Part I. effect, of bonâ fide representative government. For our present purpose there is no need to determine whether this result be good or bad. An enlightened sovereign has more than once carried out reforms in advance of the wishes of his subjects. This is true both of sovereign kings and, though more rarely, of sovereign Parliaments. But the sovereign who has done this, whether King or Parliament, does not in reality represent his subjects. All that it is here necessary to insist upon is that the essential property of representative government is to produce coincidence between the wishes of the sovereign and the wishes of the subjects; to make, in short, the two limitations on the exercise of sovereignty absolutely coincident. This, which is true in its measure of all real representative government, applies with special truth to the English House of Commons.

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arose.

"The House of Commons," writes Burke, " was supposed originally to be no part of the standing government of this country. It was considered as a "control, issuing immediately from the people, and speedily to be resolved into the mass from whence it In this respect it was in the higher part of government what juries are in the lower. The capacity of a magistrate being transitory, and that of a citizen permanent, the latter capacity it was hoped "would of course preponderate in all discussions, not only between the people and the standing authority "of the Crown, but between the people and the fleeting "authority of the House of Commons itself. It was "hoped that, being of a middle nature between subject "and government, they would feel with a more tender "and a nearer interest everything that concerned the

people, than the other remoter and more permanent Chapter parts of legislature.

"Whatever alterations time and the necessary, "accommodation of business may have introduced, this "character can never be sustained, unless the House of "Commons shall be made to bear some stamp of the "actual disposition of the people at large. It would (among public misfortunes) be an evil more natural "and tolerable, that the House of Commons should be "infected with every epidemical phrensy of the people, "as this would indicate some consanguinity, some sympathy of nature with their constituents, than that they should in all cases be wholly untouched by the opinions and feelings of the people out of doors. By this want of sympathy they would cease to be a "House of Commons." 1

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1 Burke, Works, i. (1871 ed.), pp. 347, 348.

I.

presente

G

Aim: of chapter

CHAPTER II

PARLIAMENT AND NON-SOVEREIGN LAW-MAKING BODIES

Part I. IN my last chapter I dwelt upon the nature of Parliamentary sovereignty; my object in this chapter is to illustrate the characteristics of such sovereignty by comparing the essential features of a sovereign Parliament like that of England with the traits which mark non-sovereign law-making bodies.

Parlia

mentary

sove

reignty.

A. Characteristics of Sovereign Parliament.The characteristics of Parliamentary sovereignty may be deduced from the term itself. But they are apt to escape the attention of Englishmen, who have been so accustomed to live under the rule of a supreme legislature, that they almost, without knowing it, assume that all legislative bodies are supreme, and hardly therefore keep clear before our minds the properties of a supreme as contrasted with a nonsovereign law-making body. In this matter foreign observers are, as is natural, clearer-sighted than Englishmen. De Lolme, Gneist, and De Tocqueville seize at once upon the sovereignty of Parliament as a salient feature of the English constitution, and recognise the far-reaching effects of this marked peculiarity in our institutions.

"In England," writes De Tocqueville," the Parlia- Chapter ment has an acknowledged right to modify the constitution; as, therefore, the constitution may undergo perpetual changes, it does not in reality "exist; the Parliament is at once a legislative and a "constituent assembly."

1

His expressions are wanting in accuracy, and might provoke some criticism, but the description of the English Parliament as at once "a legislative and a constituent assembly " supplies a convenient formula for summing up the fact that Parliament can change any law whatever. Being a "legislative" assembly it can make ordinary laws, being a "constituent assembly it can make laws which shift the basis of the constitution. The results which ensue from this fact may be brought under three heads.

Parliament

First. There is no law which Parliament cannot No law change, or (to put the same thing somewhat differently), fundamental or so-called constitutional laws are under change. our constitution changed by the same body and in the same manner as other laws, namely, by Parliament acting in its ordinary legislative character.

A Bill for reforming the House of Commons, a Bill for abolishing the House of Lords, a Bill to give London a municipality, a Bill to make valid marriages celebrated by a pretended clergyman, who is found after their celebration not to be in orders, are each equally within the competence of Parliament, they each may be passed in substantially the same manner, they none of them when passed will be, legally speaking, a whit more sacred or immutable than the

1 De Tocqueville, i. (translation), p. 96, Euvres Complètes, i. pp. 166, 167.

Part I. others, for they each will be neither more nor less than an Act of Parliament, which can be repealed as it has been passed by Parliament, and cannot be annulled by any other power.

No distinction be

stitutional

ary laws.

Secondly. There is under the English constitution tween con- no marked or clear distinction between laws which and ordin- are not fundamental or constitutional and laws which are fundamental or constitutional. The very language therefore, expressing the difference between a "legislative" assembly which can change ordinary laws and "constituent" assembly which can change not only ordinary but also constitutional and fundamental laws, has to be borrowed from the political phraseology of foreign countries.

Relation

Parlia

mentary

sovereignty

written

tion.

This absence of any distinction between constitutional and ordinary laws has a close connection with the non-existence in England of any written or enacted and an unconstitutional statute or charter. De Tocqueville constitu- indeed, in common with other writers, apparently holds the unwritten character of the British constitution to be of its essence: "L'Angleterre n'ayant point de constitution écrite, qui peut dire qu'on change sa constitution?" 1 But here De Tocqueville falls into an error, characteristic both of his nation and of the weaker side of his own rare genius. He has treated the form of the constitution as the cause of its substantial qualities, and has inverted the relation of cause and effect. The constitution, he seems to have thought, was changeable because it was not reduced to a written or statutory form. It is far nearer the truth to assert that the constitution has never been reduced to a written or statutory form because 1 De Tocqueville, Euvres Complètes, i. p. 312.