328 THE FEDERATIONS AND THE UNION [PART IV
ground that it was unconstitutional. But in the British
Constitution, though sometimes the phrase °unconstitu-
tional > was used to describe a statute which, though within
the legal power of the Legislature to enact, was contrary to the
tone and spirit of our institutions, and to condemn the
statesmanship which had advised the enactment of such a
law, still, notwithstanding such condemnation, the statute
in question was the law and must be obeyed. It was obvious
that there was no such analogy between the two systems of
jurisprudence as the learned Chief Justice suggested. The
enactments to which attention had been directed did not
seem to leave any room for implied prohibition. Expressum
facit cessare tacitum.
It was true that when a particular form of legislative enact-
ment which had received authoritative interpretation was
adopted in the framing of a later statute, it was a sound rule
of construction to hold that the words so adopted were
intended to bear the meaning so put upon them, but it was
an extraordinary extension of such principles to argue that
a similarity, not of words but of institutions, must neces-
sarily carry with it as a consequence an identity in all respects.
They referred to the remarks of Griffith C.J. in D’Emden v.
Pedder! in which he held that it was a reasonable inference
that the provisions of the Constitution, which were undistin-
guishable in substance, though varied in form, from pro-
visions of the United States Constitution which had long
since been judicially interpreted by the Supreme Court of the
United States, should receive a similar interpretation. They
observed that the Chief Justice had not mentioned what
provisions he referred to as ‘ undistinguishable in substance
though varied in form’. They referred also to the remarks
of the Chief Justice in Deakin v. Webb,? in which he said that
the framers of the Australian Constitution had deliberately
adopted, with regard to the distribution of powers, the model
of the United States in preference to that of Canada. They
pointed out that it was somewhat difficult to know what it
was to which the learned Judge referred, and the only
"1 C. L. R. 91, at p. 113. 21 C. L. R. 585, at p. 606.
