they do, to the intercourse between Great Britain and her European neighbors (h); and, as to these, the British Government can hardly be said to act as an Imperial government. Their recognition as matters largely of "local" concern to Great Britain, is made apparent in the case, for instance, of many British treaties, by the reservation to the colonies, in a number of modern instances, of the right to share, or to decline to share, the benefit and burden of these treaties just as each colony may see fit to determine for itself. Modern constitutional usage in the British Empire is rapidly approaching the point where, in matters concerning the colonies in their general relations between themselves (i), or the relations of the colonies generally with foreign powers, the will of the colonies concerned is given effect to, unless the will of the Empire as a whole should differ therefrom, and where in matters concerning the relations of the colonies to the Mother Country, those relations are settled by agreement as between independent negotiators.

In truth, the constitution of the Empire is as truly federal as is the constitution of the United States. Owing to the historical accident that the Empire is but the expansion of the population of the United Kingdom, the "local" government of the original parent stem has hitherto continued to be, as we have said, the "national" government of the Empire, but by gradual modification, by conventions and usages, the functions of the British Parliament, so far as it controls the "national" government of the Empire, are performed according to the will of the Empire. The true federal idea is clearly manifest-to reconcile national unity

(h) The very fact that different parts of the Empire lie contiguous to different foreign powers will, perhaps, necessitate the enlargement of the sphere of local self-government in the units of the British Confederation that is to be; or, from the other view, the matters of common concern will necessarily be fewer, and the sphere of the "central " government narrower than is the case in a compact territory like that of the United States.

(i) The B. N. A. Act deals with such matters.

with the right of local self-government-the very same dea that is stamped on the written constitution agreed upon by the people of the United States. The differenee of position historically is quite sufficient to account for the difference of position legally. Given the independent self-governing communities, which made up the American Commonwealth, the "national" government was super-imposed to secure unity, but upon conditions preservative of local autonomy. With us, on the other hand, the central government stands historically first, but the various communities which grew out of it have, by gradual concession, secured at least as full a measure of the right of local self-government as is enjoyed by the individual States, which together form the neighboring Republic. The sum total of conceded power at any given period, will be found to be commensurate with the opinion prevalent at such period as to the proper line of division between Imperial and local concerns.

It may, perhaps, be contended that the "national“ government of the British Empire, having the power to lay down the line, which is to be the legal line of division between matters of common and matters of local concern, at just such a point as to it seems proper, differs in this respect from the "national" government of the United States. The common description of the Federal government of the United States, as a government possessed of specially delegated powers only, would seem to support this distinction. But, in truth, this special delegation is, for all practical purposes of government, a delegation of power sufficiently wide to enable the Federal government to be itself the regulator of its own sphere of authority. The subject matters are themselves comprehensive in scope, and the "implied power" which Congress possesses to choose such means as it may deem necessary and proper for carrying out the designed end of the "national" government, leaves the decision as to the line of division between Federal and State matters very much in Congress' hands;

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 "conven

(j) 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 coordinate 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 Imperial 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

(1) Campbell v. Hall, Cowp. 209.