cise of its powers to any provinces which may be established. All the laws regulating the organization and powers of provinces in force at the time of the adoption of the constitution may be continued in force until changed by the action of parliament or of the provincial authorities. If, furthermore, the province be recognized as possessing the power to pass laws which will be operative within its limits until parliament shall have taken action, provision will be made both for the continuance in the immediate future of existing conditions, and for a gradual development in accordance with changes in circumstances, and ample opportunity will be insured for all necessary local action. All requisite protection for national unity will be provided if it is enacted that the laws passed by the provinces in the exercise of these powers must secure the approval of the national executive before they become operative, and are subject to repeal at any time by parliament.

Such would seem to be the lessons which may be derived from a study of the most recent constitutions, so far as that study is applicable to the problem of determining the relations between a central government and provincial or state governments.

6

VIII

THE AMERICAN CONCEPTION OF EXECUTIVE POWER

MOST

OST modern European states have an organization which is based upon the general principle that there should be three somewhat distinct governmental authorities. These authorities are ordinarily spoken of as executive, legislative, and judicial.

The position which these authorities occupy in the governmental system and the relations which they bear to one another are in large measure dependent upon the historical development of the particular country. In general, however, it may be said that the evolution of European constitutional government must be traced from a time when all powers of the state were centered in an absolute monarch. This monarch was at the same time the legislative, the executive, and the supreme judicial authority in the state.

In the course of time special authorities developed with the consent of which or through which all royal powers were exercised. The fact that particular methods were thus devised for special manifestations of the royal power had the necessary effect of subjecting the exercise of that power to limitations which greatly diminished the sphere of arbitrary and discretionary royal action. This result was reached in most cases through armed resistance to royal authority, which in many European countries was accompanied by revolution and civil war.

At the end of the eighteenth century Great Britain was the only European country in which this evolution had taken place. The British government of that time was based on the following principles:

In the first place, it was recognized that only with the consent of Parliament might the Crown regulate the legal relations of the people one with another or impose burdens or duties upon them. Parliament was a body which had sprung up that was more or less representative of the people. Its development will be noticed in succeeding chapters. The constitutional theory, however, still was and even now is that this power of regulation, which has come to be known as the legislative power, is exercised by the Crown. Thus the enacting clause of all British laws is as follows: "Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords, Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows":

In the second place, the decision of controversies to which individuals were parties was to be made in the name of the Crown by judges who were accorded a position of independence over against the Crown. This independence was secured by the fact that judges were appointed during good behavior, and might be removed only by action of Parliament. Here again it was the legal theory that it was the Crown which rendered the judgment, acting, however, through the judges. All writs and proceedings taken in the course of suits before the courts held by these judges ran, therefore, in the King's name.

Finally, inasmuch as the royal person was inviolable and irresponsible, since, as the English law expresses

it, "The King can do no wrong," some one who legally could do wrong must assume responsibility for every royal act. Thus was developed the doctrine of ministerial responsibility which made it necessary that a minister-a royal servant-should countersign every act of the Crown, and by so doing assume responsibility therefor. If wrong had been done by the act-i. e., if it was illegal-the minister who had countersigned it had to assume the punishment for the illegality provided by law. In olden times this responsibility was a large one, and more than one minister had lost his head for countersigning an illegal act of the Crown.

Continental political writers of the eighteenth century, among whom a French philosopher, Montesquieu, is particularly to be mentioned, were inclined to regard English institutions as based upon the recognition of three general forms of government-viz., the legislative, executive, and judicial. From a practical point of view, however, what was thus called the legislative power was the power exercised by the Crown acting with the consent of Parliament; what was called the judicial power was the power exercised by the Crown acting through independent judges; while what was called the executive power was the power exercised by the Crown acting neither with the consent of Parliament nor through independent judges, but merely subject to the responsibility of some minister. In England no serious attempt was made, certainly in the law, to give these names to the different manifestations of royal power. Almost the only really legal distinctions which were made had to do with what was spoken of as the "prerogative of the Crown"; that is, the power which the King might personally exercise without the

consent of Parliament, but subject to the principle of ministerial responsibility.

The theory of the "Separation of the Powers of Government,” as Montesquieu's theory was called, thus had little influence on the English law. The English were content to consider apart from any general theory the concrete facts of their political life, and saw merely the actual powers of Parliament, the actual powers of the judges, and the actual powers left to the Crown, as they were determined by English law and custom.

The legal theory of the English government at the end of the eighteenth century was then that the Crown was not an authority of enumerated powers, but possessed all governmental power subject to limitations, mainly as to the method of its action. The Crown, therefore, had the power to do anything that it was not forbidden to do, provided its method of action was legal.

In Great Britain the limitations imposed upon the royal power were not to be found in any one written document, but were the result of acts of ordinary legislation and of precedents which had been made, and of customs which had been followed. When, however, the British colonies in North America obtained their independence their inhabitants endeavored, for perhaps the first time in the history of European constitutional development, to incorporate into one written document the political organization which they intended to establish. It is, however, of course true, as has been pointed out, that the Commonwealth of Cromwell, which lasted only a few years, was based on the so-called "Instrument of Government."

The adoption of the idea of a written constitution was