Ages legislation was not the primary business of Parliament, and the rule that the king cannot legislate without Parliament was established only by degrees. Early statutes, therefore, are of a mixed character, containing both legislative and administrative provisions. We can hardly separate the declaration of new law from the enforcement of old, the establishment of novel remedies for novel mischiefs or newly detected shortcomings from the king's executive instructions to his officers. The King in his Council is alike ready to make fresh rules, to provide fresh machinery for the better working of existing rules, and to dispense justice in extraordinary cases. Law-making is not yet regarded as a distinct branch of sovereign power, external to the judicial authority, requiring strict and literal obedience, but entitled to nothing more. . . . In later times the judges have treated Acts of Parliament as proceeding from a wholly external and unjudicial authority."

It is in this, then, that we are to look for the explanation of those decisions which have caused such embarrassment to modern constitutional lawyers. It is not enough to dismiss them as "captious" or "petulant;" they are too numerous and important for that. We want an explanation of them rather than a criticism. The explanation here offered is to be found in these characteristics of the mediaeval Parliaments and courts below which we have been describing; and the 1 First Book of Jurisprudence, pp. 329-31.

continued existence of these traditions among lawyers and judges long after the change had set in which was to transform the ancient Court of Parliament into the sovereign legislative body we know to-day.1

1 See T. C. Anstey, On Blackstone's Theory of the Omnipotence of Parliament, Juridical Society Papers, vol. iii. p. 305 et seq., especially p. 323.

NOTE A. PARLIAMENTARY OMNIPOtence and International Law (Page 308)

THE most interesting case on this subject is probably Regina v. Keyn, L. R. 2 Er. Div., p. 63 et seq. The principle really at issue in that case does not directly affect parliamentary sovereignty, but some of the comments upon it do. The validity of the three-mile rule in international law and the discussion as to its acceptance as a part of the law of England have in reality little to do with the question of Parliament's omnipotence. The issue in Regina v. Keyn was merely whether this three-mile rule had been incorporated in the law of England or not. It is difficult to see how this involved Parliament much more directly than a similar discussion regarding any part of the customary law not mentioned in any act. In 1876, when the case was decided, no court would have recognized the validity of a rule of international law in flat violation of an act of Parliament. It seems rather unnecessary to say, as Sir J. F. Stephen does in commenting on this case, "The English courts no doubt administer in such cases what they conceive to be the principles accepted by all nations, but they do so because they are part of the law of England, and if Parliament were to pass an act expressly and avowedly opposed to the law of nations, the English courts would administer it in preference to the law of nations, whatever that may be." (History of the Criminal Law, vol. ii. p. 36.) No one will question the truth of this, but it is not to the point. The question whether international law is a part of the law of England is a very interesting one, but it affects the theory of parliamentary omnipotence only in the same general way that the whole question of the basis of "judge-made” law affects it. It has little more to do with the omnipotence of Parliament than the question whether the Law Merchant or even the rule of primogeniture is a part of the law of England. They are all illustrations of the indefinite powers still exercised by the courts of England,-powers which, according to the Austinian theory, may be reconciled with the supremacy of the "definite superior" through the dictum that what the sovereign permits, he prescribes. (Austin, Lecture xxxvIII.) The words of Lord Mansfield in Heathfield v. Chilton (4 Burrow, 2016), -"the act of parliament of 7 Ann. c. 12. did not intend to alter, nor can alter the law of nations,”—if taken with the context and with

the statute itself, are not directly or indirectly a denial of the validity of the statute, and cannot be compared with the utterances of the sixteenth and seventeenth century judges. See also his opinion in the case of Triquet v. Bath, 3 Burrow, 1480, 1481. In general, also, see Stephen, History of the Criminal Law of England, vol. ii. p. 29 et seq.; Roscoe Pound in Harvard Law Rev., vol. xxi. p. 394 et seq.

NOTE B. PARLIAMENT AS AN ADVISORY COUNCIL

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THIS feature of Parliament's activity is well brought out in Raleigh's dialogue on the Prerogative of Parliaments in England. The Justice and the Councillor are discussing impositions, and the Justice asks, "Now, my lord, What prejudice hath his Majesty, his Revenue being kept up, if the Impositions, that were laid by the Advice of a few, be in Parliament laid by the general Council of the Kingdom, which takes off all Grudging and Complaint? - Couns. Yea, Sir; but that, which is done by the King, with the Advice of his private or Privycouncil. is done by the King's absolute Power.-Just. And by whose Power is it done in Parliament, but by the King's absolute Power? Mistake it not, my Lord; The three Estates do but advise, as the prime Council doth; which Advice, if the King embrace it, becomes the King's own Act in the one, and the King's Law in the other; for without the King's Acceptation, both the publick and private Advices are but as empty Egg-shells." (Harleian Miscellany (edition of 1745), vol. v. p. 206.)

Somewhat the same idea was expressed later by Hobbes: "Neither a Counsellor (nor a Councell of State, if we consider it with no Authority of Judicature or Command, but only of giving Advice to the Soveraign when it is required, or of offering it when it is not required, [)] is a Publique Person. For the Advice is addressed to the Soveraign only, whose person cannot in his own presence, be represented to him by, another. But a Body of Counsellors, are never without some other Authority, either of Judicature, or of immediate Administration: As in a Monarchy, they represent the Monarch, in delivering his Commands to the Publique Ministers: In a Democracy, the Councell, or Senate propounds the Result of their deliberations to the people, as a Councell; but when they appoint Judges, or heare

Causes, or give Audience to Ambassadors, it is in the quality of a Minister of the People: And in an Aristocracy the Councell of State is the Soveraign Assembly it self; and gives counsell to none but themselves." Leviathan, part ii. ch. xxiii. See also ibid., ch. xxv.

As we go back from the Tudor times this can be seen in the Pronunciationes Parliamenti, made at the opening of new Parliaments, usually by the Chancellor. It was then as now the custom to open Parliament by an address or sermon in which the purposes of the calling of the Parliament were impressed on the members. As may be seen from the examples below, much stress was put on business that we call judicial; and what is not judicial is consultative, advisory rather than legislative. It is business natural to the King's old advisory council: only by looking toward the future can we properly call it legislative. For example, at the opening of the Parliament in 15 Henry VI, the Chancellor, the Bishop of Bath and Wells, declared the three objects of the Parliament to be: (1) The Justice and Peace of the King's subjects, (2) a ready sale for English commodities, (3) Protection of the realm and seas against enemies and rebels. (Rot. Parl., vol. iv. p. 495.) In 2 Henry IV Sir William Thyrning, chief justice of the King's Bench, by the King's command opened Parliament with the declaration that they were called in order that the Church and other persons and corporations should enjoy their liberties, that all good laws should be executed and justice truly adininistered, and that nothing should be done in derogation of the common law. (Rot. Parl., vol. iii. p. 454.) Such examples might be added almost indefinitely. See Elsynge, ch. vi.

NOTE C. THE Delegation of POWER BY PARLIAMENT

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THE feeling in the United States against "Government by Commission" extends not merely to commissioners appointed without statutory warrant, but also to those based upon an act of Congress. This involves the constitutional question as to the ability of Congress to delegate its legislative power, a subject recently much discussed. In the Parliaments of the Norman period this question could hardly arise. Even so late as the reign of Edward I, we have found the Council making laws after the rest of the Parliament had gone home. This,