LITMIR.BIZ

Скачать книгу

href="#ulink_5b5f622a-7f0f-5136-896a-92dbe771c93f">Chapter I THE NATURE OF PARLIAMENTARY SOVEREIGNTY

      The sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our political institutions.

      Aim of chapter.

      My aim in this chapter is, in the first place, to 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.

       NATURE OF PARLIAMENTARY SOVEREIGNTY

      Nature of Parliamentary Sovereignty.

      Parliament means, in the mouth of a lawyer (though the word has often a different sense in ordinary conversation), 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 Parliament.¹

      The principle of Parliamentary sovereignty means 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

      [print edition page 4]

      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;² the matter is mentioned here only in order to remove an obvious difficulty which might present 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.

       Unlimited Legislative Authority of Parliament

      Unlimited legislative authority of Parliament.

      The classical passage on this subject is the following extract from Blackstone’s Commentaries:—

      Sir Edward Coke,³ says:

      The power and jurisdiction of Parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.

      [print edition page 5]

      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, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, 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. 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 its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the Parliament doth, no authority 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 trust too hastily, presages; that as Rome, Sparta, and Carthage have lost their liberty and perished, so the constitution of England will in time lose its liberty, will perish: it will perish whenever the legislative power shall become more corrupt than the executive.⁴

      De Lolme has summed up the matter in a grotesque expression which has become almost proverbial. “It is a fundamental principle with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman.”

      Historical examples of Parliamentary sovereignty.

      This supreme legislative authority of Parliament is shown historically in a large number of instances.

      [print edition page 6]

      Act of Settlement.

      The descent of the Crown was varied and finally fixed under the Act of Settlement, 12 & 13 William III., c. 2; the King occupies the throne under a Parliamentary title; his claim to reign depends upon and is the result of a statute. This is a proposition which, at the present day, no one is inclined either to maintain or to dispute; but a glance at the statute-book shows that not much more than two hundred years ago Parliament had to insist strenuously upon the principle of its own lawful supremacy. The first section of 6 Anne, c. 7, enacts (inter alia),

      That if any person or persons shall maliciously, advisedly, and directly by writing or printing maintain and affirm that our sovereign lady the Queen that now is, is not the lawful and rightful Queen of these realms, or that the pretended Prince of Wales, who now styles himself King of Great Britain, or King of England, by the name of James the Third, or King of Scotland, by the name of James the Eighth, hath any right or title to the Crown of these realms, or that any other person or persons hath or have any right or title to the same, otherwise than according to an Act of Parliament made in England in the first year of the reign of their late Majesties King William and Queen Mary, of ever blessed and glorious memory, intituled, An Act declaring the rights and liberties of the subject, and settling the succession of the Crown; and one other Act made in England in the twelfth year of the reign of his said late Majesty King William the Third, intituled, An Act for the further limitation of the Crown, and better securing the rights and liberties of the subject; and the Acts lately made in England and Scotland mutually for the union of the two kingdoms; or that the Kings or Queens of this realm, with and by the authority of Parliament, are not able to make laws and statutes of sufficient force and validity to limit and bind the Crown, and the descent, limitation, inheritance, and government thereof; every such person or persons shall be guilty of high treason, and being thereof lawfully convicted, shall be adjudged traitors, and shall suffer pains of death, and all losses and forfeitures as in cases of high treason.⁵

      Acts of Union.

      The Acts of Union (to one of which Blackstone calls attention) afford a remarkable

Скачать книгу