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II.

more tender and a nearer interest everything that Lecture

concerned the people, than the other remoter and "more permanent parts of legislature.

“Whatever alterations time and the necessary “accommodation of business may have introduced, “this character can never be sustained, unless the “House of Commons shall be made to bear some

stamp of the actual disposition of the people at “ large. It would (among public misfortunes) be an "evil more natural and tolerable, that the House of " Commons should be infected with every epidemical “phrensy of the people, as this would indicate some consanguinity, some sympathy of nature with their constituents, than that they should in all cases be wholly untouched by the opinions and feelings of “the people out of doors. By this want of sympathy they would cease to be a House of Commons?.”

· Burke, Works, i. pp. 347, 348.

LECTURE III.

COMPARISON BETWEEN PARLIAMENT AND NON

SOVEREIGN LAW-MAKING BODIES.

Lecture

III.

Aim of lecture.

Parliamentary sovereignty.

In my last lecture I dwelt upon the nature of Parliamentary sovereignty; my object in this lecture is to illustrate the characteristics of such sovereignty by comparing the essential features of a sovereign Parliament like that of England with the traits whiclı mark non-sovereign law-making bodies.

A. Characteristics of Sovereign Parliament.The characteristics of Parliamentary sovereignty may be deduced from the term itself. But they are apt to escape the attention of persons who, like ourselves, have been so accustomed to live under the rule of a supreme legislature, that we almost, without knowing it, assume that all legislative bodies are supreme, and hardly therefore keep clear before our minds the properties of a supreme as contrasted with a non-sovereign law-making body. In this matter foreign observers are, as is natural, clearer sighted than Englishmen. De Lolme, Gneist, and De Tocqueville seize at once upon the sovereignty of Parliament as a salient feature of the English constitution, and recognise the far-reaching effects of this marked peculiarity in our institutions.

III,

“In England," writes De Tocqueville, “ the Parlia- Lecture “ment has an acknowledged right to modify the “constitution; as, therefore, the constitution may

undergo perpetual changes, it does not in reality “exist; the Parliament is at once a legislative and “a constituent assembly.” His expressions are wanting in accuracy,

and might provoke some criticism, but the description of the English Parliament as at once “a legislative and a constituent assembly” supplies a convenient formula for summing up the fact that Parliament can change any law whatever. Being a “legislative" assembly it can make ordinary laws, being a “constituent” assembly it can make laws which shift the basis of the constitution. The results which ensue from this fact may be brought under three heads.

First. There is no law which Parliament can- No law not change, or (to put the same thing somewhat differently), fundamental or so-called constitutional change. laws are under our constitution changed by the same body and in the same manner as other laws, nåmely, by Parliament acting in its ordinary legislative character.

A Bill for reforming the House of Commons, a Bill for abolishing the House of Lords, a Bill to give London a municipality, a Bill to make valid marriages celebrated by a pretended clergyman, who is found after their celebration not to be in orders, are each equally within the competence of Parliament, they each may

| De Tocqueville, i. (translation), p. 96, Euvres complètes, i. pp. 166, 167.

Parliament cannot

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by any

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tinction between constitutional

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Lecture be passed in substantially the same manner, they III.

none of them when passed will be, legally speaking, a whit more sacred or immutable than the others, for they each will be neither more nor less than an Act of Parliament, which can be repealed as it has been passed by Parliament, and cannot be annulled

other

power. No dis- Secondly. There is under the English constitu

tion no marked or clear distinction between laws

which are not fundamental or constitutional and laws and ordinary laws. which are fundamental or constitutional. The very

language therefore, expressing the difference between a “legislative" assembly which can change ordinary laws and a “constituent” assembly which change not only ordinary but also constitutional and fundamental laws, has to be borrowed from the

political phraseology of foreign countries. Relation This absence of any distinction between constitu- , Parliamen

tional and ordinary laws has a close connection with tary sove- the non-existence in England of any written or reignty

enacted constitutional statute or charter. De Tocqueconstitu- ville indeed, in common with other writers, apparently

holds the unwritten character of the British constitution to be of its essence: “L'Angleterre n'ayant

point de constitution écrite, qui peut dire qu'on “ change sa constitution ??” But here De Tocqueville falls into an error, characteristic both of his nation and of the weaker side of his own rare genius. He has treated the form of the constitution as the cause of its substantial qualities, and has inverted the

De Tocqueville, Euvres complètes, i. p. 312.

between

and an unwritten

tion.

III.

relation of cause and effect. The constitution, he Lecture seems to have thought, was mutable because it was not reduced to a written or statutory form. It is far nearer the truth to assert that the constitution has never been reduced to a written or statutory form because each and every part of it is changeable at the will of Parliament. When a country is governed under a constitution which is intended either to be unchangeable or at any rate to be changeable only with special difficulty, the constitution, which is nothing else than the laws which are intended to have a character of permanence or immutability, is necessarily expressed in writing, or, to use English phraseology, is enacted as a statute. Where, on the other hand, every law can be legally changed with equal ease or with equal difficulty, there arises no absolute need for reducing the constitution to a written form, or even for looking upon a definite set of laws as specially making up the constitution. One main reason then why constitutional laws have not in England been recognised under that name, and in many cases have not been reduced to the form of a statutory enactment, is that one law, whatever its importance, can be passed and changed by exactly the same method as every other law. But it is a mistake to think that the whole law of the English constitution might not be reduced to writing and be enacted in the form of a constitutional code. The Belgian constitution indeed comes very near to a written reproduction of the English constitution, and the constitution of England might easily be turned into an Act

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