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entitled to pronounce
Lecture of Parliament without suffering any material trans
formation of character, provided only that the English
-the unrestricted power of repealing or amending the constitutional code.
Thirdly. There does not exist in any part of the
British Empire any person or body of persons, exAct of Par- ecutive, legislative or judicial, which can pronounce
void any enactment passed by the British Parliament on the ground of such enactment being opposed to the constitution, or on any ground whatever, except of course its being repealed by Parliament.
These then are the three traits of Parliament sovereignty as it exists in England: first, the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws; secondly, the absence of any legal distinction between constitutional and other laws; thirdly, the non-existence of any judicial or other authority having the right to nullify an Act of Par
liament, or to treat it as void or unconstitutional. Flexibility These traits are all exemplifications of the quality
which my friend Mr. Bryce has happily denominated, in an unpublished lecture, the “flexibility” of the British constitution. Every part of it can be expanded, curtailed, amended or abolished, with equal ease. It is the most flexible polity in existence, and is therefore utterly different in character from the “rigid” constitutions (to use another expression of Mr. Bryce's) the whole or some part of which can be changed only by some extraordinary method of legislation.
of the constitution.
B. Characteristics of non - sovereign law - making Lecture bodies. From the attributes of a sovereign legislature it is possible to infer negatively what are the charac-Characterteristics all (or some) of which are the marks of a non-sove
reign lawnon-sovereign law-making body, and which therefore
making may be called the marks or notes of legislative subordination.
These signs by which you may recognise the subordination of a law-making body are, first, the existence of laws affecting its constitution which such body must obey and cannot change; hence, secondly, the formation of a marked distinction between ordinary laws and fundamental laws; and, lastly, the existence of some person or persons, judicial or otherwise, having authority to pronounce upon the validity or constitutionality of laws passed by such law-making body.
Wherever any of these marks of subordination exist with regard to a given law-making body, they prove that it is not a sovereign legislature.
Observe the use of the words “law-making body.” Meaningof This term is here employed as an expression which term “law
making may include under one head both municipal bodies, body.” such as railway companies, school boards, town councils, and the like, which possess a limited power of making laws, but are not ordinarily called legislatures, and bodies such as the Parliaments of the British Colonies, of Belgium, or of France, which are ordinarily called “legislatures,” but are not in reality sovereign bodies.
The reason for grouping together under one name
Lecture such very different kinds of “law-making” bodies is,
that by far the best way of clearing up our ideas as to the nature of assemblies which, to use the foreign formula?, are “legislative” without being “constituent,” and which therefore are not sovereign legislatures, is to analyse the characteristics of societies, such as English railway companies, which possess a certain legislative authority, though the authority is clearly delegated and subject to the obvious control of a superior legislature.
It will conduce to clearness of thought if we divide non-sovereign law-making bodies into the two great classes of obviously subordinate bodies such as corporations, the Council of India, &c., and such legislatures of independent countries as are legislative without being constituent, i.e. are non-sovereign legislative bodies.
The consideration of the position of the nonsovereign legislatures which exist under the complicated form of constitution known as a federal government is best reserved for a separate lecture ?
Subor dinate bodies.
1. Subordinate Law-making Bodies. (i.) Corporations.-An English railway company is
as good an example as can be found of a subordinate Corpora- law-making body. Such a company is in the strictest sense a law-making society, for it can under the
, powers of its Act make laws (called bye-laws) for the regulation (inter alia) of travelling upon the rail
p. 81, ante.
2 See Lecture IV.
way', and can impose a penalty for the breach of Lecture such laws, which can be enforced by proceedings in the Courts. The rules therefore or bye-laws made by a company within the powers of its Act are “ laws” in the strictest sense of the term, as any person will discover to his own cost who, when he travels by rail from Oxford to Paddington, deliberately violates a bye-law duly made by the Great Western Railway Company.
But though an English railway company is clearly a law-making body, it is clearly a non-sovereign lawmaking body. Its legislative power bears all the marks of subordination.
First. The company is bound to obey laws and (amongst others) the Act of Parliament creating the company, which it cannot change. This is obvious, and need not be insisted upon.
Secondly. There is the most marked distinction between the Act constituting the company, not a line of which can be changed by the company, and the bye-laws which, within the powers of its Act, the company can both make and change. Here we have
very small scale the exact difference between constitutional or fundamental laws which cannot, and ordinary laws which can, be changed by the company. The company, if we may apply to it the terms of constitutional law, is not a constituent, but is within
. See especially the Companies Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20, secs. 103, 108–111. This Act is always embodied in the special Act constituting the company. Its enactments therefore form part of the constitution of a railway company.
Lecture certain limits a legislative assembly; and these limits
are fixed by the constitution of the company.
Thirdly. The Courts have the right to pronounce, and indeed are bound to pronounce, on the validity of the company's bye-laws, that is upon
the validity, or to use political terms, on the constitutionality of the laws made by the company as a lawmaking body. Note particularly that it is not the function of any Court or judge to declare void or directly annul a bye-law made by a railway company. The function of the Court is simply, upon any particular case coming before it which depends upon a bye-law made by a railway company, to decide for the purposes of that particular case whether the byelaw is or is not within the powers conferred by Act of Parliament upon the company, that is to say, whether the bye-law is or is not valid, and to give judgment in the particular case according to the Court's view of the validity of the bye-law. It is worth while to examine with some care the mode in which English judges deal with the enquiry whether a particular bye-law is or is not within the powers given to the company by Act of Parliament, for to understand this point goes a good way towards understanding the exact way in which English or American Courts determine the constitutionality of Acts passed by a non-sovereign legislature.
The London and North-Western Railway Company made a bye-law by which “any person travelling “without the special permission of some duly author“ised servant of the company in a carriage or by a