tion of his authority to waive such a regulation, the same having been promulgated by him, and being at any time subject to his amendment, waiver, or abrogation. It is equally true that such a regulation may be waived by subsequent specific approval of a transaction by the Secretary of Interior. But in the absence of some action of the Secretary these formal printed regulations are binding upon all of the subordinate officers of his department.

This case is of a distinct importance in exposing the true nature of the internal law of administration. The regulation was internal law of the administration so that it would bind the inferior of the officer who made it. Yet it does not bind the officer that made it himselfwhy? Because the internal law is all based upon the discretion of a given officer; if he in his discretion promulgates a regulation he may in his discretion waive that regulation. The internal law of the administration is then no more than the usual order of the exercise of that discretion in the ordinary case; in the extraordinary case direct action can be taken notwithstanding.

A second case-a fundamental one-upon the methods in administration is Wilcox v. Jackson, 13 Pet. 498 (1839). This was an ejectment brought upon a patent for a tract of land in Cook County, Illinois, a fractional section embracing the military post called Fort Dearborn, at the time of the institution of the suit in the possession of the defendant as commanding officer. The land in question had been in fact reserved land held out from pre-emption by virtue of a provision of statute that land reserved from sale by order of the President should not be patented. In this particular case the plot had

been reserved by the Commissioner of the Land Office under direction of the Secretary of War. The claimant therefore contended that the land was not in truth reserved at the time his patent issued from the Land Office, since there had been no order by the President himself.

Mr. Justice BARBOUR explained in his opinion the internal law as to action in the execution of the law: At the request of the Secretary of War, the Commissioner of the General Land Office in 1824 coloured and marked upon the map this very section, as reserved for military purposes, and directed it to be reserved from sale for those purposes. We consider this as having been done by authority of law; for amongst other provisions in the act of 1830 all lands are exempted from pre-emption which are reserved from sale by order of the President. Now although the immediate agent in requiring this reservation was the Secretary of War, yet we feel justified in presuming that it was done by approbation and direction of the President. The President speaks and acts through the several heads of departments in relation to the subjects which appertain to their several duties. Hence, we consider the act of the war department in requiring the reservation to be made as being in legal contemplation the act of the President, and consequently, that the reservation thus made was in legal effect a reservation made by order of the President within the terms of the act of Congress.

The ordinary rule, then, in execution is delegation. This case again shows the internal law of administration. A superior may give power to an inferior or he may withhold power from an inferior. If he commands, the inferior acts in his place and that act is his act; if he forbids, the inferior cannot do a valid act. So if a su

Adm. Law-2.

perior gives a general authority to an inferior to act in his place, the inferior may act in his place until the authority is revoked, as it may be at any time. That is the system in administration. The internal law of the ad; ministration is seen again to be no more than the usual order in the exercise of discretion. Such is administration.3

$ 5. Result for administration.

This is the administrative law. The external law and the internal law make up the law of administration. It must be plain why this distinction is of such importance. These are two concentric circles. The outer circle is the external law, that is the exterior boundary; the law of the land is rigid, that cannot be passed. The inner circle is the internal law, that is an interior boundary of a sort; for the law of administration is elastic, that law is the discretion of the officer that enforces it. This is not an academic distinction; it is in practical affairs of the greatest consequence. These will appear better by illustration. A case upon the remedy

by the external law should be compared with a case upon the relief by the internal law.

3 INTERNAL LAW.-Gidley v. Palmerston, 3 Brod. & B. 275; Reg. v. Secretary [1891] 2 Q. B. 326; Williams v. United States, 1 How. 290; Dinsman v. Wilkes, 12 How. 390; Ex Parte Selma R. R., 46 Ala. 423; McCreary v. Rogers, 35 Ark. 298; Jacobs v. Supervisors, 100 Cal. 121; Ely v. Parsons, 55 Conn. 100; United States v. Chandler, 13 D. C. 527; Towle v. State, 3 Fla. 202; State v. Thrasher, 77 Ga. 671; Whalin v. Macomb, 76 Ill. 49; State v. Snodgrass, 98 Ind. 546; Hildreth v. Crawford, 65 Ia. 339; State v. Robinson, 1 Kan. 188; State v. Dubuclet, 28 La. Ann. 85; Weston v. Dane, 51 Me. 461; Mayo v. County Com'rs, 141 Mass. 74; Albrecht v. Long, 27 Minn. 81; People v. Auditor General, 36 Mich. 271; Swan v. Gray, 44 Miss. 393; State v. McGrath, 91 Mo. 386; State v. Babcock, 18 Neb. 221; Commonwealth v. McLaughlin, 120 Pa. St. 518; Lane v. Schomp,.5 C. E. Green, 82; Phelps v. Hawley, 52 N. Y. 23; Morgan v. Pickard, 86 Tenn. 208; Sights v. Yarnalls, 12 Grat. 292.

The case in mind upon the remedy that the external law affords a claimant is Dunlap v. Black, 128 U. S. 40 (1888). This was an application by Oscar Dunlap, the relator to the Supreme Court of the District of Columbia for a writ of mandamus to be directed to the respondent Black as Commissioner of Pensions, commanding him to re-issue a pension. The relator said that whether he was entitled to a re-rating was a question of law; and that it did not lie in the discretionary power of the respondent, as Commissioner of Pensions to deny or otherwise abridge his rights under the statute.

Mr. Justice BRADLEY pointed out how limited was the power of the judiciary to give relief against the action of the executive: The courts will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in any case at all, or when by special statute or otherwise a mere ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question, then, if they refuse, a mandamus may be issued to compel them. Judged by this rule the present case presents no difficulty; the Commissioner of Pensions did not refuse to act or decide. He did act and decide. He adopted an interpretation of law adverse to the relator and his decision was confirmed by the Secretary of Interior, as evidenced by his signature of the certificate. Whether if the law were properly before us for consideration, we should be of the same opinion or of a different opinion, is of no consequence in the decision of this case. We

have no appellate power over the Commissioner and no right to reverse his decision. That decision and his action taken thereon were made and done in the exercise of his official functions.

Decisions like this make up the external law of administration. It is well to appreciate their effect at the outset. The question before the judiciary is whether there has been legal administration or illegal administration, never whether there has been proper administration or improper administration. The courts, therefore, in enforcing the external law of the administration can only inquire whether the action has been in excess of power, never whether the action has been in abuse of power. In legal phrase the question before the court is one of the jurisdiction; it is not one of the merits. This puts the complainant at plain advantage. By the external law the claimant gets relief if there is error in law, never if there is error in fact in the decision of the officer of which he complains.

The case in mind upon the remedy that the internal law may afford the claimant is Morrison v. McKessock, 5 Land Dec. 245 (1886). One McKessock made a homestead entry in 1881. Six months after one Morrison filed an affidavit of contest alleging that the said McKessock had not resided continuously upon the land for six months but had abandoned it. The local land officers upon the contest rendered a decision in favor of McKessock, and dismissed the contest of Morrison. From this decision Morrison failed to appeal to the General Office within the time set by the regulations. However, the General Land Office took the case up at a later period upon the motion of Morrison. The decision then was in