not included in the ambit of such a power (P. 474). Therefore the Crown was an essential part of the legislative authority, and could not be eliminated by the Legislature.

In regard to the first limitation suggested by their Honours, it is necessary to recall the terms of s. 5 of the Colonial Law Validity Act—“ every representative Legislature shall have . . . full power to make laws respecting the constitution, powers and procedure of such Legislature." It is plain that any Act made pursuant to s. 5 must rest on the continuance of legislative authority; it would be a mere invalidity if the Legislature should do as Lord Bryce and Professor Dicey (Law of the Constitution, 8th ed., p. 66 note) have suggested a sovereign Legislature might do-repeal all laws relating to its constitution, dissolve itself and make no provision for its A valid exercise of the authority given by s. 5 must be directed to the constitution of a Legislature; but, as the qualification for the exercise of the power is the representative character of the Legislature, and as the subject-matter is the constitution, powers and procedure of such legislature, it is not unreasonably inferred that the maintenance of this representative character is "somewhat fundamental."

successor.

The matter may be put in a slightly different way. While the Legislature may devolve its powers on any authority constituted as it pleases so long as it retains its own supremacy, no body created by the Legislature could have concurrent power or the full succession of power unless it was a "representative Legislature," for it would not be qualified to exercise the powers of s. 5 of the Colonial Laws Validity Act itself, powers which the Legislature could not abdicate without providing an authority constituted to exercise them.'

The other fundamental limitation suggested by Isaacs J. is more doubtful. It was argued against the Act that if, under the power to make laws respecting the constitution of the Legislature, Queensland could eliminate the Council, it could also eliminate the Assembly or the Crown from the Legislature. The position of the Assembly has been considered. As to the Crown, Isaacs J. considered that the term "Legislature," in the expression" constitution

1 Professor Berriedale Keith (Responsible Government, vol. i, p. 366) appears to be of different opinion. While he is of opinion that a colonial Legislature cannot merely extinguish itself with no provision for the continuance of legislative authority, he holds (as I understand him) that a representative Legislature may under s. 5 substitute for itself a non-representative authority, which authority can exercise the power given by s. 5 of changing its own composition as a Legislature-that it is in the fullest sense a successor. (See also p. 425.)

of the Legislature," in s. 5 of the Colonial Laws Validity Act must be read as excluding the Crown, and he cited many instances in which the term is used, even in statutes, to describe the chambers of the legislative body and not the full legislative authority itself. This meaning, however, unless it is forced upon us by the terms of any particular case (as in s. 7) is in the present Act inadmissible, for the definition section expressly declares that in this Act the term Legislature signifies the authority other than the Imperial Parliament or Her Majesty in Council competent to make laws for the colony. Such authority includes the Crown or the Governor, according as the constitution of the colony has designated the one or the other as the head of the law-making authority. There is one point at which the colonial Legislature under s. 5 cannot eliminate the Crown-the Crown's power of disallowing colonial laws, which, according to what seems the better opinion, is exercised by the Crown not acting as part of the Legislature, but in a superintending capacity 1: it is not, therefore, comprised in a power to make laws respecting the constitution of the Legislature.

1

The Crown's power of disallowance, and the inability of the colonial Legislature to reach it under s. 5, is especially related to his Honour's argument from "the very nature of our constitution as an Empire." The supervisory power exercised in the case of every Legislature by the Crown on the advice of the Imperial Ministry has a real significance of legal and constitutional unity, as has the supremacy of the Imperial Parliament. If, however, his Honour applies the argument to the Crown as an assenting party to legislation and as a part of the actual law-making authority the implication is not very strong. Colonial constitutions do in fact vary as to whether the King is made a part of the law-making authority-in a number of cases the Governor figures, and not the Crown. No doubt the power is conferred upon the Governor because he is the representative of the Crown, but it is none the less a statutory function which belongs to him in such cases as persona designata and to no one else. A century's legislation has reduced to a fiction the old theory that executive power was vested in the Crown alone as matter of law; both in the United Kingdom and in the colonies great numbers of executive acts are done

1 Cf. Clark's Australian Constitutional Law and Brinton Coxe's Judicial Power and Unconstitutional Legislation, pp. 205 seq.

2 For examples see Keith, Responsible Government, vol. i, p. 458.

See Maitland, Constitutional History, p. 415.

by and in the name of the particular officer charged with their execution. In the case of a colonial Legislature there seems nothing fundamental or Empire-binding in the actual position of the Crown as part of the law-making authority. There is at the present day a dangerous tendency to rely overmuch on the unity of the Crown despite the fact that it acts through distinct and perhaps conflicting agencies.

There remains this question. Let it be assumed, contrary to what is suggested above, that the generality of a colonial Legislature's delegation of a power to make laws in subordination to itself is subject to some limitation, and that it is possible to find some principle which will trace the line between what they may do and what they may not do. We have seen also that many Acts which, as depriving a colonial Legislature of its control over a legislative power would have been plainly invalid as in substance altering the constitution or powers of such Legislature, are now valid under the power to make laws respecting the constitution and powers of such Legislature conferred by s. 5 of the Colonial Laws Validity Act. Can we go further and say that all objections to even the most extensive delegation by the Legislature, to some authority subordinate to itself are deprived of their force and validity, since every such Act, if not a good exercise of the ordinary legislative power, may claim validity as a law with respect to the constitution and powers of such Legislature? In other words, every Act and every provision of an Act, by the fact that it is not within the general legislative power, is an Act respecting the constitution or powers of the Legislature, and valid under that head? In other words again, that every Act which otherwise would be in breach of the constitution is by s. 5 of the Colonial Laws Validity Act transformed into a valid Act as respecting the powers and constitution of the Legislature ? This brings us to aspects of the powers of colonial Legislatures considered in McCawley v. The King.1

1 (1920) A.C. 691; (1918) 26 C.L.R. 9.

THE HAGUE RULES, 1921.

[Contributed by C. R. DUNLOP, Esq., K.C.]

THE Rules known as the Hague Rules, 1921, are a short code of rules relating to contracts of carriage of goods by sea contained in bills of lading. They deal mainly with the contentious problem as to the incidence of the risks of loss or damage to which goods carried by sea are exposed, and in effect state which of such risks are to be borne by the carrier, and which by the owner of the goods. They also deal with the obligation on the carrier to issue a bill of lading, the responsibility of the carrier and the shipper respectively for the accuracy of its contents, and with some of the legal effects of a bill of lading as between the carrier and the owner of the goods. They owe their existence to a widespread dissatisfaction with modern bills of lading amongst merchants, who import or export goods, bankers, who finance them, and underwriters, who insure them; secondly, to the desire on the part of shipowners generally to meet, as far as their own interests permit, the wishes of their customers; and, thirdly, to the general opinion that bills of lading are not likely to acquire the qualities they ought to possess, unless they are made subject to definite rules to be enforced by legislation or to be adopted by business men by voluntary agreement.

Bills of lading are as essential to trade as bills of exchange. A bill of lading is the receipt given on behalf of the carrier by sea to the shipper for the goods shipped or received for shipment. Whilst the goods are in the custody of the carrier, it is the document of title to the goods which it represents. It is bought and sold, pledged as security for loans or advances, or otherwise dealt with as a commodity in much the same way as the goods themselves. It also contains the terms of the contract of carriage as between the carrier and the holder of the bill of lading, other than the charterer of the ship, whose rights and obligations depend on the charterparty. The contract of carriage in the bill of lading is assignable by the shipper or any subsequent holder by indorsement and delivery of the bill of lading. A bill of lading is an undertaking on

"

behalf of the carrier to deliver the goods described in it at their destination to the lawful holder of it, in the condition in which the goods were when shipped, unless prevented by excepted perils expressed in the bill of lading or implied by law. The earliest bills of lading did not contain any express exceptions. The carrier was liable for any loss of or damage to the goods, unless he could prove that the same was due to excepted perils implied by law, such as the act of God, enemies, or inherent vice of the goods themselves. A decision of the English Courts in 1795, that a shipowner was liable for damage to cargo owing to perils of the sea and without negligence, led to the introduction into bills of lading of the exception of dangers of the sea." Since then the process of adding to the list of exceptions steadily continued as successive cases decided that shipowners were liable for risks which they were unwilling to take. Bills of lading gradually ceased to be " carrier's risk" bills of lading, and became "owner's risk" bills of lading, or a compound of both in almost infinite variety. The Courts in England, while recognising and giving effect to the salutary common law principle of freedom of contract amongst business men, have generally been astute to find loopholes in exception clauses, and their decisions have tended to increase the length of such clauses by leading to the insertion of the further words necessary to give them the wider effect desired by the shipowner. In the United States of America, some of the Courts took a bolder and more decisive line with exception clauses. They decided that clauses exempting the shipowner from liability for negligence, in relation to the seaworthiness of the ship or the care of the cargo, were contrary to public policy and therefore void. In 1893 the American Harter Act was passed, partly to remove doubts as to the validity of exceptions which were then in common use, and partly to secure uniformity in bills of lading issued in the United States. The Act is important, because it is the parent of subsequent legislation in other countries, and the foundation of the Hague Rules.

The Act made it unlawful to insert in any bill of lading any clause relieving the owner of any vessel, transporting merchandise between ports of the United States and foreign ports, from liability for loss or damage arising from negligence in the loading, stowage, custody, care or delivery of any merchandise committed to his charge, or lessening or avoiding his obligations to exercise due diligence to make the vessel seaworthy for her intended voyage, or carefully to handle, stow, care for, and properly deliver her cargo. It further provided that, if the owner did exercise due diligence to make the vessel