presented the nation with a magnificent country house not far from London, to be occupied by the prime minister for the time being, and a special statute was passed for the purpose of accepting the gift and putting it upon a proper legal basis. This stately mansion, known as "Chequers Court," already seems in a fair way to be regarded as an English equivalent of the White House, and recently much of the government of the country would appear to have been directed from within its walls.

These developments clearly indicate a tendency to make the British prime minister a kind of president, the other members of the cabinet taking rank as his subordinates. The change was further emphasized by the fact that Mr. Lloyd-George withdrew to a certain extent from active participation in the work of Parliament, the duty of "leading" the House of Commons being devolved upon another minister.

It is too soon as yet to say how far the new policy will be carried, and political opinion in Great Britain appears to be divided upon the question. Since the preceding paragraphs of this note were written Mr. Lloyd-George's government has given place to that of Mr. Bonar Law. The new prime minister has reduced the numbers of his cabinet to sixteen and has somewhat curtailed the functions of the secretariat, particularly in relation to foreign affairs.

CHAPTER III

LEGISLATIVE POWER

According to the accepted theory of the British Constitution the sovereignty of the whole nation finds its complete legal expression in the Parliament, that is to say, in King, Lords, and Commons acting together in accordance with certain rules of procedure. There are no powers reserved to the people or to any other agency of the national will which cannot be exercised by Parliament if it chooses to do so. The fact that executive and judicial duties are performed by different agencies is due to reasons of practical convenience, and not to any theory of the so-called "separation of powers." Parliament is legally capable of exercising both executive and judicial powers, and in point of fact is frequently doing so. A glance through the pages of the British statute book for any particular session will reveal a large number of "private acts," and some public ones, which are really executive decisions upon particular cases, though for technical reasons they may require legislative sanction. Similarly in passing divorce bills at the instance of private parties, Parliament ( acts in a purely judicial capacity. Under the modern practice the actual investigation of

these cases is left by tacit understanding to the legal members of the House of Lords, but the decree of divorce takes the form of a statute.1 In former times Parliament used to assume the functions of a criminal court by passing statutes known as "Acts of Attainder" or "Acts of Pains and Penalties." Such legislation is still legally possible, though the practice has long since fallen into disuse, and any attempt to revive it would be utterly at variance with the most elementary principles of constitutional liberty.

Political or moral sovereignty may reside in the nation at large, in the sense that Parliament is morally bound to act in accordance with what it believes to be the will of the people, but for all legal purposes its own sovereignty is complete and perfect in every respect. A series of judgments in the Privy Council has made it abundantly clear that this principle of the sovereignty of Parliament is fully applicable to the various legislatures of Canada. With us the law-making power is a complete expression of the national sovereignty, and the whole power of the nation can express itself upon any matter through one or the other of its legislatures. The supreme power of legislation is distributed, but it is not

1 The Divorce Act of 1857 rendered such special acts unnecessary in England, but they have been frequently passed for the relief of parties domiciled in Ireland. In future Parliament will probably decline to intervene in Irish matrimonial cases. Special divorce acts were often passed by American legislatures in the colonial period, and sometimes even later, but they are now usually prohibited by the state constitution.

nor

delegated. Neither the Dominion Parliament the provincial legislatures are in any way delegates of the British Parliament, nor are they in any legal sense the delegates of the Canadian people. The area of legislative activity is marked out in such a manner as to allot certain specified matters to the provinces, the remainder being left to the Dominion Parliament. Between the two the whole possible field of domestic legislation is completely covered. The only restrictions are external, being designed to ensure that the relations of Canada with the other component parts of the Empire shall not be changed without the consent of all parties concerned.

From this it results that in practice the Canadian Constitution only presents two problems for the consideration of the courts. One of these consists in determining questions of property between the Dominion and the provinces. The other issue relates to the distribution of legislative power. Does the subjectmatter of a particular statute fall or does it not fall within the list of legislative powers exclusively reserved to the provinces? If it does not, it must necessarily be a matter of Dominion competence. Somewhere or other there must be found the power to do everything, subject only to the restriction that it does not disturb the external relations of Canada with the other members of the Empire.2

2 Upon this see the judgment of the Privy Council cited below, p. 214.

(This principle of legislative sovereignty is in

marked contrast with the doctrine that has inspired the Constitution of the United States. The theory of the "separation of powers" was taken by the Philadelphia statesmen from Montesquieu, who by a curious misunderstanding considered it to be exemplified in the case of Great Britain. It was fully accepted by the framers both of the federal and the state constitutions, and forms the most notable example of an attempt to give legal expression to an abstract dogma of political science.

Under this doctrine national sovereignty remains in the people at large, and its exercise is only partially entrusted to the various organs of the national government. Certain specified powers are entrusted to the legislature, others to the executive, and others to the judiciary.3 None of these authorities is in a position to say, "L'état, c'est moi," an expression which the British Parliament might proclaim as a perfectly accurate statement of the law.

The matter is further complicated by the theory which we noticed in the first chapter, that throughout the United States there are two sovereignties in continuous operation, the sovereignty of the whole nation and that of each particular state within its own area. But whether we are dealing with the federal or with the state governments, in each case the doctrine

3 Certain American decisions lay down that of these three powers the legislature is paramount, and that it can exercise the whole sovereignty except in so far as it is prohibited from doing so.