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D. Mercantile Law.

1. 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. Sec. 51 (xiii.).

Compare British North America Act, 1867, sec. 91 (15), and the interpretation by the Judicial Committee in Tennant v. Union Bank of Canada.note “The legislative authority conferred by these words is not confined to the mere constitution of corporate bodies with the privilege of


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carrying on the business of bankers. It extends to the issue of paper currency, which necessarily means the creation of a species of personal property carrying with it rights and privileges which the law of the province does not and can not attach to it. It also comprehends “banking,” an expression which is wide enough to embrace every transaction coming within the legitimate business of a banker.”

2. Insurance, other than State insurance, and also State insurance extending beyond the limits of the State concerned. Sec. 51 (xiv.).

3. Weights and Measures. Sec. 51 (xv.).

4. Bills of Exchange and Promissory Notes. Sec. 51 (xvi.).

5. Bankruptcy and Insolvency. Sec. 51 (xvii.).

Commenting upon a similar power of the Dominion of Canada, the Judicial Committee, in the Att. Gen. for Ontario v. the Att. Gen. for Canada,note say: “It is not necessary in their Lordships' opinion, nor would it be expedient to attempt to define what is covered by the words, ‘bankruptcy’ and ‘insolvency’ in sec. 91 of the British North America Act. But it will be seen that it is a feature common to all the systems of bankruptcy and insolvency to which reference has been made, that the enactments are designed to secure that in the case of an insolvent person his assets shall be rateably distributed amongst his creditors whether he is willing that they should be so distributed or not. Although provision may be made for a voluntary assignment as an alternative, it is only as an alternative. In reply to a question put by their Lordships, the learned counsel for the respondent were unable to point to any scheme of bankruptcy or insolvency legislation which did not involve some power of compulsion by process of law to secure to the creditors the distribution amongst them of the insolvent debtor's estate. In their Lordships' opinion these considerations must be borne in mind when interpreting the words ‘bankruptcy’ and ‘insolvency’ in the British North America Act.” See also


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Cushing v. Dupuy,note and L'Union St. Jacques de Montreal v. Belisle.note

6. Copyrights, patents of inventions and designs, and trade marks. Sec. 51 (xviii.).

Copyrights.—This is the subject on which has arisen the important legal and political controversy, hereafter referred to, as to the nature and exercise of the respective powers of the Imperial Parliament and the Parliament of Canada. It is impossible here to enter into the intricate history of Colonial copyright, or to consider the very difficult questions which remain unsettled.note The most important provisions of the Imperial law of copyright are those contained in the International Copyright Act, 1886, and the Order in Council of 1887, whereby (a) the author of a book first published in any part of the Queen's dominions has copyright in the book throughout the Queen's dominions for 42 years from first publication, or for the lifetime of the author and seven years afterwards, whichever time is the longer; and

(b) The author of a book first published in any foreign country belonging to the Copyright Union has copyright throughout the Queen's dominions for the same term, or any less term allowed by the law of the foreign country.

Her Majesty may, however, denounce the Berne Convention in the case of any British Colony, and thereafter the provisions as to international copyright shall cease to apply. The power of Colonial Legislatures over Imperial copyright is apparently limited to supplementing the Imperial law—to “Enactments for registration and for the imposition of penalties for the more effectual prevention of piracy.”note But by sec. 8 of the Act “Nothing in the Copyright Acts or this Act shall prevent the passing in a British possession of any Act or Ordinance respecting the copyright within the limits of such possession of works first produced in that possession.”




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Inasmuch as none of the powers in article xviii. are exclusive powers in the Commonwealth, there is prima facie nothing to prevent the State Parliament from making laws as to the grant of patents, and the protection of copyrights and trade marks. It may be assumed that when the Commonwealth Parliament does legislate upon these topics, it will be by a uniform law applying equally throughout the Commonwealth; and the question may be raised whether after such law it will be competent for the State, in virtue of its own laws, to grant patents or to protect copyrights and trade marks as it has done in the past—i.e. to protect within its own territory alone. It would probably be held in such a case that the Commonwealth law was a law not only for the whole Commonwealth, but for each and every part of the Commonwealth, and therefore superseded the State laws.

It may also be pointed out that a question may arise as to the operation of State laws on these subjects after the imposition of uniform duties of customs. Such laws, to be effective, must prohibit the introduction of articles manufactured or works produced elsewhere, otherwise the protection would be illusory. But would not such laws impair the freedom of trade, commerce, and intercourse among the States, in contravention of sec. 92?

7. Foreign Corporations, and trading or financial corporations formed within the limits of the Commonwealth. Sec. 51 (xx.).

This subject of foreign corporations is of especial importance in Australia, because many of the most important trading and financial companies and some mining companies are companies formed in England, while of the companies formed in the colonies large numbers carry on operations in several colonies.

The result is that there is much legislation in the various colonies as to “foreign corporations.” Article xx., of course, authorizes the Parliament to make a Companies Law for the whole of the Commonwealth; and there is no branch of the law in which a uniform law is more desirable.




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8. Currency, Coinage, and Legal Tender. Sec. 51 (xii.). This must be read in connection with Sec. 115: “A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.”

The words “and legal tender” are inserted in order to avoid the doubt raised in the United States as to whether Congress could, under a power to “coin money,” make paper legal tender.note

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