federalisation opposed to whole history of English constitutionalism
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AIM
The Law of the Constitution was first published in 1885. The book was based on lectures delivered by me as Vinerian Professor of English Law. The lectures were given and the book written with the sole object of explaining and illustrating three leading characteristics in the existing constitution of England; they are now generally designated as the Sovereignty of Parliament, the Rule of Law, and the Conventions of the Constitution. The book, therefore, dealt with the main features of our constitution as it stood in 1884-85, that is thirty years ago. The work has already gone through seven editions; each successive edition, including the seventh, has been brought up to date, as the expression goes, by amending it so as to embody any change in or affecting the constitution which may have occurred since the last preceding edition. On publishing the eighth and final edition of this treatise I have thought it expedient to pursue a different course. The constant amendment of a book republished in successive editions during thirty years is apt to take from it any such literary merits as it may originally have possessed. Recurring alterations destroy the original tone and spirit of any treatise which has the least claim to belong to the literature of England. The present edition, therefore, of the Law of the Constitution is in substance a reprint of the seventh edition; it is however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood and worked in 1884 with the constitution as it now stands in 1914. It is thus
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possible to take a general view of the development of the constitution during a period filled with many changes both of law and of opinion.1 My readers are thus enabled to see how far either legislation or constitutional conventions have during the last thirty years extended or (it may be) limited the application of the principles which in 1884 lay at the foundation of our whole constitutional system. This Introduction therefore is in the main a work of historical retrospection. It is impossible, however (nor perhaps would it be desirable were it possible), to prevent a writer’s survey of the past from exhibiting or betraying his anticipations of the future.
The topics here dealt with may be thus summed up:—The Sovereignty of Parliament,2 the Rule of Law,3 the Law and the Conventions of the Constitution,4 New Constitutional Ideas,5 General Conclusions.6
SOVEREIGNTY OF PARLIAMENT 7
The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our political institutions. And my readers will remember that Parliament consists of the King, the House of Lords, and the House of Commons acting together. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that “Parliament” has “the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,”8 and further that this right or
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power of Parliament extends to every part of the King’s dominions.9 These doctrines appear in the first edition of this work, published in 1885; they have been repeated in each successive edition published up to the present day. Their truth has never been denied. We must now, however, consider whether they are an accurate description of parliamentary sovereignty as it now exists in 1914. And here it should be remarked that parliamentary sovereignty may possibly at least have been modified in two different directions, which ought to be distinguished. It is possible, in the first place, that the constitution or nature of the sovereign power may have undergone a change. If, for example, the King and the Houses of Parliament had passed a law abolishing the House of Lords and leaving supreme legislative power in the hands of the King and of the House of Commons, any one would feel that the sovereign to which parliamentary sovereignty had been transferred was an essentially different sovereign from the King and the two Houses which in 1884 possessed supreme power. It is possible, in the second place, that since 1884 the Imperial Parliament may, if not in theory yet in fact, have ceased as a rule to exercise supreme legislative power in certain countries subject to the authority of the King. Let us consider carefully each of these two possibilities.
POSSIBLE CHANGE IN CONSTITUTION OR CHARACTER OF THE PARLIAMENTARY SOVEREIGN (EFFECT OF THE PARLIAMENT ACT, 1911)
The matter under consideration is in substance whether the Parliament Act,10 has transferred legislative authority from the King11 and
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the two Houses of Parliament to the King and the House of Commons?
The best mode of giving an answer to this question is first to state broadly what were the legislative powers of the House of Lords immediately before the passing of the Parliament Act, 18th August 1911, and next to state the main direct and indubitable effects of that Act on the legislative power of the House of Lords and of the House of Commons respectively.
THE STATE OF THINGS IMMEDIATELY BEFORE THE PASSING OF THE PARLIAMENT ACT
No Act of Parliament of any kind could be passed without the consent thereto both of the House of Lords and of the House of Commons. No doubt the House of Lords did very rarely either alter or reject any Money Bill, and though the Lords have always claimed the right to alter or reject such a Bill, they have only on very special occasions exercised this power. No doubt again their lordships have, at any rate since 1832, acknowledged that they ought to pass any Bill deliberately desired by the nation, and also have admitted the existence of a more or less strong presumption that the House of Commons in general represents the will of the nation, and that the Lords ought, therefore, in general to consent to a Bill passed by the House of Commons, even though their lordships did not approve of the measure. But this presumption may, they have always maintained, be rebutted if any strong ground can be shown for holding that the electors did not really wish such a Bill to become an Act of Parliament. Hence Bill after Bill has been passed by their lordships of which the House of Lords did not in reality approve. It was however
