an action in the Courts, though of course it would affect the amount recoverable. The Inter-State Commission seems to be in the position of some other bodies which have been referred to it has mixed administrative and judicial powers, but it is not a court. It belongs not to the "judicial power," but to the executive-the very terms which describe its possible functions for "the execution and maintenance. . . . of the provisions of this Constitution," relating to trade and commerce, "and of all laws made thereunder," recall the terms in section 61 establishing and vesting the executive power.

Section 103. The members of the Inter-State Commission: i. Shall be appointed by the Governor-General in Council; ii. Shall hold office for seven years, but may be removed within that time by the Governor-General in Council on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity;

iii. Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office.

CHAPTER XII.

THE EXECUTIVE POWER: ORGANIZATION OF

THE EXECUTIVE.

SIR WILLIAM ANSON introduces the subject of his second volume on the Law and Custom of the Constitution, by the observation that "In every political society there must be some person or body which acts on behalf of the whole, which represents the state as dealing with other states, which represents its collective force and will in maintaining amongst its own citizens the rules which the society has made or accepted for the preservation of order and the promotion of the public welfare." In the history of Australia, the want of such an authority to speak and to act for the whole has been as potent a factor in producing union as the absence of a common legislative power. The authority must be continuous, and not occasional; it must be capable of prompt and immediate action; it must possess knowledge and keep its secrets; it must know discipline. In a word, it must have qualities very different from those which belong to the large representative and popular bodies which in modern times exercise legislative power.

It is characteristic of English methods that there has been small attempt to analyze the nature of the threefold division of governmental functions which we recognize. When the distinction was being established, men content to reason that this particular power belonged to the King in his Council, that to the King in his Courts,

and that other to the King in Parliament. It was only after the lines of action were settled in England that men began to analyze for the benefit of others who had their own constitutional arrangements to make. The supremacy of Parliament has generally made it unnecessary for us to consider the distinctions with scrupulous accuracy, and the existence and undoubted validity of a number of anomalies has kept us from over refinement. It is for the King to put the law into operation and to admonish his subjects that they keep it; to execute the law by bringing offenders to justice, by maintaining and supporting courts of justice, and by carrying out the judgments of those courts. On the other hand, the King may not alter the law; may not make an offence where none is; may not establish new penalties or novel tribunals. These matters belong to the Parliament. Such are the lines upon which the distinction between executive and legislative has been founded. The typical executive officers have been the sheriff and the constable.

But there is much more in government than mere execution of the law, whether enacted or unenacted; just as there is more in human conduct than the creation of legal relations. The state is a going concern; it has affairs which must be managed with prudence and judgment and which are not necessarily related to law in any other sense than that in which all conduct may be bounded by legal restraints. It is perfectly true that a very great part of this business of the state is regulated by law more than is the like business of private individuals; as an owner of property and as an employer of labour, the state sets rules to its agents; and to a very great extent, in Australia at any rate, these rules create rights against the Crown. But were those laws directing and controlling the management of the state affairs repealed, the business would not itself come to an end; it would simply have to be carried on under conditions of greater freedom and more responsibility by the agents of the state. In modern and settled times, it is the conduct of the business of the state which men mean by government; the execution of the law is

assumed as a thing of course; and the term “executive" has seemed little apt to describe functions which are so far removed from justice and police. Sir G. C. Lewis suggested that the term "administrative" would serve better to indicate the "stewardship" or "management" of government.

In speaking of the Executive Government, then, the term 'Executive" must be understood in a very broad sense; and we are not to expect a complete statement of the functions of the Government in a legal instrument. For more than one reason, Statutes defining the Constitutions of the Colonies have been almost silent on the subject of the powers as of the organization of the Executive. In the first place, the legislative power has included the power of making full provision for the execution of the law. Secondly, a large measure of executive power resides in the prerogative of the Crown, and has been conferred through prerogative acts and not by Statute, lest thereby the prerogative should be prejudiced. Finally, the organization of the Government and the relations of the Ministry and Parliament in our system are a very type of matters which are not under the continual direction of organic laws, but are freely organized as utility has suggested or may suggest within the ultimate bounds of law. The attempts which have from time to time been made to reproduce in terms of law for the colonies some of the conventions of the British Constitution-as in the relations of the two Houses of the Legislature as to Money Bills-have not been very successful. Constitutional Statutes for the colonies, and even the prerogative instruments which accompany them, do no more than hint at the Cabinet System, and the delicate relations of the Crown and Parliament. They differ from the British Constitution on which they are modelled, principally in this-that they do hint at the Cabinet System. They contain some provisions which imply a Parliamentary executive; they speak of "officers liable to retire upon political grounds," even of "responsible ministers of the Crown." It would be impossible to frame a

constitution upon the Law of Victoria such as the Convention at Philadelphia in 1787 framed upon the Law of the British Constitution as expounded by Blackstone.

EXTENT OF EXECUTIVE POWER.

The short chapter ii. on the "Executive Government," then, is necessarily suggestive rather than expressive; it passes in rapid survey a very great extent of ground. By section 61, the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth." The executive power therefore is not limited to the execution of the enactments of the Commonwealth Parliament; it is to maintain the Constitution, a duty the import of which can of course be gathered only from a consideration of the whole instrument. It has been already pointed out, in considering the incidental powers of the Legislature, that the executive numbers amongst its duties the protection according to the common law, of the organs of the Commonwealth government that in fact there is a peace of the Commonwealth as well as a peace of the States, and of this peace the Executive is the guardian.

There are of course many powers conferred expressly upon the principal executive officer in the Commonwealth, the Governor-General. This is notably the case in the chapter on the Parliament, where the Governor-General has important powers and duties in relation to constituting, summoning, proroguing, and dissolving the Parliament. But there are other powers and duties which, though not in terms conveyed to any department, primarily at any rate fall to the Executive as the appropriate organ for Commonwealth action, e.g. by section 119 "The Commonwealth shall protect every State against invasion, and on the application of the Executive Government of the State against domestic violence."

Incidentally, the declaration that the executive power extends to the execution and maintenance of this Constitu

1Cf. United States-In re Neagle (1889), 135 U.S. 1.