Introduction to the Study of the Law of the Constitution: Albert Venn Dicey [1915]

Foot Notes

Compare the Introduction to the second edition of Law and Public Opinion in England during the Nineteenth Century.

See Part I. Chaps. I.-III., post.

See Part II. Chaps. W.-XIII.,post.

See Part III. Chaps. XIV., XV., post.

See p. Lxxvi,post.

A student who wishes to understand the statements in the Introduction should read with care that part of the book on which they are a comment; thus the portions of the Introduction referring to the Sovereignty of Parliament ought to be read in connection with Part I. Chapters I. -III., post.

See Chaps. I.-III.,post

See Chap. I. p. 3, post. Parliament may itself by Act of Parliament either expressly or impliedly give to some subordinate legislature or other body the power to modify or add to a given Act of Parliament. Thus under the Commonwealth Act, 63 & 64 Vict. c. 12, the Imperial Parliament has given to the Parliament of the Australian Commonwealth power to modify many provisions of the Commonwealth Act, and the Imperial Parliament, under the National Insurance Act, 1911, has given power to the Insurance Commissioners and to the Board of Trade to modify some provisions of the Insurance Act.

See pp. 47–61, post

See especially the Parliament Act, 1911, ss. 1–3, and Appendix, Note XIII., the Parliament Act.

The Parliament Act in no way diminishes the prerogatives of the King as they existed immediately before the passing of that Act, and it is enacted (Parliament Act. s. 6) that “nothing in this Act shall diminish or qualify the existing rights and privileges of the House of Commons.”

See as to “indirect effects,” p. lxix, post.

See Parliament Act, ss. 1 and 3.

Except a Bill for extending the maximum duration of Parliament beyond five years. See Parliament Act, s. 2, sub-s, i.

See s. 2.

Sees. 2(1).

Ibid.

S. 2 (1) Proviso. Under this enactment the House of Lords may insist upon a delay of at least two years and one calendar month, and a powerful opposition in the House of Commons may lengthen this delay.

Constructive rejection arises under the Parliament Act, s. 2, sub-s. 3, which runs as follows: “A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses.” The Home Rule Bill was actually rejected by the vote of the House of Lords in its first and second session. It was constructively rejected in the third session by the House of Lords simply by the House not passing the Bill during such session.

The Parliament Act leaves the existing fights and privileges of the House of Commons untouched (ibid. sect. 6). No reference whatever is therein made to the so-called “veto” of the King. Its existence is undoubted, but the veto has not been exercised for at least two centuries. The well-known words of Burke, however, should always be borne in mind: “The king’s negative to bills,” he says, “is one of the most indisputed of the royal prerogatives; and it extends to all cases whatsoever. I am far from certain, that if several laws which I know had fallen under the stroke of that sceptre, the public would have had a very heavy loss. But it is the propriety of the exercise which is in question. The exercise itself is wisely forborne. Its repose may be the preservation of its existence; and its existence may be the means of saving the constitution itself, on an occasion worthy of bringing it forth.”— Burke, Letter to the Sheriffs of Bristol, vol. iii., ed. 1808, pp. 180, 181; ed. 2872, vol. ii. p. 28. Experience has confirmed the soundness of Burke’s doctrine. The existence of this “negative” has greatly facilitated the development of the present happy relation between England and her self-governing colonies. It has enabled English and colonial statesmanship to create that combination of Imperial unity with something coming near to colonial independence which may ultimately turn out to be the salvation of the British Empire.

For this use of the term Dominions see British Nationality & Status of Aliens Act, 1914,4 & 5 Geo. V. c. 17,1st Schedule. Compare especially as to British colonies with representative and responsible government pp. 47 to 61, post.

The Dominions for the most part consist either of a country which was a self-governing colony, or of countries which were self-governing colonies in 2884. But this statement does not apply with perfect accuracy to every one of the Dominions. Western Australia, for instance, which is now one of the states of the Commonwealth of Australia, did not obtain responsible government till 1890, and Natal, now a state of the Union of South Africa, did not obtain such government till 1893. The Union of South Africa itself consists to a great extent of states which in 1884, though subject to the suzerainty of the King, were (under the government of the Boers) all but independent countries.

Throughout this Introduction, unless the contrary is expressly stated, or appears from the context, no reference is made to the position either of (i.) the Crown colonies, or (ii.) the three colonies, viz. the Bahamas, Barbadoes, and Bermuda, which possess representative but not responsible government, or (iii.) British India. This Introduction, in short, in so far as it deals with the relation of the Imperial Parliament to the colonies, refers exclusively, or all but exclusively, to the relation between the Imperial Parliament and the five Dominions.

This term means what an English writer on our constitution would generally call simply “Parliament,” that is the Parliament of the United Kingdom. The term “Imperial Parliament” is, however, a convenient one when we have to deal, as in this Introduction, with the relation between the Parliament of the United Kingdom and the Dominions, every one of which has representative legislatures of their own which are always popularly, and sometimes in Acts of Parliament, termed Parliaments. The term “Imperial Parliament” is used in colonial statutes, e.g., in the Interpretation Act of the Commonwealth of Australia, No. 2 of 1901.

“Who are you,” to quote his words, “that should fret and rage, and bite the chains of nature? Nothing worse happens to you, than does to all nations who have extensive empire; and it happens in all the forms into which empire can be thrown. In large bodies, the circulation of power must be less vigorous at the extremities. Nature has said it. The Turk cannot govern Egypt, and Arabia, and Curdistan, as he governs Thrace; nor has he the same dominion in the Crimea and in Algiers which he has at Brusa and Smyrna. Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can. He governs with a loose rein, that he may govern at all; and the whole of the force and vigour of his authority in the centre is derived from a prudent relaxation in all his borders. Spain, in her provinces, is, perhaps, not so well obeyed as you are in yours. She complies too; she submits; she watches times. This is the immutable condition, the eternal law, of extensive and detached empire.”—Burke, Conciliation with America, vol. iii. (ed. 1808), PP. 56, 57.

This renunciation by the Imperial Parliament of the right to impose taxes upon a colony, whether a self-governing colony or not, has passed through two stages. Since 1783 taxation imposed by an Imperial Act has always been, even in the case of a Crown colony, imposed for the benefit of the colony, and the proceeds thereof have been paid to the colony. But until the repeal of the Navigation Laws in 1849 Parliament, in support of our whole navigation system, retained the practice of imposing duties on goods imported into the colonies, though the proceeds thereof were paid to the colonies so taxed. Since 2849 no Imperial Act has been passed for the taxation of any colony, and no colony is compelled by the Imperial Parliament to contribute anything in the way of taxation towards the cost of the government of the United Kingdom or towards the defence of the British Empire.

The Imperial Parliament does still impose customs duties upon the Isle of Man. See 3 & 4 Geo. V. c. 18.

See Dicey, Conflict of Laws (2nd ed.), pp. 329–333.

ibid., p. 441, and Ellis v. McHenry 0871), L. R. 6, C. P. 228, 234–236; but contrast New Zealand Loan, etc, Co. v. Morrison [1898], A. C. 349, cited Conflict of Laws, p. 342.

See pp. 56–61, post.

See as to meaning of Dominion, pp. xlii-xliii, note 21, ante.

See Keith, Responsible Government in the Dominions, p. 1316.

Ibid. pp. 1119—1122.

See Keith, Responsible Government in the Dominions, pp. 1316–1328.

See pp. 56–57, post.

See Keith, Responsible Government in the Dominions, p. 1583.

See Commonwealth of Australia Constitution, s. 74; South Africa Act, 2909, s. 206.

See especially South Africa Act, 1909, s. 106.

See first question, p. xliii, ante.

The difference between the expression “’self-governing colonies” and “Dominions” is worth noticing. The first is appropriate to 1884, the second is appropriate to 1984.

See Minutes of Proceedings of Imperial Conference, 191 [Cd. 5745], P. 22.

See Law and Opinion, pp. 450–457.

Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745] Opening address of the President (Mr. Asquith), p. 22. Compare “Message of King to Governments and Peoples of the Self-governing Dominions,” Times, Sept. 10, 1914.

Compare Dicey, Law and Opinion, pp. 450–457.

As they now [x914] are contributing.

The kind of equality among British subjects which Englishmen, whether wisely or not, hoped to establish throughout the whole Empire is best seen by considering the sort of equality which actually exists and has for many years existed in England. Speaking broadly, every British subject has in England at the present day the same political rights as every natural-born Englishman, e.g. an Englishman born in England and the son of English parents settled in England, Thus a British subject, whatever be the place of his birth, or the race to which he belongs, or I may now add the religion which he professes, has, with the rarest possible exceptions, the same right to settle or to trade in England which is possessed by a natural-born Englishman. He has further exactly the same political rights. He can, if he satisfies the requirements of the English electoral law, vote for a member of Parliament; he can, if he commends himself to an English constituency, take his seat as a member of Parliament. There is no law which forbids any British subject, wherever he be born, or to whatever race he belongs, to become a member of the English Cabinet or a Prime Minister. Of course it will be said that it is extremely improbable that the offices I have mentioned will, in fact, be filled by men who are not in reality Englishmen by race. This remark to a certain extent is true, though it is not wholly true. But the possession of theoretically equal political rights does certainly give in England, or rather to be strictly accurate in the United Kingdom, to every British subject an equality which some British subjects do not possess in some of the Dominions.

See Part II., and especially Chap. IV., post.

See Chap. XII.post.

See generally on this point Muir, Peers and Bureaucrats, especially pp. 1–94.

See sect. 7, and R. v. Board of Education (Swansea Case) [1910], 2K. B. 167; Board of Education v. Rice [1911], A. C. 179.

See National Insurance Act, 1911, ss. 66, 67, 88 (1), and generally Law and Opinion (2nd ed.), pp. 41–43.

See especially sect. 2, sub-s. 3, ss. 33 and 96.

Would this enactment protect the Speaker against an impeachment for giving a certificate which he knew to be false?

See Law and Opinion, pp. xliv-xlvi, and compare the Trade Union Act, 1913, ibid. p. xlviii.

See especially Lowell, Public Opinion and Popular Government, chap. iii.

See Chap. XII., especially pp. 242–267, post; Law and Opinion, pp. xxxii-liii.

Muir, Peers and Bureaucrats.

See Law and Opinion, pp. xxxix-xliii.

As to the constitution of this Court see p. 239 and Appendix, Note XI. pp. 416–417, post.

See Poincarè, How France is Governed, Trans. B. Miall. (T. Fisher Unwin, 1913), p. 272.

Administrative law has in some other continental countries, e.g. in Germany, been far less judicialised than in France.

Note, for instance, the absence of any law like the Habeas Corpus Act and the wide and arbitrary powers still left to the police under the head of the régime de police; Duguit, Traité de Droit Constitutionnel, ii.pp. 24–26, 33–45, and also the protection still extended in some instances to officials acting under the orders of their superior.

See pp. 262–264, post.

Duguit, Traité de Droit Constitutionnel, 1. pp. 460–467.

Consider the Official Secrets Acts.

See Chaps. XIV. and XV. post.

See espedally the indirect effects of the Parliament Act, p. li, post.

See as to the possible distinction between “legal” and “political” sovereignty, pp. 27–29, post.

It is certain that at the general election of 1880 the Liberal electors who gained a victory meant that Lord Beaconsfield should resign office and that Mr. Gladstone should be appointed Prime Minister.

As the King’s speech when addressing the House of Parliament became more and more, and was known to have become, the utterance rather of ministerial than of royal opinion, the necessity inevitably arose of the monarch’s finding some means for expressing his personal sympathy with the joy, and, above all, with the sorrow, of his people.

See p. cviii, note 107, post.

As to the essential difference between the laws and the conventions of the constitution, see pp. cxl-cxlvi, post.

See Provisional Collection of Taxes Act, 1913.

A critic may indeed say, and with truth, that a convention converted by statute into a law is in strictness not a convention at all but a part of the law of the constitution. This I will not deny; but such an enacted convention may indirectly so affect the working of conventional understandings or arrangements that its indirect effects are conveniently considered when dealing with the conventions of the constitution.

For the direct effects of the Act see p. xxxix, ante.

See as to this distinction, p. cxliii, post, and note especially Parliament Act, s. I, sub-ss. 2, 3, which give a statutable definition of a Money Bill, and also contain a special provision as to the mode of determining whether a Bill is a Money Bill.

See the Parliament Act, s. 7, “Five years shall be substituted for seven years as the time fixed for the maximum duration of Parliament under the Septennial Act, 1715.”

See Lowell, Government of England, partii. chaps, xxiv-xxxvii.; Low, The Governance of England, chaps, i. to vii. Ramsay Muir, in his essay on Bureaucracy (see Peers and Bureaucrats, pp. 1–94), would apparently agree with Mr. Lowell and Mr. Low, though he maintains that power tends at present under the English constitution to fall from the hands of the parliamentary Cabinet into the hands of the permanent civil servants.

Several recent occurrences show the occasional appearance of ideas or practices which may mitigate rather than increase the rigidity of the party system. In re Sir Stuart Samuel [1913], A. C. 514, shows that under the Judicial Committee Act, 1833, s. 4, a question of law on which depends the right of a Member of Parliament to sit in Parliament may be referred to the Privy Council and be adequately and impartially dealt with by a body of eminent lawyers. The thought suggests itself that other questions affecting the conduct and the character of M.P.s which cannot be impartially investigated by any Committee of the House of Commons might be referred to the same high tribunal. The public statement, again, of Lord Kitchener that he took office in no way as a partisan, but simply as a general whose duty it was to provide for the carrying on of a war in which the welfare and honour of the nation is concerned set a precedent which might be followed in other spheres than that of military affairs. Is it of itself incredible that a Foreign Secretary of genius might without any loss of character retain office for years both in Liberal and in Conservative Cabinets? Is there any thing absurd in supposing that a Lord Chancellor respected for his legal eminence and for his judgment might serve the country as the highest of our judges and give his legal knowledge to Cabinets constituted of men with whose politics he did not agree? The English people would gain rather than lose by a check being placed on the constantly increasing power of the party system.

See pp. 296–302, post.

Bowles v. Bank of England [1913], I Ch. 57.

It is hardly an exaggeration to say that there exist very few other modern political conceptions (except the idea of representative government) which were not criticised by the genius of Aristotle. Note however that the immense administrative system known as the Roman Empire lay beyond, or at any rate outside, the conceptions of any Greek philosopher.

See J. R. M. Butler, The Passing of the Great Reform Bill (Longmans, Green & Co., 1914). This is an excellent piece of historical narrative and inquiry.

See Law and Opinion, pp. 309,271, 272.

It would be impossible, and it is not my aim in this Introduction, to state or even summarise all the arguments for or against each of these ideas; my sole object is to bring into light the leading thoughts or feelings which underlie the advocacy of, or the opposition to, each of these new ideas. See p. lxxiv-lxxv, ante.

See the Vindication of the Rights of Women, by Mary Wollstonecraft, published 2792. Little was heard about such rights during the great French Revolution. There is no reason to suppose that Madame Roland ever claimed parliamentary votes for herself or for her sex.

For an examination of all the main arguments alleged on either side see Dicey, Letters to a Friend on Votes for Women.

Burke, Correspondence, i. pp. 332, 333.

See Humphreys, Proportional Representation; J. Fischer Williams, Proportional Representation and British Politics; Lowell, Public Opinion and Popular Government, pp. 122–124.

See Mr. Asquith’s speech at St. Andrews, Feb. 19,1906, cited by J. Fischer Williams, Proportional Representation, p. 17.

Mr. Asquith at Burnley, Dec. 5,1910, cited by J. Fischer Williams, Proportional Representation, p. 17.

Bagehot, English Constitution, pp. 148–159.

I choose these old expressions which have been in use, at any rate from 1689 till the present day, because they make it easier to keep somewhat apart from the burning controversies of 1914.

Cobden would have supported any Premier, whether a Tory or a Whig, who undertook to repeal the Corn Laws. O’Connell would have supported any Premier who had pledged himself to repeal the Act of Union with Ireland; but O’Connell’s position was peculiar. He took an active interest in English politics, he was a Benthamite Liberal, and during a part of his career acted in alliance with the Whigs.

Proportional representation was in Mill’s day known as minority representation. The change of name is not without significance. In 1870 the demand for minority representation was put forward mainly as the means for obtaining a hearing for intelligent minorities whose whisper might easily be drowned by the shouts of an unintelligent majority. In 1924 minority representation is recommended mainly as the means of ensuring that the true voice of the nation shall be heard. It was once considered a check upon democracy; it is now supported as the best method for giving effect to the true will of the democracy.

Compare espedally as to federal government, Chap. III. p. 73, post.

In Chap. III., post, federalism was analysed (1885) as illustrating, by way of contrast, that sovereignty of the English Parliament which makes England one of the best examples of a unitary state.

In treating of Imperial federalism, as often in other parts of this book, I purposely and frequently, in accordance with popular language, use “England” as equivalent to the United Kingdom.

See especially Chap. In. p. 73, post. It is worth observing that the substance of this chapter was published before the production by Gladstone of his first Home Rule Bill for Ireland.

As to meaning of “Dominions” see p. xlii, note 21, ante.

“But this Empire of ours is distinguished from [other Empires] by spedal and dominating characteristics. From the external point of view it is made up of countries which are not geographically conterminous or even contiguous, which present every variety of climate, soil, people, and religion, and, even in those communities which have attained to climate, complete self-government, and which are represented in this room to-day, does not draw its unifying and cohesive force solely from identity of race or of language. Yet you have here a political organisation which, by its mere existence, rules out the possibility of war between populations numbering something like a third of the human race. There is, as there must be among communities so differently situated and circumstanced, a vast variety of constitutional methods, and of social and political institutions and ideals. But to speak for a moment for that part of the Empire which is represented here to-day, what is it that we have in common, which amidst every diversity of external and material conditions, makes us and keeps us one? There are two things in the self-governing British Empire which are unique in the history of great political aggregations. The first is the reign of Law: wherever the King’s writ runs, it is the symbol and messenger not of an arbitrary authority, but of rights shared by every citizen, and capable of being asserted and made effective by the tribunals of the land. The second is the combination of local autonomy—absolute, unfettered, complete—with loyalty to a common head, co-operation, spontaneous and unforced, for common interests and purposes, and, I may add, a common trusteeship, whether it be in India or in the Crown Colonies, or in the Protectorates, or within our own borders, of the interests and fortunes of fellow-subjects who have not yet attained, or perhaps in some cases may never attain, to the full stature of self-government.”—See speech of the Right Hon. H. H. Asquith (President of the Conference), Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745], P. 22.

Sir Joseph Ward is an eminent colonial statesman; he is also an ardent Imperialist of the colonial type. In his plan for an Imperial Council, or in other words for an Imperial Parliament representing the United Kingdom, or rather the countries which now make it up, and also the Dominions, he calmly assumes that Englishmen will without difficulty allow the United Kingdom to be broken up into four countries ruled by four local Parliaments. He supposes, that is to say, as a matter of course, that Englishmen will agree to a radical change in the government of England which no sane English Premier would have thought of pressing upon the Parliaments of the self-governing colonies which now constitute the Dominion of Canada or which now constitute the Commonwealth of Australia. See Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745], PP. 59–61

100

See Mr. Asquith’s address, cited pp. xcviii-xcix, note 98, ante.

101

See p. liv, and note 43, ante.

102

See A Fool’s Paradise, p. 24.

103

This conviction is strengthened by the facts now daily passing before our eyes (Sept. 191–4).

104

See pp. xcviii, xcix, ante; and see A Fool’s Paradise, p. 25.

105

Consider the gradual, the most hopeful, and the most successful development of these conferences from 1887 to the last conference in 1911. A sort of conference was held in 1887, and the conferences of 1897 and 1902 were held in connection with some other celebration. The first regular conference for no other purpose than consultation was held in 1907, in The first regular Imperial Conference received by resolution a definite constitution. The conference of 1911 was held under the scheme thus agreed upon in 1907.

106

The omission of reference to the policy of Home Rule for Ireland as embodied in the Government of Ireland Act, 1914, is intentional. The true character and effect of that Act cannot become apparent until some years have passed. The Act itself stands in a position never before occupied by any statute of immense and far-reaching importance. It may not come into operation for an indefinite period. Its very authors contemplate its amendment before it shall begin to operate. The Act is at the moment detested by the Protestants of Ulster, and a binding though ambiguous pledge has been given that the Act will not be forced upon Ulster against her will. The people of Great Britain will insist on this pledge being ced sacred. To a constitutionalist the Act at present affords better ground for wonder than for criticism. If any reader should be curious to know my views on Home Rule he will find them in a general form in England’s Case against Home rule, Published in 1887 and as applied to the last Home Rule Bill, in A Fool’s paradise, Published in 1913.

107

Any great change in the form of the constitution of England, e.g. the substitution of an English republic for a limited monarchy, might deeply affect the loyalty of all the British colonies. Can any one be certain that New Zealand or Canada would, at the bidding of the Parliament of the United Kingdom, transer their loyalty from George V. to a President chosen by the electorate of the United Kingdom, and this even though the revolution were carried out with every legal formality including the assent of the King himself, and even though the King were elected the first President of the new Commonwealth? Is it certain that a federated union of England, Ireland, Scotland, and Wales would command in our colonies the respect paid to the present United Kingdom? These questions may well seem strange: they are not unimportant. The King is what the Imperial Parliament has never been, the typical representative of Imperial unity throughout every part of the Empire.

108

Lowell, Public Opinion and Popular Government, part iii. chaps, xi-xv., especially chaps, xii. and xiii. (best thing on the subject); Lowell, Government of England, i. p. 411; “The Referendum and its Critics,” by A.V. Dicey, Quarterly Review, No. 423, April 1910; The Crisis of Liberalism, by J. A. Hobson; Low, The Governance of England, Intro. p. xvii; “Ought the Referendum to be introduced into England?” by A.V. Dicey, Contemporary Review, 1890, and National Review, 1894.

109

And a fortiori when passed under the Parliament Act, without the consent of the House of Lords.

110

The referendum, it should be noted, can be applied to legislation for different purposes and in different ways. It may, for instance, be applied only to a Bill affecting fundamental changes in the constitution, e.g. to a Bill affecting the existence of the monarchy, or to any Bill which would in popular language be called a Reform Bill, and to such Bill after it has been passed by the two Houses. In this case the object of the referendum would be to ensure that no Act of transcendent importance shall be passed without the undoubted assent of the electors. The referendum may again be applied, as it is applied in the Commonwealth of Australia, for preventing “deadlocks,” as they are called, arising from the fact of one House of Parliament having carried repeatedly, and the other having repeatedly rejected, a given Bill.

111

Compare Law and Opinion (and ed.), pp. 440–443.

112

Strictly, 638 members. See Whitaker’s Almanack, 1914, p. 124.

113

Maine, Popular Government, pp. 97–98.

114

See ibid. pp. 96–97.

115

See Against the Referendum and Quarterly Review, April 1910, No. 423, pp. 551, 552.

116

Lowell, Government of England, chaps, xxiv-xxvii., and especially i. pp. 441–447; Public Opinion and Popular Government, partii. pp. 57–110.

117

See note on preceding page.

118

See p. lxviii, ante.

119

See pp. lxxvii-lxxx, ante.

120

Bagehot, English Constitution (2nd ed.). pp. xvii-xix.

Burke, Works, iii, (1872 ed.), p. 114.

Hallam, Middle Ages (zath ed.), ii. p. 267. Nothing gives a more vivid idea of English sentiment with regard to the constitution towards the end of the eighteenth century than the satirical picture of national pride to be found in Goldsmith’s Citizen of the World, Letter IV.

See Stanhope, Life of Pitt, i. App. p. 10.

See this point brought out with great clearness by Monsieur Boutmy, Etudes de Droit Constitutionnel (2nd ed.), p. 8, English translation, p. 8. Monsieur Boutmy well points out that the sources of English constitutional law may be considered fourfold, namely—(1) Treaties or Quasi-Treaties, i.e. the Acts of Union; (2) The Common Law; (3) Solemn Agreements (pacts), e.g. the Bill of Rights; (4) Statutes. This mode of division is not exactly that which would be naturally Rights; by an English writer, but it calls attention to distinctions often overlooked between the different sources of English constitutional law.

Blackstone, Commentaries, i. p. 250.

The following passage from Paley’s Moral Philosophy, published in 1785, is full of instruction. “In the British, and possibly in all other constitutions, there exists a wide difference between the actual state of the government and the theory. The one results from the other; but still they are different. When we contemplate the theory of the British government, we see the King invested with the most absolute personal impunity; with a power of rejecting laws, which have been resolved upon by both Houses of Parliament; of conferring by his charter, upon any set or succession of men he pleases, the privilege of sending representatives into one House of Parliament, as by his immediate appointment he can place whom he will in the other. What is this, a foreigner might ask, but a more circuitous despotism? Yet, when we turn our attention from the legal existence to the actual exercise of royal authority in England, we see these formidable prerogatives dwindled into mere ceremonies; and in their stead, a sure and commanding influence, of which the constitution, it seems, is totally ignorant, growing out of that enormous patronage, which the increased extent and opulence of the Empire has placed in the disposal of the executive magistrate.”—Paley, Moral Philosophy, Book vi. cap. vii. The whole chapter whence this passage is taken repays study. Paley sees far more dearly into the true nature of the then existing constitution than did Blackstone. It is further noticeable that in 2785 the power to create Parliamentary boroughs was still looked upon as in theory an existing prerogative of the Crown. The power of the Crown was still large, and rested in fact upon the possession of enormous patronage.

Blackstone, Commentaries, i. p. 267.

See Freeman, Growth of the English Constitution (1sted.), p. 125.

See 12 Rep. 64; Hearn, Government of England (2nd ed.), chap. iii.

See further on this point, Part Ed. post.

Tocqueville Œuvres Completes, i,166,167.

Compare Holland, Jurisprudence Ototh ed.), pp. 138,139, and 359–363. “By the constitution of a country is meant so much of its law as relates to the designation and form of the legislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction of courts of justice. The constitution is one principal division, section, or title of the code of public laws, distinguished from the rest only by the superior importance of the subject of which it treats.”—Paley, Moral Philosophy, Book vi. chap. vii.

Compare Hearn, Government of England (and ed.), chap. iv.

As to the meaning of “veto,” see Hearn, Government of England (and ed.), pp. 51, 60, 61, 63, 548, and the article on the word Veto in the last edition of the Encyclopaedia Britannica, by Professor Orelh.

Some of these maxims are never violated, and are universally admitted to be inviolable. Others, on the other hand, have nothing but a slight amount of custom in their favour, and are of disputable validity. The main distinction between different classes of conventional rules may, it is conceived, be thus stated: Some of these rules could not be violated without bringing to a stop the course of orderly and pacific government; others might be violated without any other consequence than that of exposing the Minister or other person by whom they were broken to blame or unpopularity, This difference will at bottom be found to depend upon the degree of directness with which the violation of a given constitutional maxim brings the wrongdoer into conflict with the law of the land. Thus a Ministry under whose advice Parliament were not summoned to meet for more than a year would, owing to the lapse of the Mutiny Act, etc., become through their agents engaged in a conflict with the Courts. The violation of a convention of the constitution would in this case lead to revolutionary or reactionary violence. The rule, on the other hand, that a Bill must be read a given number of times before it is passed is, though a well-established constitutional principle, a convention which might be disregarded without bringing the Government into conflict with the ordinary law. A Ministry who induced the House of Commons to pass an Act, e.g. suspending the Habeas Corpus Act, after one reading, or who induced the House to alter their rules as to the number of times a Bill should be read, would in no way be exposed to a contest with the ordinary tribunals. Ministers who, after Supplies were voted and the Mutiny Act passed, should prorogue the House and keep office for months after the Government had ceased to retain the confidence of the Commons, might or might not incur grave unpopularity, but would not necessarily commit a breach of law. See further Part III. post.

The conventional element in the constitution of the United States is far larger than most Englishmen suppose. See on this subject Wilson, Congressional Government, and Bryce (3rd ed.), American Commonwealth, chaps, xxxiv, and xxxv. It may be asserted without much exaggeration that the conventional element in the constitution of the United States is now as large as in the English constitution. Under the American system, however, the line between “conventional roles” and “laws” is drawn with a precision hardly possible in England.

Under the constitution of the existing French Republic, constitutional conventions or understandings exert a considerable amount of influence. They considerably limit, for instance, the actual exercise of the large powers conferred by the letter of the constitution on the President. See Chardon, L Administration de la France—Les Fonctionnaires, pp. 79–105.

This treatise was originally published in 1885. Since that date legal decisions and public discussion have thrown light upon several matters of constitutional law, such, for example, as the limits to the right of public meeting and the nature of martial law.

Written 1885. See for Bradlaugh’s political career, Diet. Nat. Biog., Supplement, vol. i. p. 248.

4 P. D. 129; 5 P. D. 197. Compare Walker v. Baird [1892], A. C. 491, 497.

L. R., 10 Q. B. 31.

Since these words were written, Sir William Anson’s admirable Law and Custom of the Constitution has gone far to provide a complete scheme of English constitutional law.

See Part I. post.

See Part II. post.

See Part III. post.

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

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.

Fourth Institute, p. 36.

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.

6 Anne, c. 41 (otherwise 6 Anne, c. 7), sec. 1. This enactment is still in force.

George I. st. 2, c. 38.

Hallam, Constitutional History of England, iii. (1872 ed.), p. 236.

Lord Mahon, History of England, i. p. 302.

Thorold Rogers, Protests of the Lords, i. p. 228.

See Priestley on Government (1771), P. 20.

Hallam, Constitutional History, iii. (1872 ed.), p. 236(n.).

Coke, Fourth Institute, p. 36.

See Chap. V. post.

See Stubbs, Constitutional History, i. pp. 126–128, and ii. pp. 245–247.

Stubbs, ibid. ii. chap. xv.

31 Henry VIII.,c. 8.

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.

See Duguit, Manuel de Droit Public Francais—Droit Constitutionnel, ss. 140,141.

See Coke, 12 Rep. p. 74; and Gardiner, History of England, ii. pp. 104, 105.

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.

9 A. & E. 1.

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.

Bradlaugh v. Gossett, 1. Q. B. D. 271, 285.

II A. & E. 273.

Conf. Attorney -General v. Bradlaugh, 14 Q. B. D. (C. A.), 667.

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 privilege Shaftesbury’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.

See pp. 27–30, post.

Constitution Fédérale de la Confédération Swisse, Arts. 118–121; see Adams, The Swiss Confédération, chap. vi.

Constitution Fédérale de la Confederation Swisse, Art. 89.

Pollock, Essays in Jurisprudence and Ethics, p. 237, and see Dicey, Law and Opinion in England (2nd ed.), pp. 361, 483.

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.

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.

Blackstone, Commentaries, i. p. 40; and see Hearn, Government of England (2nd ed.), pp. 48,49.

See Ex parte Blain, 12 Ch. D. (C. A.), 522, 531, judgment of Cotton, L. J.

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.

See Stubbs, Constitutional History, ii. pp. 239, 486, 513–515.

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.

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.

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.

The Union with Scotland Act, 1706, 6 Anne, c. 11.

The Union with Ireland Act, 1800, 39 & 40 Geo. III., c. 67.

See 6 Anne, c. 11, art. 25.

16 & 17 Vict. c. 89, s. I.

Compare Innes, Law of Creeds in Scotland, pp. 118–121.

18 Geo. III., c. 12.

18 Geo. III., c. 12, s. 1.

6 Geo. III.,c. 12.

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.”

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.)

Compare Austin, Jurisprudence, i. (4th ed.), p. 268.

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.

Austin, Jurisprudence, i. (4th ed.), p. 253.

This Austin concedes, but the admission is fatal to the contention that Parliament is not in strictness a sovereign. (See Austin Jurisprudence, i. (4th ed.), pp. 252, 253.)

Hume, Essays, i. (1875 ed.), pp. 109, 110.

Leslie Stephen, Science of Ethics, p. 143.

Compare Law and Opinion in England, pp. 4, 5.

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.

Tocqueville, i. (translation), p. 96, Œuvres Complétes, i. pp. 166,167.

Tocqueville, Œuvres Complétes, i. p. 312.

See Bryce, Studies in History and Jurisprudence, i. Essay III., Flexible and Rigid Constitutions.

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.

See p. 37, ante.

See chapter. III., post.

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.

Dyson v. L, & N. W. Ry. Co., 7 Q. B. D. 32.

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.

See Ilbert, Government of India, pp. 199–216, Digest of Statutory Enactments, ss. 60–69.

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.

See 24 & 25 Vict. c. 67. s. 22.

3 Ind. L. R. (Calcutta Series), p. 63.

Reg. v. Burah, 3 App. Cas. 889.

See especially Empress v. Burah and Book Singh, 3 Ind. L. R. (Calcutta Series, 1878), 63. 86-89, for the judgment of Markby J.

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 the Seas, p. 70.)

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.

28 & 29 Vict. c. 63. See on this enactment, Jenkyns, British Rule and Jurisdiction beyond the Seas, pp. 71, 72.

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.

Assuming, of course, that such Acts are not inconsistent with any imperial statute applying to the colony. (Compare Robinson v. Reynolds, Macassey’s N. Z. Rep. p. 562.)

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.

See Powell v. Apollo Candle Co., 10 App. Cas. 282; Hodge v. The Queen, 9 App. Cas. 117.

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.

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.

See Todd, Parliamentary Government, pp. 168-192.

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 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—

1
The refusal of the Governor’s assent to a bill.
2
Reservation 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.
3
The 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.
4
The 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.)

Todd, Parliamentary Government in the British Colonies, p. 137.

Todd, Parliamentary Government in the British Colonies, p. 144.

/Ibid., pp. 147, 150.

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.

See Todd, Parliamentary Government in the British Colonies, pp. 192-218.

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.

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.

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.

Demombynes, Les Constitutions Européennes, ii. (2nd ed.), pp. 1-5. See Appendix, Note I., Rigidity of French Constitutions.

A. de Tocqueville, Democracy in America, ii. (translation), App. pp. 322, 323. Œuvres Completes, i. p. 311.

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 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, Précis élémentairede 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.)

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 cette declaration 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).

See Appendix, NoteI., Rigidity of French Constitutions.

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.

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.

“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, Les Constitutions 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, Les Constitutions de la France, p. 579.

See Appendix, Note I, Rigidity of French Constitutions.

See Constitution of 1795, Tit. xiii. Art. 338, Hélie, Les Constitutions de la France, p. 463.

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’Assemblée Nationale.

A. de Tocqueville, Œuvres Completes, i. pp. 167,168.

See Chap. XII.

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.

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.].

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.

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.

See Appendix, Note II., Division of Powers in Federal States.

Constitution Fédérale, Preamble, and art. 3.

See Constitution of United States, art. 6, ch. 2.

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.

Compare especially Kent, Commentaries, i. pp. 447-449.

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.

See pp. 39, 64-66, ante.

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.

See e.g. South Africa Act, 1909, s. 152.

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.

“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.

[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.]

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.

Seep. 40, note4,ante.

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.

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.

Constitution of United States, art. 1, sec. 9.

Ibid., art. 1, sec. 10.

Ibid., art. 1, sec. 9. But conf. art. 1, sec. 10.

Ibid., art. 1, sec. 10.

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.

See Munn v. Illinois, 4 Otto, 113.

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.

Constitution of United States, art. 6.

Kent, Commentaries, i. (12th ed.), p. 314, and conf. Ibid., p. 449.

Constitution of United States, art. 3, secs. 1, 2.

Kent, Commentaries, i. (12th ed.), pp. 299, 300.

Kent, Commentaries, i. (12th ed.), pp. 244-248.

Ibid., pp. 248-254.

Ibid., pp. 262-266.

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.

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).

See Chap. II. pp. 42-45, ante.

Martin, 421.

1Va. Cas. 198.

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.

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.

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.

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.

See for an example of an amendment of the Dominion Constitution by an Imperial statute, the ParLiament of Canada Act, 1875.

British North America Act, 1867, secs. 91, 92.

Ibid., secs. 56, 90.

Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, p. 76.

Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, p. 694.

Constitution Fédérale, art. 113, Loi; 27 June 1874, art. 59; and Dubs, Das öffentliche Rechts der schweizerischen Eidgenésenschaft;, ii. (2nd ed.), p. 90.

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.

Constitution Fédérale, art. 113; and Dubs, ii. (2nd ed.), pp. 92-95.

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 latter part of statement is perhaps less true in 1908 than it was in 1885.

Constitution Fédérale, art. 96.

See, however, note 16, p. 81, ante.

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 the Three 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.

See W. G. Sumner, Andrew Jackson, American Statesmen Series, p. 182.

See Davis, American Constitutions; the Relations of the Three Departments as adjusted by a Century. 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.

See passage cited, pp. 108-109, post.

See Appendix, Note VIII., Swiss Federalism.

Year Books, xxiv. Edward III.; cited Gneist, Englische Verwaltungsrecht, i. p. 454.

See Part I.

Year Books, xix. Henry VI., cited Gneist, Englische Verwaltungsrecht, i. p. 455.

Many of Tocqueville’s remarks are not applicable to the Switzerland of 1902; they refer to a period before the creation in 1848 of the Swiss Federal Constitution.

See Tocqueville, Œuvres Completès, viii. pp. 455-457.

“La liberté est le droit de faire tout ce que les lois permettent; et si un citoyen pouvoit faire ce qu’elles défendent, il n’auroit plus de liberté, paree que les autres auroient tout de même ce pouvoirs.”—Montesquieu, De l’Esprit des Lois, Livre XI. chap. iii.

“Ily a aussi une nation clans le monde qui a pour objet direct de sa constitution la liberté politique.—Ibid, chap. v. The English are this nation.

“Les circonstances qui contraignaient Voltaire à chercher un refuge chez nos voisins devaient lui inspirer une grande sympathies pour des institutions où il n’y avait nulle place à l’arbitraire. ‘La raison est libre ici et n’y connaît point de contrainte.’ On y respire un air plus génbréux, l’on se sent au milieu de citoyens qui n’ont pas tort de porter le front haut, de marcher fièrement, sûrs qu’on n’efit pu toucher à un seul cheveu de leur tête, et n’ayant à redoubter ni lettres de cachet, ni captivité immotivée.—Desnoiresterres, Voltaire, i. p. 365.

Desnoiresterres, i. pp. 344-364.

It is worth notice that even after the meeting of the States General the King was apparently reluctant to give up altogether the powers exercised by lettres de cachet. See “Déclaration des intentions du Roi,” art. 15, Plouard, Les Constitutions Franéaises, p. 10.

For English sentiment with reference to the servitude of the French, see Goldsmith, Citizen of the World, iii. Letter iv.; and see 1bid., Letter xxxvii, p. 143, for a contrast between the execution of Lord Ferrers and the impunity with which a French nobleman was allowed to commit murder because of his relationship to the Royal family; and for the general state of feeling throughout Europe, Tocqueville, Œuvres Complétes, viii. pp. 57-72. The idea of the rule of law in this sense implies, or is at any rate Completes, closely connected viii. the absence of any dispensing power on the part either of the Crown or its servants. See Bill of Rights, Preamble 1, Stubbs, Select Charters (2nd ed.), p. 523. Compare Miller vknox, 6 Scott, 1; Attorney-General v. Kissane, 32 L.R. Ir. 220.

For first meaning see p. 120, ante.

Mostyn v. Fabregas, Cowp. 161; Musgrave v. Pulido, 5 App. Cas. 102; Governor Wall’s Case, 28 St. Tr. 51.

Entick v. Carrington, 19 St. Tr. 2030.

Phillips v. Eyre, L. R., 4 Q. B. 225.

As to the legal position of soldiers, see Chaps. VIII. and IX., post.

See Chapter XII. as to the contrast between the rule of law and foreign administrative law.

Compare Calvin’s Case, 7 Coke, Rep. 1; Campbell v. Hall, Cowp. 204; Wilkes v. Wood, 19 St. Tr. 1153; Mostyn v. Fabregas, Cowp. 161. Parliamentary declarations of the law such as the Petition of Right and the Bill of Rights have a certain affinity to judicial decisions.

Mill, Representative Government, p. 4.

See Plouard, Les Constitutions Franéaises, pp. 14-16; Duguit and Monnier, Les Constitutions de la France (2nd ed.), pp. 4, 5.

The Petition of Right, and the Bill of Rights, as also the American Declarations of Rights, contain, it may be said, proclamations of general principles which resemble the declarations of rights known to foreign constitutionalists, and especially the celebrated Declaration of the Rights of Man (Declaration des Droits de l’Homme et du Citoyen) of 1789. But the English and American Declarations on the one hand, and foreign declarations of rights on the other, though bearing an apparent resemblance to each other, are at bottom remarkable rather by way of contrast than of similarity. The Petition of Right and the Bill of Rights are not so much “declarations of rights” in the foreign sense of the term, as judicial condemnations of claims or practices on the part of the Crown, which are thereby pronounced illegal. It will be found that every, or nearly every, clause in the two celebrated documents negatives some distinct claim made and put into force on behalf of the prerogative. No doubt the Declarations contained in the American Constitutions have a real similarity to the continental declarations of rights. They are the product of eighteenth-century ideas; they have, however, it is submitted, the distinct purpose of legally controlling the action of the legislature by the Articles of the Constitution.

See Chap. XII.

Chap. V.

Chap, Vl.

Chap, VII.

Chap, VIII.

Chap, IX.

Chap, X.

Chap. XI.

Chap. XII,

The rule of equal law is in England now exposed to a new peril. “The Legislature has thought fit,” writes Sir F. Pollock, “by the Trade Disputes Act, 1906, to confer extraordinary immunities on combinations both of employers and of workmen, and to some extent on persons acting in their interests. Legal science has evidently nothing to do with this violent empirical operation on the body politic, and we can only look to jurisdictions beyond seas for the further judicial consideration of the problems which our Courts were endeavouring (it is submitted, not without a reasonable measure of success) to work out on principles of legal justice.—Pollock, Law of Torts (8th ed.), p. v.

Constitution de la Belgique, art. 7.

See Stubbs, Charters (2nd ed.), p. 301.

See as to arrests, Stephen, Commentaries, iv. (14th ed.), pp. 303-312.

Another means by which personal liberty or other rights may be protected is the allowing a man to protect or assert his rights by force against a wrongdoer without incurring legal liability for injury done to the aggressor. The limits within which English law permits so-called “self-defence,” or, more accurately, “the assertion of legal rights by the use of a person’s own force,” is one of the obscurest among legal questions. See Appendix, Note IV., Right of Self-Defence.

Contrast the French Code Penal, art. 114.

Hunter v. Johnson, 13 Q. B. D. 225.

Contrast with this the extraordinary remedies adopted under the old French monarchy for the punishment of powerful criminals. As to which see Fléchier, Memoires surles Grand-Jours tenues a Clermont en 1665-66.

See Stephen, Commentaries (14th ed.), iii. pp. 697-707; 16 Car. I. c. 1o; 31 Car. II. c. 2; 56 George III. c. 100; Forsyth, Opinions, 436-452,481.

Carus Wilson’s Case, 7 Q. B. 984, 988. In this particular case the writ calls upon the gaoler of the prison to have the body of the prisoner before the Court by a given day. It more ordinarily calls upon have to have the prisoner before the Court “immediately after the receipt of this writ.”

Rex v. Winton, 5 T. R. 89, and conf. 56 Geo. III. c. 100, s. 2; see Corner, Practice of the Crown Side of the Court of Queen’s Bench.

31 Car. II. c. 2, s. 4.

See also 16 Car. I. c. 10, s. 6.

See Stephen, Digest of the Law of Criminal Procedure, art. 276, note, and also art. 136 and p. 89, note 1. Compare the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), s. 23.

See The Queen v. Nash, 10 Q. B. D. (C. A.) 454; and compare Re Agar-Ellis, 24 Ch. D. (C. A.) 317. For recent instances of effect of Habeas Corpus Act see Barnardo v. Ford [2892], A. C. 326; Barnardo v. McHugh [2891], A. C. 388; Reg. v. Jackson [1891], 1Q. B. (C. A.) 671; Cox v. Hakes, 25 App. Cas. 506; Reg. v. Barnardo, 24 Q. B. D. (C. A.) 283; and 23 Q. B. D. (C. A.) 305. Compare as to power of Court of Chancery for protection of children independently of Habeas Corpus Acts, Reg. v. Gyngall [1893], 2 Q. B. (C. A.) 232.

As to appeal to Privy Council, see Att. Gen. for Hong Kong v. Kwok-A-Sing (1873), L. R. 5P.C.179.

The inconvenience ultimately remedied by the Habeas Corpus Act, 1816, was in practice small, for the judges extended to all cases of unlawful imprisonment the spirit of the Habeas Corpus Act, 1679, and enforced immediate obedience to the writ of habeas corpus, even when issued not under the statue, but under the common law authority of the Courts. Black-stone, Comm. iii. p. 138.

Sommersett’s Case, 20 St. Tr. 1.

Compare Imperial Constitution of 1804, ss. 60–63, under which a committee of the Senate was empowered to take steps for putting an end to illegal arrests by the Government. See Plouard, Les Constitutions Francaises, p. 161.

The Case of the Canadian Prisoners, 5 M & W. 32.

In re Allen, 30 L. J. (Q. B.), 38.

See Case of Pressing Mariners, 18 St. Tr. 1323; Stephen, Commentaries, ii. (14h ed.), p. 574; conf. Corner, Forms of Writs on Crown Side of Court of Queen’s Bench, for form of habeas corpus for an impressed seaman.

See Forsyth, Opinions, p. 468.

See, however, Rex, v. Lundy, 2 Ventris, 314; Rex v. Kimberley, 2 Stra., 848; East India Company v. Campbell, 1 Ves. Senr., 246; Mure v. Kaye, 4 Taunt. 34; and Chitty, Criminal Law (1826), pp. 14, 16, in support of the opinion that the Crown possessed a common law right of extradition as regards foreign criminals. This opinion may possibly once have been correct. (Compare, however, Reg. v. Bernard, Annual Register for 1858, p. 328, for opinion of Campbell, C. J., cited In re Castioni [1891], 1 Q. B. 149,153, by Sir C. Russell, arguendo.) It has, however, in any case (to use the words of a high authority) “ceased to be law now. If any magistrate were now to arrest a person on this ground, the validity of the commitment would certainly be tested, and, in the absence of special legislative provisions, the prisoner as certainly discharged upon application to one of the superior Courts.”—Clarke, Extradition (3rd ed.), p. 27. The case of Musgrove v. Chun Teeong Toy [1891], A. C. 272, which establishes that an alien has not a legal right, enforceable by action, to enter British territory, suggests the possible existence of a common law right on the part of the Crown to expel an alien from British territory.

In re Bellencontre [1891], 2 Q. B. 122.

In re Coppin, L. R. 2 Ch. 47; The Queen v. Wilson, 3 Q. B. D. 42.

Contrast the dealings of Louis Philippe’s Government in 1833 with the Duchesse de Berry, for which see Grégoire, Histoire de France, i. pp. 356–361.

See Chap. XII.

Darnel’s Case, 3 St. Tr. 1.

See Gardiner, History of England, ii. chap. xxii., for an admirable statement of the different views entertained as to the position of the judges.

Of which s. 1 enacts “that every person or persons that are or shall be in prison within the kingdom of Great Britain at or upon the day on which this Act shall receive his Majesty’s royal assent, or after, by warrant of his said Majesty’s most honorable Privy Council, signed by six of the said Privy Council, for high treason, suspicion of high treason, or treasonable practices, or by warrant, signed by any of his Majesty’s secretaries of state, for such causes as aforesaid, may be detained in safe custody, without bail or mainprize, until the first day of February one thousand seven hundred and ninety-five; and that no judge or justice of the peace shall bail or try any such person or persons so committed, without order from his said Majesty’s Privy Council, signed by six of the said Privy Council, fill the said first day of February one thousand seven hundred and ninety-five; and law or statute to the contrary notwithstanding.”

The so-called suspension of the Habeas Corpus Act under a statute such as 34 Geo. III. c. 54, produces both less and more effect than would the total repeal of the Habeas Corpus Acts. The suspension, while it lasts, makes it possible for the government to arrest and keep in prison any persons declared in effect by the government to be guilty or suspected of treasonable practices, and such persons have no means of obtaining either a discharge or a trial. But the suspension does not affect the position of persons not detained in custody under suspicion of treasonable practices. It does not therefore touch the ordinary liberty of ordinary citizens. The repeal of the Habeas Corpus Acts, on the other hand, would deprive every man in England of one security against wrongful imprisonment, but since it would leave alive the now unquestionable authority of the judges to issue and compel obedience to a writ of habeas corpus at common law, it would not, assuming the Bench to do their duty, increase the power of the government to imprison persons suspected of treasonable practices, nor materially diminish the freedom of any dass of Englishmen. Compare Blackstone, Comm. iii. p. 138.

See Duguit, Manuel de Droit Constitutionnel, pp. 510–513, and article “État de Siège” in Chéruel, Dictionnaire Historique des Institutions de la France (6th ed.).

Viz, (a) treason or treason-felony; (b) murder or manslaughter; (c) attempt to murder; (d) aggravated crime of violence against the person; (e) arson, whether by law or by statute; attack on dwelling-house.

Sect. 1.

Sect. 12.

Sect. 13.

Sect. 15.

See pp. 10, 11, ante.

Duguit et Monnier, Les Constitutions de la France, p. 1.

Bourguignon, Éléments Généraux de Législation Française, p. 468.

Déar. des droits, art. 11, Plouard, p. 16, Duguit et Monnier, p. 2.

Constitution de 1791, Tit. 1; Plouard, p. 18, Duguit et Monnier, p. 4.

Constitution de la Belgique, art. 18.

It appears, however, in the Preamble to Lord Campbell’s Act, 1843, 6 & 7 Vict. c. 96.

Odgers, Libel and Slander, Introd. (3rd ed.), p. 12.

For exceptions to this, see e.g. 8 & 9 Vict. c. 75; 44 & 45 Vict. c. 60, s. 2. It is, however, true, as pointed out by one of my critics (see the Law of the Press, by Fisher & Strahan, 2nd ed. p. iii.), that “there is slowly growing up a distinct law of the press.” The tendency of recent press legislation is to a certain extent to free the proprietors of newspapers from the full amount of liability which attaches to other persons for the bona fide publication of defamatory statements made at public meetings and the like. See especially the Libel Law Amendment Act, 1888 (51 & 52 Vict. c. 64), s. 4. Whether this deviation from the principles of the common law is, or is not, of benefit to the public, is an open question which can be answered only by experience.

Whistler v. Ruskin, “The Times,” Nov. 27,1878, per Huddleston, B.

See Stephen, Digest of the Criminal the law (6th ed.), arts. 96, 97, 98.

Ibid., arts. 179–183.

See especially Stephen, Digest of the Criminal Law (6th ed.), art. 179, and contrast Odgers (3rd ed.), pp. 475–490, where a view of the law is maintained differing from that of Sir J. F. Stephen.

See 9 & 10 Will. III. c. 35, as altered by 53 Geo. III. c. 160, and Stephen’s Digest of the Criminal Law, art. 181. Conf. Attorney-General v. Bradlaugh, 14 Q. B. D. (C. A.), 667, p. 719, judgment of Lindley, L. J.

“The truth of the matter is very simple when stripped of all ornaments of speech, and a man of plain common sense may easily understand it. It is neither more nor less than this: that a man may publish anything which twelve of his countrymen think is not blamable, but that he ought to be punished if he publishes that which is blamable [i.e. that which twelve of his countrymen think is blamable. This in plain common sense is the substance of all that has been said on the matter.”—Rex v. Cutbill, 27 St. Tr. 642, 675.

Rex v. Dean of St. Asaph, 3 T. R. 431 (note).

16Rex v. Cobbett, 29 St. Tr. 49; see Odgers, Libel and Slander (3rd ed.), p. 10.

See p. 110, ante.

I.e. the licensing of plays. See the Theatres Act, 1843, 6 & 7 Vict. c. 68; Stephen, Commentaries (14th ed.), iii. p. 227.

Compare Odgers, Libel and Slander (3rd ed.), chap. xiii., especially pp. 388–399, with the first edition of Mr. Odgers” work, pp. 13–16.

Reg. v. Pooley, cited Stephen, Digest of the Criminal Law (6th ed.), p. 125.

This statement must be to a certain extent qualified in view of the Libel Act, 1843,6 & 7 Vict. c. 96, the Newspaper Libel and Registration Act, 1882,44 & 45 Vict. c. 60, and the Law of Libel Amendment Act, 1888, 52 & 52 Vict. c. 64, which do give some amount of special protection to bona fide reports, e.g. of public meetings, in newspapers.

The existence, however, of process by criminal information, and the rule that truth was no justification, had the result that during the eighteenth century seditious libel rose almost to the rank of a press offence, to be dealt with, if not by separate tribunals, at any rate by special rules enforced by a special procedure.

See as to the state of the press under the Commonwealth, Masson, Life of Milton, iii. pp. 265–297. Substantially the possibility of trying press offences by special tribunals was put an end to by the abolition of the Star Chamber in 1641, 16 Car. I. c. 10.

The press is now governed in France by the Loi sur la liberte de k presse, 29–30 Juill. 1881. This law repeals all earlier edicts, decrees, laws, ordinances, etc. on the subject. Immediately before this law was passed there were in force more than thirty enactments regulating the position of the French press, and inflicting penalties on offences which could be committed by writers in the press; and the three hundred and odd closely printed pages of Dalloz, treating of laws on the press, show that the enactments then in vigour under the Republic were as nothing compared to the whole mass of regulations, ordinances, decrees, and laws which, since the earliest days of printing down to the year 1881, have been issued by French rulers with the object of controlling the literary expression of opinion and thought. See Dalloz, Rdpertoire, vol. xxxvi., “Presse,” pp. 384–776, and especially Tit. I. chap. i., Tit. 11. chap. iv.; Roger et Sorel, Codes et Loi Usuelles, “Presse,” 637–652; Duguit, Manuel de Droit Constitutionnel, pp. 575–582.

See Dalloz, Rdpertoire, vol. xxxvi., “Presse,” Tit. I. chap. i. Compare Roger et Sorel, Codes et Lois, “Presse,” pp. 637–652.

Ibid.

See Dalloz, Répertoire, vol. xxxvi., “Presse,” Tit. I. chap. i. Compare Roger et Sorel, Codes et Lois, “Presse,” pp. 637–652.

See Rocquain, L’Esprit Révolutionnaire avant la Révolution, for a complete list of “Livres Condamnés” from 1715 to 1789. Rocquain’s book is fill of information on the arbitrariness of the French Government during the reigns of Louis XV. and Louis XVI.

See p. 146, ante.

Dalloz, Répertoire, xxxvi., “Presse,” Tit. I. chap. i.

See Duguit, Traité de Droit Constitutionnel, i. pp. 91, 92.

Décret, 17 Février, 1852, sec, 32, Roger et Sorel, Codes et Lois, p. 648.

Roger et Sorel, Codes et Lois, p. 646. Lois, 16 Julliet 1850.

Roger et Sorel, Codes et Lois, p. 646. Lois, 16 Juillet 1850.

Lois, 31 Déc. 1852.

One thing is perfectly clear and deserves notice. The legislation of the existing Republic was not till 1881, any more than that of the Restoration or the Empire, based on the view of the press which pervades the modern law of England. “Press law” still formed a special department of the law of France. “Press offences” were a particular class of crimes, and there were at least two provisions, and probably several more, to be found in French laws which conflicted with the doctrine of the liberty of the press as understood in England. A law passed under the Republic (6th July 1871. Roger et Sorel, Codes et Lois, p. 652) reimposed on the proprietors of newspapers the necessity of making a large deposit, with the proper authorities, as a security for the payment of fines or damages incurred in the course of the management of the paper. A still later law (29th December 1875, s. 5. Roger et Sorel, Codes et Lois, p. 652), while it submitted some press offences to the judgment of a jury, subjected others to the cognisance of Courts of which a jury formed no part. The law of 29th July 1881 establishes the freedom of the press. Recent French legislation exhibits, no doubt, a violent reaction against all attempts to check the freedom of the press, but in its very effort to secure this freedom betrays the existence of the notion that offences committed through the press require in some sort exceptional treatment.

Note the several laws passed since 1881 to repress the abuse of freedom in one form or another by the press, e.g. the law of and August 1882, modified and completed by the law of 16th March 1898, for the suppression of violations of moral principles (outrages aux bonnes mœurs) by the press, the law of 28th July 1894, to suppress the advocacy of anarchical principles by the press, and the law of 16th March 1893, giving the French government special powers with regard to foreign newspapers, or newspapers published in a foreign language. Conf. Duguit, Manuel deDroit Constitutionnel, p. 582.

See for the control exercised over the press down to 1695, Odgers, Libel and Slander (3rd ed.), pp. 10–13.

Gardiner, History of England, vii. pp. 51,130; ibid., viii. pp. 225, 234.

See Macaulay, History of England, iv. chaps, xix, xxi.

See Declaration of the Rights of Man, art. 11, p. 146, ante.

Macaulay, History of England, iv. pp. 541, 542.

Macaulay, History of England, iv. pp. 771, 772.

See Chap. Xll. post.

See Selden’s remarks on the illegality of the decrees of the Star Chamber, cited Gardiner, History of England, vii. p. 51.

See generally as to the fight of public meeting, Stephen, Commentaries, iv. (14th ed.), pp. 174–178, and Kenny, Outlines of Criminal Law (3rd ed.), pp. 280–286. See Appendix, Note V., Questions connected with the Right of Public Meeting.

See Law Quarterly Review, iv. p. 159. See also as to right of public meeting in Italy, ibid. p. 78; in France, ibid, p. 165; in Switzerland, ibid. p. 169; in United States, ibid. p. 257. See as to history of law of public meeting in France, Duguit, Manuel de Droit Constitutionnel, pp. 554–559.

Constitution de la Belgique, art. 19.

It is not intended here to express any opinion on the point whether an agreement on the part of A, B, and C to meet together may not under exceptional circumstances be a conspiracy.

For the meaning of the term “unlawful assembly” see Appendix, Note V., Questions connected with the Right of Public Meeting.

Compare O’Kelly v. Harvey, 14 L. R. Ir. 105, Humphries v. Connor, 17 Ir. C. L. R. 1,8, 9, judgment of Fitzgerald, J.

This statement must be read subject to the limitations stated, p. 174, post.

I assume, of course, that the Salvationists meet together, as they certainly do, for a lawful purpose, and meet quite peaceably, and without any intent either themselves to break the peace or to incite others to a breach thereof. The magistrates, however, could require the members of the Skeleton Army, or perhaps even the members of the Salvation Army, to find sureties for good behaviour or to keep the peace. Compare Kenny, Outlines of Criminal Law (3rd ed.), pp. 282,486; Wise v. Dunning [1902], 1K. B. 167.

See p. 178, post, and compare Humphries v. Connor, 17 Ir. C. L. R. 1;

9 Q. B. D. 308.

Beatty v. Gillbanks, 9 Q. B. D. 308, at p. 314. Beatty v. Glenister, W. N. 1884, p. 93; Reg. v. Justices of Londonderry, 28 L. R. Ir. 440; with which contrast Wise v. Dunning [1902], 1K. B. 167, and the Irish cases, Humphries v. Connor, 17Ir. C. L. R. 1 Reg. v. M’Naghton, 14 Cox C. C. 572; O’Kelly v. Harvey, 14 L. R. Ir. 105.

It is to noted that the King’s Bench Division in deciding Wise v. Dunning did not mean to overrule Beatty v. Gillbanks, and apparently conceived that they were following Reg. v. Justices of Londonderry.

See also Appendix, Note V., Questions connected with the Right of Public Meeting.

See Reg. v. Justices of Londonderry, 28 L. R. Ir. 440; Wise v. Dunning [1902], 1K. B. 167, 179, judgment of Darling, J.

9 Q. B. D.308.

The Queen v. Justices of Londonderry, 28 L. R. Ir. 440, pp. 461, 462, judgment of Holmes, J.

Reg. v. Justices of Londonderry, 28 L. R. Ir. 440, p. 450, judgment of O’Brien, J.

Wise v. Dunning [1902], 1 K. B. 167, or rather some expressions used in the judgments in that case, may undoubtedly be cited as laying down the broader rule, that a public meeting in itself lawful, and carried on, so far as the promoters and the members of it are concerned, perfectly peaceably, may become unlawful solely because the natural consequence of the meeting will be to produce an unlawful act, viz. a breach of the peace on the part of opponents (see pp. 175, 176, judgment of Alverstone, C. J.; p. 178, judgment of Darling, J.; PP. 179, 180, judgment of Channell, J.). It should be noted, however, that Wise v. Dunning has reference, not to the circumstances under which a meeting becomes an unlawful assembly, but to the different question, what are the circumstances under which a person may be required to find sureties for good behaviour? (see Kenny, Outlines of Criminal Law, p. 486).

Compare Wise v. Dunning [1902], 1 K. B. 167, and O’Kelly v. Harvey, 14 L. R. Ir. 105.

See especially O’Kelly v. Harvey, 14 L. R. Ir. 105.

It is particularly to be noted that in O’Kelly v. Harvey, 14 L. R. Ir. 105, the case in which is carried furthest the right of magistrates to preserve the peace by dispersing a lawful meeting, X, the magistrate against whom an action for assault was brought, believed that there would be a breach of the peace if the meeting broken up continued assembled, and that there was no other way by which the breach of the peace could be avoided but by stopping and dispersing the meeting. Ibid, p. 109, judgment of Law, C.

This is particularly well brought out in O’Kelly v. Harvey, 14 L. R. Ir. 105.

Wise v. Dunning [1902], 1K. B. 167, at pp. 179, 180, judgment of Channell, J.

Humphries v. Connor, 27 Ir. C. L. R. 1. The case is very noticeable; it carries the right of magistrates or constables to interfere with the legal conduct of A, for the sake of preventing or terminating a breach of the peace by X, to its very furthest extent. The interference, if justifiable at all, can be justified only by necessity, and an eminent Irish judge has doubted whether it was not in this case carried too far. “I do not see where we are to draw the line. If [X] is at liberty to take a lily from one person [A] because the wearing of it is displeasing to others, who may make it an excuse for a breach of the peace, where are we to stop? It seems to me that we are making, not the law of the land, but the law of the mob supreme, and recognising in constables a power of interference with the rights of the Queen’s subjects, which, if carried into effect to the full extent of the principle, might be accompanied by constitutional danger. If it had been alleged that the lady wore the emblem with an intent to provoke a breach of the peace, it would render her a wrongdoer; and she might be chargeable as a person creating a breach of the peace,” Humphries v. Connor, 17 Ir. C. L. R. 2, at pp. 8, 9, per Fitzgerald, J.

See Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n.s.) 543.

See pp. 171–172, ante, and compare O’Kelly v. Harvey, 14 L. R. Ir. 105, with Reg. v. Justices of Londonderry, 28 L. R. Ir. 440, and Wise v. Dunning [1902], 1K. B. 167, with Beatty v. Gillbanks, 9 Q. B. D. 308. And the magistrates might probably bind over the conveners of the meeting to find sureties for their good behaviour. The law on this point may, it appears, be thus summed up: “Even a person who has not actually committed any offence at all may be required to find sureties for good behaviour, or to keep the peace, if there be reasonable grounds to fear that he may commit some offence, or may incite others to do so, or even that he may act in some manner which would naturally tend to induce other people (against his desire) to commit one.”—Kenny, Outlines of Criminal Law, p. 486.

See Mommsen, Romische Staatsrecht, p. 672, for the existence of what seems to have been a similar principle in early Roman law.

See Hearn, Government of England (2nd ed.), chap. iv.; and compare Gardiner, History, x. pp. 144,145.

See Forsyth, Opinions, pp. 188–216, 481–563; Stephen, History of the Criminal Law, i. pp. 201–216; Rex v. Pinney, 5 c. – P. 254; 4 St. Tr. (n. s.) 11;Reg. v. Vincent, 9 C. & P. 91; 3 St. Tr. (n. s.) 1037;, Reg. v. Neale, 9 C. & P. 431.

This statement has no reference to the law of any other country than England, even though such country may form part of the British Empire. With regard to England in time of peace the statement is certainly true. As to how far, if at all, it ought to be qualified with regard to a state of war, see Appendix, Note X., Martial Law in England during Time ot War or Insurrection.

See Loi sur l’itat de siège, 9 Aout 1849, Roger et Sorel, Codes et Lois, p. 436; Loi 3 Avril 1878, art. 1, and generally Duguit, Manuel de Droit Constitutionnel, s. 76, pp. 510–513, 926. See p. 186, post.

Compare Miller v. Knox, 6 Scott 1. See statement of Commissioners including Bowen, L. J., and R. B. Haldane, Q. C., for Inquiring into the Disturbances at Featherstone in 1893 [C. 7234], and see Appendix, Note VI., Duty of Soldiers called upon to disperse Unlawful Assembly.

5 C. & P. 254; 3 St. Tr. (n. s.) 11;

1 Geo. I. stat. 2, c. 5.

See Stephen, History of the Criminal Law, i. pp. 202–205.

This statement does not contradict anything decided by Ex parte D. F. Marais [1902], A. C. 109, nor is it inconsistent with the language used in the judgment of the Privy Council, if that language be strictly construed, as it ought to be, in accordance with the important principles that, first, “a case is only an authority for what it actually decides” (Quinn v. Leathern [1901], A, C. 506, judgment of Halsbury, L. C.), and, secondly, “every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found” (ibid.).

Seep. 182, ante.

Roger et Sorel, Codes et Lois, pp. 436, 437.

See Geoffroy’s Case, 24 Journal du Palais, p. 1218, cited by Forsyth, Opinions, p. 483. Conf., however, for statement of limits imposed by French law on action of military authorities during state of siege, Duguit, Manuel de Droit Constitutionnel, pp. 512, 513.

27 St. Tr. 614.

See Stephen, Commentaries, ii. book iv. chap. viii.; Gneist, Das Englische Verwaltungsrecht, ii. 952–966; Manual of Military Law.

As to Standing Army, 1 Will. & Mary, c. 5; see the Army Discipline and Regulation Act, 1879, 42 & 43 Vict. c. 33; the Army Act, i.e. the Army Act, 1881, 44 & 45 Vict. c. 58, with the amendments made up to 1907.

“The expressions ‘regular forces’ and ‘His Majesty’s regular forces’ mean officers and soldiers who by their commission, terms of enlistment, or otherwise, are liable to render continuously for a term military service to His Majesty in any part of the world, induding, subject to the modifications in this Act mentioned, the Royal Marines and His Majesty’s Indian forces and the Royal Malta Artillery, and subject to this qualification, that when the reserve forces are subject to military law such forces become during the period of their being so subject part of the regular forces” (Army Act, s. 190 (8)).

See the Territorial and Reserve Forces Act, 1907 (7 Edw. VII. c. 9), especially s. 6, s. 1, sub-s. (6), and the Army Act.

The Militia—the Territorial and Reserve Forces Act, 1907, does not repeal the various Militia Acts. Until these Acts are repealed the statutory power of raising the militia, either regular or local, and of forming thereof regiments and corps will continue to exist. (For the law regulating the militia see 13 Car. II. star. 2. c. 6; 14 Car. II. c. 3; 15 Car. II. c. 4; the Militia Acts. Act, 1802,42 Geo. III. c. 90; Militia Act, 1882,45 & 46 Vict. c. 49; and Regulation of the Forces Act, 1881, 44 & 45 Vict. c. 57.) The militia as long as it exists is in theory a local force levied by conscription, but the power of raising it by ballot has been for a considerable time suspended, and the militia has been in fact recruited by voluntary enlistment. Embodiment converts the militia into a regular army, but an army which cannot be called upon to serve abroad. Embodiment can lawfully take place only in case “of imminent national danger or of great emergency,” the occasion being first communicated to Parliament if sitting, or if not sitting, proclaimed by Order in Council (Militia Act, 1882, s. 18; 2 Steph. Comm. (14th ed.) p. 469). The maintenance of discipline among the members of the militia when embodied depends on the passing of the Army (Annual) Act, or in popular language, on the continuance of the Mutiny Act (see p. 232, post).

The position of the militia, however, is affected by the Territorial and Reserve Forces Act, 1907, in two ways:

(1)
All the units of the general (or regular) militia may, and will, it is said, in a short time have either been transferred to the Army Reserve (under s. 34) or have been disbanded.
(2)
The personnel of the regular militia will shortly, it is said, cease to exist as such.

The actual position of the militia, however, until the Acts on which its existence depends have been repealed, is worth noting, as it is conceivable that Parliament may think it worth while to keep alive the historical right of the Crown to raise the militia.

In the seventeenth century Parliament apparently meant to rely for the defence of England upon this national army raised from the counties and placed under the guidance of country gentlemen. See 14 Car. II. c. 3.

6 See, e.g. Macaulay, History, iii. pp. 42–47. “Throughout the period [of the Civil War and the Interregnum] the military authorities maintained with great strictness their exclusive jurisdiction over offences committed both by officers and soldiers. More than once conflicts took place between the civil magistrates and the commanders of the army over this question.”—Firth, Cromwell’s Army, p. 310, Mr. Firth gives several examples (pp. 310–312) of the assertion or attempted assertion of the authority of the civil power even during a period of military predominance.

1 Will. & Mary, c. 5.

Combined with the Army (Annual) Act, passed each year.

See Clode, Military Forces of the Crown, i. p. 499. Compare 47 Vict. c. 8. The variations in the modem Acts, though slight, are instructive.

Part V. of the Army Act points out who under English law are “persons subject to military law,” that is to say, who are liable to be tried and punished by Court-martial for military, and in some circumstances for civil, offences under the provisions of the Act.

For our present purpose such persons (speaking broadly at any rate) appear to come within three descriptions:—first, persons belonging to the regular forces, or, in popular language, the standing army (see Army Act, ss. 175 (1), 190 (8)); secondly, persons belonging to the territorial force, in certain circumstances, viz. when they are being trained, when acting with any regular forces, when embodied, and when called out for actual military service for purposes of defence (Army Act, ss. 176, 190 (6) (a)); thirdly, persons not belonging to the regular forces or to the auxiliary forces who are either employed by, or followers of, the army on active service beyond the seas (ibid. s. 176 (9) (10)). The regular forces indude the Royal Marines when on shore and the reserve forces when called out. See Army Act, secs. 175, 176; conf. Marks v. Frogley [1898], 1 Q. g. (C. A.) 888.

Will. & Mary, c. 5, s. 6; see Clode, Military Forces of the Crown, i. p. 500.

Compare Army Act, secs. 41, 144, 162.

Compare, however, the Jurisdiction in Homicide Act, 1862, 25 & 26 Vict. c. 65, and Clode, Military Forces of the Crown, i. pp. 206, 207.

See Army Act, s. 144. Compare Clode, Military Forces of the Crown, i. pp. 207, 208, and Thurston v. Mills, 16 East, 254.

Army Act, s. 162, sub-ss. 1–6.

Ibid. Contrast the position of the army in relation to the law of the land in France. The fundamental principle of French law is, as it apparently always has been, that every kind of crime or offence committed by a soldier or person subject to military law must be tried by a military tribunal. See Code de Justice Militaire, arts. 55, 56, 76, 77, and Le Faure, Les Lois Militaires, pp. 167, 173.

Stephen, History of the Criminal Law, i. pp. 204–206, and compare Clode, Military Forces of the Crown, ii. pp. 125–155. The position of a soldier is curiously illustrated by the following case. X was a sentinel on board the Achille when she was paying off. “The orders to him from the preceding sentinel were, to keep off all boats, unless they had officers with uniforms in them, or unless the officer on deck allowed them to approach; and he received a musket, three blank cartridges, and three balls. The boats pressed; upon which he called repeatedly to them to keep off; but one of them persisted and came dose under the ship; and he then fired at a man who was in the boat, and killed him. It was put to the jury to find, whether the sentinel did not fire under the mistaken impression that it was his duty; and they found that he did. But a case being reserved, the judges were unanimous that it was, nevertheless, murder. They thought it, however, a proper case for a pardon; and further, they were of opinion, that if the act had been necessary for the preservation of the ship, as if the deceased had been stirring up a mutiny, the sentinel would have been justified.”—Russell, Crimes and Misdemeanors (4th ed.), i. p. 823, on the authority of Rex v. Thomas, East, T., 1816, MS., Bayley, J. The date of the decision is worth noticing; no one can suppose that the judges of 1816 were disposed to underrate the rights of the Crown and its servants. The judgment of the Court rests upon and illustrates the incontrovertible principle of the common law that the fact of a person being a soldier and of his acting strictly under orders, does not of itself exempt him from criminal liability for acts which would be crimes if done by a civilian.

Stephen, History of the Criminal Law of England, i. pp. 205, 206. Compare language of Willes, J., in Keighly v. Bell, 4 F. & F. 763. See also opinion of Lord Bowen, cited in Appendix, Note VI., Duty of Soldiers called upon to disperse an Unlawful Assembly.

As also by the right of the Attorney-General as representing the Crown to enter a nolle prosequi. See Stephen, History of the Criminal Law, i. p. 496, and Archbold, Pleading in Criminal Cases (22nd ed.), p. 125.

Buron v. Denman, 2 Ex. 167, is sometimes cited as showing that obedience to the orders of the Crown is a legal justification to an officer for committing a breach of law, but the decision in that case does not, in any way, support the doctrine erroneously grounded upon it. What the judgment in Buron v. Denman shows is, that an act done by an English military or naval officer in a foreign country to a foreigner, in discharge of orders received from the Crown, may be an act of war, but does not constitute any breach of law for which an action can be brought against the officer in an English Court. Compare Feather v. The Queen, 6B. & S. 257, 295, per Curiam.

See Wolfe Tone’s Case, 27 St. Tr. 614; Douglas’s Case, 3 Q. B, 825; Fry v. Ogle, cited Manual of Military Law, chap. vii. s. 41.

See Army Act, ss, 275–184.

“The enlistment of the soldier is a species of contract between the sovereign and the soldier, and under the ordinary principles of law cannot be altered without the consent of both parties. The result is that the conditions laid down in the Act under which a man was enlisted cannot be varied without his consent.”—Manual of Military Law, chap. x. s. 18.

See Army Act, s. 96, for special provisions as to the delivering to a master of an apprentice who, being under twenty-one, has enlisted as a soldier. Under the present law, at any rate, it can very rarely happen that a Court should be called upon to consider whether a person is improperly detained in military custody as a soldier. See Army Act, s. 100, sub-ss. 2, 3. The Courts used to interfere, when soldiers were impressed, in cases of improper impressment. See Clode, Military Forces, ii. pp. 8, 587.

A civil Court may also be called upon to determine whether a person subject to military law has, or has not, a right to resign his commission, Hearson v. Churchill [1892], 2 Q. B. (C. A.) 144.

Manual of Military Law, chap. viii. s. 8. It should, however, be noted that the Courts of law will not, in general at any rate, deal with rights dependent on military status and military regulations.

The case stands thus: The discipline of the standing army depends on the Army Act, 1881, 44 & 45 Vict. c. 58, which by s. 2 continues in force only for such time as may be specified in an annual Act, which is passed yearly, and called the Army (Annual) Act. This Act keeps in existence the standing army and continues the Army Act in force. It is therefore, in strictness, upon the passing of the Army (Annual) Act that depends the existence and the discipline of the standing army.

But in one case at least, i.e. failure to attend on embodiment, a man of the territorial force may be liable to be tried by Court-martial, though not otherwise subject to military law. (Territorial and Reserve Forces Act, 1907, s. 20; see also as to cases of concurrent jurisdiction of a Court-martial and a Court of summary jurisdiction, ibid. ss. 24, 25.)

Compare the Territorial and Reserve Forces Act, 1907, s. 7, the Reserve Forces Act, 1882, ss. 12, 13, and the Militia Act, 1882, s. 18, and see note 4, P. 188, ante.

There exists an instructive analogy between the position of persons subject to military law, and the position of the clergy of the Established Church.

A clergyman of the National Church, like a soldier of the National Army, is subject to duties and to Courts to which other Englishmen are not subject. He is bound by restrictions, as he enjoys privileges peculiar to his class, but the clergy are no more than soldiers exempt from the law of the land. Any deed which would be a crime or a wrong when done by a layman, is a crime or a wrong when done by a clergyman, and is in either case dealt with by the ordinary tribunals.

Moreover, as the Common Law Courts determine the legal limits to the jurisdiction of Courts-martial, so the same Courts in reality determine (subject, of course, to Acts of Parliament) what are the limits to the jurisdiction of ecclesiastical Courts.

The original difficulty, again, of putting the clergy on the same footing as laymen, was at least as great as that of establishing the supremacy of the civil power in all matters regarding the army. Each of these difficulties was met at an earlier date and had been overcome with more completeness in England than in some other countries. We may plausibly conjecture that this triumph of law was due to the acknowledged supremacy of the King in Parliament, which itself was due to the mode in which the King, acting together with the two Houses, manifestly represented the nation, and therefore was able to wield the whole moral authority of the state.

Stephen, Commentaries, ii. bk. iv. chap. vii.; Heam, Government of England (2nd ed.), c. 13, pp. 351–388; May, Parliamentary Practice, chap. xxi.; see Exchequer and Audit Act, 1866, 19 & 30 Vict. c. 39, and 1 & 2 Vict. c. 2, s. 2.

Civil List Act, 1901, 1 Ed. VII. c. 4

See as to civil list, May, Constitutional Hist. i. chap. iv.

The Chancellor of the Exchequer, in his Budget speech of 18th April 1907 (172 Hansard (4th ser.), col. 1180), gave the total revenue for the year (Exchequer receipts) 1906–7 at £144,814,000. [See as to the burden of taxes and rates in later years, Law and Opinion (2nd ed.), pp. lxxxiv.-lxxxvii.]

38 George III c. 5.

See Stephen, Commentaries, ii. pp. 552, 553.

Stamp Act, 1891, 54 & 55 Vict. c. 39.

The only taxes imposed annually or by yearly Acts are the customs duty on tea, which for the year ending 31st March 1907 amounted to £5,888,288, and the income tax, which for the same year amounted to £31,891,949, giving a total of annual taxation raised by annual grant of £37,780,237.

Or into the Bank of Ireland. See Exchequer and Audit Departments Act, 1866 (29 & 30 Vict. c. 39), s. 10.

Ibid. and Control and Audit of Public Receipts and Expenditure, pp. 7, 8. But a system of appropriations in aid has been introduced during the last few years under which certain moneys which before were treated as extra receipts, and paid into the Exchequer, are not paid into the Exchequer, but are applied by the department where they are received in reduction of the money voted by Parliament.

Seep. 201,ante (3).

See especially May, Parliamentary Practice, chap. xxi.

Control and Audit of Public Receipts and Expenditure, 1885.

The Exchequer and Audit Departments Act, 1886 (29 & 30 Vict. c. 39), sec. 3.

See Control and Audit of Public Receipts and Expenditure, 1885, pp. 61–64, and Forms, No. 8 to No. 12.

Cobbett’s Parl. Debates, xviii, pp. 678, 734, 787.

In auditing the accounts he inquires into the legality of the purposes for which public money has been spent, and in his report to Parliament calls attention to any expenditure of doubtful legality.

The main features of the system for the control and audit of national expenditure have been authoritatively summarised as follows:

“The gross revenue collected is paid into the Exchequer.

“Issues from the Exchequer can only be made to meet expenditure which has been sanctioned by Parliament, and to an amount not exceeding the sums authorised.

“The issues from the Exchequer and the audit of Accounts are under the control of the Comptroller and Auditor General, who is an independent officer responsible to the House of Commons, and who can only be removed by vote of both Houses of Parliament.

“Such payments only can be charged against the vote of a year as actually came in course of payment within the year.

“The correct appropriation of each item of Receipt and Expenditure is ensured.

“All unexpended balances of the grants of a year are surrendered to the Exchequer, as also are all extra Receipts and the amount of Appropriations-in-Aid received in excess of the sum estimated to be taken in aid of the vote.

“The accounts of each year are finally reviewed by the House of Commons, through the Committee of Public Accounts, and any excess of expenditure over the amount voted by Parliament for any service must receive legislative sanction.”—Control and Audit of Public Receipts and Expenditure, 1885, pp. 24, 25.

See Bowyer, Commentaries on Constitutional Law, p. 210; Hearn, Government of England (2nd ed.), p. 375.

On the whole of this subject the reader should consult Anson, Law and Custom of the Constitution, vol. ii., The Crown (3rd ed.), App. to ch. i. pp. 50–59. Anson gives by far the best and fullest account with which I am acquainted of the forms for the expression of the Royal pleasure and of the effect of these forms in enforcing the legal responsibility of Ministers. See also Clode, Military Forces of the Crown, ii. pp. 320, 321; Buron v. Denman, 2 Ex. 167,189, and the Great Seal Act, 2884,47 & 48 Vict. c. 30.

On droit administratif see Aucoc, Conferences sur Iadministration et te droit administratif (3rd ed.); Berthélemy, Traite Élémentaire de Droit Administratif (5th ed. 1908); Chardon, L’Administration de la France, Les Fonctionnaires (1908); Duguit, Manuel de Droit Constitutionnel (1907); Duguit, Traite de Droit Constitutionnel (1911); Duguit, L’État, les gouvernants et les agents (1903); Esmein, Elements de Droit Constitutionnel (1891); Hauriou, Precis de Droit Administratif; Jacquelin, La Juridiction Administrative (1891); Jacquelin, Les Principes Dominants du Contentieux Administratif (1899); Jéze, Les Principes Généraux du Droit Administratif0904); Laferrière. Traité de la Juridiction Administrative, 2 vols. (2nd ed. 1896); Teissier, La Responsabilité de la Puissance Publique (1906).

It is not my aim in this chapter to give a general account of droit administratif. My object is to treat of droit administratif in so far as its fundamental principles conflict with modern English ideas of the rule of law, and especially to show how it always has given, and still does give, special protection or privileges to the servants of the state. I cannot, however, avoid mentioning some other aspects of a noteworthy legal system or omit some notice of the mode in which the administrative law of France, based as it originally was on the prerogatives of the Crown under the ancien régime, has of recent years, by the genius of French legists, been more or less “judicialised”—if so I may render the French term “juridictionnaliser”—and incorporated with the law of the land.

Known in different countries by different names, e.g. in Germany as Verwaltungsrecht. The administrative law of France comes nearer than does the Verwaltungsrecht of Germany (conf. Otto Mayer, Le Droit Administratif Allemand, i. (French translation), p. 293 s. 17), to the rule of law as understood by Englishmen. Here, as elsewhere, it is the similarity as much as the dissimilarity between France and England which prompts comparison. The historical glories of French arms conceal the important fact that among the great States of Europe, France and England have the most constantly attempted, though with unequal success, to maintain the supremacy of the civil power against any class which defies the legitimate sovereignty of the nation.

Or than it still is throughout the German Empire. See Duguit, L’État, p. 624, note 1.

See pp. 246–251, post.

Tocqueville’s language is so remarkable and bears so closely on our topic that it deserves quotation: “qui m’empêche le plus, je vous avoue, de savoir œ qui se fait sur ces différents points en Amérique, c’est d’ignorer, à peu prés complètement, ce qui existe en France. Vous savez que, chez nous, le droit administratif et le droit civil forment comme deux mondes séarés, qui ne vivent point toujours en paix, mais qui ne sont ni assez amis ni assez ennemis pour se bien connaître. J’ai toujours vécu dans l’un et suis fort ignorant de ce qui se passe darts l’autre. En mêae temps quej’ai senti le besoin d’acquérir les notions générales qui me manquent à cet égard, j’ai pensé que je ne pouvais mieux faire que de m’adresser à vous.”—Tocqueville, Œuvres Complètes, vii. pp. 67, 68.

This want of knowledge is explainable, if not justifiable. In 1831 Tocqueville was a youth of not more than twenty-six years of age. There were at that date already to be found books on droit administratif written to meet the wants of legal practitioners. But the mass of interesting constitutional literature represented by the writings of Laferrière, Hauriou, Duguit, Jéze, or Berthéemy which now elucidates the theory, and traces the history of a particular and most curious branch of French law, had not come into existence.

“On le déh’nit ordinairement l’ensemble des règles qui régissent les rapports de l’administration ou de I’autonté administrative avec les les atoyens.”—Aucoc, Droit Administratif, 1. s. 6.

“Nous préférerions dire, pour notre part: Le droit administratif determine: i° la constitution et les rapports des organes de la société chargés du soin des interets collectifs qui font l’objet de l’administration publique, c’est-à-dire des différentes personnifications de la société, dont l’objetl’État est la plus importante; 2° les rapports des autoritês administratives avec les citoyens.” —Ibid.

For the history of droit administratif see especially Laferriére, i. (2nd ed.), bk. i. c. i.-iv. pp. 137–301. The Second Republic (1848–1851) produced little permanent effect on French administrative law. I have included it in the second of our three periods.

“Aussi haut que l’on remonte dans notre histoire, depuis que des juridictions régulières ont été institutes, on ne trouve p chargés d’époque où les corps judiciaires chargés d’appliquer les lois civiles et criminelles aient été en mêne temps appelés à statuer sur les difficultés en matibre d’administration publique.”—Laferrière, i. p. 139, and compare ibid. p. 640.

“Ce qui apparaît… quand on étudie les paperasses administratives, c’est l’intervention continuelle du pouvoirs administratif dans la sphere judiciaire. Les légistes administratifs nous disent sans cesse, que Ie plus grand vice du gouvernement intérieur de l’ancien régime était que les juges administraient. On pourrait se plaindre avec autant de raison de ce que les administrateurs jugeaient. La seule différence est que nous avons corrigé l’ancien rédgime sur le premier point, et l’avons imité sur le second, l’avais eu jusqu’ à présent la simplicité de croire que ce que nous appelons la justice administrative était une création de Napollon. C’est du pur ancien régime conservé; et le principe que lors même qu’il s’agit de contrat, c’est-à-dire d’un engagement formel et réguilièrement pris entre un particulier et l’État, c’est a État à juger la cause, cet axiome, inconnu chez la plupart des nations modernes, était tenu pour aussi sacré par un intendant de l’ancien régime, qu’il pourrait l’être de nos jours par le personnage qui ressemble le plus à cœlui-là je veux dire un préfet.”-—Tocqueville, Œuvres Complètes, vi. pp. 221, 222.

“Un particulier qui n’exécute pas un marché doit à l’entrepreneur une indemnité proportionée au gain dont il le prive; le Code civil l’établit ainsi. L’administration qui rompt un tel marché ne doit d’indemnité qu’ en raison de la perte éprouvée. C’est la règle de la jurisprudence administrative. A moins que le droit ne s’y oppose, elle tient que l’État c’est-è-dire la collection de tous les citoyens, et le trésor public, c’est-è-dire l’ensemble de tous les contribuables, doivent passer avant le citoyen ou le contribuable isolés, défendant un intérêt individuel.”—Vivien, Études Administratives, i. pp. 141–142. This was the language of a French lawyer of high authority writing in 1853. The particular doctrine which it contains is now repudiated by French lawyers. Vivien’s teaching, however, even though it be no longer upheld, illustrates the general view taken in France of the relation between the individual and the state. That Vivien’s application of this view is now repudiated, illustrates the change which French droit administratif and the opinion of Frenchmen has undergone during the last fifty-five years.

See Aucoc, Droit Administratif, ss. 20, 24.

Of course it is possible that rules of administrative law may exist in a country, e.g. in Belgium, where these rules are enforced only by the ordinary Courts.

The Courts of Assize are the only Courts in France where there is trial by jury.

The Cour de Cassation is not in strictness a Court of Appeal.

With the Courts, or Councils, of the Prefects an English student need hardly concern himself.

There existed even under Napoleon exceptional instances, and their number has been increased, in which, mainly from motives of immediate convenience, legislation has given to judicial Courts the decision of matters which from their nature should fall within the sphere of the administrative tribunals, just as legislation has exceptionally given to administrative tribunals matters which would naturally fall within the jurisdiction of the judicial Courts. These exceptional instances cannot be brought within any one clear principle, and may for our purpose be dismissed from consideration.

Tit. ii. arts. 11–13.

“On a subi l’influence de ce pré’jugé dominant chez les gouvernants, dans l’administration et mêne chez la plupart des jurisconsultes, que les agents judidaires sont les ennemis nés des agents administratifs, qu’il y a toujours à craindre leurs tentatives de wmpromettre la chose publique par leur intervention-—malveillante ou tout au moins inconsidérée—dans la marcher normale de l’administration.”—Jéze (ed. 1904), p. 239.

“Les agents administratifs, dans leur arbitraire véritablement inouï, ne recontrérent aucune résis tance chez les agents judidaires. Ceux-ci, après la Révolution, ont montré une humilité sans limite of une soumission servile. C’est en tremblant qu’ils ont toujours obéi aux ordres parfois insolents du Gouvernement.”—Jéze, p. 128.

See Constitution of Year VIII., art. 75, P. 227, post.

23 See Aucoc, Droit Administratif, s. 24.

Up to 1828 it was possible to raise a conflict (élever un conflits) in any criminal no less than in any civil case. Nor is it undeserving of notice that, whilst a conflict could be raised in order to prevent a judicial Court from encroaching on the sphere of an administrative Court, there was in Napoleon’s time and still is no legal means for raising a conflict with a view to prevent an administrative Court from encroaching on the sphere of a judicial Court.

This protection of officials may be displayed in parts of French law (e.g. Code Pénal, art. 114) which do not technically belong to droit administratif, but it is in reality connected with the whole system of administrative law.

“Art. 114. Lorsqu’un fonctionnaires public, un agent ou un préposédu Gouvernement, aura ordonné ou fait quelque acte arbitraire, et attentatoire soit à la liberté individuelle, soit aux droits civiques d’un ou de plusieurs citoyens, soit a la Charte, il sera condamné à la peine de la dégradation civique.

“Si néanmoins il justifie qu’il a agi par ordre de ses supérieurs pour des objets du ressort de ceux-ci, sur lesquels il leur était dû obéssance hiérarchique, il sera exempté de la wine, laquelle sera, dans ce cas, appliqudée seulement aux supérieurs qui auront donné l’ordre.”—Code Pénal, art. 114; and Garçon, Code Péml annoté, p. 245. With this read Garqon, Code Pénal, arts. 34 and 87, compare Code d’instruction criminelle, art. xo; Duguit, Manuel, pp. 524–527, and generally Duguit, L’État. ch. v. s. lo, pp. 615–634.

None but a French criminalist can pronounce with anything like certainty on the full effect of Art. 114, but Garlon’s comment thereon (Code Pénal, pp. 245–255) suggests to an English lawyer that an offender who brings himself within the exemption mentioned in the second clause of the Article, though he may be found guilty of the offence charged, cannot be punished for it under Art. 114, or any other Article of the Penal Code, and that Art. 114 protects a very wide dass of public servants. (See Garcon, comment under heads D and E, pp. 249–252, and under G, p. 253, and para. 100, p. 254. Read also Duguit, Manuel, ss. 75–77, especially pp. 504, 527; Duguit, L’État, Ch. v. s. 10. pp. 615–634.)

It is difficult for an Englishman to understand how under the Code Pénal a prefect, a policeman, or any other servant of the State, acting bona fide under the orders of his proper official superior, can be in danger of punishment for crimes such as assault, unlawful imprisonment, and the like.

“Les agents du Gouvernement, autres que les ministres, ne peuvent être poursuivis pour des fails relatives 1 leurs functions, qu ‘en vertu d’une divsion du conseil d’État: en ce c a s, por suiteh a lieu devant les tribunaux ordinaires.”—Duguit and Mormier, Les Constitutions de la France (deuxième ed.), p. 127.

See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 127.

Little account need be taken of the Second Republic, 1848–1851. Its legislative reforms in administrative law did not outlive its brief and troubled duration.

His accession to the throne was aided by an obvious, but utterly superficial, analogy between the course of the English Revolution in the seventeenth century and of the great French Revolution in the eighteenth and nineteenth centuries. Louis Philippe, it was supposed, was exactly the man to perform in France the part which William III. had played in England, and dose the era of revolution.

It was, however, gradually reformed to a great extent by a process of judicial legislation, i.e. by the Council of State acting in the spirit of a law Court.

See as to present Conflict-Court, p. 238, post.

See p. 225,ante.

“M. Thiers, dans la séance du 20juin, avoua hautement tout ce qu’il y avait eu d’illégal darts l’arrestation, la détention, la mise en liberté de la duchesse; c’était à la Chambre à decider si l’on avait agi dans l’intérêt bien entendu du salut public. La Chambre passa à I’ordre du jour.”— Gréoire, Histoire de France, i. p. 364. See also ibid. pp. 292–308, 356–364.

See p. 226, note 26, ante.

See pp. 226–227,ante.

This term was extended by legal decisions so as to cover actions for damages. See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 127.

A. de Tocqueville, i., chassé la justice de la sphère administrative ol l ‘ancien régime l’avait laissée s’introduire fort indûment; mais dans le même temps, comme on le voie le gouvernement s’introduisait sans cesse dans la sphère naturelle de la justice, et nousl’y avons laissé: comme si la confusion des pouvoirs n’dtait pas aussi dangereuse de ce côtequede l’autre, et même pire; car l’intervention de la justice dans l’administration ne nuit qu ‘aux affaires, tandis que l’intervention de l’administration dans la justice déprave les hommes et tend à les rendre tout à la fois révolutionnaires et serviles.”—Tocqueville, L’Ancien Régime et la Révolution, septième édition, p. 81.

Jéze, p. 138, note 1.

See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 364.

It is worth notice that the principle of Article 75 was, at any rate till lately, recognised in more than one State of the German Empire.

For some confirmation of this view, see Aucoc, Droit Administratif, ss. 419–426; Jacquelin, Juridiction Administrative, p. 427; Laferriére, i. bk. iii. ch. vii.

The admission, however, involved in the repeal of Article 75 of the general principle that officials are at any rate prima facie liable for illegal acts, in the same way as private persons, marks, it is said by competent authorities, an important change in the public opinion of France, and is one among other signs of a tendency to look with jealousy on the power of the State.

See for the legal doctrine and for examples of such decree laws, Duguit, Manuel, pp. 2037, 1038; Moreau, Le Réglement Administratif, pp. 203, 104. Such decree laws were passed by the provisional government between the 24th of February and the 4th of May 1848; by Louis Napoleon between the coup d’Éetat of 2nd December 1851 and 29th March 1852, that is, a ruler who, having by a breach both of the la w of the land and of his oaths usurped supreme power, had not as yet received any recognition by a national vote; and lastly, by the Government of National Defence between 4th September 1870 and 12th February 187l, that is, by an executive which might in strictness be called a government of necessity.

See in support of this view, Jacquelin, Les Principes Dominants du Contentieux Adminis-tratif, pp. 127–144.

See pp. 239–240, post.

See Pelletier’s Case, decided 26th July 1873; and in support of an interpretation of the law which has now received general approval, Laferrière, i. pp. 637–654; Berthélemy, p. 65; Duguit, Manuel, s. 67, pp. 463, 464; Jéze, pp. 133–135.

“Finalement la seule différence entre le système actuel et celui de la constitution de l’an VIII., c’est qu’avant 1870 la poursuite contre les fonctionnaires était subordonné, à l’autorisat’on du Conseil d’État, et qu’aujourd’hui die est subordonné à l’autorisation du tribunal des conflits.”—Duguit, Manuel, p. 464.

Sect. 9.

See pp. 227–228, ante.

Law of 24th May 1872, Tit. iv. art. 25–28.

Such a separate Conflict-Court had been created under the Second Republic, 1848–1851. It fell to the ground on the fall of the Republic itself in consequence of the coup d’état of 1851.

See Appendix, Note XI., Constitution of Tribunal des Conflits; Berthelèmy (5th ed.), pp. 880,881; Chardon, p. 412.

A member of the Council of State does not hold this position as Councillor for life. He may be removed from the Council by the government. But no Councillor has been removed since 1875.

Laferrière, i. p. 24; Chardon, p. 4, note 2; Jéze, pp. 133,134.

See Jéze, Revue de Droit public, etc. (1908), vol. xxv. p. 257.

They were either tacitly sanctioned (decree law of 19th September 1870) or enacted (law of 24th May 1872) even before the formal establishment of the Republic (1875) by a National Assembly of which the majority were so far from being revolutionists, or even reformers, that they desired the restoration of the monarchy.

See Hauriou, pp. 245–268. These periods do not precisely correspond with the three eras marked by political changes in the annals of France under which we have already considered (see pp. 217–218, ante) thehistory of droit administratif.

This is illustrated by the similarity between the views at one time prevailing both in England and on the continent as to the relation between the government and the press. See pp. 161–164, ante.

Gardiner, History of England, iii. p. 2.

See p. 227,ante.

Gardiner, History of England, iii. p. 7, note 2.

Abbot, Francis Bacon, p. 234.

It is worth noting that the system of “administrative law,’” though more fully judicialised in France than elsewhere, exists in one form or another in most of the Continental States.

See Dicey, Law and Opinion in England, Lect. XI. p. 359, and Appendix, Note IV. p. 481. It may be suspected that English lawyers underrate the influence at the present day exerted by precedent (Jurisprudence) in French Courts.

See Laferrière, i. p. 236.

See pp. 227–228, ante.

See Laferrière, i. pp. 226–234, and Cormenin, Du Conseil d’État envisagé comme conseil et comme juridiction (1818).

Ordinance of 1st June 1828, Laferrière, i. p. 232.

See Aucoc, Droit Administratif, i. s. 6; Hauriou, Precis de Droit Administratif, 3rd ed., p. 242, and 6th ed., pp. 391, 392; Laferrière, i. pp. 1–8.

Seep. 219, ante.

See Laferrière, i. pp. 97–106. To cite such enactments as the Public Authorities Protection Act 2893, which by the way does little more than generalise provisions, to be found in a lot of Acts extending from 1601 to 1900, as an example of the existence of administrative law in England, seems to me little else than playing with words. The Act assumes that every person may legally do the act which by law he is ordered to do. It also gives a person who acts in pursuance of his legal duty, e.g. under an Act of Parliament, special privileges as to the time within which an action must be brought against him for any wrong committed by him in the course of carrying out his duty, but it does not to the least extent provide that an order from a superior official shall protect, e.g. a policeman, for any wrong done by him.

There are, indeed, one or two instances in which no legal remedy can be obtained except against the actual wrong-doer for damage inflicted by the conduct of a servant of the Crown. These instances are practically unimportant. See Appendix, Note XII., “Proceedings against the Crown.”

Seep. 226,ante.

Compare Laferrière, ii. bk. iv. ch. ii. p. 32, and Hauriou, pp. 282–287, with JacqueEn, pp. 438–447.

Tocqueville, vii. Œuvres Complètes, p. 66.

See pp. 130–131, ante.

Seep. 180, ante.

In times of revolutionary passion trial by jury cannot secure respect for justice. The worst iniquities committed by Jeffreys at the Bloody Assize would have been impossible had he not found willing accomplices in the jurors and freeholders of the western counties.

See Annual Register, 1878, Chronicle, p. 71.

Repealed and superseded by the Offidal Secrets Act, 1911,1 & 2Geo. 5, c. 28, described as “An Act to re-enact the Official Secrets Act, 1889, with Amendments.” See especially sec. 2.

Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 459.

See Thomson v. Farrer, 9Q. B. D. (C. A.), 372.

One, and not the least of them, is that access to the Council of State as an administrative Court is both easy and inexpensive.

841

French law draws an important distinction between an injury caused to a private individual by act of the administration or government which is in excess of its powers (Faute de service), though duly carried out, or at any rate, carried out without any gross fault on the part of a subordinate functionary, e.g. a policeman acting in pursuance of official orders, and injury caused to a private individual by the negligent or malicious manner (faute personnelle) in which such subordinate functionary carries out official orders which may be perfectly lawful. In the first case the policeman incurs no liability at all, and the party aggrieved must proceed in some form or other against the State in the administrative Courts (tn’bunaux administratifs). In the second case the policeman is personally liable, and the party aggrieved must proceed against him in the ordinary Courts (tribunaux judiciaires) (see Hauriou, pp. 170, 171 Laferrière, i. p. 652), and apparently cannot proceed against the State.

French authorities differ as to what is the precise criterion by which to distinguish a faute personnelle from a faute de service, and show a tendency to hold that there is no faute personnelle on the part, e.g. of a policeman, when he has bona fide attempted to carry out his official duty. See Duguit, L’État, pp. 638–640; [Duguit, Traité de Droit Constitutionnel, i. pp. 553—559].

Dalloz, 1875, i. 495.

Dalloz, 1878, i. 13.

Dalloz, 1880, i. 41.

See Chardon, pp. 326–328.

Ibid.

Consider, too, the extended protection offered to every servant of the State by the doctrine, suggested by at least one good authority, that he cannot be held personally responsible for any wrong (faute) committed whilst he is acting in the spirit of his official duty. “Si, en effet, le fonctionnaire a agi dans l’esprit de sa fonction, c’est-à-dire en poursuivant effectivement le but qu’avait l’État en établissant cette fonction, il ne peut être responsible ni vis-à-vis de l’état, ni vis-à-vis des particuliers, alors même qu’il ait commis une faute.” —Duguit, L’État, p. 638.

“Ce principe est admis par toutes les législations, la poursuite du fonctionnaire existe part out, d’autant qu’elle répond à movement instinctif qui est, pour la victime d’un mégrait, de s’en prendre à l’autuer immédiatement visible. Mais les législations obéissent à deux tendances bien opposées: il en est qui s’efforçent d’abriter l’État derrière le fonctionnaire, il en est d’autres, au contraire, qui s’efforçent de faire couvrir le fonctionnaire par I’État, de le protéger, de le rassurer centre les conséquences fâcheuses de ses erreurs. Les législations des pays centralisés et notamment celle de la France sont de ce dernier type; il yace que l’on applle une garantie des fonctionnaires.”—Hauriou, Précis de Droit Administratif, Troisième édit., pp. 170, 171.

A strong, if not the strongest, argument in favour of the so-called “bi-cameral” system, is to be found in the consideration that the coexistence of two legislative chambers prevents the confusion of resolutions passed by either House with laws, and thus checks the substitution of the arbitrary will of an assembly for the supremacy of the ordinary law of the land. Whoever wishes to appreciate the force of this argument should weigh well the history, not only of the French Convention but also of the English Long Parliament.

The principle that the sovereign legislature can express its commands only in the particular form of an Act of Parliament originates of course in historical causes; it is due to the fact that an Act of Parliament was once in reality, what it still is in form, a law “enacted by the King by and with the advice and consent of the Lords and Commons in Parliament assembled.”

Contrast with this the way in which, even towards the end of the eighteenth century, French Kings interfered with the action of the Courts.

See, however, p. 137, note 22, ante.

See pp. 10, 11, 142–145, ante.

See pp. cxl—cxlvi, ante.

See pp. cxlv—cxlvi, ante.

See Part I.

See Part II.

Freeman, Growth of the English Constitution Ist ed.), pp. 109, 110.

See, for further examples, pp. cxlii, cxliii, ante.

See however Hearn, Government of England (2nd ed.), p. 178.

See 26 St. Tr. 530–534.

See p. 3,ante.

See pp. 26–29, ante.

Mr. Hearn denies, as it seems to me on inadequate grounds, the existence of this rule or understanding. See Hearn, Government of England (2nd ed.), p. 178.

Compare Bagehot, English Constitution, pp. 25–27.

See Appendix, Note VII., The Meaning of an Unconstitutional Law.

See 4 Edward III. c. 14; 16 Car. II. c. 1; and 1 Will. & Mary, Sess. 2, c. 2. Compare these with the repealed 16 Car. I. c. 1, which would have made the assembling of Parliament a matter of law.

In popular, though inaccurate language, “the Mutiny Act would expire.” See note 26, p. 198, ante.

See chap. xii., ante.

It is further not the case that the idea of refusing supplies is unknown to modern statesmen. In 1868 such refusal was threatened in order to force an early dissolution of Parliament; in 1886 the dissolution took place before the supplies were fully granted, and the supplies granted were granted for only a limited period.

See Hearn, Government of England, chap. ix., for an attempt to determine the circumstances under which a Ministry ought or ought not to keep office. See debate in House of Commons of 24th July 1905, for consideration of, and reference to, precedents with regard to the duty of a Ministry to retire from office when they have lost the confidence of the House of Commons.—Parl. Deb. 4th ser. vol. 150, col. 50.

See pp. 287–291, ante.

See the Parlement Belge, 4 P. D. 129; 5 P. D. (C. A.) 197. “Whether the power [of the Crown to compel its subjects to obey the provisions of a treaty] does exist in the case of treaties of peace, and whether if so it exists equally in the case of treaties akin to a treaty of peace, or whether in both or either of these cases interference with private rights can be authorised otherwise than by the legislature, are grave questions upon which their Lordships do not find it necessary to express an opinion.”—Walker v. Baird [1892], A. C. 491, 497, judgment of P. C.

On this subject there are remarks worth noting in Stephen’s Life of Fawcett, pp. 271, 272.

Purchase was not abolished by the prerogative in the ordinary legal sense of the term. A statute prohibited the sale of offices except in so far as might be authorised in the case of the army by Royal warrant. When therefore the warrant authorising the sale was cancelled the statute took effect.

Bagehot, English Constitution, Introd. pp. xxxv. and xxxvi.

See pp. 292–302, ante.

A few words may be in place as to the method by which this transfer was accomplished. The leaders of the English people in their contests with Royal power never attempted, except in periods of revolutionary violence, to destroy or dissipate the authority of the Crown as head of the State. Their policy, continued through centuries, was to leave the power of the King untouched, but to bind down the action of the Crown to recognised modes of procedure which, if observed, would secure first the supremacy of the law, and ultimately the sovereignty of the nation. The King was acknowledged to be supreme judge, but it was early established that he could act judicially only in and through his Courts; the King was recognised as the only legislator, but he could enact no valid law except as King in Parliament; the King held in his hands all the prerogatives of the executive government, but, as was after long struggles determined, he could legally exercise these prereogatives only through Ministers who were members of his Council, and incurred responsibility for his acts. Thus the personal will of the King was gradually identified with and transformed into the lawful and legally expressed will of the Crown. This transformation was based upon the constant use of fictions. It bears on its face that it was the invention of lawyers. If proof of this were wanted, we should find it in the fact that the “Parliaments” of France towards the end of the eighteenth century tried to use against the fully-developed despotism of the French monarchy, fictions recalling the arts by which, at a far earlier period, English constitutionalists had nominally checked the encroachments, while really diminishing the sphere, of the royal prerogative. Legal statesmanship bears everywhere the same character. See Rocquain, L’Esprit Révolutionnaire avant la Revolution.

It is well worth notice that the Constitution of the United States, as it actually exists, rests to a very, considerable extent on judge-made law. Chief-Justice Marshall, as the “Expounder of the Constitution,” may almost be reckoned among the builders if not the founders of the American polity. See for a collection of his judgments on constitutional questions, The Writings of John Marshall, late Chief-Justice of the United States, on the Federal Constitution.

Viz. (1) The Monarchical Constitution of 1792; (2) the Republican Constitution of 1793; (3) the Republican Constitution of 1795 (Directory), 5 Fruct. An. III.; (4) the Consular Constitution of the Year VIII. (1799); (5) the Imperial Constitution, 1804; (6) the Constitution proclaimed by the Senate and Provisional Government, 1814; (7) the Constitutional Charter, 1814 (Restoration); (8) the Additional Act (Acte Additionnel), 1815, remodelling the Imperial Constitution; (9) the Constitutional Charter of 1830 (Louis Philippe);(10) the Republic of 1848; (11) the Second Imperial Constitution, 1852; (12) the present Republic, 1870–75. See generally Hélie, Les Constitutions de la France; and Duguit et Monnier, Les Constitutions de la France (Deuxième ed.).

It is possible either to lengthen or to shorten the list of French Constitutions according to the view which the person forming the list takes of the extent of the change in the arrangements of a state necessary to form a new constitution.

A resolution was proposed, though not carried, that the articles of the Constitution should be unchangeable for a period of thirty years. Hélie, Les Constitutions de la France, p. 302.

See Constitution of 1791, Tit. vii.

Constitution du 5 Fructidor, An. III., articles 336–350, Hélie, pp. 436,463, 464.

See Hélie, Les Constitutions de la France, pp. 696–698.

See Constitution, 1848, art. 111.

Ibid. 1852, arts. 31, 32; Hélie, p. 1170.

See Constitutional Law, 1855, art. 8.

See pp. 62–63, ante.

See as to the circumstances which explain the character of the existing Constitution of France, Lowell, Governments and Parties in Continental Europe, i. pp. 7–14, and note that the present constitution has already lasted longer than any constitution which has existed in France since 1789.

See the word “Convention” in the American Encyclopædia ot American Science; and Bryce, American Commonwealth, i. (3rd ed.), App. on Constitutional Conventions, p. 667.

Constitution of United States, Amendment 10.

Constitution of United States, art. 5.

See Constitution Fédérale, art. 3.

See British North America Act, 1867, ss. 91,92.

See British North America Act, 1867, s. 90; and Bourinot, Parliamentary Practice and Procedure, pp. 76–81.

British North America Act, 1867, s. 94.

Commonwealth Constitution Act, ss. 51, 52, 106, 107.

Constitution, s. 128.

See e.g. Constitution, ss. 7, 10.

See Reichsverfassung, arts. 2. and 78.

See on the moot question whether the Reichsgericht and the Courts generally can treat a statute passed by the Diet (Reichstag) as unconstitutional, Lowell, Governments and Parties in Continental Europe, i. pp. 282–284.

Reichsverfassung, art. 2; and Labaud, Staatsrecht des Deutschen Reiches, s. 10.

Reichsverfassung, art. 76.

The South African Union. —The constitution of the South African Union, it has been well said, “is frankly not in any real sense federal.” The Act under which it is framed “does not restrict in any substantial manner the Parliament’s power to alter the provisions of the Constitution. It is especially laid down in s. 252 that Parliament may by law repeal or alter any of the provisions of the Act, provided that no provision thereof for the operation of which a definite period of time is fixed shall be repealed or altered before the expiration of such period, and also provided that no repeal or alteration of the provisions of the section itself, or of ss. 33 and 34 relative to the numbers of the members of the Legislative Assembly, prior to the expiration of ten years, or until the total number of members of the Assembly has reached 150, whichever occurs later, or of the provisions of s. 35 relative to the qualifications of electors to the House of Assembly, or of s. 137 as to the use of languages, shall be valid, unless the Bill containing the alterations is passed at a joint sitting of the Houses, and at its third reading by not less than two-thirds of the total number of members of both Houses. The section is well worded, as it obviates the possible evasion of its spirit by the alteration of the section itself.” Keith, South African Union, Reprinted from the Journal of the Society of Comparative Legislation, pp. 50, 51. See also Brand, The Union of South Africa, especially chap. xi.

See the Imperial Constitution, Arts 2 and 78.

See Bagehot, English Constitution (ed. 1878), pp. 16 and following.

See Hélie, Les Constitutions de la France, pp. 1360,1397.

Mignet, French Revolution (English Translation) p. 303.

As to the character of the Swiss Federal Council, see Lowell, Governments and Parties in Continental Europe, ii. pp. 191–208.

See Adams, Swiss Confederation, ch. iv.

Report of Criminal Code Commission, 1879, pp. 43–46 [C. 2345], Notes A and B; Stephen, Criminal Digest (6th ed.), art. 221; 1 East, P. C. 271–294; Foster, Discourse H. ss. 2, 3, pp. 270, 271.

Stephen, Commentaries (8th ed.), iv. pp. 53, 54.

This doctrine is attributed by the Commissioners, who in 1879 reported on the Criminal Code Bill, to Lord St. Leonards. As a matter of criticism it is however open to doubt whether Lord St. Leonards held precisely the dogma ascribed to him. See Criminal Code Bill Commission, Report [C. 2345], p. 44, Note B.

C. C. B. Commission, Report, p. 1.

See Stephen, Commentaries (14th ed.), i. p. 79; iii. p. 267; iv. pp. 42–46. “In the case of justifiable self-defence the injured party may repel force with force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoureth with violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary ’till he findeth himself out of danger, and if in a conflict between them he happeneth to kill, such killing is justifiable.

“Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force with force, and even his servant then attendant on him, or any other person present, may interpose for preventing mischief; and if death ensueth, the party so interposing will be justified. In this case nature and social duty co-operate.” —Foster, Discourse II. chap. iii. pp. 273, 274.

See Stephen, Criminal Digest (6th ed.), art. 221, but compare Commentaries (8th ed.), iv. PP. 54–56; and 1 Hale, P. C. 479. The authorities are not precisely in agreement as to the right of A to wound X before he has retreated as far as he can. But the general principle seems pretty clear. The rule as to the necessity for retreat by the person attacked must be always taken in combination with the acknowledged right and duty of every man to stop the commission of a felony, and with the fact that defence of a man’s house seems to be looked upon by the law as nearly equivalent to the defence of his person. “If a thief assaults a true man, either abroad or in his house, to rob or kill him, the true man is not bound to give back, but may kill the assailant, and it is not felony.”—1 Hale, P. C. 481. See as to defence of house, 1 East, P. C. 287.

Stephen, Commentaries (14th ed.), iv. pp. 42–46; compare 1 Hale, P. C. 481,482, Stephen, Criminal Digest, art. 222; Foster, Discourse II. cap. iii. compare It should be noted P.C. the rule enjoining that a man shall retreat from an assailant before he uses force applies, it would appear, only to the use of such force as may inflict force grievous bodily harm or death.

Rolle’s Ab. Trespass, g. 8.

Blacks. Comm. iv. pp. 183, 184.

See Timothy v. Simpson, 1C. M. & R. 757.

Stephen, Commentaries (14th ed.), iv. p. 309; Hawkins, P. C. book ii. cap. 12.

Foster, Discourse H. of Homidde, pp. 271, 272, and compare pp. 273, 274.

“The intentional infliction of death is not a crime when it is done by any person… in order to arrest a traitor, felon, or pirate, or keep in lawful custody a traitor, felon, or pirate, who has escaped, or is about to escape from such custody, although such traitor, felon, or pirate, offers no violence to any person.”—Stephen, Digest (6th ed.), art. 222.

Stephen, Commentaries (8th ed.), iv. pp. 49, 50, and compare 14th ed. p. 40.

A story told of the eminent man and very learned judge, Mr. Justice Willes, and related by an ear-witness, is to the following effect:—Mr. Justice Willes was asked: qf I look into my drawing-room, and see a burglar packing up the cock, and he cannot see me, what ought I to do?” Willes replied, as nearly as may be” “My advice to you, which I give as a man, as a lawyer, and as an English judge, is as follows: In the supposed circumstance this is what you have a right to do, and I am by no means sure that it is not your duty to do it. Take a double-barrelled gun, carefully load both barrels, and then, without attracting the burglar’s attention, aim steadily at his heart and shoot him dead.” See Saturday Review, Nov. 11, 1893, p. 534

Foster, Discourse II. p. 272.

Foster & Finlason, 91, per Crowder J.

It is of course assumed in this imaginary case that Acts of Parliament are not in force empowering the Commissioner of Police to regulate the use of the right to enter into the Park. It is not my intention to discuss the effect of the Metropolitan Police Acts, or to intimate any opinion as to the powers of the Commissioner of Police.

Stephen, Commentaries (14th ed.), iv. p. 44.

The Bishop of Bangor’s Case, 26 St. Tr. 463.

See chap. vii., ante.

See Redford v. Birley, 1 St. Tr. (n. s.) 1017.

See Note IV., ante.

Dovaston v. Payne, 2Hy. B1. 527.

Rex v. Carlile, 6 C. & P. 628, 636; the Tramways Case, The Times, 7th September 1888.

Ex parte Lewis, 21 Q. B. D. 191,197; per Curiam.

Bailey v. Williamson, L. R. 8 Q. B. 118; De Morgan v. Metropolitan Board of Works, 5 Q. B. D. 155.

See Hawkins, P. C. book i. cap. 65, ss. 9, 11; Blackstone, iv. p. 146; Stephen, Commentaries (14th ed.), iv. p. 174; Stephen, Criminal Digest, art. 75; Criminal Code Bill Commission, Draft Code, sec. 84, p. 80; Rex v. Pinney, 5 C. & P. 254; Rex v. Hunt, 1 St. Tr. (n. s.) 171; Redford v. Birley, ibid. 1071; Rex v. Morris, ibid, 521; Reg. v. Vincent, 3 St. Tr. (n. s.) 1037, 1082; Beatty v. Gillbanks, 9 Q. B. D. 308; Reg. v. M’Naughton (Irish), 14 Cox, C. C. 576; O’Kelly v. Harvey (Irish), 15 Cox, C. C. 435.

O’Kelly v. Harvey (Irish), 15 Cox, C. C. 435. The portion of this definition contained in brackets must perhaps be considered as, in England, of doubtful authority (see, however, Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 816, 817, summing up of Wilde, C.J., and Reg. v. Fussell, ibid. 723,764, summing up of Wilde, C. J.), but would, it is conceived, certainly hold good if id. 723,764,summi ng up time were such that but the seditious proceedings at the meeting would be likely to endanger the public peace.

See Redford v. Birley, ISt. Tr. (n. s.) 1071; Rex v. Hunt, ibid. 171; Rex v. Morris, ibid. 521; Reg. v. M’Naughton (Irish), 14 Cox. C. C. 572; O’Kelly v. Harvey (Irish), 15 Cox, C. C. 435; Reg. v. Burns, 16 cox, C. C. 355; Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783; Reg. v. Fussell ibid. 723.

See Rex v. Hunt, 1 St. Tr. (n. s.) 171; Rex v. Dewhurst, ibid. 530, 599. “Upon the subject of terror, there may be cases in which, from the general appearance of the meeting, there could be no fear of immediate mischief produced before that assembly should disperse; and I am rather disposed to think that the probability or likelihood of immediate terror before the meeting should disperse is necessary in order to fix the charge upon that second count to which I have drawn your attention. But if the evidence satisfies you there was a present fear produced of future rising, which future rising would be a terror and alarm to the neighbourhood, I should then desire that you would present that as your finding in the shape of what I should then take it to be, a special verdict”: per Bailey, J. See also Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783; Reg. v. Fussell, ibid. 723.

See chap. vii., ante.

Beatty v. Gillbanks, 9 Q. B. D. 308; Reg. v. Justices of Londonderry, 28 L. R. Ir. 440, pp. 461, 462, judgment of Holmes, J.

Wise v. Dunning [1902], 1 K. B. 167.

On this point see espedally Humphries v. Connor, 17 Ir. C. L. R. 1.

Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.

Reg. v. Neale, 9 C. & P. 431; Burdet v. Abbot, 4 Taunt. 401, 449. See pp. 285, 286, ante.

1 Geo. I. stat. 2, cap. 5, s. 2.

See Stephen, Hist. Crim. Law, i. 203; Criminal Code Bill Commission, Draft Code, ss. 88, 99.

Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.

For the sake of convenience, I have taken a meeting of the Salvation Army as a typical instance of a lawful public meeting. It should, however, be constantly remembered that the fights of the Salvationists are neither more nor less than those of any other crowd lawfully collected together—e.g, to hear a band of music.

Keighly v. Bell, 4 F. & F. 763, 790, per Willes, J. See also Note VI. p. 512, post, Duty of Soldiers called upon to disperse an Unlawful Assembly.

See C. C. B. Commission, Draft Code, ss. 49–53.

See Note IV. p. 341, ante.

See Beatty v. Gillbanks, 9 Q. B. D. 308.

The legality, however, of even this amount of resistance to the police is doubtful. “Any man who advises a public assembly when the police come there to disperse them, to stand their ground shoulder by shoulder, if that means to resist the police, although it might not mean to resist by striking them; yet if it meant to resist the police and not to disperse, that was illegal advice. If the police had interfered with them, they were not at liberty to resist in any such circumstances; they ought to have dispersed by law, and have sought their remedy against any unjust interference afterwards…. This is a body of police acting under the responsibility of the law, acting under the orders of those who would be responsible for the orders which they gave, charged with the public peace, and who would have authority to disperse when they received those orders, leaving those who should give them a deep responsibility if they should improperly interfere with the exercise of any such public duties.… Gentlemen, the peaceable citizens are not in the performance of their duty if they stand shoulder to shoulder, and when the police come and order the assembly to disperse, they do not disperse, but insist on remaining, they are not in the peaceable execution of any right or duty, but the contrary, and from that moment they become an illegal assembly.”—Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 811, summing up of Wilde, C. J.

Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.

See, e.g., Dixon’s Case, 1 East, P. C. 313; Borthwick’s Case, ibid.; Wither’s Case, 1 East, P. C. 233, 309; Tooley’s Case, 2 Lord Raymond, 1296.

1 F. & F. 91.

3 St. Tr. (n. s.) 543, and compare Criminal Code Commission Report, pp. 43,44.

The Times, 19th December 1887.

“Well, if any heads are broken before [after?] men are ordered [by the police] to disperse and refuse to disperse, those who break their heads will find their own heads in a very bad situation if they are brought into a court of law to answer for it. No jury would hesitate to convict, and no court would hesitate to punish.”—Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 811,812, summing up of Wilde. C. J.

9 Q. B. D. 308.

See p. 356,ante.

As already pointed out, the principle maintained in Beatty v. Gillbanks is itself open to some criticism.

The Times, 18th July 1882.

The whole summing up of Wilde, C. J., in Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 807–816, merits particular attention. His language is extremely strong and if it be taken as a perfectly correct exposition of the law, negatives the right to resist by force policemen who with the bonâ fide intention to discharge their duty, disperse an assembly which may ultimately turn out not to have been an unlawful assembly.

Report of the committee appointed to inquire into the circumstances connected with the disturbances at Featherstone on the 7th of September 1893 [C.—7234].

See Lowell, Governments and Parties in Continental Europe, ii., Switzerland, pp. 180–336; Orelli, Das Staatsrecht der Schweizerischen Eidgenossenschaft; Marquardsen’s Handbuch des Oef-fentlichen Rechts, iv. i. 2.

See Note III. p. 331, ante.

See the “Constitutional Bill of the First Parliament of the Protectorate,” cap, 39; Gardiner, Constitutional Documents of the Puritan Revolution, pp. 366, 367.

Lowell, ii. p. 214; Orelli, pp. 38–44.

See Swiss Constitution, Art. 85, s. 12, and Art. 113.

Lowell, p. 218.

See Swiss Constitution, Art. 113; Brinton Coxe, Judicial Power and Unconstitutional Legislation, p. 86.

See Adams, Swiss Confederation, pp. 74, 75.

See Lowell, p. 220.

Lowell, pp. 218, 219.

See Lowell, ii. chap. xii.; Adams, Swiss Confederation, chap. vi. The referendum, though not under that name, exists for many purposes in the different States of the American Union. There is no trace of it, or of any institution corresponding to it, in the Constitution of the United States. Compare Oberholtzer, Referendum in America.

100

Lowell, p. 280.

101

The Commonwealth of Australia Constitution Act, 63 & 64 Vict. c. 12. Quick and Garran, The Annotated Constitution of the Australian Commonwealth. Moore, The Commonwealth of Australia. Bryce, i. Studies in History and Jurisprudence, Essay VIII.

102

See pp. 73–74, ante.

103

See pp. 75–76, ante.

104

Constitution ss. 51, 108.

105

Ibid. ss. 106, 107.

106

Ibid. s. 7. Such experience however as can be supplied by the events of eight years shows, it is said, that the Senate is absolutely hostile to the maintenance of State rights, and far more so than the House of Representatives.

107

Ibid. s. 7.

108

Esmein, Droit Constitutionnel, pp. 555–563.

109

Constitution, s. 64.

110

Constitution, s. 57.

111

Compare Commonwealth Constitution, ss. 51,52, with Constitution of U. S., art. 1, ss. 1 and 8, and British North America Act, 1867 (30 & 31 Vict. c. 3), ss. 91, 92.

112

See Constitution, s. 109.

113

Ibid. s. 51, sub. s. xxxvi. compared e.g. with ss. 3, 29, 31, etc.

114

Ibid. s. 128.

115

Constitution, s. 28.

116

Constitution, ss. 1, 58, 59, and 128.

117

See Constitution, ss. 71, 73, 74.

118

Quick and Garran, Annotated Constitution, p. 738. Thus an appeal lies from the Supreme Court of each of the States to the Privy Council from any decision of their Courts; as of right in circumstances defined in the several instruments constituting the Courts; by special leave from the Privy Council in all cases without exception. This rule applies to the exercise of any jurisdiction, whether State or federal, vested in the State Courts, but the State Courts have not full federal jurisdiction. From their power are excepted all cases involving the relation inter se of the States, and the States and the Commonwealth.

Appeals lie also from the State Courts to the High Court of Australia in matters both of State and federal jurisdiction on terms defined in the Judicature Act, 1903, of the Commonwealth Parliament. The appellant has of course the choice of appeal. There is nothing to prevent an appeal from such Courts to decide whether any particular case falls under sec. 74 of the constitution or not. Nor is there any mode of preventing contradictory decisions on matters other than questions arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or to the limits inter se of the constitutional powers of any two or more States which cannot reach the Privy Council. The High Court further is not bound to accept the rulings of the Privy Council as superior to its own except in those eases where an actual appeal is successfully brought not from the Superior Court of a State, but from the High Court to the Privy Council.

119

See Munro, Constitution of Canada.

120

But certain important though limited powers are under the constitution itself, i.e. the British North America Act, 1867, given to the Dominion Parliament and to the Provincial legislatures, enabling them from time to time to amend their constitutions (Munro, Constitution of Canada, p. 229). See e.g. B. N. A. Act, 1867, ss. 35,41,45,78, 83,84.

121

See Law Quarterly Review, xviii., Holdsworth, Martial Law Historically Considered, pp. 117–132; Richards, Martial Lmu, ibid. pp. 133–142; Pollock, What is Martial Law? ibid. pp. 152–158; Dodd, The Case of Marais, ibid, pp. 143–151. The Case of Ship Money, 3 St. Tr. 826; Wall’s Case, 28 St. Tr. 51; Ex parte D. F. Marais [1902], A. C. 109; Forsyth, Cases and Opinions, ch. vi. p. 188; Clode, Military Forces of the Crown, ii. ch. xviii.

Ex parte Milligan (Am.), 4 Wall. 2, and Thayer, Cases on Constitutional Law, ii. p. 2376. This, and the other American cases on martial law, though not authorities in an English Court, contain an expostion of the common law in regard to martial law which deserves the most careful attention.

See also Note IV., Right of Self-Defence; Note V., Right of Public Meeting; Note VI., Soldiers and Unlawful Meeting, ante.

122

See chap. iv., ante.

123

See Kent, Comm. i. p. 341, and opinion of Sir John Campbell and Sir R. M. Rolfe, Forsyth, Opinions on Constitutional Law, pp. 198,199.

124

See especially the Case of Ship Money, 3 St. Tr. 860, 905, 974, 975,1011–1013, 1134,1149, 1262, and 1214.

125

See 1 Dyer, 36B.

126

12 Rep. 12.

127

Case of Ship Money, 3 St. Tr. 826, 906. Compare especially the language of Holborne in the same case at p. 975, and language of Buller, J., in British Cast Plate Manufacturers v. Meredith, 4T. R. at p. 797.

128

See especially opinion of Henley and Yorke, Forsyth, pp. 188, 189; opinion of Hargrave, ibid. pp. 189, 190; opinion of Sir John Campbell and Sir R. M. Rolfe, ibid. pp. 198,199.

129

Forsyth, p. 201.

130

Cited Clode, Military Forces of the Crown, ii. p. 486.

131

See chaps, viii. and ix., ante.

132

See Case of Ship Money, 3 St. Tr. 826, 975.

133

If the language in the Charge of Blackburn, J., Reg. v. Eyre, p. 84, be cited in support of the possible legality of such a transaction, it must be remembered that Blackburn’s hypothetical apology for Governor Eyre was based on certain statutes passed by the legislature of Jamaica, and that the whole tendency of the Charge of Cockburn, C. J., in Reg. v. Nelson, is to show that the execution of Gordon was illegal.

134

See specially language of Holborne, Case of Ship Money, 3 St. Tr. p. 975.

135

See App., Note W., The Right of Self-Defence, p. 341, ante.

136

3 St. Tr. (n. s.) 11, with which compare Blackburn’s Charge in R. v. Eyre, pp. 58, 59.

137

Cockburn’s Charge, Reg. v. Nelson, p. 85.

138

Compare Ex parte D. F. Marais [1902], A. C. 109; Ex parte Milligan, 4 Wall. 2 (Am.).

139

Whether the Courts may not take judicial notice of the existence of a state of war?

140

Ex parte D. F. Marais [1902], A. C. 109.

141

EX parte Milligan, 4 Wall. 2; Thayer, Cases on Constitutional Law, part iv. p. 2390.

142

See opinion of Campbell and Rolfe, Forsyth, p. 198.

143

See Cockburn’s Charge, Reg. v. Nelson; Blackburn’s Charge, Reg. v. Eyre; Ex parte Milligan, 4 Wall, 2; and compare Wall’s Case, 28 St. Tr. 51. Wright v. Fitzgerald, 27 St. Tr. 759.

144

Sir F. Pollock, What is Martial Law? L. Q. R. xviii, pp. 156,157.

145

Ex parte D. F. Marais [1902,] A. C. 109, 114, 115, judgment of Privy Council.

146

Joint opinion of Sir J. Campbell and Sir R. M. Rolfe, cited Forsyth, p. 199.

147

See pp. 10,142, ante.

148

See Clode, Military Forces of the Crown, ii. pp. 164,165; 1 Geo. I. St. 2, c. 39, and 19 Geo. II. c. 20.

149

Blackburn’s Charge, Reg. v. Eyre, p. 58.

150

Blackburn’s Charge, R. v. Eyre, p. 73, with which should be read pp. 69—73, which suggest the reasons why the authors of the Petition of Right may have omitted all reference to martial law in time of war.

151

See for a very able statement of the theory here criticised, H. Erle Richards’ Martial Law, L. Q. R. xviii, p. 133.

152

See pp. 399, 400, ante.

153

See L. Q. R. xviii, p. 140.

154

See Pollock, What is Martial Law? L.Q.R. xviii, p. 162.

155

Pollock, What is Martial Law? L. Q. R. xviii, pp. 155, 156.

156

3 St.Tr. (n.s.) 11.

157

Pollock, What is Martial Law? L. Q. R. xviii, p. 157.

158

Wright v. Fitzgerald, 27 St. Tr. 759; Lecky, History of England in Eighteenth Century, viii. pp. 22–27.

159

See Berthélemy, Trailé Élérnentaire de Droit Administratif (5th ed.), pp. 880, 881; Chardon, L’Administration de la France, p. 411.

160

A Vice-President, who generally presides, is elected by and from the eight elected judges of the Conflict Court.

161

Conseillers d’état en service ordinaire are permanent members of the Council of State. They are contrasted with Conseillers en service extraordinaire, who are temporary members of the Council, for the discharge of some special duty. See Berthélemy, p. 126.

162

The name may be misleading. These commissioners are, it is said, absolutely free from pressure by the Government. They are representatives of the law, they are not strictly judges, the opinions which they express often disagree with the opinion of the representative of the Government, viz. the prefect, who has raised the conflict, i.e. has brought before the Court the question whether a judicial court has exceeded its jurisdiction by dealing with a question of administrative law.

163

See Lowell, The Government of England, ii. pp. 490–494.

AV Dicey’s Introduction to the Study of the Law of the Constitution was first published in 1885 in London

Introduction to the Study of the Law of the Constitution: Albert Venn Dicey [1915]

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