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I.

Lecture action or prosecution for acts done in excess of legal authority. The true law of the constitution is in short to be gathered from the same sources whence we collect the law of England in respect to any other topic, and forms as interesting and as distinct, though not as well explored a field for legal study or legal exposition as any which can be found. The subject is one which has not yet been fully mapped out. Teachers and pupils alike therefore suffer from the inconvenience as they enjoy the interest of exploring a province of law which has not yet been reduced to order. This inconvenience has one great compensation. We are compelled to search for the guidance of first principles, and as we look for a clue through the mazes of a perplexed topic, three such guiding principles gradually become apparent: They are, first, the legislative sovereignty of Parliament1; secondly, the universal rule or supremacy throughout the constitution of ordinary law 2, and thirdly (though here I admit we tread on more doubtful and speculative ground), the dependence in the last resort of the conventions upon the law of the constitution. To examine, to elucidate, to test these three principles forms, at any rate, (whatever be the result of the investigation) a suitable introduction to the study of the law of the constitution.

1 See Lectures II. to IV.

2 See Lectures V. to VII.

8 See Lecture VIII.

LECTURE II.

THE SOVEREIGNTY OF PARLIAMENT.

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THE Sovereignty of Parliament is (from a legal Lecture point of view) the dominant characteristic of our political institutions.

lecture.

My aim in this lecture is, in the first place to Aim of explain the nature of Parliamentary sovereignty and to show that its existence is a legal fact, fully recognised by the law of England; in the next place to prove that none of the alleged legal limitations on the sovereignty of Parliament have any existence; and, lastly, to state and meet certain speculative difficulties which hinder the ready admission of the doctrine that Parliament is, under the British constitution, an absolutely sovereign legislature.

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reignty.

A. Nature of Parliamentary Sovereignty.-Parlia- Nature ment means, in the mouth of a lawyer (though mentary the word has often a different sense in ordinary Soveconversation), the King, the House of Lords, and the House of Commons; these three bodies acting together may be aptly described as the " King in Parliament," and constitute Parliament1.

1 Conf. Blackstone, Commentaries, i. p. 153.

Lecture The principle of Parliamentary sovereignty means II. neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. A law may, for our present purpose, be defined as "any rule which will be enforced by the Courts." The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described; any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts. The same principle, looked at from its negative side, may be thus stated; there is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of Parliament, or which (to express the same thing in other words) will be enforced by the Courts in contravention of an Act of Parliament. Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation. This is not the place for entering into any details as to the nature of judicial legislation 1; the matter is mentioned here only in order to

1 The reader who wishes for fuller information on the nature of

II.

remove an obvious difficulty which might present Lecture itself to some students. It will be necessary in the course of these lectures to say a good deal more about Parliamentary sovereignty, but for the present the above rough description of its nature may suffice. The important thing is to make clear that the doctrine of Parliamentary sovereignty is both on its positive and on its negative side fully recognised by the law of England.

I. Unlimited legislative authority of Parliament.- Unlimited The classical passage on this subject is the following legislative extract from Blackstone's Commentaries:

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"The power and jurisdiction of Parliament, says "Sir Edward Coke 1, is so transcendent and absolute, "that it cannot be confined, either for causes or persons, within any bounds. And of this high court, he adds, it may be truly said, 'Si antiquitatem spectes, “est vetustissima; si dignitatem, est honoratissima; si "jurisdictionem, est capacissima. It hath sovereign "and uncontrollable authority in the making, confirm"ing, enlarging, restraining, abrogating, repealing, re"viving, and expounding of laws, concerning matters "of all possible denominations, ecclesiastical or tem"poral, civil, military, maritime, or criminal: this 'being the place where that absolute despotic power, "which must in all governments reside somewhere, "is entrusted by the constitution of these kingdoms.

judge-made law will find what he wants in Prof. Pollock's Essays on Jurisprudence and Ethics, p. 237.

1 4 Inst. 36.

authority of Par

liament.

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Lecture "All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, "are within the reach of this extraordinary tribunal. "It can regulate or new-model the succession to the crown; as was done in the reign of Henry VIII. and "William III. It can alter the established religion of the land; as was done in a variety of instances, "in the reigns of king Henry VIII. and his three "children. It can change and create afresh even "the constitution of the kingdom and of parliaments "themselves; as was done by the act of union, and "the several statutes for triennial and septennial elections. It can, in short, do everything that is "not naturally impossible; and therefore some have "not scrupled to call it's power, by a figure rather "too bold, the omnipotence of Parliament. True it "is, that what the Parliament doth, no authority

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upon earth can undo. So that it is a matter most "essential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, "and their knowledge; for it was a known apophthegm of the great lord treasurer Burleigh, that England could never be ruined but by a Parliament:' and, as Sir Matthew Hale observes, this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if "by any means a misgovernment should any way "fall upon it, the subjects of this kingdom are left "without all manner of remedy. To the same purpose the president Montesquieu, though I

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