Part II. a partial success, because circumstances, similar to those which made French monarchs ultimately despotic, tended in England during the sixteenth and part of the seventeenth century to increase the influence of the Crown. The attempt ended in failure, partly because of the personal deficiencies of the Stuarts, but chiefly because the whole scheme of administrative law was opposed to those habits of equality before the law which had long been essential characteristics of English institutions. CHAPTER XIII RELATION BETWEEN PARLIAMENTARY SOVEREIGNTY AND THE RULE OF LAW XIII. THE Sovereignty of Parliament and the supremacy of Chapter the law of the land-the two principles which pervade the whole of the English constitution - may appear to stand in opposition to each other, or to be at best only counterbalancing forces. But this appearance is delusive; the sovereignty of Parliament, as contrasted with other forms of sovereign power, favours the supremacy of the law, whilst the predominance of rigid legality throughout our institutions evokes the exercise, and thus increases the authority, of Parliamentary sovereignty. The sovereignty of Parliament favours the supre- Parlia macy of the law of the land. That this should be so arises in the main from two characteristics or peculiarities which distinguish the English Parliament from other sovereign powers. The first of these characteristics is that the commands of Parliament (consisting as it does of the Crown, the House of Lords, and the House of Commons) can be uttered only through the combined action of its three constituent parts, and must therefore always take the shape of formal and deliberate mentary Part II. legislation. The will of Parliament' can be expressed only through an Act of Parliament. This is no mere matter of form; it has most important practical effects. It prevents those inroads upon the law of the land which a despotic monarch, such as Louis XIV., Napoleon I., or Napoleon III., might effect by ordinances or decrees, or which the different constituent assemblies of France, and above all the famous Convention, carried out by sudden resolutions. The principle that Parliament speaks only through an Act of Parliament greatly increases the authority of the judges. A Bill which has passed into a statute immediately becomes subject to judicial interpretation, and the English Bench have always refused, in principle at least, to interpret an Act of Parliament otherwise than by reference to the words of the enactment. An English judge will take no notice of the resolutions of either House, of anything which may have passed in debate (a matter of which officially he has no cognisance), or even of the changes which a Bill may have undergone between the moment of its first introduction to Parliament and of its receiving the Royal assent. All this, which seems natural enough to an English lawyer, would greatly surprise many foreign legists, and no doubt often does give a certain narrowness to the judicial construction of statutes. It contributes greatly however both (as 1 A strong, if not the strongest, argument in favour of the socalled "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. I have already pointed out) to the authority of the Chapter judges and to the fixity of the law.' The second of these characteristics is that the XIII. English Parliament as such has never, except at periods Z of revolution, exercised direct executive power or appointed the officials of the executive government. No doubt in modern times the House of Commons has in substance obtained the right to designate for appointment the Prime Minister and the other members of the Cabinet. But this right is, historically speaking, of recent acquisition, and is exercised in a very roundabout manner; its existence does not affect the truth of the assertion that the Houses of Parliament do not directly appoint or dismiss the servants of the state; neither the House of Lords nor the House of Commons, nor both Houses combined, could even now issue a direct order to a military officer, a constable, or a tax-collector; the servants of the state are still in name what they once were in reality— "servants of the Crown;" and, what is worth careful notice, the attitude of Parliament towards government officials was determined originally, and is still regulated, by considerations and feelings belonging to a time when the "servants of the Crown" were dependent upon the King, that is, upon a power which naturally excited the jealousy and vigilance of Parliament. Hence several results all indirectly tending to support the supremacy of the law. Parliament, though 1 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." 1 Part II. Sovereign, unlike a sovereign monarch who is not only a legislator but a ruler, that is, head of the executive government, has never been able to use the powers of the government as a means of interfering with the regular course of law; and what is even more important, Parliament has looked with disfavour and jealousy on all exemptions of officials from the ordinary liabilities of citizens or from the jurisdiction of the ordinary Courts; Parliamentary sovereignty has been fatal to the growth of "administrative law." The action, lastly, of Parliament has tended as naturally to protect the independence of the judges, as that of other sovereigns to protect the conduct of officials. It is worth notice that Parliamentary care for judicial independence has in fact stopped just at that point where on a priori grounds it might be expected to end. The judges are not in strictness irremovable; they can be removed from office on an address of the two Houses; they have been made by Parliament independent of every power in the state except the Houses of Parliament. Tendency found in The idea may suggest itself to a reader that the rule of law characteristics or peculiarities of the English Parliaoften not ment on which I have just dwelt must now be foreign common to most of the representative assemblies tive assem- which exist in continental Europe. The French blies. National Assembly, for example, bears a consider representa able external resemblance to our own Parliament. It is influenced however by a different spirit; it is the heir, in more ways than one, of the Bourbon Mon 1 Contrast with this the way in which even towards the end of the eighteenth century French Kings interfered with the action of the Courts. |