Chapter II
PARLIAMENT AND NON-SOVEREIGN
LAW-MAKING BODIES
In my last chapter I dwelt upon the nature of Parliamentary sovereignty; my object in this chapter is to illustrate the characteristics of such sovereignty by comparing the essential features of a sovereign Parliament like that of England with the traits which mark non-sovereign law-making bodies.
CHARACTERISTICS OF SOVEREIGN PARLIAMENT
The characteristics of Parliamentary sovereignty may be deduced, from the term itself. But these traits are apt to escape the attention of Englishmen, who have been so accustomed to live under the rule of a supreme legislature, that they almost, without knowing it, assume that all legislative bodies are supreme, and hardly therefore keep clear before their 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 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.
Tocqueville writes:
In England, the Parliament 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.1
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 cannot change, or (to put the same thing somewhat differently), fundamental or so-called constitutional laws are under our constitution changed by the same body and in the same manner as other laws, namely, 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 be passed in substantially the same manner, they 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 by any other power.
Secondly, there is under the English constitution no marked or clear distinction between laws which are not fundamental or constitutional and 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 can change not only ordinary but also constitutional and fundamental laws, has to be borrowed from the political phraseology of foreign countries.
This absence of any distinction between constitutional and ordinary laws has a close connection with the non-existence in England of any written or enacted constitutional statute or charter. Tocqueville 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 constitutionécrite, qui peut dire qu'on change sa constitution?”2 But here 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 relation of cause and effect. The constitution, he seems to have thought, was changeable 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 of Parliament without suffering any material transformation of character, provided only that the English Parliament retained—what the Belgian Parliament, by the way, does not possess—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, executive, 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 Parliamentary 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 Parliament, or to treat it as void or unconstitutional.
These traits are all exemplifications of the quality which my friend Mr. Bryce has happily denominated the “flexibility”3 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 extra-ordinary method of legislation.
CHARACTERISTICS OF
NON-SOVEREIGN LAW-MAKING BODIES
From the attributes of a sovereign legislature it is possible to infer negatively what are the characteristics all (or some) of which are the marks of a non-sovereign law-making body, and which therefore 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.”
This term is here employed as an expression which may include under one head4 both municipal bodies, 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 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,5 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, etc., 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 non-sovereign legislatures which exist under the complicated form of constitution known as a federal government is best reserved for a separate chapter.6
Subordinate Law-making Bodies
Corporations An English railway company is as good an example as can be found of a subordinate 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 railway,7 and can impose a penalty for the breach of 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 law-making 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 on a very small scale the exact difference between constitutional laws which cannot, and ordinary laws which can, be changed by a subordinate legislature, i.e. by the company. The company, if we may apply to it the terms of constitutional law, is not a constituent, but is within 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 law-making 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 bye-law 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 inquiry 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 authorised servant of the company in a carriage or by a train of a superior class to that for which his ticket was issued is hereby subject to a penalty not exceeding forty shillings, and shall, in addition, be liable to pay his fare according to the class of carriage in which he is travelling from the station where the train originally started, unless he shows that he had no intention to defraud.
X, with the intention of defrauding the company, travelled in a first-class carriage instead of a second-class carriage for which his ticket was issued, and having been charged under the bye-law was convicted in the penalty of ten shillings, and costs. On appeal by X, the Court determined that the bye-law was illegal and void as being repugnant to 8 Vict. c. 20, s. 103, or in effect to the terms of the Act incorporating the company,8 and that therefore X could not be convicted of the offence charged against him.
A bye-law of the South-Eastern Railway Company required that a passenger should deliver up his ticket to a servant of the company when required to do so, and that any person travelling without a ticket or failing or refusing to deliver up his ticket should be required to pay the fare from the station whence the train originally started to the end of his journey. X had a railway ticket enabling him to travel on the South-Eastern Railway. Having to change trains and pass out of the company's station he was asked to show his ticket, and refused to do so, but without any fraudulent intention. He was summoned for a breach of the bye-law, and convicted in the amount of the fare from the station whence the train started. The Queen's Bench Division held the conviction wrong on the ground that the bye-law was for several reasons invalid, as not being authorised by the Act under which it purported to be made.9
Now in these instances, and in other cases where the Courts pronounce upon the validity of a bye-law made by a body (e.g. a railway company or a school-board) having powers to make bye-laws enforceable by penalties, it is natural to say that the Courts pronounce the bye-laws valid or invalid. But this is not strictly the case. What the judges determine is not that a particular bye-law is invalid, for it is not the function of the Courts to repeal or annul the bye-laws made by railway companies, but that in a proceeding to recover a penalty from X for the breach of a bye-law judgment must be given on the basis of the particular bye-law being beyond the powers of the company, and therefore invalid. It may indeed be thought that the distinction between annulling a bye-law and determining a case upon the assumption of such bye-law being void is a distinction without a difference. But this is not so. The distinction is not without importance even when dealing with the question whether X, who is alleged to have broken a bye-law made by a railway company, is liable to pay a fine; it is of first-rate importance when the question before the Courts is one involving considerations of constitutional law, as for example when the Privy Council is called upon, as constantly happens, to determine cases which involve the validity or constitutionality of laws made by the Dominion Parliament or by one of the provincial Parliaments of Canada. The significance, however, of the distinction will become more apparent as we proceed with our subject; the matter of consequence now is to notice the nature of the distinction, and to realise that when a Court in deciding a given case considers whether a bye-law is, or is not, valid, the Court does a different thing from affirming or annulling the bye-law itself.
Legislative Council of British India10 Laws are made for British India by a Legislative Council having very wide powers of legislation. This Council, or, as it is technically expressed, the “Governor-General in Council,” can pass laws as important as any Acts passed by the British Parliament. But the authority of the Council in the way of law-making is as completely subordinate to, and as much dependent upon, Acts of Parliament as is the power of the London and North-Western Railway Company to make bye-laws.
The legislative powers of the Governor-General and his Council arise from definite Parliamentary enactments.11 These Acts constitute what may be termed as regards the Legislative Council the constitution of India. Now observe, that under these Acts the Indian Council is in the strictest sense a non-sovereign legislative body, and this independently of the fact that the laws or regulations made by the Governor-General in Council can be annulled or disallowed by the Crown; and note that the position of the Council exhibits all the marks or notes of legislative subordination.
First, the Council is bound by a large number of rules which cannot be changed by the Indian legislative body itself, and which can be changed by the superior power of the Imperial Parliament.
Secondly, the Acts themselves from which the Council derives its authority cannot be changed by the Council, and hence in regard to the Indian legislative body form a set of constitutional or fundamental laws, which, since they cannot be changed by the Council, stand in marked contrast with the laws or regulations which the Council is empowered to make. These fundamental rules contain, it must be added, a number of specific restrictions on the subjects with regard to which the Council may legislate. Thus the Governor-General in Council has no power of making laws which may affect the authority of Parliament, or any part of the unwritten laws or constitution of the United Kingdom, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom, or the sovereignty or dominion of the Crown over any part of India.12
Thirdly, the Courts in India (or in any other part of the British Empire) may, when the occasion arises, pronounce upon the validity or constitutionality of laws made by the Indian Council.
The Courts treat Acts passed by the Indian Council precisely in the same way in which the King's Bench Division treats the bye-laws of a railway company. No judge in India or elsewhere ever issues a decree which declares invalid, annuls, or makes void a law or regulation made by the Governor-General in Council. But when any particular case comes before the Courts, whether civil or criminal, in which the rights or liabilities of any party are affected by the legislation of the Indian Council, the Court may have to consider and determine with a view to the particular case whether such legislation was or was not within the legal powers of the Council, which is of course the same thing as adjudicating as regards the particular case in hand upon the validity or constitutionality of the legislation in question. Thus suppose that X is prosecuted for the breach of a law or regulation passed by the Council, and suppose the fact to be established past a doubt that X has broken this law. The Court before which the proceedings take place, which must obviously in the ordinary course of things be an Indian Court, may be called upon to consider whether the regulation which X has broken is within the powers given to the Indian Council by the Acts of Parliament making up the Indian constitution. If the law is within such powers, or, in other words, is constitutional, the Court will by giving judgment against X give full effect to the law, just as effect is given to the bye-law of a railway company by the tribunal before whom an offender is sued pronouncing judgment against him for the penalty. If, on the other hand, the Indian Court deem that the regulation is ultra vires or unconstitutional, they will refuse to give effect to it, and treat it as void by giving judgment for the defendant on the basis of the regulation being invalid or having no legal existence. On this point the Empress v. Burah13 is most instructive. The details of the case are immaterial; the noticeable thing is that the High Court held a particular legislative enactment of the Governor-General in Council to be in excess of the authority given to him by the Imperial Parliament and therefore invalid, and on this ground entertained an appeal from two prisoners which, if the enactment had been valid, the Court would admittedly have been incompetent to entertain. The Privy Council, it is true, held on appeal14 that the particular enactment was within the legal powers of the Council and therefore valid, but the duty of the High Court of Calcutta to consider whether the legislation of the Governor-General was or was not constitutional, was not questioned by the Privy Council. To look at the same thing from another point of view, the Courts in India treat the legislation of the Governor-General in Council in a way utterly different from that in which any English Court can treat the Acts of the Imperial Parliament. An Indian tribunal may be called upon to say that an Act passed by the Governor-General need not be obeyed because it is unconstitutional or void. No British Court can give judgment, or ever does give judgment, that an Act of Parliament need not be obeyed because it is unconstitutional. Here, in short, we have the essential difference between subordinate and sovereign legislative power.15
English Colonies with Representative and Responsible Governments Many English colonies, and notably the Dominion of New Zealand (to which country our attention had best for the sake of clearness be specially directed), possess representative assemblies which occupy a somewhat peculiar position.
The Parliament of the Dominion of New Zealand exercises throughout that country16 many of the ordinary powers of a sovereign assembly such as the Parliament of the United Kingdom. It makes and repeals laws, it puts Ministries in power and dismisses them from office, it controls the general policy of the New Zealand Government, and generally makes its will felt in the transaction of affairs after the manner of the Parliament at Westminster. An ordinary observer would, if he looked merely at the everyday proceedings of the New Zealand legislature, find no reason to pronounce it a whit less powerful within its sphere than the Parliament of the United Kingdom. No doubt the assent of the Governor is needed in order to turn colonial Bills into laws: and further investigation would show our inquirer that for the validity of any colonial Act there is required, in addition to the assent of the Governor, the sanction, either express or implied, of the Crown. But these assents are constantly given almost as a matter of course, and may be compared (though not with absolute correctness) to the Crown's so-called “veto” or right of refusing assent to Bills which have passed through the Houses of Parliament.
Yet for all this, when the matter is further looked into, the Dominion Parliament (together with other colonial legislatures) will be found to be a non-sovereign legislative body, and bears decisive marks of legislative subordination. The action of the Dominion Parliament is restrained by laws which it cannot change, and are changeable only by the Imperial Parliament; and further, New Zealand Acts, even when assented to by the Crown, are liable to be treated by the Courts in New Zealand and elsewhere throughout the British dominions as void or unconstitutional, on the ground of their coming into conflict with laws of the Imperial Parliament, which the colonial legislature has no authority to touch.17
That this is so becomes apparent the moment we realise the exact relation between colonial and Imperial laws. The matter is worth some little examination, both for its own sake and for the sake of the light it throws on the sovereignty of Parliament.
The charter of colonial legislative independence is the Colonial Laws Validity Act, 1865.18
This statute seems (oddly enough) to have passed through Parliament without discussion; but it permanently defines and extends the authority of colonial legislatures, and its main provisions are of such importance as to deserve verbal citation:
Sec. 2. Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.
3. No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid.
4. No colonial law, passed with the concurrence of or assented to by the Governor of any colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative, by reason only of any instructions with reference to such law or the subject thereof which may have been given to such Governor by or on behalf of Her Majesty, by any instrument other than the letters-patent or instrument authorising such Governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters-patent or last-mentioned instrument.
5. Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters-patent, order in council, or colonial law for the time being in force in the said colony.
The importance, it is true, of the Colonial Laws Validity Act, 1865, may well be either exaggerated or quite possibly underrated. The statute is in one sense less important than it at first sight appears, because the principles laid down therein were, before its passing, more or less assumed, though with some hesitation, to be good law and to govern the validity of colonial legislation. From another point of view the Act is of the highest importance, because it determines, and gives legislative authority to, principles which had never before been accurately defined, and were liable to be treated as open to doubt.19 In any case the terms of the enactment make it now possible to state with precision the limits which bound the legislative authority of a colonial Parliament.
The Dominion Parliament may make laws opposed to the English common law, and such laws (on receiving the required assents) are perfectly valid.
Thus a New Zealand Act which changed the common law rules as to the descent of property, which gave the Governor authority to forbid public meetings, or which abolished trial by jury, might be inexpedient or unjust, but would be a perfectly valid law, and would be recognised as such by every tribunal throughout the British Empire.20
The Dominion Parliament, on the other hand, cannot make any laws inconsistent with any Act of Parliament, or with any part of an Act of Parliament, intended by the Imperial Parliament to apply to New Zealand.
Suppose, for example, that the Imperial Parliament were to pass an Act providing a special mode of trial in New Zealand for particular classes of offences committed there, no enactment of the colonial Parliament, which provided that such offences should be tried otherwise than as directed by the imperial statute, would be of any legal effect. So again, no New Zealand Act would be valid that legalised the slave trade in the face of the Slave Trade Act, 1824, 5 George IV. c. 113, which prohibits slave trading throughout the British dominions; nor would Acts passed by the Dominion Parliament be valid which repealed, or invalidated, several provisions of the Merchant Shipping Act 1894 meant to apply to the colonies, or which deprived a discharge under the English Bankruptcy Act of the effect which, in virtue of the imperial statute, it has as a release from debts contracted in any part whatever of the British dominions. No colonial legislature, in short, can override imperial legislation which is intended to apply to the colonies. Whether the intention be expressed in so many words, or be apparent only from the general scope and nature of the enactment, is immaterial. Once establish that an imperial law is intended to apply to a given colony, and the consequence follows that any colonial enactment which contravenes that law is invalid and unconstitutional.21
Hence the Courts in the Dominion of New Zealand, as also in the rest of the British Empire, may be called upon to adjudicate upon the validity or constitutionality of any Act of the Dominion Parliament. For if a New Zealand law really contradicts the provisions of an Act of Parliament extending to New Zealand, no Court throughout the British dominions could legally, it is clear, give effect to the enactment of the Dominion Parliament. This is an inevitable result of the legislative sovereignty exercised by the Imperial Parliament. In the supposed case the Dominion Parliament commands the judges to act in a particular manner, and the Imperial Parliament commands them to act in another manner. Of these two commands the order of the Imperial Parliament is the one which must be obeyed. This is the very meaning of Parliamentary sovereignty. Whenever, therefore, it is alleged that any enactment of the Dominion Parliament is repugnant to the provisions of any Act of the Imperial Parliament extending to the colony, the tribunal before which the objection is raised must pronounce upon the validity or constitutionality of the colonial law.22
The constitution of New Zealand is created by and depends upon the New Zealand Constitution Act, 1852,15 & 16 Vict. c. 72, and the Acts amending the same. One might therefore expect that the Parliament of the Dominion of New Zealand, which may conveniently be called the New Zealand Parliament, would exhibit that “mark of subordination” which consists in the inability of a legislative body to change fundamental or constitutional laws, or (what is the same thing) in the clearly drawn distinction between ordinary laws which the legislature can change and laws of the constitution which it cannot change, at any rate when acting in its ordinary legislative character. But this anticipation is hardly borne out by an examination into the Acts creating the constitution of New Zealand. A comparison of the Colonial Laws Validity Act, 1865, s. 5, with the New Zealand Constitution Act, as subsequently amended, shows that the New Zealand Parliament can change the articles of the constitution. This power, derived from imperial statutes, is of course in no way inconsistent with the legal sovereignty of the Imperial Parliament.23 One may fairly therefore assert that the New Zealand Parliament, in common with many other colonial legislative assemblies, is, though a “subordinate,” at once a legislative and a constituent assembly. It is a “subordinate” assembly24 because its powers are limited by the legislation of the Imperial Parliament; it is a constituent assembly since it can change the articles of the constitution of New Zealand. The authority of the New Zealand Parliament to change the articles of the constitution of New Zealand is from several points of view worth notice.
We have here a decisive proof that there is no necessary connection between the written character and the immutability of a constitution. The New Zealand constitution is to be found in a written document; it is a statutory enactment. Yet the articles of this constitutional statute can be changed by the Parliament which it creates, and changed in the same manner as any other law. This may seem an obvious matter enough, but writers of eminence so often use language which implies or suggests that the character of a law is changed by its being expressed in the form of a statute as to make it worth while noting that a statutory constitution need not be in any sense an immutable constitution. The readiness again with which the English Parliament has conceded constituent powers to colonial legislatures shows how little hold is exercised over Englishmen by that distinction between fundamental and non-fundamental laws which runs through almost all the constitutions not only of the Continent but also of America. The explanation appears to be that in England we have long been accustomed to consider Parliament as capable of changing one kind of law with as much ease as another. Hence when English statesmen gave Parliamentary government to the colonies, they almost as a matter of course bestowed upon colonial legislatures authority to deal with every law, whether constitutional or not, which affected the colony, subject of course to the proviso, rather implied than expressed, that this power should not be used in a way inconsistent with the supremacy of the British Parliament. The colonial legislatures, in short, are within their own sphere copies of the Imperial Parliament. They are within their own sphere sovereign bodies; but their freedom of action is controlled by their subordination to the Parliament of the United Kingdom.
The question may naturally be asked how the large amount of colonial liberty conceded to countries like New Zealand has been legally reconciled with Imperial sovereignty?
The inquiry lies a little outside our subject, but is not really foreign to it, and well deserves an answer. Nor is the reply hard to find if we keep in mind the true nature of the difficulty which needs explanation.
The problem is not to determine what are the means by which the English Government keeps the colonies in subjection, or maintains the political sovereignty of the United Kingdom. This is a matter of politics with which this book has no concern.
The question to be answered is how (assuming the law to be obeyed throughout the whole of the British Empire) colonial legislative freedom is made compatible with the legislative sovereignty of Parliament? How are the Imperial Parliament and the colonial legislatures prevented from encroaching on each other's spheres?
No one will think this inquiry needless who remarks that in confederations, such as the United States, or the Canadian Dominion, the Courts are constantly occupied in determining the boundaries which divide the legislative authority of the Central Government from that of the State Legislatures.
The assertion may sound paradoxical, but is nevertheless strictly true, that the acknowledged legal supremacy of Parliament is one main cause of the wide power of legislation allowed to colonial assemblies.
The constitutions of the colonies depend directly or indirectly upon imperial statutes. No lawyer questions that Parliament could legally abolish any colonial constitution, or that Parliament can at any moment legislate for the colonies and repeal or override any colonial law whatever. Parliament moreover does from time to time pass Acts affecting the colonies, and the colonial,25 no less than the English, Courts completely admit the principle that a statute of the Imperial Parliament binds any part of the British dominions to which the statute is meant to apply. But when once this is admitted, it becomes obvious that there is little necessity for defining or limiting the sphere of colonial legislation. If an Act of the New Zealand Parliament contravenes an imperial statute, it is for legal purposes void; and if an Act of the New Zealand Parliament, though not infringing upon any statute, is so opposed to the interests of the Empire that it ought not to be passed, the British Parliament may render the Act of no effect by means of an imperial statute.
This course, however, is rarely, if ever, necessary; for Parliament exerts authority over colonial legislation by in effect regulating the use of the Crown's “veto” in regard to colonial Acts. This is a matter which itself needs a little explanation.
The Crown's right to refuse assent to bills which have passed through the Houses of Parliament is practically obsolete.26 The power of the Crown to negative or veto the bills of colonial legislatures stands on a different footing. It is virtually, though not in name, the right of the Imperial Parliament to limit colonial legislative independence, and is frequently exercised.
This check on colonial legislation is exerted in two different manners.27
The Governor of a colony, say New Zealand, may directly refuse his assent to a bill passed by both Houses of the New Zealand Parliament. In this case the bill is finally lost, just as would be a bill which had been rejected by the colonial council, or as would be a bill passed by the English Houses of Parliament if the Crown were to exert the obsolete prerogative of refusing the royal assent. The Governor, again, may, without refusing his assent, reserve the bill for the consideration of the Crown. In such case the bill does not come into force until it has received the royal assent, which is in effect the assent of the English Ministry, and therefore indirectly of the Imperial Parliament.
The Governor, on the other hand, may, as representing the Crown, give his assent to a New Zealand bill. The bill thereupon comes into force throughout New Zealand. But such a bill, though for a time a valid Act, is not finally made law even in New Zealand, since the Crown may, after the Governor's assent has been given, disallow the colonial Act. The case is thus put by Mr. Todd:
Although a governor as representing the Crown is empowered to give the royal assent to bills, this act is not final and conclusive; the Crown itself having, in point of fact, a second veto. All statutes assented to by the governor of a colony go into force immediately, unless they contain a clause suspending their operation until the issue of a proclamation of approval by the queen in council, or some other specific provision to the contrary; but the governor is required to transmit a copy thereof to the secretary of state for the colonies; and the queen in council may, within two years after the receipt of the same, disallow any such Act.”28
The result therefore of this state of things is, that colonial legislation is subject to a real veto on the part of the imperial government, and no bill which the English Ministry think ought for the sake of imperial interests to be negatived can, though passed by the New Zealand or other colonial legislature, come finally into force. The home government is certain to negative or disallow any colonial law which, either in letter or in spirit, is repugnant to Parliamentary legislation, and a large number of Acts can be given which on one ground or another have been either not assented to or disallowed by the Crown. In 2868 the Crown refused assent to a Canadian Act reducing the salary of the Governor-General.29 In 1872 the Crown refused assent to a Canadian Copyright Act because certain parts of it conflicted with imperial legislation. In 1873 a Canadian Act was disallowed as being contrary to the express terms of the British North America Act, 1868; and on similar grounds in 1878 a Canadian Shipping Act was disallowed.30 So again the Crown has at times in effect passed a veto upon Australian Acts for checking Chinese immigration.31 And Acts passed by a colonial legislature, allowing divorce on the ground solely of the husband's adultery or (before the passing of the Deceased Wife's Sister's Marriage Act, 1907, 7 Edward VII. c. 47) legalising marriage with a deceased wife's sister or with a deceased husband's brother, have (though not consistently with the general tenor of our colonial policy) been sometimes disallowed by the Crown, that is, in effect by the home government.
The general answer therefore to the inquiry, how colonial liberty of legislation is made legally reconcilable with imperial sovereignty, is that the complete recognition of the supremacy of Parliament obviates the necessity for carefully limiting the authority of colonial legislatures, and that the home government, who in effect represent Parliament, retain by the use of the Crown's veto the power of preventing the occurrence of conflicts between colonial and imperial laws. To this it must be added that imperial treaties legally bind the colonies, and that the “treaty-making power,” to use an American expression, resides in the Crown, and is therefore exercised by the home government in accordance with the wishes of the Houses of Parliament, or more strictly of the House of Commons; whilst the authority to make treaties is, except where expressly allowed by Act of Parliament, not possessed by any colonial government.32
It should, however, be observed that the legislature of a self-governing colony is free to determine whether or not to pass laws necessary for giving effect to a treaty entered into between the imperial government and a foreign power; and further, that there might in practice be great difficulty in enforcing within the limits of a colony the terms of a treaty, e.g. as to the extradition of criminals, to which colonial sentiment was opposed. But this does not affect the principle of law that a colony is bound by treaties made by the imperial government, and does not, unless under some special provision of an Act of Parliament, possess authority to make treaties with any foreign power.
Any one who wishes justly to appreciate the nature and the extent of the control exerted by Great Britain over colonial legislation should keep two points carefully in mind. The tendency, in the first place, of the imperial government is as a matter of policy to interfere less and less with the action of the colonies, whether in the way of law-making33 or otherwise.34 Colonial Acts, in the second place, even when finally assented to by the Crown, are, as already pointed out, invalid if repugnant to an Act of Parliament applying to the colony. The imperial policy therefore of non-intervention in the local affairs of British dependencies combines with the supreme legislative authority of the Imperial Parliament to render encroachments by the Parliament of the United Kingdom on the sphere of colonial legislation, or by colonial Parliaments on the domain of imperial legislation, of comparatively rare occurrence.35
Foreign Non-sovereign Legislatures
We perceive without difficulty that the Parliaments of even those colonies, such as the Dominion of Canada, or the Australian Commonwealth, which are most nearly independent states, are not in reality sovereign legislatures. This is easily seen, because the sovereign Parliament of the United Kingdom, which legislates for the whole British Empire, is visible in the background, and because the colonies, however large their practical freedom of action, do not act as independent powers in relation to foreign states; the Parliament of a dependency cannot itseff be a sovereign body. It is harder for Englishmen to realise that the legislative assembly of an independent nation may not be a sovereign assembly. Our political habits of thought indeed are so based upon the assumption of Parliamentary omnipotence, that the position of a Parliament which represents an independent nation and yet is not itself a sovereign power is apt to appear to us exceptional or anomalous. Yet whoever examines the constitutions of civilised countries will find that the legislative assemblies of great nations are, or have been, in many cases legislative without being constituent bodies. To determine in any given case whether a foreign legislature be a sovereign power or not we must examine the constitution of the state to which it belongs, and ascertain whether the legislature whose position is in question bears any of the marks of subordination. Such an investigation will in many or in most instances show that an apparently sovereign assembly is in reality a non-sovereign law-making body.
France has within the last hundred and thirty years made trial of at least twelve constitutions.36
These various forms of government have, amidst all their differences, possessed in general one common feature. They have most of them been based upon the recognition of an essential distinction between constitutional or “fundamental” laws intended to be either immutable or changeable only with great difficulty, and “ordinary” laws which could be changed by the ordinary legislature in the common course of legislation. Hence under the constitutions which France has from time to time adopted the common Parliament or legislative body has not been a sovereign legislature.
The constitutional monarchy of Louis Philippe, in outward appearance at least, was modelled on the constitutional monarchy of England. In the Charter not a word could be found which expressly limits the legislative authority possessed by the Crown and the two Chambers, and to an Englishman it would seem certainly arguable that under the Orleans dynasty the Parliament was possessed of sovereignty. This, however, was not the view accepted among French lawyers. Tocqueville writes:
The immutability of the Constitution of France is a necessary consequence of the laws of that country. … As the King, the Peers, and the Deputies all derive their authority from the Constitution, these three powers united cannot alter a law by virtue of which alone they govern. Out of the pale of the Constitution they are nothing; where, then, could they take their stand to effect a change in its provisions? The alternative is clear: either their efforts are powerless against the Charter, which continues to exist in spite of them, in which case they only reign in the name of the Charter; or they succeed in changing the Charter, and then the law by which they existed being annulled, they themselves cease to exist. By destroying the Charter, they destroy themselves. This is much more evident in the laws of 1830 than in those of 1814. In 1814 the royal prerogative took its stand above and beyond the Constitution; but in 1830 it was avowedly created by, and dependent on, the Constitution. A part, therefore, of the French Constitution is immutable, because it is united to the destiny of a family; and the body of the Constitution is equally immutable, because there appear to be no legal means of changing it. These remarks are not applicable to England. That country having no written Constitution, who can assert when its Constitution is changed?37
Tocqueville's reasoning38 may not carry conviction to an Englishman, but the weakness of his argument is of itself strong evidence of the influence of the hold on French opinion of the doctrine which it is intended to support, namely, that Parliamentary sovereignty was not a recognised part of French constitutionalism. The dogma which is so naturally assented to by Englishmen contradicts that idea of the essential difference between constitutional and other laws which appears to have a firm hold on most foreign statesmen and legislators.
The Republic of 1848 expressly recognised this distinction; no single article of the constitution proclaimed on 4th November 1848 could be changed in the same way as an ordinary law. The legislative assembly sat for three years. In the last year of its existence, and then only, it could by a majority of three-fourths, and not otherwise, convoke a constituent body with authority to modify the constitution. This constituent and sovereign assembly differed in numbers, and otherwise, from the ordinary non-sovereign legislature.
The National Assembly of the French Republic exerts at least as much direct authority as the English Houses of Parliament. The French Chamber of Deputies exercises at least as much influence on the appointment of Ministers, and controls the action of the government, at least as strictly as does our House of Commons. The President, moreover, does not possess even a theoretical right of veto. For all this, however, the French Parliament is not a sovereign assembly, but is bound by the laws of the constitution in a way in which no law binds our Parliament. The articles of the constitution, or “fundamental laws,” stand in a totally different position from the ordinary law of the land. Under article 8 of the constitution, no one of these fundamental enactments can be legally changed otherwise than subject to the following provisions:
8. Les Chambres auront le droit, par deliberations séparées, prises dans chacune a la majorité absolue des voix, soit spontanement, soit sur la demanded du Président de la République, de déclarer qu'il y a lieu de réviser les lois constitutionnelles. Après que chacune des deux Chambres aura pris cette résolution, elles se réuniront en Assemblée nationale pour procéder à la révision. —Les délibérations portant révision des lois constitutionnelles, en toutouen partie, devront être prises à la majorité absolue des membres composant l‧Assemblée nationale.39
Supreme legislative power is therefore under the Republic vested not in the ordinary Parliament of two Chambers, but in a “national assembly,” or congress, composed of the Chamber of Deputies and the Senate sitting together.
The various constitutions, in short, of France, which are in this respect fair types of continental polities,40 exhibit, as compared with the expansiveness or “flexibility” of English institutions, that characteristic which may be conveniently described as “rigidity.”41
And here it is worth while, with a view to understanding the constitution of our own country, to make perfectly clear to ourselves the distinction already referred to between a “flexible” and a “rigid” constitution.
A “flexible” constitution is one under which every law of every description can legally be changed with the same case and in the same manner by one and the same body. The “flexibility” of our constitution consists in the right of the Crown and the two Houses to modify or repeal any law whatever; they can alter the succession to the Crown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to London. With us, laws therefore are called constitutional, because they refer to subjects supposed to affect the fundamental institutions of the state, and not because they are legally more sacred or difficult to change than other laws. And as a matter of fact, the meaning of the word “constitutional” is in England so vague that the term “a constitutional law or enactment” is rarely applied to any English statute as giving a definite description of its character.
A “rigid” constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The “rigidity” of the constitution, say of Belgium or of France, consists in the absence of any right on the part of the Belgian or French Parliament, when acting in its ordinary capacity, to modify or repeal certain definite laws termed constitutional or fundamental. Under a rigid constitution the term “constitutional” as applied to a law has a perfectly definite sense. It means that a particular enactment belongs to the articles of the constitution, and cannot be legally changed with the same ease and in the same manner as ordinary laws. The articles of the constitution will no doubt generally, though by no means invariably, be found to include all the most important and fundamental laws of the state. But it certainly cannot be asserted that where a constitution is rigid all its articles refer to matters of supreme importance. The rule that the French Parliament must meet at Versailles was at one time one of the constitutional laws of the French Republic. Such an enactment, however practically important, would never in virtue of its own character have been termed constitutional; it was constitutional simply because it was included in the articles of the constitution.42
The contrast between the flexibility of the English and the rigidity of almost every foreign constitution suggests two interesting inquiries.
First, does the rigidity of a constitution secure its permanence and invest the fundamental institutions of the state with practical immutability?
To this inquiry historical experience gives an indecisive answer.
In some instances the fact that certain laws or institutions of a state have been marked off as placed beyond the sphere of political controversy, has, apparently, prevented that process of gradual innovation which in England has, within not much more than sixty years, transformed our polity. The constitution of Belgium stood for more than half a century without undergoing, in form at least, any material change whatever. The constitution of the United States has lasted for more than a hundred years, but has not undergone anything like the amount of change which has been experienced by the constitution of England since the death of George the Third.43 But if the inflexibility of constitutional laws has in certain instances checked the gradual and unconscious process of innovation by which the foundations of a commonwealth are undermined, the rigidity of constitutional forms has in other cases provoked revolution. The twelve unchangeable constitutions of France have each lasted on an average for less than ten years, and have frequently perished by violence. Louis Philippe's monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power existed legally capable of altering the articles of the Charter. In one notorious instance at least—and other examples of the same phenomenon might be produced from the annals of revolutionary France—the immutability of the constitution was the ground or excuse for its violent subversion. The best plea for the Coup d'état of 1851 was, that while the French people wished for the re-election of the President, the article of the constitution requiring a majority of three-fourths of the legislative assembly in order to alter the law which made the President's reelection impossible, thwarted the will of the sovereign people. Had the Republican Assembly been a sovereign Parliament, Louis Napoleon would have lacked the plea, which seemed to justify, as well as some of the motives which tempted him to commit, the crime of the 2nd of December.
Nor ought the perils in which France was involved by the immutability with which the statesmen of 1848 invested the constitution to be looked upon as exceptional; they arose from a defect which is inherent in every rigid constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of the law into conflict with the will of the really supreme power in the state. The majority of French electors were under the constitution the true sovereign of France; but the rule which prevented the legal re-election of the President in effect brought the law of the land into conflict with the will of the majority of the electors, and produced, therefore, as a rigid constitution has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If the inflexibility of French constitutions has provoked revolution, the flexibility of English institutions has, once at least, saved them from violent overthrow. To a student, who at this distance of time calmly studies the history of the first Reform Bill, it is apparent, that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a political revolution under the guise of a legal reform.
The rigidity, in short, of a constitution tends to check gradual innovation; but, just because it impedes change, may, under unfavourable circumstances, occasion or provoke revolution.
Secondly, what are the safeguards which under a rigid constitution can be taken against unconstitutional legislation?
The general answer to our inquiry (which of course can have no application to a country like England, ruled by a sovereign Parliament) is that two methods may be, and have been, adopted by the makers of constitutions, with a view to rendering unconstitutional legislation, either impossible, or inoperative.
Reliance may be placed upon the force of public opinion and upon the ingenious balancing of political powers for restraining the legislature from passing unconstitutional enactments. This system opposes unconstitutional legislation by means of moral sanctions, which resolve themselves into the influence of public sentiment.
Authority, again, may be given to some person or body of persons, and preferably to the Courts, to adjudicate upon the constitutionality of legislative acts, and treat them as void if they are inconsistent with the letter or the spirit of the constitution. This system attempts not so much to prevent unconstitutional legislation as to render it harmless through the intervention of the tribunals, and rests at bottom on the authority of the judges.
This general account of the two methods by which it may be attempted to secure the rigidity of a constitution is hardly intelligible without further illustration. Its meaning may be best understood by a comparison between the different policies in regard to the legislature pursued by two different classes of constitutionalists.
French constitution-makers and their continental followers have, as we have seen, always attached vital importance to the distinction between fundamental and other laws, and therefore have constantly created legislative assemblies which possessed “legislative” without possessing “constituent” powers. French statesmen have therefore been forced to devise means for keeping the ordinary legislature within its appropriate sphere. Their mode of procedure has been marked by a certain uniformity; they have declared on the face of the constitution the exact limits imposed upon the authority of the legislature; they have laid down as articles of the constitution whole bodies of maxims intended to guide and control the course of legislation; they have provided for the creation, by special methods and under special conditions, of a constituent body which alone should be entitled to revise the constitution. They have, in short, directed their attention to restraining the ordinary legislature from attempting any inroad upon the fundamental laws of the state; but they have in general trusted to public sentiment,44 or at any rate to political considerations, for inducing the legislature to respect the restraints imposed on its authority, and have usually omitted to provide machinery for annulling unconstitutional enactments, or for rendering them of no effect.
These traits of French constitutionalism are specially noticeable in the three earliest of French political experiments. The Monarchical constitution of 1791, the Democratic constitution of 1793, the Directorial constitution of 1795 exhibit, under all their diversities, two features in common.45 They each, on the one hand, confine the power of the legislature within very narrow limits indeed; under the Directory, for instance, the legislative body could not itself change any one of the 377 articles of the constitution, and the provisions for creating a constituent assembly were so framed that not the very least alteration in any of these articles could have been carried out within a period of less than nine years.46 None of these constitutions, on the other hand, contain a hint as to the mode in which a law is to be treated which is alleged to violate the constitution. Their framers indeed hardly seem to have recognised the fact that enactments of the legislature might, without being in so many words opposed to the constitution, yet be of dubious constitutionality, and that some means would be needed for determining whether a given law was or was not in opposition to the principles of the constitution.
These characteristics of the revolutionary constitutions have been reported in the works of later French constitutionalists. Under the present French Republic there exist a certain number of laws (not it is true a very large number), which the Parliament cannot change; and what is perhaps of more consequence, the so-called Congress47 could at any time increase the number of fundamental laws, and thereby greatly decrease the authority of future Parliaments. The constitution, however, contains no article providing against the possibility of an ordinary Parliament carrying through legislation greatly in excess of its constitutional powers. Any one in fact who bears in mind the respect paid in France from the time of the Revolution onwards to the legislation of de facto governments and the traditions of the French judicature, will assume with confidence that an enactment passed through the Chambers, promulgated by the President, and published in the Bulletin des Lois, will be held valid by every tribunal throughout the Republic.
This curious result therefore ensues. The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort will be enforced by the Courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution and from the resulting support of public opinion. What is true of the constitution of France applies with more or less force to other politics which have been formed under the influence of French ideas. The Belgian constitution, for example, restricts the action of the Parliament no less than does the Republican constitution of France. But it is at least doubtful whether Belgian constitutionalists have provided any means whatever for invalidating laws which diminish or do away with the rights (e.g. the right of freedom of speech) “guaranteed” to Belgian citizens. The jurists of Belgium maintain, in theory at least, that an Act of Parliament opposed to any article of the constitution ought to be treated by the Courts as void. But during the whole period of Belgian independence, no tribunal, it is said, has ever pronounced judgment upon the constitutionality of an Act of Parliament. This shows, it may be said, that the Parliament has respected the constitution, and certainly affords some evidence that, under favourable circumstances, formal declarations of rights may, from their influence on popular feeling, possess greater weight than is generally attributed to them in England; but it also suggests the notion that in Belgium, as in France, the restrictions on Parliamentary authority are supported mainly by moral or political sentiment, and are at bottom rather constitutional understandings than laws.
To an English critic, indeed, the attitude of continental and especially of revolutionary statesmen towards the ordinary legislature bears an air of paradox. They seem to be almost equally afraid of leaving the authority of the ordinary legislature unfettered, and of taking the steps by which the legislature may be prevented from breaking through the bonds imposed upon its power. The explanation of this apparent inconsistency is to be found in two sentiments which have influenced French constitution-makers from the very outbreak of the Revolution—an over-estimate of the effect to be produced by general declarations of rights, and a settled jealousy of any intervention by the judges in the sphere of politics.48 We shall see, in a later chapter, that the public law of France is still radically influenced by the belief, even now almost universal among Frenchmen, that the law Courts must not be allowed to interfere in any way whatever with matters of state, or indeed with anything affecting the machinery of government.49
The authors of the American constitution have, for reasons that will appear in my next chapter, been even more anxious than French statesmen to limit the authority of every legislative body throughout the Republic. They have further shared the faith of continental politicians in the value possessed by general declarations of rights. But they have, unlike French constitution-makers, directed their attention, not so much to preventing Congress and other legislatures from making laws in excess of their powers, as to the invention of means by which the effect of unconstitutional laws may be nullified; and this result they have achieved by making it the duty of every judge throughout the Union to treat as void any enactment which violates the constitution, and thus have given to the restrictions contained in the constitution on the legislative authority either of Congress or the State legislatures the character of real laws, that is, of rules enforced by the Courts. This system, which makes the judges the guardians of the constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation.
Chapter III
PARLIAMENTARY SOVEREIGNTY
AND FEDERALISM
My present aim is to illustrate the nature of Parliamentary sovereignty as it exists in England, by a comparison with the system of government known as Federalism as it exists in several parts of the civilised world, and especially in the United States of America.1
There are indeed to be found at the present time three other noteworthy examples of federal government—the Swiss Confederation, the Dominion of Canada, and the German Empire.2 But while from a study of the institutions of each of these states one may draw illustrations which throw light on our subject, it will be best to keep our attention throughout this chapter fixed mainly on the institutions of the great American Republic. And this for two reasons. The Union, in the first place, presents the most completely developed type of federalism. All the features which mark that scheme of government, and above all the control of the legislature by the Courts, are there exhibited in their most salient and perfect form; the Swiss Confédération3 , moreover, and the Dominion of Canada, are more or less copied from the American model, whilst the constitution of the German Empire is too full of anomalies, springing both from historical and from temporary causes, to be taken as a fair representative of any known form of government. The Constitution of the United States, in the second place, holds a very peculiar relation towards the institutions of England. In the principle of the distribution of powers which determines its form, the Constitution of the United States is the exact opposite of the English constitution, the very essence of which is, as I hope I have now made clear, the unlimited authority of Parliament. But while the formal differences between the constitution of the American Republic and the constitution of the English monarchy are, looked at from one point of view, immense, the institutions of America are in their spirit little else than a gigantic development of the ideas which lie at the basis of the political and legal institutions of England. The principle, in short, which gives its form to our system of government is (to use a foreign but convenient expression) “unitarianism,” or the habitual exercise of supreme legislative authority by one central power, which in the particular case is the British Parliament. The principle which, on the other hand, shapes every part of the American polity, is that distribution of limited, executive, legislative, and judical authority among bodies each co-ordinate with and independent of the other which, we shall in a moment see, is essential to the federal form of government. The contrast therefore between the two polities is seen in its most salient form, and the results of this difference are made all the more visible because in every other respect the institutions of the English people on each side the Atlantic rest upon the same notions of law, of justice, and of the relation between the rights of individuals and the rights of the government, or the state.
We shall best understand the nature of federalism and the points in which a federal constitution stands in contrast with the Parliamentary constitution of England if we note, first, the conditions essential to the existence of a federal state and the aim with which such a state is formed; secondly, the essential features of a federal union; and lastly, certain characteristics of federalism which result from its very nature, and form points of comparison, or contrast, between a federal polity and a system of Parliamentary sovereignty.
A federal state requires for its formation two conditions.4
There must exist, in the first place, a body of countries such as the Cantons of Switzerland, the Colonies of America, or the Provinces of Canada, so closely connected by locality, by history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality. It will also be generally found (if we appeal to experience) that lands which now form part of a federal state were at some stage of their existence bound together by close alliance or by subjection to a common sovereign. It were going further than facts warrant to assert that this earlier connection is essential to the formation of a federal state. But it is certain that where federalism flourishes it is in general the slowly-matured fruit of some earlier and looser connection.
A second condition absolutely essential to the founding of a federal system is the existence of a very peculiar state of sentiment among the inhabitants of the countries which it is proposed to unite. They must desire union, and must not desire unity. If there be no desire to unite, there is clearly no basis for federalism; the wild scheme entertained (it is said) under the Commonwealth of forming a union between the English Republic and the United Provinces was one of those dreams which may haunt the imagination of politicians but can never be transformed into fact. If, on the other hand, there be a desire for unity, the wish will naturally find its satisfaction, not under a federal, but under a unitarian constitution; the experience of England and Scotland in the eighteenth and of the states of Italy in the nineteenth century shows that the sense of common interests, or common national feeling, may be too strong to allow of that combination of union and separation which is the foundation of federalism. The phase of sentiment, in short, which forms a necessary condition for the formation of a federal state is that the people of the proposed state should wish to form for many purposes a single nation, yet should not wish to surrender the individual existence of each man's State or Canton. We may perhaps go a little farther, and say, that a federal government will hardly be formed unless many of the inhabitants of the separate States feel stronger allegiance to their own State than to the federal state represented by the common government. This was certainly the case in America towards the end of the eighteenth century, and in Switzerland at the middle of the nineteenth century. In 1787 a Virginian or a citizen of Massachusetts felt a far stronger attachment to Virginia or to Massachusetts than to the body of the confederated States. In 1848 the citizens of Lucerne felt far keener loyalty to their Canton than to the confederacy, and the same thing, no doubt, held true in a less degree of the men of Berne or of Zurich. The sentiment therefore which creates a federal state is the prevalence throughout the citizens of more or less allied countries of two feelings which are to a certain extent inconsistent—the desire for national unity and the determination to maintain the independence of each man's separate State. The aim of federalism is to give effect as far as possible to both these sentiments.
A federal state is a political contrivance intended to reconcile national unity and power with the maintenance of “state rights.” “The end aimed at fixes the essential character of federalism. For the method by which Federalism attempts to reconcile the apparently inconsistent claims of national sovereignty and of state sovereignty consists of the formation of a constitution under which the ordinary powers5 of sovereignty are elaborately divided between the common or national government and the separate states. The details of this division vary under every different federal constitution, but the general principle on which it should rest is obvious. Whatever concerns the nation as a whole should be placed under the control of the national government. All matters which are not primarily of common interest should remain in the hands of the several States. The preamble to the Constitution of the United States recites that
We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The tenth amendment enacts that “the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.” These two statements, which are reproduced with slight alteration in the constitution of the Swiss Confederation,6 point out the aim and lay down the fundamental idea of federalism.
From the notion that national unity can be reconciled with state independence by a division of powers under a common constitution between the nation on the one hand and the individual States on the other, flow the three leading characteristics of completely developed federalism, —the supremacy of the constitution— the distribution among bodies with limited and co-ordinate authority of the different powers of government— the authority of the Courts to act as interpreters of the constitution.
A federal state derives its existence from the constitution, just as a corporation derives its existence from the grant by which it is created. Hence, every power, executive, legislative, or judicial, whether it belong to the nation or to the individual States, is subordinate to and controlled by the constitution. Neither the President of the United States nor the Houses of Congress, nor the Governor of Massachusetts, nor the Legislature or General Court of Massachusetts, can legally exercise a single power which is inconsistent with the articles of the Constitution. This doctrine of the supremacy of the constitution is familiar to every American, but in England even trained lawyers find a difficulty in following it out of its legitimate consequences. The difficulty arises from the fact that under the English constitution no principle is recognised which bears any real resemblance to the doctrine (essential to federalism) that the Constitution constitutes the “supreme law of the land.”7 In England we have laws which may be called fundamental8 or constitutional because they deal with important principles (as, for example, the descent of the Crown or the terms of union with Scotland) lying at the basis of our institutions, but with us there is no such thing as a supreme law, or law which tests the validity of other laws. There are indeed important statutes, such as the Act embodying the Treaty of Union with Scotland, with which it would be political madness to tamper gratuitously; there are utterly unimportant statutes, such, for example, as the Dentists Act, 1878, which may be repealed or modified at the pleasure or caprice of Parliament; but neither the Act of Union with Scotland nor the Dentists Act, 1878, has more claim than the other to be considered a supreme law. Each embodies the will of the sovereign legislative power; each can be legally altered or repealed by Parliament; neither tests the validity of the other. Should the Dentists Act, 1878, unfortunately contravene the terms of the Act of Union, the Act of Union would be pro tanto repealed, but no judge would dream of maintaining that the Dentists Act, 1878, was thereby rendered invalid or unconstitutional. The one fundamental dogma of English constitutional law is the absolute legislative sovereignty or despotism of the King in Parliament. But this dogma is incompatible with the existence of a fundamental compact, the provisions of which control every authority existing under the constitution.9
The foundations of a federal state are a complicated contract. This compact contains a variety of terms which have been agreed to, and generally after mature deliberation, by the States which make up the confederacy. To base an arrangement of this kind upon understandings or conventions would be certain to generate misunderstandings and disagreements. The articles of the treaty, or in other words of the consitution, must therefore be reduced to writing. The constitution must be a written document, and, if possible, a written document of which the terms are open to no misapprehension. The founders of the American Union left at least one great question unsettled. This gap in the Constitution gave an opening to the dispute which was the plea, if not the justification, for the war of secession.10
The constitution must be what I have termed a “rigid”11 or “inexpansive” constitution.
The law of the constitution must be either legally immutable, or else capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether federal or state legislatures, existing under the constitution.
In spite of the doctrine enunciated by some jurists that in every country there must be found some person or body legally capable of changing every institution thereof, it is hard to see why it should be held inconceivable12 that the founders of a polity should have deliberately omitted to provide any means for lawfully changing its bases. Such an omission would not be unnatural on the part of the authors of a federal union, since one main object of the States entering into the compact is to prevent further encroachments upon their several state rights; and in the fifth article of the United States Constitution may still be read the record of an attempt to give to some of its provisions temporary immutability. The question, however, whether a federal constitution necessarily involves the existence of some ultimate sovereign power authorised to amend or alter its terms is of merely speculative interest, for under existing federal governments the constitution will be found to provide the means for its own improvement.13 It is, at any rate, certain that whenever the founders of a federal government hold the maintenance of a federal system to be of primary importance, supreme legislative power cannot be safely vested in any ordinary legislature acting under the constitution.14 For so to vest legislative sovereignty would be inconsistent with the aim of federalism, namely, the permanent division between the spheres of the national government and of the several States. If Congress could legally change the Constitution, New York and Massachusetts would have no legal guarantee for the amount of independence reserved to them under the Constitution, and would be as subject to the sovereign power of Congress as is Scotland to the sovereignty of Parliament; the Union would cease to be a federal state, and would become a unitarian republic. If, on the other hand, the legislature of South Carolina could of its own will amend the Constitution, the authority of the central government would (from a legal point of view) be illusory; the United States would sink from a nation into a collection of independent countries united by the bond of a more or less permanent alliance. Hence the power of amending the Constitution has been placed, so to speak, outside the Constitution, and one may say, with sufficient accuracy for our present purpose, that the legal sovereignty of the United States resides in the States' governments as forming one aggregate body represented by three-fourths of the several States at any time belonging to the Union.15 Now from the necessity for placing ultimate legislative authority in some body outside the Constitution a remarkable consequence ensues. Under a federal as under a unitarian system there exists a sovereign power, but the sovereign is in a federal state a despot hard to rouse. He is not, like the English Parliament, an ever-wakeful legislator, but a monarch who slumbers and sleeps. The sovereign of the United States has been roused to serious action but once during the course of more than a century. It needed the thunder of the Civil War to break his repose, and it may be doubted whether anything short of impending revolution will ever again arouse him to activity. But a monarch who slumbers for years is like a monarch who does not exist. A federal constitution is capable of change, but for all that a federal constitution is apt to be unchangeable.16
Every legislative assembly existing under a federal constitution is merely17 a subordinate law-making body, whose laws are of the nature of bye-laws, valid whilst within the authority conferred upon it by constitution, but invalid or unconstitutional if they go beyond the limits of such authority.
There is an apparent absurdity18 in comparing the legislature of the United States to an English railway company or a municipal corporation, but the comparison is just. Congress can, within the limits of its legal powers, pass laws which bind every man throughout the United States. The Great Eastern Railway Company can, in like manner, pass laws which bind every man throughout the British dominions. A law passed by Congress which in in excess of its legal powers, as contravening the Constitution, is invalid; a law passed by the Great Eastern Railway Company in excess of the powers given by Act of Parliament, or, in other words, by the legal constitution of the company, is also invalid; a law passed by Congress is called an “Act” of Congress, and if ultra vires is described as “unconstitutional”; a law passed by the Great Eastern Railway Company is called a “bye-law,” and if ultra vires is called, not “unconstitutional,” but “invalid.” Differences, however, of words must not conceal from us essential similarity in things. Acts of Congress, or of the Legislative Assembly of New York or of Massachusetts, are at bottom simply “bye-laws,” depending for their validity upon their being within the powers given to Congress or to the state legislatures by the Constitution. The bye-laws of the Great Eastern Railway Company, imposing fines upon passengers who travel over their line without a ticket, are laws, but they are laws depending for their validity upon their being within the powers conferred upon the Company by Act of Parliament, i.e. by the Company's constitution. Congress and the Great Eastern Railway Company are in truth each of them nothing more than subordinate law-making bodies. Their power differs not in degree, but in kind, from the authority of the sovereign Parliament of the United Kingdom.19
The distribution of powers is an essential feature of federalism. The object for which a federal state is formed involves a division of authority between the national government and the separate States. The powers given to the nation form in effect so many limitations upon the authority of the separate States, and as it is not intended that the central government should have the opportunity of encroaching upon the rights retained by the States, its sphere of action necessarily becomes the object of rigorous definition. The Constitution, for instance, of the United States delegates special and closely defined powers to the executive, to the legislature, and to the judiciary of the Union, or in effect to the Union itself, whilst it provides that the powers “not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.”20
This is all the amount of division which is essential to a federal constitution. But the principle of definition and limitation of powers harmonises so well with the federal spirit that it is generally carried much farther than is dictated by the mere logic of the constitution. Thus the authority assigned to the United States under the Constitution is not concentrated in any single official or body of officials. The President has definite rights, upon which neither Congress nor the judicial department can encroach. Congress has but a limited, indeed a very limited, power of legislation, for it can make laws upon eighteen topics only; yet within its own sphere it is independent both of the President and of the Federal Courts. So, lastly, the judiciary have their own powers. They stand on a level both with the President and with Congress, and their authority (being directly derived from the constitution) cannot, without a distinct violation of law, be trenched upon either by the executive or by the legislature. Where, further, States are federally united, certain principles of policy or of justice must be enforced upon the whole confederated body as well as upon the separate parts thereof, and the very inflexibility of the constitution tempts legislators to place among constitutional articles maxims which (though not in their nature constitutional) have special claims upon respect and observance. Hence spring additional restrictions on the power both of the federation and of the separate states. The United States Constitution prohibits both to Congress21 and to the separate States22 the passing of a bill of attainder or an ex post facto law, the granting of any title of nobility, or in effect the laying of any tax on articles exported from any State,23 enjoins that full faith shall be given to the public acts and judicial proceedings of every other State, hinders any State from passing any law impairing the obligation of contracts,24 and prevents every State from entering into any treaty, alliance, or confederation; thus it provides that the elementary principles of justice, freedom of trade, and the rights of individual property shall be absolutely respected throughout the length and breadth of the Union. It further ensures that the right of the people to keep and bear arms shall not be infringed, while it also provides that no member can be expelled from either House of Congress without the concurrence of two-thirds of the House. Other federal constitutions go far beyond that of the United States in ascribing among constitutional articles either principles or petty rules which are supposed to have a claim of legal sanctity; the Swiss Constitution is full of “guaranteed” rights.
Nothing, however, would appear to an English critic to afford so striking an example of the connection between federalism and the “limitation of powers” as the way in which the principles of the federal Constitution pervade in America the constitutions of the separate States. In no case does the legislature of any one State possess all the powers of “state sovereignty” left to the States by the Constitution of the Republic, and every state legislature is subordinated to the constitution of the State.25 The ordinary legislature of New York or Massachusetts can no more change the state constitution than it can alter the Constitution of the United States itself; and, though the topic cannot be worked out here in detail, it may safely be asserted that state government throughout the Union is formed upon the federal model, and (what is noteworthy) that state constitutions have carried much further than the Constitution of the Republic the tendency to clothe with constitutional immutability any rules which strike the people as important. Illinois has embodied, among fundamental laws, regulations as to elevators.26
But here, as in other cases, there is great difficulty in distinguishing cause and effect. If a federal form of government has affected, as it probably has, the constitutions of the separate States, it is certain that features originally existing in the State constitutions have been reproduced in the Constitution of the Union; and, as we shall see in a moment, the most characteristic institution of the United States, the Federal Court, appears to have been suggested at least to the founders of the Republic, by the relation which before 1789 already existed between the state tribunals and the state legislatures.27
The tendency of federalism to limit on every side the action of government and to split up the strength of the state among coordinate and independent authorities is specially noticeable, because it forms the essential distinction between a federal system such as that of America or Switzerland, and a Unitarian system of government such as that which exists in England or Russia. We talk indeed of the English constitution as resting on a balance of powers, and as maintaining a division between the executive, the legislative, and the judicial bodies. These expressions have a real meaning. But they have quite a different significance as applied to England from the sense which they bear as applied to the United States. All the power of the English state is concentrated in the Imperial Parliament, and all departments of government are legally subject to Parliamentary despotism. Our judges are independent, in the sense of holding their office by a permanent tenure, and of being raised above the direct influence of the Crown or the Ministry; but the judicial department does not pretend to stand on a level with Parliament; its functions might be modified at any time by an Act of Parliament; and such a statute would be no violation of the law. The Federal Judiciary, on the other hand, are co-ordinate with the President and with Congress, and cannot without a revolution be deprived of a single right by President or Congress. So, again, the executive and the legislature are with us distinct bodies, but they are not distinct in the sense in which the President is distinct from and independent of the Houses of Congress. The House of Commons interferes with administrative matters, and the Ministry are in truth placed and kept in office by the House. A modern Cabinet would not hold power for a week if censured by a newly elected House of Commons. An American President may retain his post and exercise his very important functions even though his bitterest opponents command majorities both in the Senate and in the House of Representatives. Unitarianism, in short, means the concentration of the strength of the state in the hands of one visible sovereign power, be that power Parliament or Czar. Federalism means the distribution of the force of the state among a number of co-ordinate bodies each originating in and controlled by the constitution.
Whenever there exists, as in Belgium or in France, a more or less rigid constitution, the articles of which cannot be amended by the ordinary legislature, the difficulty has to be met of guarding against legislation inconsistent with the constitution. As Belgian and French statesmen have created no machinery for the attainment of this object, we may condude that they considered respect for the constitution to be sufficiently secured by moral or political sanctions, and treated the limitations placed on the power of Parliament rather as maxims of policy than as true laws. During a period, at any rate of more than sixty years, no Belgian judge has (it is said) ever pronounced a Parliamentary enactment unconstitutional. No French tribunal, as has been already pointed out, would hold itself at liberty to disregard an enactment, however unconstitutional, passed by the National Assembly, inserted in the Bulletin des Lois, and supported by the force of the government; and French statesmen may well have thought, as Tocqueville certainly did think, that in France possible Parliamentary invasions of the constitution were a less evil than the participation of the judges in political conflicts. France, in short, and Belgium being governed under unitarian constitutions, the non-sovereign character of the legislature is in each case an accident, not an essential property of their polity. Under a federal system it is otherwise. The legal supremacy of the constitution is essential to the existence of the state; the glory of the founders of the United States is to have devised or adopted arrangements under which the Constitution became in reality as well as name the supreme law of the land.
This end they attained by adherence to a very obvious principle, and by the invention of appropriate machinery for carrying this principle into effect.
The principle is clearly expressed in the Constitution of the United States (article 6):
The Constitution and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.28
The import of these expressions is unmistakable. Chancellor Kent writes:
Every Act of Congress and every Act of the legislatures of the States, and every part of the constitution of any State, which are repugnant to the Constitution of the United States, are necessarily void. This is a dear and settled principle of [our] constitutional jurisprudence.29
The legal duty therefore of every judge, whether he act as a judge of the State of New York or as a judge of the Supreme Court of the United States, is clear. He is bound to treat as void every legislative act, whether proceeding from Congress or from the state legislatures, which is inconsistent with the Constitution of the United States. His duty is as clear as that of an English judge called upon to determine the validity of a bye-law made by the Great Eastern or any other Railway Company. The American judge must in giving judgment obey the terms of the Constitution, just as his English brother must in giving judgment obey every Act of Parliament bearing on the case.
To have laid down the principle with distinctness is much, but the great problem was how to ensure that the principle should be obeyed; for there existed a danger that judges depending on the federal government should wrest the Constitution in favour of the central power, and that judges created by the States should wrest it in favour of State rights or interests. This problem has been solved by the creation of the Supreme Court and of the Federal Judiciary.
Of the nature and position of the Supreme Court itself thus much alone need for our present purpose be noted. The Court derives its existence from the Constitution, and stands therefore on an equality with the President and with Congress; the members thereof (in common with every judge of the Federal Judiciary) hold their places during good behaviour, at salaries which cannot be diminished during a judge's tenure of office.30 The Supreme Court stands at the head of the whole federal judicial department, which, extending by its subordinate Courts throughout the Union, can execute its judgments through its own officers without requiring the aid of state officials. The Supreme Court, though it has a certain amount of original jurisdiction, derives its importance from its appellate character; it is on every matter which concerns the interpretation of the Constitution a supreme and final Court of Appeal from the decision of every Court (whether a Federal Court or a State Court) throughout the Union. It is in fact the final interpreter of the Constitution, and therefore has authority to pronounce finally as a Court of Appeal whether a law passed either by Congress or by the legislature of a State, e.g. New York, is or is not constitutional. To understand the position of the Supreme Court we must bear in mind that there exist throughout the Union two classes of Courts in which proceedings can be commenced, namely, the subordinate federal Courts deriving their authority from the Constitution, and the state Courts, e.g. of New York or Massachusetts, created by and existing under the state constitutions; and that the jurisdiction of the federal judiciary and the state judiciary is in many cases concurrent, for though the jurisdiction of the federal Courts is mainly confined to cases arising under the Constitution and laws of the United States, it is also frequently dependent upon the character of the parties, and though there are cases with which no state Court can deal, such a Court may often entertain cases which might be brought in a federal Court, and constantly has to consider the effect of the Constitution on the validity either of a law passed by Congress or of state legislation. That the Supreme Court should be a Court of Appeal from the decision of the subordinate federal tribunals is a matter which excites no surprise. The point to be noted is that it is also a Court of Appeal from decisions of the Supreme Court of any State, e.g. New York, which turn upon or interpret the articles of the Constitution or Acts of Congress. The particular cases in which a party aggrieved by the decision of a state Court has a right of appeal to the Supreme Court of the United States are regulated by an Act of Congress of 24th September 1789, the twenty-fifth section of which provides that
a final judgment or decree, in any suit in the highest court of law or equity of a State, may be brought up on error in point of law, to the Supreme Court of the United States, provided the validity of a treaty, or statute of, or authority exercised under the United States, was drawn in question in the state court, and the decision was against the validity; or provided the validity of any state authority was drawn in question, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favour of its validity; or provided the construction of any clause of the Constitution or of a treaty, or statute of, or commission held under the United States, was drawn in question, and the decision was against the title, right, privilege, or exemption, specially claimed under the authority of the Union.31
Strip this enactment of its technicalities and it comes to this. A party to a case in the highest Court, say of New York, who bases his claim or defence upon an article in the Constitution or law made under it, stands in this position: If judgment be in his favour there is no further appeal; if judgment goes against him, he has a right of appeal to the Supreme Court of the United States. Any lawyer can see at a glance how well devised is the arrangement to encourage state Courts in the performance of their duty as guardians of the Constitution, and further that the Supreme Court thereby becomes the ultimate arbiter of all matters affecting the Constitution.
Let no one for a moment fancy that the right of every Court, and ultimately of the Supreme Court, to pronounce on the constitutionality of legislation and on the rights possessed by different authorities under the Constitution is one rarely exercised, for it is in fact a right which is constantly exerted without exciting any more surprise on the part of the citizens of the Union than does in England a judgment of the King's Bench Division treating as invalid the bye-law of a railway company. The American tribunals have dealt with matters of supreme consequence; they have determined that Congress has the right to give priority to debts due to the United States,32 can lawfully incorporate a bank,33 has a general power to levy or collect taxes without any restraint, but subject to definite principles of uniformity prescribed by the Constitution; the tribunals have settled what is the power of Congress over the militia, who is the person who has a right to command it,34 and that the power exercised by Congress during the War of Secession of issuing paper money was valid.35 The Courts again have controlled the power of the separate States fully as vigorously as they have defined the authority of the United States. The judiciary have pronounced unconstitutional every ex post facto law, every law taxing even in the slightest degree articles exported from any State, and have again deprived of effect state laws impairing the obligation of contracts. To the judiciary in short are due the maintenance of justice, the existence of internal free trade, and the general respect for the rights of property; whilst a recent decision shows that the Courts are prepared to uphold as consistent with the Constitution any laws which prohibit modes of using private property, which seem to the judges inconsistent with public interest.36 The power moreover of the Courts which maintains the articles of the Constitution as the law of the land, and thereby keeps each authority within its proper sphere, is exerted with an ease and regularity which has astounded and perplexed continental critics. The explanation is that while the judges of the United States control the action of the Constitution, they nevertheless perform purely judicial functions, since they never decide anything but the cases before them. It is natural to say that the Supreme Court pronounces Acts of Congress invalid, but in fact this is not so. The Court never directly pronounces any opinion whatever upon an Act of Congress. What the Court does do is simply to determine that in a given case A is or is not entitled to recover judgment against X; but in determining that case the Court may decide that an Act of Congress is not to be taken into account, since it is an Act beyond the constitutional powers of Congress.37
If any one thinks this is a distinction without a difference he shows some ignorance of politics, and does not understand how much the authority of a Court is increased by confining its action to purely judicial business. But persons who, like Tocqueville, have fully appreciated the wisdom of the statesmen who created the Union, have formed perhaps an exaggerated estimate of their originality. Their true merit was that they applied with extraordinary skill the notions which they had inherited from English law to the novel circumstances of the new republic. To any one imbued with the traditions of English procedure it must have seemed impossible to let a Court decide upon anything but the case before it. To any one who had inhabited a colony governed under a charter the effect of which on the validity of a colonial law was certainly liable to be considered by the Privy Council, there was nothing startling in empowering the judiciary to pronounce in given cases upon the constitutionality of Acts passed by assemblies whose powers were limited by the Constitution, just as the authority of the colonial legislatures was limited by charter or by Act of Parliament. To a French jurist, indeed, filled with the traditions of the French Parliaments, all this might well be incomprehensible, but an English lawyer can easily see that the fathers of the republic treated Acts of Congress as English Courts treat bye-laws, and in forming the Supreme Court may probably have had in mind the functions of the Privy Council. It is still more certain that they had before their eyes cases in which the tribunals of particular States had treated as unconstitutional, and therefore pronounced void, Acts of the state legislature which contravened the state constitution. The earliest case of declaring a law unconstitutional dates (it is said) from 1786, and took place in Rhode Island, which was then, and continued 1842, to be governed under the charter of Charles II. An Act of the legislature was declared unconstitutional by the Courts of North Carolina in 178738 and by the Courts of Virginia in 1788,39 whilst the Constitution of the United States was not adopted fill 1789, and Marbury v.Madison, the first case in which the Supreme Court dealt with the question of constitutionality, was decided in 1803.40
But if their notions were conceptions derived from English law, the great statesmen of America gave to old ideas a perfectly new expansion, and for the first time in the history of the world formed a constitution which should in strictness be “the law of the land,” and in so doing created modern federalism. For the essential characteristics of federalism—the supremacy of the constitution—the distribution of powers—the authority of the judiciary—reappear, though no doubt with modifications, in every true federal state.
Turn for a moment to the Canadian Dominion. The preamble to the British North America Act, 1867, asserts with diplomatic inaccuracy that the Provinces of the present Dominion have expressed their desire to be united into one Dominion “with a constitution similar in principle to that of the United Kingdom.” If preambles were intended to express anything like the whole truth, for the word “Kingdom” ought to have been substituted “States”: since it is clear that the Constitution of the Dominion is in its essential features modelled on that of the Union. This is indeed denied, but in my judgment without adequate grounds, by competent Canadian critics.41 The differences between the institutions of the United States and of the Dominion are of course both considerable and noteworthy. But no one can study the provisions of the British North America Act, 1867, without seeing that its authors had the American Constitution constantly before their eyes, and that if Canada were an independent country it would be a Confederacy governed under a Constitution very similar to that of the United States. The Constitution is the law of the land; it cannot be changed (except within narrow limits allowed by the British North America Act, 1867) either by the Dominion Parliament42 or by the Provincial Parliaments;43 it can be altered only by the sovereign power of the British Parliament.44 Nor does this arise from the Canadian Dominion being a dependency. New Zealand is, like Canada, a colony, but the New Zealand Parliament can with the assent of the Crown do what the Canadian Parliament cannot do—change the colonial constitution. Throughout the Dominion, therefore, the Constitution is in the strictest sense the immutable law of the land. Under this law again, you have, as you would expect, the distribution of powers among bodies of co-ordinate authority;45 though undoubtedly the powers bestowed on the Dominion Government and Parliament are greater when compared with the powers reserved to the Provinces than are the powers which the Constitution of the United States gives to the federal government. In nothing is this more noticeable than in the authority given to46 the Dominion Government to disallow Provincial Acts.47
This right was possibly given with a view to obviate altogether the necessity for invoking the law Courts as interpreters of the Constitution; the founders of the Confederation appear in fact to have believed that
the care taken to define the respective powers of the several legislative bodies in the Dominion would prevent any troublesome or dangerous conflict of authority arising between the central and local governments.48
The futility, however, of a hope grounded on a misconception of the nature of federalism is proved by the existence of two thick volumes of reports filled with cases on the constitutionality of legislative enactments, and by a long list of decisions as to the respective powers possessed by the Dominion and by the Provincial Parliaments— judgments given by the true Supreme Court of the Dominion, namely, the Judicial Committee of the Privy Council. In Canada, as in the United States, the Courts inevitably become the interpreters of the Constitution.
Swiss federalism repeats, though with noteworthy variations, the essential traits of the federal polity as it exists across the Atlantic. The Constitution is the law of the land, and cannot be changed either by the federal or by the cantonal legislative bodies; the Constitution enforces a distribution of powers between the national government and the Cantons, and directly or indirectly defines and limits the power of every authority existing under it. The Common Government has in Switzerland, as in America, three organs—a Federal Legislature, a Federal Executive (Bundesrath), and a Federal Court (Bundesgericht).
Of the many interesting and instructive peculiarities which give to Swiss federalism an individual character, this is not the occasion to write in detail. It lies, however, within the scope of this chapter to note that the Constitution of the Confederation differs in two most important respects from that of the United States. It does not, in the first place, establish anything like the accurate division between the executive and the judicial departments of government which exists both in America and in Canada; the Executive exercises, under the head of “administrative law,” many functions49 of a judicial character, and thus, for example, till 1893 dealt in effect with questions50 having reference to the rights of religious bodies. The Federal Assembly is the final arbiter on all questions as to the respective jurisdiction of the Executive and of the Federal Court. The judges of that Court are elected by the Federal Assembly, they are occupied greatly with questions of public law (Staatsrecht), and so experienced a statesman as Dr. Dubs laments that the Federal Court should possess jurisdiction in matters of private law.51When to this it is added that the judgments of the Federal Court are executed by the government, it at once becomes clear that, according to any English standard, Swiss statesmanship has failed as distinctly as American statesmanship has succeeded in keeping the judicial apart from the executive department of government, and that this failure constitutes a serious flaw in the Swiss Constitution. That Constitution, in the second place, does not in reality place the Federal Court on an absolute level with the Federal Assembly. That tribunal cannot question the constitutionality of laws or decrees passed by the Federal Parliament.52 From this fact one might suppose that the Federal Assembly is (unlike Congress) a sovereign body, but this is not so. The reason why all Acts of the Assembly must be treated as constitutional by the Federal Tribunal is that the Constitution itself almost precludes the possibility of encroachment upon its articles by the federal legislative body. No legal revision can take place without the assent both of a majority of Swiss citizens and of a majority of the Cantons, and an ordinary law duly passed by the Federal Assembly may be legally annulled by a popular veto. The authority of the Swiss Assembly nominally exceeds the authority of Congress, because in reality the Swiss legislative body is weaker than Congress. For while in each case there lies in the background a legislative sovereign capable of controlling the action of the ordinary legislature, the sovereign power is far more easily brought into play in Switzerland than in America. When the sovereign power can easily enforce its will, it may trust to its own action for maintaining its rights; when, as in America, the same power acts but rarely and with difficulty, the Courts naturally become the guardians of the sovereign's will expressed in the articles of the Constitution.
Our survey from a legal point of view of the characteristics common to all federal governments forcibly suggests conclusions of more than merely legal interest, as to the comparative merits of federal government, and the system of Parliamentary sovereignty.
Federal government means weak government.53
The distribution of all the powers of the state among co-ordinate authorities necessarily leads to the result that no one authority can wield the same amount of power as under a unitarian constitution as possessed by the sovereign. A scheme again of checks and balances in which the strength of the common government is so to speak pitted against that of the state governments leads, on the face of it, to a certain waste of energy. A federation therefore will always be at a disadvantage in a contest with unitarian states of equal resources. Nor does the experience either of the United States or of the Swiss confederation invalidate this conclusion. The Union is threatened by no powerful neighbours and needs no foreign policy.54 Circumstances unconnected with constitutional arrangements enable Switzerland to preserve her separate existence, though surrounded by powerful and at times hostile nations. The mutual jealousies moreover incident to federalism do visibly weaken the Swiss Republic. Thus, to take one example only, each member of the Executive must belong to a different canton.55 But this rule may exclude from the government statesmen of high merit, and therefore diminish the resources of the state. A rule that each member of the Cabinet should be the native of a different county would appear to Englishmen palpably absurd. Yet this absurdity is forced upon Swiss politicians, and affords one among numerous instances in which the efficiency of the public service is sacrificed to the requirements of federal sentiment. Switzerland, moreover, is governed under a form of democratic federalism which tends towards unitarianism. Each revision increases the authority of the nation at the expense of cantonal independence. This is no doubt in part due to the desire to strengthen the nation against foreign attack. It is perhaps also due to another circumstance. Federalism, as it defines, and therefore limits, the powers of each department of the administration, is unfavourable to the interference or to the activity of government. Hence a federal government can hardly render services to the nation by undertaking for the national benefit functions which may be performed by individuals. This may be a merit of the federal system; it is, however, a merit which does not commend itself to modern democrats, and no more curious instance can be found of the inconsistent currents of popular opinion which may at the same time pervade a nation or a generation than the coincidence in England of a vague admiration for federalism alongside with a far more decided feeling against the doctrines of so-called laissez faire. A system meant to maintain the status quo in politics is incompatible with schemes for wide social innovation.
Federalism tends to produce conservatism.
This tendency is due to several causes. The constitution of a Federal state must, as we have seen, generally be not only a written but a rigid constitution, that is, a constitution which cannot be changed by any ordinary process of legislation. Now this essential rigidity of federal institutions is almost certain to impress on the minds of citizens the idea that any provision included in the constitution is immutable and, so to speak, sacred. The least observation of American politics shows how deeply the notion that the Constitution is something placed beyond the reach of amendment has impressed popular imagination. The difficulty of altering the Constitution produces conservative sentiment, and national conservatism doubles the difficulty of altering the Constitution. The House of Lords has lasted for centuries; the American Senate has now existed for more than one hundred years, yet to abolish or alter the House of Lords might turn out to be an easier matter than to modify the constitution of the Senate.56 To this one must add that a federal constitution always lays down general principles which, from being placed in the constitution, gradually come to command a superstitious reverence, and thus are in fact, though not in theory, protected from change or criticism. The principle that legislation ought not to impair obligation of contracts has governed the whole course of American opinion. Of the conservative effect of such a maxim when forming an article of the constitution we may form some measure by the following reflection. If any principle of the like kind had been recognised in England as legally binding on the Courts, the Irish Land Act would have been unconstitutional and void; the Irish Church Act, 1869, would, in great part at least, have been from a legal point of view so much waste paper, and there would have been great difficulty in legislating in the way in which the English Parliament has legislated for the reform of the Universities. One maxim only among those embodied in the Constitution of the United States would, that is to say, have been sufficient if adopted in England to have arrested the most vigorous efforts of recent Parliamentary legislation.
Federalism, lastly, means legalism— the predominance of the judiciary in the constitution—the prevalence of a spirit of legality among the people.
That in a confederation like the United States the Courts become the pivot on which the constitutional arrangements of the country turn is obvious. Sovereignty is lodged in a body which rarely exerts its authority and has (so to speak) only a potential existence; no legislature throughout the land is more than a subordinate law-making body capable in strictness of enacting nothing but bye-laws; the powers of the executive are again limited by the constitution; the interpreters of the constitution are the judges. The Bench therefore can and must determine the limits to the authority both of the government and of the legislature; its decision is without appeal; the consequence follows that the Bench of judges is not only the guardian but also at a given moment the master of the constitution.57 Nothing puts in a stronger light the inevitable connection between federalism and the prominent position of the judicial body than the history of modern Switzerland. The statesmen of 1848 desired to give the Bun-desgericht a far less authoritative position than is possessed by the American Supreme Court. They in effect made the Federal Assembly for most, what it still is for some purposes, a final Court of Appeal. But the necessities of the case were too strong for Swiss statesmanship; the revision of 1874 greatly increased the power of the Federal Tribunal.
From the fact that the judicial Bench supports under federal institutions the whole stress of the constitution, a special danger arises lest the judiciary should be unequal to the burden laid upon them. In no country has greater skill been expended on constituting an august and impressive national tribunal than in the United States. Moreover, as already pointed out, the guardianship of the Constitution is in America confided not only to the Supreme Court but to every judge throughout the land. Still it is manifest that even the Supreme Court can hardly support the duties imposed upon it. No one can doubt that the varying decisions given in the legal-tender cases, or in the line of recent judgments of which Munn v. Illinois is a specimen, show that the most honest judges are after all only honest men, and when set to determine matters of policy and statesmanship will necessarily be swayed by political feeling and by reasons of state. But the moment that this bias becomes obvious a Court loses its moral authority, and decisions which might be justified on grounds of policy excite natural indignation and suspicion when they are seen not to be fully justified on grounds of law. American critics indeed are to be found who allege that the Supreme Court not only is proving but always has proved too weak for the burden it is called upon to bear, and that it has from the first been powerless whenever it came into conflict with a State, or could not count upon the support of the Federal Executive. These allegations undoubtedly hit a weak spot in the constitution of the great tribunal. Its judgments are without force, at any rate as against a State if the President refuses the means of putting them into execution. “John Marshall,” said President Jackson, according to a current story,58 “has delivered his judgment; let him now enforce it, if he can”; and the judgment was never put into force. But the weight of criticisms repeated from the earliest days of the Union may easily be exaggerated.59 Laymen are apt to mistake the growth of judicial caution for a sign of judicial weakness. Foreign observers, moreover, should notice that in a federation the causes which bring a body such as the Supreme Court into existence, also supply it with a source of ultimate power. The Supreme Court and institutions like it are the protectors of the federal compact, and the validity of that compact is, in the long run, the guarantee for the rights of the separate States. It is the interest of every man who wishes the federal constitution to be observed, that the judgments of the federal tribunals should be respected. It is therefore no bold assumption that, as long as the people of the United States wish to keep up the balanced system of federalism, they will ultimately compel the central government to support the authority of the federal Court. Critics of the Court are almost driven to assert that the American people are indifferent to State Rights. The assertion may or may not be true; it is a matter on which no English critic should speak with confidence. But censures on the working of a federal Court tell very little against such an institution if they establish nothing more than the almost self-evident proposition that a federal tribunal will be ineffective and superfluous when the United States shall have ceased to be in reality a federation. A federal Court has no proper place in a unitarian Republic.
Judges, further, must be appointed by some authority which is not judidal, and where decisions of a Court control the action of government there exists an irresistible temptation to appoint magistrates who agree (honestly it may be) with the views of the executive. A strong argument pressed against Mr. Blaine's election was, that he would have the opportunity as President of nominating four judges, and that a politician allied with railway companies was likely to pack the Supreme Court with men certain to wrest the law in favour of mercantile corporations. The accusation may have been baseless; the fact that it should have been made, and that even “Republicans” should declare that the time had come when “Democrats” should no longer be excluded from the Bench of the United States, tells plainly enough of the special evils which must be weighed against the undoubted benefits of making the Courts rather than the legislature the arbiters of the constitution.
That a federal system again can flourish only among communities imbued with a legal spirit and trained to reverence the law is as certain as can be any conclusion of political speculation. Federalism substitutes litigation for legislation, and none but a law-fearing people will be inclined to regard the decision of a suit as equivalent to the enactment of a law. The main reason why the United States has carried out the federal system with unequalled success is that the people of the Union are more thoroughly imbued with legal ideas than any other existing nation. Constitutional questions arising out of either the constitutions of the separate States or the articles of the federal Constitution are of daily occurrence and constantly occupy the Courts. Hence the citizens become a people of constitutionalists, and matters which excite the strongest popular feeling, as, for instance, the right of Chinese to settle in the country, are determined by the judicial Bench, and the decision of the Bench is acquiesced in by the people. This acquiescence or submission is due to the Americans inheriting the legal notions of the common law, i.e. of the “most legal system of law” (if the expression may be allowed) in the world. Tocqueville long ago remarked that the Swiss fell far short of the Americans in reverence for law and justice.60 The events of the last sixty years suggest that he perhaps underrated Swiss submission to law. But the law to which Switzerland is accustomed recognises wide discretionary power on the part of the executive, and has never fully severed the functions of the judge from those of the government. Hence Swiss federalism fails, just where one would expect it to fail, in maintaining that complete authority of the Courts which is necessary to the perfect federal system. But the Swiss, though they may not equal the Americans in reverence for judicial decisions, are a law-respecting nation. One may well doubt whether there are many states to be found where the mass of the people would leave so much political influence to the Courts. Yet any nation who cannot acquiesce in the finality of possibly mistaken judgments is hardly fit to form part of a federal state.61
[1]Conf. Blackstone, Commentaries, i. p. 153.
[2]The reader who wishes for fuller information on the nature of judge-made law will find what he wants in Dicey's Law and Public Opinion in England, App. Note iv. p. 482, and in Sir Frederick Pollock's Essays in Jurisprudence and Ethics, p. 237.
[3]Fourth Institute, p. 36.
[4]Blackstone, Commentaries, i. pp. 160, 161. Compare as to sovereignty of Parliament, De Republican Anglorum; A Discourse on the Commonwealth of England, by Sir Thomas Smith, edited by L. Alston, Book ii, chap. i. p. 148. The book was originally published in 1583.
[5]6 Anne, c. 41 (otherwise 6 Anne, c. 7), sec. 1. This enactment is still in force.
[6]George I. st. 2, c. 38.
[7]Hallam, Constitutional History of England, iii. (1872 ed.), p. 236.
[8]Lord Mahon, History of England, i. p. 302.
[9]Thorold Rogers, Protests of the Lords, i. p. 228.
[10]See Priestley on Government (1771), P. 20.
[11]Hallam, Constitutional History, iii. (1872 ed.), p. 236(n.).
[12]Coke, Fourth Institute, p. 36.
[13]See Chap. V. post.
[14]See Stubbs, Constitutional History, i. pp. 126–128, and ii. pp. 245–247.
[15]Stubbs, ibid. ii. chap. xv.
[16]31 Henry VIII.,c. 8.
[17]A critic has objected to the words “awkward mitigation of an acknowledged evil” on the ground that they condemn in England a system which as it exists abroad is referred to as being not without great practical utility. The expression objected to is, however, justifiable. Under the English system elaborate and detailed statutes are passed, and the power to make rules under the statute, e.g. by order in council or otherwise, is introduced only in cases where it is obvious that to embody the rules in the statute is either highly inexpedient or practically impossible. Under the foreign, and especially the French system, the form of laws, or in other words, of statutes, is permanently affected by the knowledge of legislators and draftsmen that any law will be supplemented by decrees. English statutes attempt, and with very little success, to provide for the detailed execution of the laws enacted therein. Foreign laws are, what every law ought to be, statements of general principles.
[18]See Duguit, Manuel de Droit Public Francais—Droit Constitutionnel, ss. 140,141.
[19]See Coke, 12 Rep. p. 74; and Gardiner, History of England, ii. pp. 104, 105.
[20]In rare instances, which are survivals from the time when the King of England was the true “sovereign” in the technical sense of that term, the Crown exercises legislative functions in virtue of the prerogative. Thus the Crown can legislate, by proclamations or orders in council, for a newly conquered country, (Campbell v. Hall, Cowp. 204), and has claimed the right, though the validity thereof is doubtful, to legislate for the Channel Islands by orders in council. In the Matter of the States of Jersey, 9 Moore P. C., n. s. 184, 262. See Stephen, Commentaries (8th ed.), i. pp. 100–102. “The Channel Islands indeed claim to have conquered England, and are the sole fragments of the dukedom of Normandy which still continue attached to the British Crown. For this reason, in these islands alone of all British possessions does any doubt arise as to whether an Act of the imperial Parliament is of its own force binding law. In practice, when an Act is intended to apply to them, a section is inserted authorising the King in Council to issue an Order for the application of the Act to these islands, and requiring the registration of that Order in the islands, and the Order in Council is made by the King and registered by the States accordingly.” Sir H. Jenkyns, British Rule and Jurisdiction beyond the Seas, p. 37. But whatever doubt may arise in the Channel Islands, every English lawyer knows that any English court will hold that an Act of Parliament dearly intended to apply to the Channel Islands is in force there proprio vigore, whether registered by the States or not.
As to the legislative power of the Crown in Colonies which are not self-governing, see further British Rule and Jurisdiction beyond the Seas, p. 95.
As to the legislative power of the Crown in Colonies which are not self-governing, see further British Rule and Jurisdiction beyond the Seas, p. 95.
[21]9 A. & E. 1.
[22]See Stockdale v. Hansard, 9 A. & E. , Case of Sheriff of Middlesex, 11 A. & E. 273; Burdett. v Abbot, 14 East, 1, 111, 131;Bradlaugh v. Gossett, 12 Q. B. D. 272.
[23]Bradlaugh v. Gossett, 1. Q. B. D. 271, 285.
[24]II A. & E. 273.
[25]Conf. Attorney -General v. Bradlaugh, 14 Q. B. D. (C. A.), 667.
[26]Arnould, Memoir of Lord Denman, ii. p. 70. Nothing is harder to define than the extent of the indefinite powers or rights possessed by either House of Parliament under the head of privilege or law and custom of Parliament. The powers exercised by the Houses, and especially in practice by the House of Commons, make a near approach to an authority above that of the ordinary law of the land. Parliamentary privilege has from the nature of things never been the subject of precise legal definition. One or two points are worth notice as being dearly established.
- 1.Either House of Parliament may commit for contempt, and the Courts will not go behind the committal and inquire into the facts constituting the alleged contempt. Hence either House may commit to prison for contempt any person whom the House think guilty of contempt.
- 2.The House of Lords have power to commit an offender to prison for a specified term, even beyond the duration of the session (May, Parliamentary Practice (11th ed.), pp. 91, 92). But the House of Commons do not commit for a definite period, and prisoners committed by the House are, if not sooner discharged, released from their confinement on a prorogation. If they were held longer in custody they would be discharged by the Courts upon a writ of Habeas Corpus (May, Parliamentary Practice, chap. iii.).
- 3.libel upon either House of Parliament or upon a member thereof, in his character of a member, has been often treated as a contempt. (ibid.)
- 4.The Houses and all the members thereof have all the privileges as to freedom of speech, etc., necessary for the performance of their duties. (See generally May's Parliamentary Practice, chap. iii.) Compare as to Parliamentary privilegeShaftesbury's Case, 6 St. Tr. 1269; Flower's Case, 8 T. R. 314; Ashby v. White, 1 Sm. L. Cas. (9th ed.), 268; Wilkes's Case, 19 St. Tr. 1153; Burdett v. Colman, 14 East, 163; Rex v. Creevy, 1M. & S. 273; Clarke v. Bradlaugh, 7 Q. B, D. 38, 8. App. Cas. 354; The Attorney-General v. Bradlaugh, 14 Q. B. D. 667.
[27]See pp. 27–30, post.
[28]Constitution Fédérale de la Confédération Swisse, Arts. 118–121; see Adams, The Swiss Confédération, chap. vi.
[29]Constitution Fédérale de la Confederation Swisse, Art. 89.
[30]Pollock, Essays in Jurisprudence and Ethics, p. 237, and see Dicey, Law and Opinion in England (2nd ed.), pp. 361, 483.
[31]See Austin, Jurisprudence, i. (4th ed.), pp. 270–274, and Holland, Jurisprudence (10th ed.), pp. 47–52 and 359–363. The nature of sovereignty is also stated with brevity and dearness in Lewis, Use and Abuse of Political Terms, pp. 37–53. Compare, for a different view, Bryce, Studies in History and Jurisprudence, ii., Essay ix., Obedience; and Essay x., The Nature of Sovereignty.
[32]Another limitation has been suggested more or less distinctly by judges such as Coke (12 Rep. 76; and Hearn,Government of England (2nd ed.), pp. 48,49); an Act of Parliament cannot (it has been intimated) overrule the principles of the common law. This doctrine once had a real meaning (see Maine, Early History of Institutions, pp. 381, 382), but it has never received systematic judicial sanction and is now obsolete. See Colonial Laws Validity Act, 1865, 28 & 29 Vict. c. 63.
[33]Blackstone, Commentaries, i. p. 40; and see Hearn, Government of England (2nd ed.), pp. 48,49.
[34]See Ex parte Blain, 12 Ch. D. (C. A.), 522, 531, judgment of Cotton, L. J.
[35]See Colquhoun v. Brooks, 21Q. B. D. (C. A.), 52; and compare the language of Lord Esher, pp. 57, 58, with the judgment of Fry, L. J., ibid. pp. 61. 62.
[36]See Stubbs, Constitutional History, ii. pp. 239, 486, 513–515.
[37]Gardiner, History, iii. pp. 2–5; compare, as to Bacon's view of the prerogative, Francis Bacon, by Edwin A. Abbott, pp. 140, 260. 279.
[38]Compare the parliamentary practice in accordance with which the consent or recommendation of the Crown is required to the introduction of bills touching the prerogative or the interests of the Crown.
[39]This doctrine was known to be erroneous by Bacon. “The principal law that was made this Parliament was a law of a strange nature, rather just than legal, and more magnanimous than provident. This law did ordain, That no person that did assist in arms or otherwise the King for the time being, should after be impeached therefor, or attainted either by the course of law or by Act of Parliament; for if any such act of attainder did hap to be made, it should be void and of none effect.… But the force and obligation of this law was in itself illusory, as to the latter part of it; (by a precedent Act of Parliament to bind or frustrate a future). For a supreme and absolute power cannot conclude itself, neither can that which is in nature revocable be made fixed; no more than if a man should appoint or declare by his will that if he made any later will it should be void. And for the case of the Act of Parliament, there is a notable precedent of it in King Henry the Eighth's time, who doubting he might die in the minority of his son, provided an Act to pass, That no statute made during the minority of a king should bind him or his successors, except it were confirmed by the king under his great seal at his full age. But the first Act that passed in King Edward the Sixth's time was an Act of repeal of that former Act; at which time nevertheless the King was minor. But things that do not bind may satisfy for the time.” Works of Francis Bacon, vi., by Spedding, Ellis, and Heath (1861), pp. 159,160.
[40]The Union with Scotland Act, 1706, 6 Anne, c. 11.
[41]The Union with Ireland Act, 1800, 39 & 40 Geo. III., c. 67.
[42]See 6 Anne, c. 11, art. 25.
[43]16 & 17 Vict. c. 89, s. I.
[44]Compare Innes, Law of Creeds in Scotland, pp. 118–121.
[45]18 Geo. III., c. 12.
[46]18 Geo. III., c. 12, s. 1.
[47]6 Geo. III.,c. 12.
[48]Todd, Parliamentary Government in the British Colonies, p. 192. It is a matter of curious, though not uninstructive, speculation to consider why it is that Parliament, though on several occasions passing Acts which were intended to be immutable, has never in reality succeeded in restricting its own legislative authority.
This question may be considered either logically or historically.
The logical reason why Parliament has failed in its endeavours to enact unchangeable enactments is that a sovereign power cannot, while retaining its sovereign character, restrict its own powers by any particular enactment. An Act, whatever its terms, passed by Parliament might be repealed in a subsequent, or indeed in the same, session, and there would be nothing to make the authority of the repealing Parliament less than the authority of the Parliament by which the statute, intended to be immutable, was enacted. “Limited Sovereignty,” in short, is in the case of a Parliamentary as of every other sovereign, a contradiction in terms. Its frequent and convenient use arises from its in reality signifying, and being by any one who uses words with any accuracy understood to signify, that some person, e.g. a king, who was at one time a real sovereign or despot, and who is in name treated as an actual sovereign, has become only a part of the power which is legally supreme or sovereign in a particular state. This, it may be added, is the true position of the king in most constitutional monarchies.
Let the reader, however, note that the impossibility of placing a limit of the exercise of sovereignty does not in any way prohibit either logically, or in matter of fact, the abdication of sovereignty. This is worth observation, because a strange dogma is sometimes put forward that a sovereign power, such as the Parliament of the United Kingdom, can never by its own act divest itself of sovereignty. This position is, however, clearly untenable. An autocrat, such as the Russian Czar, can undoubtedly abdicate; but sovereignty or the possession of supreme power in a state, whether it be in the hands of a Czar or of a Parliament, is always one and the same quality. If the Czar can abdicate, so can a Parliament. To argue or imply that because sovereignty is not limitable (which is true) it cannot be surrendered (which is palpably untrue) involves the confusion of two distinct ideas. It is like arguing that because no man can, while he lives, give up, do what he will, his freedom of volition, so no man can commit suicide. A sovereign power can divest itself of authority in two ways, and (it is submitted) in two ways only. It may simply put an end to its own existence. Parliament could extinguish itself by legally dissoving itself and leaving no means whereby a subsequent Parliament could be legally summoned. (See Bryce, American Commonwealth, i, (3rd ed.), p. 242, note 1.) A step nearly approaching to this was taken by the Barebones Parliament when, in 2653, it resigned its power into the hands of Cromwell. A sovereign again may transfer sovereign authority to another person or body of persons. The Parliament of England went very near doing this when, in 1539, the Crown was empowered to legislate by proclamation; and though the fact is often overlooked, the Parliaments both of England and of Scotland did, at the time of the Union, each transfer sovereign power to a new sovereign body, namely, the Parliament of Great Britain. This Parliament, however, just because it acquired the full authority of the two legislatures by which it was constituted, became in its turn a legally supreme or sovereign legislature, authorised therefore, though contrary perhaps to the intention of its creators, to modify or abrogate the Act of Union by which it was constituted. If indeed the Act of Union had left alive the Parliaments of England and of Scotland, though for one purpose only, namely, to modify when necessary the Act of Union, and had conferred upon the Parliament of Great Britain authority to pass any law whatever which did not infringe upon or repeal the Act of Union, then the Act of Union would have been a fundamental law unchangeable legally by the British Parliament: but in this case the Parliament of Great Britain would have been, not a sovereign, but a subordinate, legislature, and the ultimate sovereign body, in the technical sense of that term, would have been the two Parliaments of England and of Scotland respectively. The statesmen of these two countries saw fit to constitute a new sovereign Parliament, and every attempt to tie the hands of such a body necessarily breaks down, on the logical and practical impossibility of combining absolute legislative authority with restrictions on that authority which, if valid, would make it cease to be absolute.
The historical reason why Parliament has never succeeded in passing immutable laws, or in other words, has always retained its character of a supreme legislature, lies deep in the history of the English people and in the peculiar development of the English constitution. England has, at any rate since the Norman Conquest, been always governed by an absolute legislator. This lawgiver was originally the Crown, and the peculiarity of the process by which the English constitution has been developed lies in the fact that the legislative authority of the Crown has never been curtailed, but has been transferred from the Crown acting alone (or rather in Council) to the Crown acting first together with, and then in subordination to, the Houses of Parliament. Hence Parliament, or in technical terms the King in Parliament, has become—it would perhaps be better to say has always remained—a supreme legislature. It is well worth notice that on the one occasion when English reformers broke from the regular course of English historical development, they framed a written constitution, anticipating in many respects the constitutionalism of the United States, and placed the constitution beyond the control of the ordinary legislature. It is quite dear that, under the Instrument of Government of 1653, Cromwell intended certain fundamentals to be beyond the reach of Parliament. It may be worth observing that the constitution of 1653 placed the Executive beyond the control of the legislature. The Protector under it occupied a position which may well be compared either with that of the American President or of the German Emperor. See Harrison, Cromwell, pp. 194–203. For a view of sovereignty which, though differing to a certain extent from the view put forward in this work, is full of interest and instruction, my readers are referred to Professor Sidgwick's Elements of Politics, ch. xxxi. “Sovereignty and Order.”
This question may be considered either logically or historically.
The logical reason why Parliament has failed in its endeavours to enact unchangeable enactments is that a sovereign power cannot, while retaining its sovereign character, restrict its own powers by any particular enactment. An Act, whatever its terms, passed by Parliament might be repealed in a subsequent, or indeed in the same, session, and there would be nothing to make the authority of the repealing Parliament less than the authority of the Parliament by which the statute, intended to be immutable, was enacted. “Limited Sovereignty,” in short, is in the case of a Parliamentary as of every other sovereign, a contradiction in terms. Its frequent and convenient use arises from its in reality signifying, and being by any one who uses words with any accuracy understood to signify, that some person, e.g. a king, who was at one time a real sovereign or despot, and who is in name treated as an actual sovereign, has become only a part of the power which is legally supreme or sovereign in a particular state. This, it may be added, is the true position of the king in most constitutional monarchies.
Let the reader, however, note that the impossibility of placing a limit of the exercise of sovereignty does not in any way prohibit either logically, or in matter of fact, the abdication of sovereignty. This is worth observation, because a strange dogma is sometimes put forward that a sovereign power, such as the Parliament of the United Kingdom, can never by its own act divest itself of sovereignty. This position is, however, clearly untenable. An autocrat, such as the Russian Czar, can undoubtedly abdicate; but sovereignty or the possession of supreme power in a state, whether it be in the hands of a Czar or of a Parliament, is always one and the same quality. If the Czar can abdicate, so can a Parliament. To argue or imply that because sovereignty is not limitable (which is true) it cannot be surrendered (which is palpably untrue) involves the confusion of two distinct ideas. It is like arguing that because no man can, while he lives, give up, do what he will, his freedom of volition, so no man can commit suicide. A sovereign power can divest itself of authority in two ways, and (it is submitted) in two ways only. It may simply put an end to its own existence. Parliament could extinguish itself by legally dissoving itself and leaving no means whereby a subsequent Parliament could be legally summoned. (See Bryce, American Commonwealth, i, (3rd ed.), p. 242, note 1.) A step nearly approaching to this was taken by the Barebones Parliament when, in 2653, it resigned its power into the hands of Cromwell. A sovereign again may transfer sovereign authority to another person or body of persons. The Parliament of England went very near doing this when, in 1539, the Crown was empowered to legislate by proclamation; and though the fact is often overlooked, the Parliaments both of England and of Scotland did, at the time of the Union, each transfer sovereign power to a new sovereign body, namely, the Parliament of Great Britain. This Parliament, however, just because it acquired the full authority of the two legislatures by which it was constituted, became in its turn a legally supreme or sovereign legislature, authorised therefore, though contrary perhaps to the intention of its creators, to modify or abrogate the Act of Union by which it was constituted. If indeed the Act of Union had left alive the Parliaments of England and of Scotland, though for one purpose only, namely, to modify when necessary the Act of Union, and had conferred upon the Parliament of Great Britain authority to pass any law whatever which did not infringe upon or repeal the Act of Union, then the Act of Union would have been a fundamental law unchangeable legally by the British Parliament: but in this case the Parliament of Great Britain would have been, not a sovereign, but a subordinate, legislature, and the ultimate sovereign body, in the technical sense of that term, would have been the two Parliaments of England and of Scotland respectively. The statesmen of these two countries saw fit to constitute a new sovereign Parliament, and every attempt to tie the hands of such a body necessarily breaks down, on the logical and practical impossibility of combining absolute legislative authority with restrictions on that authority which, if valid, would make it cease to be absolute.
The historical reason why Parliament has never succeeded in passing immutable laws, or in other words, has always retained its character of a supreme legislature, lies deep in the history of the English people and in the peculiar development of the English constitution. England has, at any rate since the Norman Conquest, been always governed by an absolute legislator. This lawgiver was originally the Crown, and the peculiarity of the process by which the English constitution has been developed lies in the fact that the legislative authority of the Crown has never been curtailed, but has been transferred from the Crown acting alone (or rather in Council) to the Crown acting first together with, and then in subordination to, the Houses of Parliament. Hence Parliament, or in technical terms the King in Parliament, has become—it would perhaps be better to say has always remained—a supreme legislature. It is well worth notice that on the one occasion when English reformers broke from the regular course of English historical development, they framed a written constitution, anticipating in many respects the constitutionalism of the United States, and placed the constitution beyond the control of the ordinary legislature. It is quite dear that, under the Instrument of Government of 1653, Cromwell intended certain fundamentals to be beyond the reach of Parliament. It may be worth observing that the constitution of 1653 placed the Executive beyond the control of the legislature. The Protector under it occupied a position which may well be compared either with that of the American President or of the German Emperor. See Harrison, Cromwell, pp. 194–203. For a view of sovereignty which, though differing to a certain extent from the view put forward in this work, is full of interest and instruction, my readers are referred to Professor Sidgwick's Elements of Politics, ch. xxxi. “Sovereignty and Order.”
[49]See Austin, Jurisprudence, i. (4th ed.), pp. 251–255. Compare Austin's language as to the sovereign body under the constitution of the United States. (Austin, Jurisprudence, i. (4th ed.), p. 268.)
[50]Compare Austin, Jurisprudence, i. (4th ed.), p. 268.
[51]The working of a constitution is greatly affected by the rate at which the will of the political sovereign can make itself felt. In this matter we may compare the constitutions of the United States, of the Swiss Confederacy, and of the United Kingdom respectively. In each case the people of the country, or to speak more accurately the electorate, are politically sovereign. The action of the people of the United States in changing the Federal Constitution is impeded by many difficulties, and is practically slow; the Federal Constitution has, except after the civil war, not been materially changed during the century which has elapsed since its formation. The Articles of the Swiss Confederation admit of more easy change than the Articles of the United States Constitution, and since 1848 have undergone considerable modification. But though in one point of view the present constitution, revised in 1874, may be considered a new constitution, it does not differ fundamentally from that of 1848. As things now stand, the people of England can change any part of the law of the constitution with extreme rapidity. Theoretically there is no check on the action of Parliament whatever, and it may be conjectured that in practice any change however fundamental would be at once carried through, which was approved of by one House of Commons, and, after a dissolution of Parliament, was supported by the newly elected House. The paradoxical and inaccurate assertion, therefore, that England is more democratically governed than either the United States or Switzerland, contains a certain element of truth; the immediate wishes of a decided majority of the electorate of the United Kingdom can be more rapidly carried into legal effect than can the immediate wishes of a majority among the people either of America or of Switzerland.
[52]Austin, Jurisprudence, i. (4th ed.), p. 253.
[53]This Austin concedes, but the admission is fatal to the contention that Parliament is not in strictness a sovereign. (See AustinJurisprudence, i. (4th ed.), pp. 252, 253.)
[55]Hume, Essays, i. (1875 ed.), pp. 109, 110.
[56]Leslie Stephen, Science of Ethics, p. 143.
[57]Compare Law and Opinion in England, pp. 4, 5.
[58]Burke, Works, ii. (1808 ed.), pp. 287, 288. See further in reference to Parliamentary sovereignty, App. Note III., Distinction between a Parliamentary Executive and a Non-Parliamentary Executive.
[1]Tocqueville, i. (translation), p. 96, Œuvres Complétes, i. pp. 166,167.
[2]Tocqueville, Œuvres Complétes, i. p. 312.
[3]See Bryce, Studies in History and Jurisprudence, i. Essay III., Flexible and Rigid Constitutions.
[4]This inclusion has been made the subject of criticism.
The objections taken to it are apparently threefold.
First, there is, it is said, a certain absurdity in bringing into one class things so different in importance and in dignity as, for example, the Belgian Parliament and an English School-board. This objection rests on a misconception. It would be ridiculous to overlook the profound differences between a powerful legislature and a petty corporation. But there is nothing ridiculous in calling attention to the points which they have in common. The sole matter for consideration is whether the alleged similarity be real. No doubt when features of likeness between things which differ from one another both in appearance and in dignity are pointed out, the immediate result is to produce a sense of amusement, but the apparent absurdity is no proof that the likeness is unreal or undeserving of notice. A man differs from a rat. But this does not make it the less true or the less worth noting that they are both vertebrate animals.
Secondly, the powers of an English corporation, it is urged, can in general only be exercised reasonably, and any exercise of them is invalid which is not reasonable, and this is not true of the laws made, e.g., by the Parliament of a British colony.
The objection admits of more than one reply. It is not universally true that the bye-laws made by a corporation are invalid unless they are reasonable. But let it be assumed for the sake of argument that this restriction is always, as it certainly is often, imposed on the making of bye-laws. This concession does not involve the consequence that bye-laws do not partake of the nature of laws. All that follows from it is a conclusion which nobody questions, namely, that the powers of a non-sovereign law-making body may be restricted in very different degrees.
Thirdly, the bye-laws of a corporation are, it is urged, not laws, because they affect only certain persons, e.g. in the case of a railway company the passengers on the railway, and do not, like the laws of a colonial legislature, affect all persons coming under the jurisdiction of the legislature; or to put the same objection in another shape, the bye-laws of a railway company apply, it is urged, only to persons using the railway, in addition to the general law of the land by which such persons are also bound, whereas the laws, e.g., of the New Zealand Parliament constitute the general law of the colony.
The objection is plausible, but does not really show that the similarity insisted upon between the position of a corporation and,e.g., a colonial legislature is unreal. In either case the laws made, whether by the corporation or by the legislature, apply only to a limited class of persons, and are liable to be overridden by the laws of a superior legislature. Even in the case of a colony so nearly independent as New Zealand, the inhabitants are bound first by the statutes of the Imperial Parliament, and in addition thereto by the Acts of the New Zealand Parliament. The very rules which are bye-laws when made by a corporation would admittedly be laws if made directly by Parliament. Their character cannot be changed by the fact that they are made by the permission of Parliament through a subordinate legislative body. The Council of a borough, which for the present purpose is a better example of my meaning than a railway company, passes in accordance with the powers conferred upon it by Parliament a bye-law prohibiting processions with music on Sunday. The same prohibition if contained in an Act of Parliament would be admittedly a law. It is none the less a law because made by a body which is permitted by Parliament to legislate.
The objections taken to it are apparently threefold.
First, there is, it is said, a certain absurdity in bringing into one class things so different in importance and in dignity as, for example, the Belgian Parliament and an English School-board. This objection rests on a misconception. It would be ridiculous to overlook the profound differences between a powerful legislature and a petty corporation. But there is nothing ridiculous in calling attention to the points which they have in common. The sole matter for consideration is whether the alleged similarity be real. No doubt when features of likeness between things which differ from one another both in appearance and in dignity are pointed out, the immediate result is to produce a sense of amusement, but the apparent absurdity is no proof that the likeness is unreal or undeserving of notice. A man differs from a rat. But this does not make it the less true or the less worth noting that they are both vertebrate animals.
Secondly, the powers of an English corporation, it is urged, can in general only be exercised reasonably, and any exercise of them is invalid which is not reasonable, and this is not true of the laws made, e.g., by the Parliament of a British colony.
The objection admits of more than one reply. It is not universally true that the bye-laws made by a corporation are invalid unless they are reasonable. But let it be assumed for the sake of argument that this restriction is always, as it certainly is often, imposed on the making of bye-laws. This concession does not involve the consequence that bye-laws do not partake of the nature of laws. All that follows from it is a conclusion which nobody questions, namely, that the powers of a non-sovereign law-making body may be restricted in very different degrees.
Thirdly, the bye-laws of a corporation are, it is urged, not laws, because they affect only certain persons, e.g. in the case of a railway company the passengers on the railway, and do not, like the laws of a colonial legislature, affect all persons coming under the jurisdiction of the legislature; or to put the same objection in another shape, the bye-laws of a railway company apply, it is urged, only to persons using the railway, in addition to the general law of the land by which such persons are also bound, whereas the laws, e.g., of the New Zealand Parliament constitute the general law of the colony.
The objection is plausible, but does not really show that the similarity insisted upon between the position of a corporation and,e.g., a colonial legislature is unreal. In either case the laws made, whether by the corporation or by the legislature, apply only to a limited class of persons, and are liable to be overridden by the laws of a superior legislature. Even in the case of a colony so nearly independent as New Zealand, the inhabitants are bound first by the statutes of the Imperial Parliament, and in addition thereto by the Acts of the New Zealand Parliament. The very rules which are bye-laws when made by a corporation would admittedly be laws if made directly by Parliament. Their character cannot be changed by the fact that they are made by the permission of Parliament through a subordinate legislative body. The Council of a borough, which for the present purpose is a better example of my meaning than a railway company, passes in accordance with the powers conferred upon it by Parliament a bye-law prohibiting processions with music on Sunday. The same prohibition if contained in an Act of Parliament would be admittedly a law. It is none the less a law because made by a body which is permitted by Parliament to legislate.
[5]See p. 37, ante.
[6]See chapter. III., post.
[7]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.
[8]Dyson v. L, & N. W. Ry. Co., 7 Q. B. D. 32.
[9]Saunders v. S.-E. Ry. Co., 5 Q. B. D. 456. Compare Bentham v. Hoyle, 3 Q. B. D. 289, and L. B. & S. C. Ry. Co. v. Watson, 3 C. P. D. 429; 4 C. P. D. (C. A.), 118.
[10]See Ilbert, Government of India, pp. 199–216, Digest of Statutory Enactments, ss. 60–69.
[11]The Government of India Act, 1833 (3 & 4 Will. IV. c. 85), ss. 45–48, 51, 52; The Indian Councils Act, 1862 (24 & 25 Vict. c. 67), ss. 16-25; The Government of India Act, 1865 (28 & 29 Vict. c. 27).
The Indian Council is in some instances under Acts of Parliament, e.g. 24 & 25 Vict. c. 67, 28 & 29 Vict. c. 17; 32 & 33 Vict. c. 98, empowered to legislate for persons outside India.
The Indian Council is in some instances under Acts of Parliament, e.g. 24 & 25 Vict. c. 67, 28 & 29 Vict. c. 17; 32 & 33 Vict. c. 98, empowered to legislate for persons outside India.
[12]See 24 & 25 Vict. c. 67. s. 22.
[13]3 Ind. L. R. (Calcutta Series), p. 63.
[14]Reg. v. Burah, 3 App. Cas. 889.
[15]See especially Empress v. Burah and Book Singh, 3 Ind. L. R. (Calcutta Series, 1878), 63. 86-89, for the judgment of Markby J.
[16]No colonial legislature has as such any authority beyond the territorial limits of the colony. This forms a considerable restriction on the powers of a colonial Parliament, and a great part of the imperial legislation for the colonies arises from the Act of a colonial legislature having, unless given extended operation by some imperial statute, no effect beyond the limits of the colony.
In various instances, however, imperial Acts have given extended power of legislation to colonial legislatures. Sometimes the imperial Act authorises a colonial legislature to make laws on a specified subject with extra-territorial operation [e.g. the Merchant Shipping Act, 1894, ss. 478, 735, 736]. Sometimes an Act of the colonial legislature is given the force of law throughout British dominions. (Compare Jenkyns, British Rule and Jurisdiction beyond theSeas, p. 70.)
In various instances, however, imperial Acts have given extended power of legislation to colonial legislatures. Sometimes the imperial Act authorises a colonial legislature to make laws on a specified subject with extra-territorial operation [e.g. the Merchant Shipping Act, 1894, ss. 478, 735, 736]. Sometimes an Act of the colonial legislature is given the force of law throughout British dominions. (Compare Jenkyns, British Rule and Jurisdiction beyond theSeas, p. 70.)
[17]As also upon the ground of their being in strictness ultra vires, i.e. beyond the powers conferred upon the Dominion legislature. This is the ground why a colonial Act is in general void, in so far as it is intended to operate beyond the territory of the colony. “in 1879, the Supreme Court of New Zealand held that the Foreign Offenders Apprehension Act, 1863, of that colony, which authorises the deportation of persons charged with indictable misdemeanours in other colonies, was beyond the competence of the New Zealand legislature, for it involved detention on the high seas, which the legislature could not authorise, as it could legislate only for peace, order, and good government within the limits of the colony.” Jenkyns, British Rule and Jurisdiction beyond the Seas, p. 70, citing In re Gleich. OllivierBell and Fitzgerald's N. Z. Rep., S. C. p. 39.
[18]28 & 29 Vict. c. 63. See on this enactment, Jenkyns, British Rule and Jurisdiction beyond the Seas, pp. 71, 72.
[19]Up to 1865 the prevalent opinion in England seems to have been that any law seriously opposed to the principles of English law was repugnant to the law of England, and colonial laws were from time to time disallowed solely on the ground of such supposed repugnacy and invalidity.
[20]Assuming, of course, that such Acts are not inconsistent with any imperial statute applying to the colony. (CompareRobinson v. Reynolds, Macassey's N. Z. Rep. p. 562.)
[21]See Tarring, Law Relating to the Colonies (and ed.), pp. 232- 247, for a list of imperial statutes which relate to the colonies in general, and which therefore no colonial legislation can, except under powers given by some Act of the Imperial Parliament, contravene.
[22]See Powell v. Apollo Candle Co., 10 App. Cas. 282; Hodge v. The Queen, 9 App. Cas. 117.
[23]The constitutions of some self-governing colonies, e.g. Victoria, certainly show that a Victorian law altering the constitution must in some instances be passed in a manner different from the mode in which other laws are passed. This is a faint recognition of the difference between fundamental and other laws. Compare 18 & 19 Vict. c. 55, Sched. I. s. 60; but there appears to have been considerable laxity in regard to observing these constitutional provisions. See Jenks, Government of Victoria, pp. 247-249.
[24]It is usually the case that a self-governing colony, such as New Zealand, has the power in one form or another to change the colonial constitution. The extent, however, of this power, and the mode in which it can be exercised, depends upon the terms of the Act of Parliament, or of the charter creating or amending the colonial constitution, and differs in different cases. Thus the Parliament of New Zealand can change almost all, though not quite all, of the articles of the constitution, and can change them in the same manner in which it can change an ordinary colonial law. The Parliament of the Canadian Dominion cannot change the constitution of the Dominion. The Parliament of the Australian Commonwealth, on the other hand, occupies a peculiar position. It can by virtue of the terms of the constitution itself alter, by way of ordinary legislation, certain of the articles of the constitution (see, e.g., Constitution of Commonwealth, ss. 65, 67), whilst it cannot, by way of ordinary legislation, change other articles of the constitution. All the articles, however, of the constitution which cannot be changed by ordinary Parliamentary legislation can— subject, of course, to the sanction of the Crown—be altered or abrogated by the Houses of the Parliament, and a vote of the people of the Commonwealth, as provided by the Constitution of the Commonwealth, s. 128. The point to be specially noted is, that the Imperial Parliament, as a rule, enables a self-governing colony to change the colonial constitution. The exception in the case of Canada is more apparent than real; the Imperial Parliament would no doubt give effect to any change dearly desired by the inhabitants of the Canadian Dominion.
[25]See Todd, Parliamentary Government, pp. 168-192.
[26]This statement has been questioned—see Hearn (2nd ed.), p. 63—but is, it is submitted, correct. The so-called “veto” has never been employed as regards any public bill since the accession of the House of Hanover. When George the Third wished to stop the passing of Fox's India Bill, he abstained from using the Crown's right to dissent from proposed legislation, but availed himself of his influence in the House of Lords to procure the rejection of the measure. No stronger proof could be given that the right of veto was more than a century ago already obsolete. But the statement that a power is practically obsolete does not involve the assertion that it could under no conceivable circumstances be revived. On the whole subject of the veto, and the different senses in which the expression is used, the reader should consult an excellent article by Professor Orelli of Zurich, to be found under the word “Veto” in Encyclopaedia Britannica (9th ed.), xxiv. p. 208.
The history of the Royal Veto curiously illustrates the advantage which sometimes arises from keeping alive in theory prerogatives which may seem to be practically obsolete. The Crown's legislative “veto” has certainly long been unused in England, but it has turned out a convenient method of regulating the relation between the United Kingdom and the Colonies. If the right of the King to refuse his assent to a bill which had passed the two Houses of Parliament had been abolished by statute, it would have been difficult, if not impossible, for the King to veto, or disallow, Acts passed by the Parliament of a self-governing colony, e.g. New Zealand. It would, in other words, have been hard to create a parliamentary veto of colonial legislation. Yet the existence of such a veto, which ought to be, and is, sparingly used, helps to hold together the federation known as the British Empire.
The history of the Royal Veto curiously illustrates the advantage which sometimes arises from keeping alive in theory prerogatives which may seem to be practically obsolete. The Crown's legislative “veto” has certainly long been unused in England, but it has turned out a convenient method of regulating the relation between the United Kingdom and the Colonies. If the right of the King to refuse his assent to a bill which had passed the two Houses of Parliament had been abolished by statute, it would have been difficult, if not impossible, for the King to veto, or disallow, Acts passed by the Parliament of a self-governing colony, e.g. New Zealand. It would, in other words, have been hard to create a parliamentary veto of colonial legislation. Yet the existence of such a veto, which ought to be, and is, sparingly used, helps to hold together the federation known as the British Empire.
[27]The mode in which the power to veto colonial legislation is exercised may be best understood from the following extract from the Rules and Regulations printed some years ago by the Colonial Office:
CHAPTER III RULES AND REGULATIONS §1. Legislative Councils and Assemblies
48. In every colony the Governor has authority either to give or to withhold his assent to laws passed by the other branches or members of the Legislature, and until that assent is given no such law is valid or binding.
49. Laws are in some cases passed with suspending clauses; that is, although assented to by the Governor they do not come into operation or take effect in the colony until they shall have been specially confirmed by Her Majesty, and in other cases Parliament has for the same purpose empowered the Governor to reserve laws for the Crown's assent, instead of himself assenting or refusing his assent to them.
50. Every law which has received the Governor's assent (unless it contains a suspending dause) comes into operation immediately, or at the time specified in the law itself. But the Crown retains power to disallow the law; and if such power be exercised … the law ceases to have operation from the date at which such disallowance is published in the colony.
51. In colonies having representative assemblies the disallowance of any law, or the Crown's assent to a reserved bill, is signified by order in council. The confirmation of an Act passed with a suspending clause, is not signified by order in council unless this mode of confirmation is required by the terms of the suspending clause itself, or by some special provision in the constitution of the colony.
52. In Crown colonies the allowance or disallowance of any law is generally signified by despatch.
53. In some cases a period is limited, after the expiration of which local enactments, though not actually disallowed, cease to have the authority of law in the colony, unless before the lapse of that time Her Majesty's confirmation of them shall have been signified there; but the general rule is otherwise.
54. In colonies possessing representative assemblies, laws purport to be made by the Queen or by the Governor on Her Majesty's behalf or sometimes by the Governor alone, omitting any express reference to Her Majesty, with the advice and consent of the council and assembly. They are almost invariably designated as Acts. In colonies not having such assemblies, laws are designated as ordinances, and purport to be made by the Governor, with the advice and consent of the Legislative Council (or in British Guiana of the Court of Polio).
The “veto,” it will be perceived, may be exercised by one of two essentially different methods: first, by the refusal of the Governor's assent; secondly, by the exercise of the royal power to disallow laws even when assented to by the Governor. As further, the Governor may reserve bills for the royal consideration, and as colonial laws are sometimes passed containing a clause which suspends their operation until the signification of the royal assent, the check on colonial legislation may be exercised in four different forms—
CHAPTER III RULES AND REGULATIONS §1. Legislative Councils and Assemblies
48. In every colony the Governor has authority either to give or to withhold his assent to laws passed by the other branches or members of the Legislature, and until that assent is given no such law is valid or binding.
49. Laws are in some cases passed with suspending clauses; that is, although assented to by the Governor they do not come into operation or take effect in the colony until they shall have been specially confirmed by Her Majesty, and in other cases Parliament has for the same purpose empowered the Governor to reserve laws for the Crown's assent, instead of himself assenting or refusing his assent to them.
50. Every law which has received the Governor's assent (unless it contains a suspending dause) comes into operation immediately, or at the time specified in the law itself. But the Crown retains power to disallow the law; and if such power be exercised … the law ceases to have operation from the date at which such disallowance is published in the colony.
51. In colonies having representative assemblies the disallowance of any law, or the Crown's assent to a reserved bill, is signified by order in council. The confirmation of an Act passed with a suspending clause, is not signified by order in council unless this mode of confirmation is required by the terms of the suspending clause itself, or by some special provision in the constitution of the colony.
52. In Crown colonies the allowance or disallowance of any law is generally signified by despatch.
53. In some cases a period is limited, after the expiration of which local enactments, though not actually disallowed, cease to have the authority of law in the colony, unless before the lapse of that time Her Majesty's confirmation of them shall have been signified there; but the general rule is otherwise.
54. In colonies possessing representative assemblies, laws purport to be made by the Queen or by the Governor on Her Majesty's behalf or sometimes by the Governor alone, omitting any express reference to Her Majesty, with the advice and consent of the council and assembly. They are almost invariably designated as Acts. In colonies not having such assemblies, laws are designated as ordinances, and purport to be made by the Governor, with the advice and consent of the Legislative Council (or in British Guiana of the Court of Polio).
The “veto,” it will be perceived, may be exercised by one of two essentially different methods: first, by the refusal of the Governor's assent; secondly, by the exercise of the royal power to disallow laws even when assented to by the Governor. As further, the Governor may reserve bills for the royal consideration, and as colonial laws are sometimes passed containing a clause which suspends their operation until the signification of the royal assent, the check on colonial legislation may be exercised in four different forms—
- 1The refusal of the Governor's assent to a bill.
- 2Reservation of a bill for the consideration of the Crown, and the subsequent lapse of the bill owing to the royal assent being refused, or not being given within the statutory time.
- 3The insertion in a bill of a clause preventing it from coming into operation until the signification of the royal assent thereto, and the want of such royal assent.
- 4The disallowance by the Crown of a law passed by the Colonial Parliament with the assent of the Governor.
The reader should note, however, the essential difference between the three first modes and the fourth mode of checking colonial legislation. Under the three first a proposal law passed by the colonial legislature never comes into operation in the colony. Under the fourth a colonial law which has come into operation in the colony is annulled or disallowed by the Crown from the date of such disallowance. In the case of more than one colony, such disallowance must, under the Constitution Act or letters-patent, be signified within two years. See the British North American Act, 1867, sec. 56. Compare the Australian Constitutions Act, 1842 (5 & 6 Vict. c. 76), secs. 32, 33; the Australian Constitutions Act, 1850,13 & 14 Vict. c. 59; and the Victoria Constitution Act, 1855 (18 & 19 Vict. c. 55), sec. 3.
Under the Australian Commonwealth Act the King may disallow an Act assented to by the Governor-General within one year after the Governor-General's assent. (Commonwealth of Australia Constitution Act, sec. 59.)
Under the Australian Commonwealth Act the King may disallow an Act assented to by the Governor-General within one year after the Governor-General's assent. (Commonwealth of Australia Constitution Act, sec. 59.)
[28]Todd, Parliamentary Government in the British Colonies, p. 137.
[29]Todd, Parliamentary Government in the British Colonies, p. 144.
[30]/Ibid., pp. 147, 150.
[31]As regards the Australian colonies such legislation has, I am informed, been heretofore checked in the following manner. Immigration bills have been reserved for the consideration of the Crown, and the assent of the Crown not having been given, have never come into force.
[32]See Todd, Parliamentary Government in the British Colonies, pp. 192-218.
[33]Thus the New Zealand Deceased Husband's Brother Act, 1900, No. 72, legalising marriage with a deceased husband's brother, the Immigration Restriction Act, 1901, passed by the Commonwealth Parliament, the Immigrantsé Restriction Act, 1907, No. 15, passed by the Transvaal Legislature, have all received the sanction of the Crown. The last enactment illustrates the immensely wide legislative authority which the home government will under some circumstances concede to a colonial Parliament. The Secretary of State for India (Mr. Morley) “regrets that he cannot agree that the Act in question can be regarded as similar to the legislation already sanctioned in other self-governing colonies.… Section 2 (4) of the Transvaal Act introduces a principle to which no parallel can be found in previous legislation. This dause … will debar from entry into the Transvaal British subjects who would be free to enter into any other colony by proving themselves capable of passing the educational tests laid down for immigrants. It will, for instance, permanently exclude from the Transvaal members of learned professions and graduates of European Universities of Asiatic origin who may in future wish to enter the colony.” See Parl. Paper [Cd. 3887],Correspondence relating to Legislation affecting Asiatics in the Transvaal, pp. 52, 53, and compare pp. 31, 32. See p. liv, ante.
[34]Except in the case of political treaties, such as the Hague Conventions, the imperial government does not nowadays bind the colonies by treaties, but secures the insertion in treaties of clauses allowing colonies to adhere to a treaty if they desire to do so.
[35]The right of appeal to the Privy Council from the decision of the Courts of the colonies is another link strengthening the connection between the colonies and England.
There have been, however, of recent years a good number of conflicts between imperial and colonial legislation as to matters affecting merchant shipping.
There have been, however, of recent years a good number of conflicts between imperial and colonial legislation as to matters affecting merchant shipping.
[36]Demombynes, Les Constitutions Européennes, ii. (2nd ed.), pp. 1-5. See Appendix, Note I., Rigidity of French Constitutions.
[37]A. de Tocqueville, Democracy in America, ii. (translation), App. pp. 322, 323. ŒuvresCompletes, i. p. 311.
[38]His view is certainly paradoxical. (See Duguit, Manuel de droit Constitutionnel Franfais, s. 149, P. 1090.) As a matter of fact one provision of the Charter, namely, art. 23, regulating the appointment of Peers, was changed by the ordinary process of legislation. See Law of 29th December 1831, Hélie, Les Constitutions de la France, p. 1006.
[39]39 Duguit et Monnier, Les Constitutions de la France depuis 1789, pp. 320, 321. A striking example of the difference between English and French constitutionalism is to be found in the division of opinion which exists between French writers of authority on the answer to the inquiry whether the French Chambers, when sitting together, have constitutionally the right to change the constitution. To an Englishman the question seems hardly to admit of discussion, for Art. 8 of the constitutional laws enacts in so many words that these laws may be revised, in the manner therein set forth, by the Chambers when sitting together as a National Assembly. Many French constitutionalists therefore lay down, as would any English lawyer, that the Assembly is a constituent as well as a legislative body, and is endowed with the right to change the constitution (Duguit, Manuel, s. 151, Moreau, Précisélémentairede droit constitutionnel (Paris, 1892), p. 149). But some eminent authorities maintain that this view is erroneous, and that in spite of the words of the constitution the ultimate right of constitutional amendment must be exercised directly by the French people, and that therefore any alteration in the constitutional laws by the Assembly lacks, at any rate, moral validity unless it is ratified by the direct vote of the electors. (See, on the one side, Duguit, Manuel, s. 151; Bard et Robiquet, La Constitution francaise de 1875 (2nd ed.), pp. 374-390, and on the other side, Esmein, Droit Constitutionnel (4th ed.), p. 907; Borgeaud, Etablissement et Rivision des Constitutions, pp. 303-307.)
[40]No constitution better merits study in this as in other respects than the constitution of Belgium. Though formed after the English model, it rejects or omits the principle of Parliamentary sovereignty. The ordinary Parliament cannot change anything in the constitution; it is a legislative, not a constituent body; it can declare that there is reason for changing a particular constitutional provision, and having done so is ipso facto dissolved (après cettedeclaration les deux chambres sont dissoutes de plein droit). The new Parliament thereupon elected has a right to change the constitutional article which has been dedared subject to change (Constitution de La Belgique, Arts. 131, 71).
[41]See Appendix, NoteI., Rigidity of French Constitutions.
[42]The terms “flexible” and “rigid” (originally suggested by my friend Mr. Bryce) are, it should be remarked, used throughout this work without any connotation either of praise or of blame. The flexibility and expansiveness of the English constitution, or the rigidity and immutability of, e.g., the constitution of the United States, may each be qualities which according to the judgment of different critics deserve either admiration or censure. With such judgments this treatise has no concern. My whole aim is to make dear to my readers the exact difference between a flexible and a rigid constitution. It is not my object to pronounce any opinion on the question whether the flexibility or rigidity of a given polity be a merit or a defect.
[43]No doubt the constitution of the United States has in reality, though not in form, changed a good deal since the beginning of last century; but the change has been effected far less by formally enacted constitutional amendments than by the growth of customs or institutions which have modified the working without altering the articles of the constitution.
[44]“Aucun des pouvoirs institués par la constitution n'a le droit de la changer dans son ensemble ni dans ses parties, sauf les réformes qui pourront y étre faites par la voie de la révision, conformément aux dispositions du titre VII. ci-dessus.
“LAssemblée nationale constituante en remet le dépôt á la fidélité du Corps législatif, du Roi et des juges, á la vigilance des péres de famille, aux épouses et aux méres, á l'affection des jeunes citoyens, au courage de tous les Français.”—Constitution de 2791, Tit. vii. Art. 8; Duguit et Monnier, LesConstitutions de la France depuis 1789, p. 34.
These are the terms in which the National Assembly entrusts the Constitution of 1791 to the guardianship of the nation. It is just possible, though not likely, that the reference to the judges is intended to contain a hint that the Courts should annul or treat as void unconstitutional laws. Under the Constitution of the Year VIII. the senate had authority to annul unconstitutional laws. But this was rather a veto on what in England we should call Bills than a power to make void laws duly enacted. See Constitution of Year VIII., Tit. ii. Arts. 26, 28, Hélie, LesConstitutions de la France, p. 579.
“LAssemblée nationale constituante en remet le dépôt á la fidélité du Corps législatif, du Roi et des juges, á la vigilance des péres de famille, aux épouses et aux méres, á l'affection des jeunes citoyens, au courage de tous les Français.”—Constitution de 2791, Tit. vii. Art. 8; Duguit et Monnier, LesConstitutions de la France depuis 1789, p. 34.
These are the terms in which the National Assembly entrusts the Constitution of 1791 to the guardianship of the nation. It is just possible, though not likely, that the reference to the judges is intended to contain a hint that the Courts should annul or treat as void unconstitutional laws. Under the Constitution of the Year VIII. the senate had authority to annul unconstitutional laws. But this was rather a veto on what in England we should call Bills than a power to make void laws duly enacted. See Constitution of Year VIII., Tit. ii. Arts. 26, 28, Hélie, LesConstitutions de la France, p. 579.
[45]See Appendix, Note I, Rigidity of French Constitutions.
[46]See Constitution of 1795, Tit. xiii. Art. 338, Hélie, LesConstitutions de la France, p. 463.
[47]The term is used by French writers, but does not appear in the Lois Constitutionnelles, and one would rather gather that the proper title for a so-called Congress is L'AssembléeNationale.
[48]A. de Tocqueville, Œuvres Completes, i. pp. 167,168.
[49]See Chap. XII.
[1]On the whole subject of American Federalism the reader should consult Mr. Bryce's American Commonwealth, and with a view to matters treated of in this chapter should read with special care vol. i. part i.
[2]To these we must now (1908) add the Commonwealth of Australia. (See Appendix, Note IX., Australian Federalism), [and see further the South Africa Act, 1909,9 Ed. VII.].
[3]Swiss federalism deserves an amount of attention which it has only of recent years begun to receive. The essential feature of the Swiss Commonwealth is that it is a genuine and natural democracy, but a democracy based on Continental, and not on Anglo-Saxon, ideas of freedom and of government.
The constitution of the Commonwealth of Australia contains at least one feature apparently suggested by Swiss federalism. See Appendix, Note IX., Australian Federalism.
The constitution of the Commonwealth of Australia contains at least one feature apparently suggested by Swiss federalism. See Appendix, Note IX., Australian Federalism.
[4]For United States see Story, Commentaries on the Constitution of the United States (4th ed.), and Bryce, American Commonwealth.
For Canada see the British North America Act, 1867, 30 Vict., c. 3; Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada.
For Switzerland see Constitution Fédérale de la Confederation Swisse du 29 Mai 1874; Blumer, Handbuch des Schweizerischen Bundesstaatsrechtes; Lowell, Governments and Parties in Continental Europe, ii. chaps, xi.-xiii.; Sir F. O. Adams's Swiss Confederation; and Appendix, Note VIII., Swiss Federalism.
For the Commonwealth of Australia, the Constitution whereof deserves careful examination, the reader should consult Quick and Garran, Annotated Constitution of the Australian Commonwealth; Moore, The Commonwealth of Australia; and Bryce, Studies in History and Jurisprudence, i. Essay VIII., “The Constitution of the Commonwealth of Australia.” See further, Appendix, Note IX., Australian Federalism.
For Canada see the British North America Act, 1867, 30 Vict., c. 3; Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada.
For Switzerland see Constitution Fédérale de la Confederation Swisse du 29 Mai 1874; Blumer, Handbuch des Schweizerischen Bundesstaatsrechtes; Lowell, Governments and Parties in Continental Europe, ii. chaps, xi.-xiii.; Sir F. O. Adams's Swiss Confederation; and Appendix, Note VIII., Swiss Federalism.
For the Commonwealth of Australia, the Constitution whereof deserves careful examination, the reader should consult Quick and Garran, Annotated Constitution of the Australian Commonwealth; Moore, The Commonwealth of Australia; and Bryce, Studies in History and Jurisprudence, i. Essay VIII., “The Constitution of the Commonwealth of Australia.” See further, Appendix, Note IX., Australian Federalism.
[5]See Appendix, Note II., Division of Powers in Federal States.
[6]Constitution Fédérale, Preamble, and art. 3.
[7]See Constitution of United States, art. 6, ch. 2.
[8]The expression “fundamental laws of England” became current during the controversy as to the payment of ship-money (2635). See Gardiner, History of England, viii. pp. 84, 85.
[9]Compare especially Kent, Commentaries, i. pp. 447-449.
[10]NO doubt it is conceivable that a federation might grow up by the force of custom, and under agreements between different States which were not reduced into writing, and it appears to be questionable how far the Achæan League was bound together by anything equivalent to a written constitution. It is, however, in the highest degree improbable, even if it be not practically impossible, that in modern times a federal state could be formed without the framing of some document which, whatever the name by which it is called, would be in reality a written constitution, regulating the rights and duties of the federal government and the States composing the Federation.
[11]See pp. 39, 64-66, ante.
[12]Eminent American lawyers, whose opinion is entitled to the highest respect, maintain that under the Constitution there exists no person, or body of persons, possessed of legal sovereignty, in the sense given by Austin to that term, and it is difficult to see that this opinion involves any absurdity. Compare Constitution of United States, art. 5. at this appear further that certain rights reserved under the Constitution of the German Empire to particular States cannot under the Constitution be taken away from a State without its assent. (See Reichsverfassung, art. 78.) The truth is that a Federal Constitution partakes of the nature of a treaty, and it is quite conceivable that the authors of the Constitution may intend to provide no constitutional means of changing its terms except the assent of all the parties to the treaty.
[13]See e.g. South Africa Act, 1909, s. 152.
[14]Under the Constitution of the German Empire the Imperial legislative body can amend the Constitution. But the character of the Federal Council (Bundesrath) gives ample security for the protection of State rights. No change in the Constitution can be effected which is opposed by fourteen votes in the Federal Council. This gives a veto on change to Prussia and to various combinations of some among the other States. The extent to which national sentiment and State patriotism respectively predominate under a federal system may be conjectured from the nature of the authority which has the right to modify the Constitution. See Appendix, Note II., Division of Powers in Federal States.
[15]“The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several States, or by convention in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendments whidch may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the senate.”—Constitution of United States, art. 6. Compare Austin, i. p. 278, and see Bryce, American commonwealth, i. (3rd ed.), chap. xxxii, on the Amendment of the constitution.
[16][Note, however, the ease with which the provisions of the Constitution of the U. S., with regard to the election of Senators by the Legislature and the transference of such election to the people of each State, have been carried through by Amendment xvii., passed in 1913.]
[17]This is so in the United States, but it need not necessarily be so. The Federal Legislature may be a sovereign power but may be so constituted that the rights of the States under the Constitution are practically protected. This condition of things exists in the German Empire.
[18]Seep. 40, note4,ante.
[19]See as to bye-laws made by municipal corporations, and the dependence of their validity upon the powers conferred upon the corporation: Johnson v. Mayor of Croydon, 16 Q. B. D. 708; Reg. v. Powell, 51L. T. 92; Munro v. Watson, 57L. T. 366. See Bryce, American Commonwealth, i. (3rd ed.), pp. 244, 245.
[20]Constitution of United States, Amendments, art. 10. See provisions of a similar character in the Swiss Constitution,Constitution Fédérale, art. 3. Compare the Constitution of the Canadian Dominion, British North America Act, 1867, secs. 91, 92.
There exists, however, one marked distinction in principle between the Constitution of the United States and the Constitution of the Canadian Dominion. The Constitution of the United States in substance reserves to the separate States all powers not expressly conferred upon the national government. The Canadian Constitution in substance confers upon the Dominion government all powers not assigned exclusively to the Provinces. In this matter the Swiss Constitution follows that of the United States.
The Constitution of the Australian Commonwealth follows in effect the example of the Constitution of the United States. The powers conferred upon the Commonwealth Parliament are, though very large, definite; the powers reserved to the Parliaments of the States are indefinite. See Commonwealth Act, ss. 51, 52, and 107, and Appendix, Note II., Division of Powers in Federal States, and Note IX., Australian Federalism.
There exists, however, one marked distinction in principle between the Constitution of the United States and the Constitution of the Canadian Dominion. The Constitution of the United States in substance reserves to the separate States all powers not expressly conferred upon the national government. The Canadian Constitution in substance confers upon the Dominion government all powers not assigned exclusively to the Provinces. In this matter the Swiss Constitution follows that of the United States.
The Constitution of the Australian Commonwealth follows in effect the example of the Constitution of the United States. The powers conferred upon the Commonwealth Parliament are, though very large, definite; the powers reserved to the Parliaments of the States are indefinite. See Commonwealth Act, ss. 51, 52, and 107, and Appendix, Note II., Division of Powers in Federal States, and Note IX., Australian Federalism.
[21]Constitution of United States, art. 1, sec. 9.
[22]Ibid., art. 1, sec. 10.
[23]Ibid., art. 1, sec. 9. But conf. art. 1, sec. 10.
[24]Ibid., art. 1, sec. 10.
[25]Contrast with this the indefinite powers left to State Parliaments under the Commonwealth of Australia Constitution Act, ss. 106, 107. The Constitutionalists of Australia who created the Commonwealth have been as much influenced by the traditions of English Parliamentary sovereignty as American legislators have in their dealings with the State Constitutions been influenced by the spirit of federalism.
[26]See Munn v. Illinois, 4 Otto, 113.
[27]European critics of American federalism have, as has been well remarked by an eminent French writer, paid in general too little attention to the working and effect of the state constitutions, and have overlooked the great importance of the action of the state legislatures. See Boutmy, Études de Droit Constitutionnel (2nd ed.), pp. 103-111.
“It has been truly said that nearly every provision of the Federal Constitution that has worked well is one borrowed from or suggested by some State Constitution; nearly every provision that has worked badly is one which the Convention, for want of a precedent, was obliged to devise for itself.“—Bryce, American Commonwealth, i. (3rd ed.), p. 35. One capital merit of Mr. Bryce's book is that it for the first time reveals, even to those who had already studied American institutions, the extent to which the main features of the Constitution of the United States were suggested to its authors by the characteristics of the State governments.
“It has been truly said that nearly every provision of the Federal Constitution that has worked well is one borrowed from or suggested by some State Constitution; nearly every provision that has worked badly is one which the Convention, for want of a precedent, was obliged to devise for itself.“—Bryce, American Commonwealth, i. (3rd ed.), p. 35. One capital merit of Mr. Bryce's book is that it for the first time reveals, even to those who had already studied American institutions, the extent to which the main features of the Constitution of the United States were suggested to its authors by the characteristics of the State governments.
[28]Constitution of United States, art. 6.
[29]Kent, Commentaries, i. (12th ed.), p. 314, and conf. Ibid., p. 449.
[30]Constitution of United States, art. 3, secs. 1, 2.
[31]Kent, Commentaries, i. (12th ed.), pp. 299, 300.
[32]Kent, Commentaries, i. (12th ed.), pp. 244-248.
[33]Ibid., pp. 248-254.
[34]Ibid., pp. 262-266.
[35]Story, Commentaries on the Constitution (4th ed.), ii. secs. 1116, 1117. See Hepburn v. Gris-wold, 8 Wallace, 603, Dec. 1869, and Knox v. Lee, 22 Wallace, 457.
[36]Munnv. Illinois, 4 Otto, Rep. 113. See especially the Judgments of Marshall, C.J., collected in The Writings of John Marshall upon the Federal Constitution (1839).
[37]See Chap. II. pp. 42-45, ante.
[38]Martin, 421.
[39]1Va. Cas. 198.
[40]1 Cranch, 137. For the facts as to the early action of the State Courts in declaring legislative enactments unconstitutional I am indebted, as for much other useful criticism, to that eminent constitutionalist my friend the late Professor Thayer of Harvard University.
[41]The difference between the judgment as to the character of the Canadian Constitution formed by myself, and the judgment of competent and friendly Canadian critics, may easily be summarised and explained. If we look at the federal character of the Constitution of the Dominion, we must inevitably regard it as a copy, though by no means a servile copy, of the Constitution of the United States. Now in the present work the Canadian Constitution is regarded exclusively as a federal government. Hence my assertion, which I still hold to be correct, that the government of the Dominion is modelled on that of the Union. If, on the other hand, we compare the Canadian Executive with the American Executive, we perceive at once that Canadian government is modelled on the system of Parliamentary cabinet government as it exists in England, and does not in any wise imitate the Presidential government of America. This, it has been suggested to me by a friend well acquainted with Canadian institutions, is the point of view from which they are looked upon by my Canadian critics, and is the justification for the description of the Constitution of the Dominion given in the preamble to the British North America Act, 1867. The suggestion is a just and valuable one; in deference to it some of the expressions used in the earlier editions of this book have undergone a slight modification.
[42]See, however, British North America Act, 1867 (30 Vict. c. 3), s. 94, which gives the Dominion Parliament a limited power (when acting in conjunction with a Provincial legislature) of changing to a certain extent the provisions of the British North America Act, 1867.
[43]The legislatures of each Province have, nevertheless, authority to make laws for “the amendment from time to time, notwithstanding anything [in the British North America Act, 1867] of the Constitution of the Province, except as regards the office of Lieutenant Governor.” See British North America Act, 1867, s. 92.
[44]See for an example of an amendment of the Dominion Constitution by an Imperial statute, the ParLiament of Canada Act, 1875.
[45]British North America Act, 1867, secs. 91, 92.
[46]Ibid., secs. 56, 90.
[47]Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, p. 76.
[48]Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, p. 694.
[49]Constitution Fédérale, art. 113, Loi; 27 June 1874, art. 59; and Dubs, Das öffentliche Rechts der schweizerischen Eidgenésenschaft;, ii. (2nd ed.), p. 90.
[50]The decision thereof belonged till 1893 to the Assembly, guided by the Federal Council; it now belongs to the Federal Court. See Dubs, ii. pp. 92-95; Lowell, Governments and Parties, ii. pp. 217, 218.
[51]Constitution Fédérale, art. 113; and Dubs, ii. (2nd ed.), pp. 92-95.
[52]Constitution Fédérale, art. 113; and Dubs, ii. (2nd ed.), pp. 92-95.
[53]This weakness springs from two different causes: first, the division of powers between the central government and the States; secondly, the distribution of powers between the different members (e.g. the President and the Senate) of the national government. The first cause of weakness is inherent in the federal system; the second cause of weakness is not (logically at least) inherent in federalism. Under a federal constitution the whole authority of the national government might conceivably be lodged in one person or body, but we may feel almost certain that in practice the fears entertained by the separate States of encroachments by the central government on their State fights will prohibit such a concentration of authority.
The statement that federal government means weak government should be qualified or balanced by the consideration that a federal system sometimes makes it possible for different communities to be united as one state when they otherwise could not be united at all. The bond of federal union may be weak, but it may be the strongest bond which circumstances allow.
The failure and the calamities of the Helvetic Republic are a warning against the attempt to force upon more or less independent states a greater degree of political unity than they will tolerate.
The statement that federal government means weak government should be qualified or balanced by the consideration that a federal system sometimes makes it possible for different communities to be united as one state when they otherwise could not be united at all. The bond of federal union may be weak, but it may be the strongest bond which circumstances allow.
The failure and the calamities of the Helvetic Republic are a warning against the attempt to force upon more or less independent states a greater degree of political unity than they will tolerate.
[54]The latter part of statement is perhaps less true in 1908 than it was in 1885.
[55]Constitution Fédérale, art. 96.
[56]See, however, note 16, p. 81, ante.
[57]The expression “master of the constitution” has been criticised on the ground of exaggeration (Sidgwick, Elements of Politics, p. 616). The expression, however, though undoubtedly strong, is, it is submitted, justifiable, if properly understood. It is true, as my friend Mr. Sidgwick well pointed out, that the action of the Supreme Court is restrained, first, by the liability of the judges to impeachment for misconduct, and, secondly, by the fear of provoking disorder. And to these restraints a third and more efficient check must be added. The numbers of the Court may be increased by Congress, and its decision in a given case has not even in theory that force as a decisive precedent which is attributable to a decision of the House of Lords; hence if the Supreme Court were to pronounce judgments which ran permanently counter to the opinion of the party which controlled the government of the Union, its action could be altered by adding to the Court lawyers who shared the convictions of the ruling party. (See Davis, American Constitutions; the Relations of theThree Departments as adjusted by a Century, pp. 52-54) It would be idle therefore to maintain, what certainly cannot be asserted with truth, that the Supreme Court is the sovereign of the United States. It is, however, I conceive, true that at any given moment the Court may, on a case coming before it, pronounce a judgment which determines the working of the Constitution. The decision in the Dred Scott Case for example, and still more the judicial opinions delivered in deciding the case, had a distinct influence on the interpretation of the Constitution both by slave-owners and by Abolitionists. In terming the Court the “master of the constitution” it was not my intention to suggest the exercise by it of irregular or revolutionary powers. No doubt, again, the Supreme Court may be influenced in delivering its judgments by fear of provoking violence. This apprehension is admittedly a limit to the full exercise of its theoretical powers by the most absolute of despots. It was never my intention to assert that the Supreme Court, which is certainly not the sovereign of the United States, was in the exercise of its functions free from restraints which limit the authority of even a sovereign power. It must further be noted, in considering how far the Supreme Court could in fact exert all the authority theoretically vested in it, that it is hardly conceivable that the opinions of the Court as to, say, the constitutional limits to the authority of Congress should not be shared by a large number of American citizens. Whenever in short the Court differed in its view of the Constitution from that adopted by the President or the Congress, the Court, it is probable, could rely on a large amount of popular support.
[58]See W. G. Sumner, Andrew Jackson, American Statesmen Series, p. 182.
[59]See Davis, American Constitutions; the Relations of the Three Departments as adjusted by aCentury. Mr. Davis is distinctly of opinion that the power of the Courts both of the United States and of the separate States has increased steadily since the foundation of the Union. See Davis, American Constitutions, pp. 55-57.
[60]See passage cited, pp. 108-109, post.
[61]See Appendix, Note VIII., Swiss Federalism.
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