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and thoughtful American writers are not slow in asserting that Congress is as fully the supreme power in the American political system as is the British Parliament in our Imperial system (j). But however this may be, and even if we must go back to “We, the people of the United States” as the supreme power in the American system, we shall find, as might be expected, that the people, as a whole, are legally the rulers of the people in parts, and that the line of division which shall, at any moment, separate the fields of Federal and State action, depends not on the will of the individual States, but on the will of “the people of the United States"—the authors of the “Constitution" as it exists to-day—who can alter it at any time and make it conform to their will. Cumbersome we may think the machinery provided for effecting any desired amendment; but it is there; and no one can say that the next amendment will not be a simplification of the machinery for amendment.
Having shown the presence of the Federal principle in the British constitution, it must be admitted that the constitution of the United States, century-old as it is, carries that principle into action much more logically than does the British constitution of to-day. Were it not for the fact to which we have alluded, namely, that the matters of common concern, requiring governmental action, are few, the British Empire would not long hang together in its present hap-hazard form of federal government. The want of legal limit to the power of the “national” government, does not make itself seriously felt, owing to this scarcity of matters of common concern, and to this further fact, that the statesmen at the head of the British government have, in the main, carefully observed the
(1) Prof. Woodrow Wilson, in “Congressional Government " 4th ed.: "For all practical purposes, the National Government is supreme over the State Governments, and Congress predominant over its so-called co. ordinate branches”: p. 52. See, however, a criticism of this work by Mr. A. Lawrence Lowell in his “ Essays on Government,” p. 46 et seq.
tional"-limits, and have, in those few matters of common concern, endeavored to carry on the Imperial government in accordance with the wishes of the Empire as a whole, so far as, under our illogical system, those wishes are capable of being ascertained.
We have spoken of the want of legal limit to the power of the “national” government under the British Imperial system. The expression is perhaps hardly accurate-- the want which really exists is the want of legal limit to the legislative power of the British parliament. The result is that the legal line of division between the fields of In ial and colonial government, is a most uncertain one, although becoming less so. But although one must ransack both British and colonial statutes to ascertain this line, it is, when ascertained, and at any given moment of time, a legal line of division, and governmental action will be kept by the courts within its proper sphere. No judge within the Empire can legally limit the British Parliament as a legislative body, or treat its enactments as ultra vires; but the very same thing may be said of that “amended Act” of the supreme legislative authority of the United States—its present “Constitution"—or of any future amendment thereof. But under both the British and the United States systems-systems of government-according-to-lawthe courts charged with the enforcement of law must decline to recognize the validity, the lawfulness, of any governmental act, done by any person or body of persons, beyond the limits to which they are legally subject.
The enforcement by the courts, colonial and British, of the legal limitations upon colonial legislative power, is matter of legal notoriety (k), apart altogether from the cases which have arisen relative to the division of the field of Canadian government between the Dominion and Provincial legislatures; and no less notorious is, or should be, the enforcement by the courts, of the legal limits set to
(k See post, Chap. IX.
governmental interference (other than by Imperial lawmaking) on the part of the “national ” authorities with colonial rights of self-government (1). The “sphere of authority” of the British parliament, as a law-making body for the Empire, is legally unlimited, and within that unlimited sphere it may exercise its law-making powers in whatever fashion may appear proper to it. The "sphere of authority” of Congress as a law-making body is not unlimited, but over matters within that sphere (be it wide or narrow), the power of legislation is plenary, and subject to no limitations capable of judicial enforcement.
We have not therefore discovered yet the difference in principle between the British and the American systems of government. It is not in respect of the federal ideathat is common to both ; nor in respect of the rule of law, the enforcement by the courts of the law of the constitution —that, too, is common ground. We are driven, therefore, to examine the machinery of government; and here we shall find a difference which runs through the “national” and “local ” governments alike of these two systems. The difference in principle is not in those parts of the body politic which exercise legislative functions, nor in those which are executive, but in the connection between the two -the connection between the law-making and the lawexecuting departments of government.
It must appear clear, upon consideration, that in any country under the rule of law, the body to which by the constitution is entrusted the power to make law, must necessarily be the supreme power in government. The body to which the executive functions of government are entrusted must obey the law, and the extent of its power to exercise its own volition entirely depends on the legislative body. That body may content itself with enacting general laws, laying down broad principles, or giving general directions in reference to government, and in such case
(?) Campbell v. Hall, Cowp. 209.
the choice of means, manner, and time, left with the executive, constitutes that executive a power capable of exhibiting the imprint of its own discretion in the actual carrying on of public affairs. On the other hand, the legislature may go to such length of legislative detail, may so specifically provide the means, manner, and time, for the performance of any work of government, that the executive may sink to the level of a purely routine office, and the power of any member of the executive staff to exercise discretion, as to how or when he shall perform his duties, be entirely
The history of constitutional progress in England is the history of the steps by which the Legislature compelled the Executive to recognise the supremacy of law-in other words, the supremacy of the Legislature; and so long as the Executive withheld this full recognition, legislation continued to be more and more specific in its provisions, more of a curb and fetter upon executive discretion. But now that the principle of executive responsibility is recognized to the full, the tendency of legislation is, in many matters, rather the other way; and many details of governmental action are left to be provided for by order in council or departmental regulation, or even left to the discretion of the official who has charge of the particular work.
It must be observed, too, that this supremacy of the legislative department of government is just as clearly apparent under a federal system where the government is a government-according-to-law, as under what has been called a "unitarian" system, under the like rule of law. The federal idea has no more necessary relation to the separation of the spheres of authority of the legislative and executive departments than has the “unitarian" idea. The English constitution (viewed as the constitution of the United Kingdom merely) and the French constitution are manifestations of the “unitarian" idea in government; but, in the former, the supremacy of the legislature over the executive is a dominant principle; while, in the latter, the
executive is, in many respects, recognized as above the law, as having a law peculiar to, and moulded by itself-the droit administratif—and somewhat the same distinction may be drawn between the two representative federal constitutions, that of the United States and that of the Swiss Republic.
Reasoning, a priori, therefore, one would say, that, in both the British and the American systems, the body which makes the law must necessarily be supreme over the body which simply carries out the law when made; and it is not surprising, therefore, to find that in the British system, not only is this supremacy recognized, but, by a certain arrangement of the machinery of government, the will of the lawmaking body is made to sympathetically affect and control the will of the executive in the administration of public affairs; and the administrative knowledge of the executive is utilized to the full in the work of legislation. The same supremacy necessarily exists in the United States system; that is, the executive department of the Federal government, or of any one of the State governments, must administer public affairs according to law. But, in their system, there seems apparent a determined effort to prevent co-operation and sympathy.
What then is this arrangement of machinery to which we have referred as existing in the British system?
Of late years it has been found necessary to revise somewhat our ideas concerning the British constitution. The older authorities dwell upon the division of power between the legislative and executive departments of government, and the subdivision, in turn, of the legislative department into King, Lords, and Commons; and they (m) dilate with quiet enthusiasm upon the “checks and balances” provided in and by such a division and subdivision of power. Gradually, however, this "literary theory,” safe-guarding the ark of the constitution with its supposed division of
(m) e. g. Chitty On the Prerogatives of the Crown, at p. 2.