which, if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a court of Admiralty, with the jurisdiction in this Act mentioned, and may for the purpose of that jurisdiction exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty.

(2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, be over the like places, persons, matters and things, as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise, and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that court to international law and the comity of nations.

(3) Subject to the provisions of this Act, any enactment referring to a ViceAdmiralty Court, which is contained in an Act of the Imperial Parliament or in a Colonial law, shall apply to a Colonial Court of Admiralty, and be read as if the expression "Colonial Court of Admiralty" were therein substituted for "Vice-Admiralty Court," or for other expressions respectively referring to such Vice-Admiralty Courts or the judge thereof, and the Colonial Court of Admiralty shall have jurisdiction accordingly; provided as follows:

(a) Any enactment in an Act of the Imperial Parliament referring to the Admiralty jurisdiction of the High Court in England, when applied to a Colonial Court of Admiralty in a British possession, shall be read as if the name of that possession were therein substituted for England and Wales; and

(b) A Colonial Court of Admiralty shall have under the Naval Prize Act, 1864, and under the Slave Trade Act, 1873, and any enactment relating to prize or the slave trade, the jurisdiction thereby conferred on a Vice-Admiralty Court, and not the jurisdiction thereby conferred exclusively on the High Court of Admiralty or the High Court of Justice; but, unless for the time being duly authorized, shall not by virtue of this Act exercise any jurisdiction under the Naval Prize Act, 1864, or otherwise in relation to prize; and

(c) A Colonial Court of Admiralty shall not have jurisdiction under this Act to try or punish a person for an offence which, according to the law of England, is punishable on indictment;

and

(d) A Colonial Court of Admiralty shall not have any greater jurisdiction in relation to the laws and regulations relating to Her Majesty's Navy at sea, or under any Act providing for the discipline of Her Majesty's Navy, than may be from time to time conferred on such court by Order-in-Council.

(4) Where a court in a British possession exercises in respect of matters arising outside the body of a county or other like part of a British possession any jurisdiction exercisable under this Act, that jurisdiction shall be deemed to be exercised under this Act and not otherwise.

3. The legislature of a British possession may by any Colonial law

(a) declare any court of unlimited civil jurisdiction, whether original or appellate, in that possession to be a Colonial Court of Admiralty, and provide for the exercise by such court of its jurisdiction under this Act, and limit territorially, or otherwise, the extent of such jurisdiction; and

(b) confer upon any inferior or subordinate court in that possession such partial or limited Admiralty jurisdiction under such regulations and with such appeal (if any) as may seem fit. Provided that any such Colonial law shall not confer any jurisdiction which is not by this Act conferred upon a Colonial Court of Admiralty.

By s. 15 the expression "unlimited civil jurisdiction" is defined as meaning “civil jurisdiction unlimited as to the value of the subject matter at issue, or as to the amount that may be claimed or recovered."

By s. 16 it was provided that the Act should not come into force in New South Wales and Victoria until Her Majesty should so direct by Order-in-Council-which has not been done with respect to either colony. With these exceptions (and others which do not affect Australia) it was to come into force in "every British possession" on 1st July, 1891.

Accordingly, in New South Wales and Victoria there is still a Vice-Admiralty jurisdiction exercised by Imperial Courts under the Vice-Admiralty Courts Act, 1863 (26 and 27 Vic. c. 24), and the Vice-Admiralty Courts Act Amendment Act, 1867 (30 and 31 Vic. c. 45). For the history and extent of this jurisdiction. see Webb, Imperial Law in Vic., p. 68. In every other Australian colony the Colonial Courts of Admiralty Act, 1890, has superseded and repealed the Vice-Admiralty Acts, and the Supreme Court of the colony is a Colonial Court of Admiralty accordingly. It remains to discuss the combined effect of this Constitution and of the Colonial Courts of Admiralty Act, 1890– both being Imperial statutes - on the jurisdiction of the States and of the Commonwealth in Admiralty matters.

JURISDICTION OF COURTS IN STATES.—Until the Federal Parliament legislates under this section, the sole original jurisdiction in admiralty matters will rest with the Courts of Admiralty or Vice-Admiralty, as the case may be, in the several States. It seems clear that the constitution of those courts is not in any way affected by the establishment of the Commonwealth. The Constitution of each State, and the laws in force in each State, continue, subject to this Constitution (secs. 106, 108); and the identity of each State as a British possession" remains unchanged notwithstanding the establishment of the Commonwealth.

"The object of the (British North America) Act was neither to weld the Provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each Province retaining its independence and autonomy." (Per Lord Watson, delivering judgment of the Privy Council, Liquidators of Maritime Bank of Canada v. Receiver-General of New Brunswick (1892), App. Ca. at p. 441.) It seems clear that the above-mentioned Imperial Acts relating to Vice-Admiralty and Admiralty Courts continue to apply to the States individually, and that the existing Admiralty and Vice Admiralty Courts may exercise the same jurisdiction as before. But the provisions of those Acts, so far as

they apply to colonies which become States of the Commonwealth, are in some respects over-ridden by the words of the Constitution.

In those States where, under the Colonial Courts of Admiralty Act, 1890, the Supreme Courts have an Admiralty jurisdiction, that jurisdiction is clearly subject to the provisions as to appeal contained in this Constitution, and the provisions as to appeal contained in the Colonial Courts of Admiralty Act are superseded and impliedly repealed with respect to such States. Moreover, the Admiralty jurisdiction of the Supreme Courts of the States is subject to sec. 77 of the Constitution; so that the Federal Parliament may, after investing the federal courts with such jurisdiction, make that jurisdiction to any extent exclusive, and thereby to a corresponding extent deprive the State courts of jurisdiction.

With respect to the Vice-Admiralty Courts at present established in New South Wales and Victoria, the application of sections 73 and 77 is more difficult Does an appeal lie from these Vice-Admiralty Courts to the High Courts, and can the Federal Parliament, under sec. 77, deprive these Courts of any part of their jurisdiction? The answer to these questions depends on the question whether these courts are included in the expressions "any other court of any State" in sec. 73, and "the courts of the States" in sec. 77. Now it does not seem that either of these Vice-Admiralty Courts can, without an undue stretching of the words, be called a Court "of a State." "The Vice-Admiralty Court is an Imperial Court, established by Commission of the Admiralty. The jurisdiction exercisable by it is an Imperial one, and is altogether independent of that of the Supreme Court and of a different nature-and it is not competent for the local legislature to deal either with the extent thereof or the practice and procedure observed therein." (Webb, Imperial Law in Vic., p. 68; Vice-Admiralty Courts Amendment Act, 1867 [Imp.], s. 16.) In short it would seem that the Vice-Admiralty Court is an Imperial Court "in" a State, and not, in any strict sense of the word, a court "of" a State; and therefore that there is nothing in sec. 73 to give the High Court an appellate jurisdiction. The same reasoning would apply to exclude the Vice-Admiralty Courts from liability to have their jurisdiction cut down under sec. 77. This construction is strengthened by the general presumption against ousting existing jurisdiction, or creating new jurisdictions. (See Maxwell, Interpr. of Statutes, Chap. V.) The difficulty, of course, may be removed at any time by the issue of Orders in Council, under the Imperial Act of 1890, directing the Act to be in force in New South Wales and Victoria, and thus superseding the Vice-Admiralty Courts altogether. On this question the case of Attorney-General of Canada v. Flint, 3 S.C. (Nova Scotia) 453; 16 S.C.R. (Can.) 707, and cited in Wheeler, Confed. Law of Canada, pp. 68-9, is instructive. A Dominion law, conferring jurisdiction on the Vice-Admiralty Court of Nova Scotia in prosecutions for certain penalties incurred under the Inland Revenue Act, was held to be constitutional. Henry, J., said (16 S.C.R. [Can.] p. 713) :

"Although the Vice-Admiralty Court is established by the authority of England, still I see nothing to prevent the Parliament of Canada, inasmuch as that Court sits within the jurisdiction of that Parliament, to give it power and authority to try Inland Revenue cases or cases connected with the customs. I would say, however, I do not think that Court could be obliged to perform such duty, and that it is a Court that could very well wrap itself up in its authority and say, 'Our other duties prevent us from assuming the functions assigned to us by the Parliament of Canada; but it is ready to adopt the duty, and I see no reason why the Parliament of Canada should not have the power to impose it."

ORIGINAL JURISDICTION OF HIGH COURT.-The question next arises whether, in conferring original jurisdiction on the High Court, the Parliament is limited by the provisions of the Colonial Courts of Admiralty Act, 1890. Sec. 3 of that Act (cited above) empowers the Legislature of a British possession to "declare any court of unlimited civil jurisdiction, whether original or appellate, in that possession to be a Colonial Court of Admiralty." Under this provision, the Dominion Parliament in Canada has passed an Act (54 and 55 Vic. c. 29) declaring the Exchequer Court of Canada to be a "Colonial Court of Admiralty."