862 THE FEDERATIONS AND THE UNION [PART Iv 
to the arbitrator to regulate a particular trade. That would 
be giving the tribunal a power to legislate which no torture 
of words could twist into arbitration. The Arbitral Tribunal 
must at any rate be judicial and not legislative. It could 
not overpass the area of the dispute as to the subject-matter 
or as to disputants, nor could the settlement be something 
to which the disputants could not, if they would, agree. 
[f that which purported to be a settlement affected to bind 
others than the disputants, the function performed by the 
tribunal was not arbitration any more than such a decision 
by a Court would be a judgement. He did not decide as 
to s. 38 of the Act authorizing the declaration of the common 
rule, but assuming its invalidity, he still held that the pro- 
visions questioned did not affect the valid portion of the 
Act, which therefore had due effect. 
O’Connor J. also declined to pass an opinion on the 
common rule provision on the ground that it was separable, 
and he concurred in the judgement proposed by the Chief 
Justice. 
Isaacs J.2 showed that arbitration did not exclude a 
possible choice of arbitrators, and he quoted a long series 
of Imperial Acts? in favour of this contention, and he also 
referred to the Canadian Act, No. 40, of the Revised Statutes 
of 1886. He went in detail through the sections of the Act 
which were alleged to be invalid, and showed that in most 
cases no real question arose. On the other hand, the question 
of the common rule did give rise to some difficulty. On the 
one hand the provisions had the appearance at first sight 
of regulations not necessarily dependent upon actual or 
threatened disputes, and on the other hand they seemed 
absolutely necessary to the effective application of the 
remedy of conciliation and arbitration for the prevention 
and settlement of disputes. The preventive jurisdiction 
was certainly intended to be a veal and substantial power 
‘ 11C.L.R.1, at pp.42 seq. Seepp. 325-9. * 11C.L.R.1,at Pp. 49 seq. 
*8 & 4 Vict. ¢. 97; 5 & 6 Vict. c. 55; 26 & 27 Vict. o. 112; 31 & 32 
Vict. c. 119; 37 & 38 Vict. c. 40 ; 45 & 46 Vict. ¢. fi6 ; 51 & 52 Viet. c. 41 3 
53 & 54 Viet. ¢. 70: 63 & 64 Vict. e. 59.