however, was no delegation of power, for theoretically the Council seems to have been the Parliament. In 1337, however, it was enacted by statute that wool was not to be exported until the King and Council provided otherwise. (S. R., vol. i. p. 280; Stubbs, C. H., vol. ii. p. 619, note 2.) In 1385 Parliament ordained that a staple should be held in England, but the place, time, and manner, it was said, “ordinabitur postmodum, per Consilium Domini Regis, auctoritate Parliamenti. Et quod id quod per dictum Consilium in hac parte fuerit ordinatum, virtutem Parliamenti habeat pariter et vigorem." (Rot. Parl., vol. iii. p. 204, quoted by Stubbs, C. H., vol. ii. p. 619, note 2.) In these cases, it ought to be borne in mind that we are not able to say with absolute certainty that the consilium was considered a different body from Parliament; and if it was not, of course there was no delegation. But it is generally admitted that by 1385, at least, the Council was separate from Parliament.

In the twenty-first year of Richard II, a statute was passed naming commissioners who were empowered to hear and determine petitions "come leur meulx semblera par lour bone advys et discrecion." (21 Rich. II., cap. xvi.)

The wrongful acts of the commission so created were the ground for the repeal of all the acts of Parliament of 21 Richard II, after the deposition of the King (1 Henry IV., cap. 3); and in the Articles drawn up against Richard, one of the charges against him is that he "subtlely procured and caused to be granted" the provision for the appointment of the commission-"et hoc de voluntate Regis: in derogationem Status Parliamenti, et in magnum incomodum totius Regni, et perniciosum exemplum. And that they might seem to have some colour and authority for such their doings, the King caused the Parliament Rolls to be altered and blotted at his pleasure, against the effect of the said grant." Rot. Parl., 1 Henry IV. (1399), No. 25 (vol. iii. p. 418); Parliamentary History, vol. i. p. 257. See also Rot. Parl., vol. iii. p. 426, No. 70. In his will Richard bequeathed the royal treasure to his successor only on the condition that the statutes of the twenty-first year of his reign were observed and also the ordinances of the commission. This is complained of in the charges against him, as a defence of "statutes and ordinances which are erroneous and unjust, and repugnant to all law and reason." (Parl. Hist., vol. i. p. 263.)

In the heat of the struggle with Rome, the Parliament, in 1533, in the long preamble of the act concerning Peter's Pence and Dispensations, declared that all laws of religion observed in England up to that time had existed only by sufferance of the King and people, -the truth or falsity of which is of no importance here. Then they continue: "It standeth therefore with natural Equity and good Reason, that in all and every such Laws human made within this Realm, or induced into this Realm by the said Sufferance, Consents and Custom, your Royal Majesty, and your Lords Spiritual and Temporal, and Commons, representing the whole State of your Realm, in this your most high Court of Parliament, have full Power and Authority, not only to dispense, but also to authorize some elect Person or Persons to dispense with those, and all other human Laws of this your Realm, and with every one of them, as the Quality of the Persons and Matter shall require." (25 Henry VIII., cap. 21.)

Six years later Parliament passed the celebrated Statute of Proclamations (31 Henry VIII., cap. 8, 1539), which Maitland calls "the most extraordinary act in the Statute Book." (C. H., p. 253.) This statute enabled the King with advice of his Council to issue Proclamations "under such Penalties and Pains as to him and them shall seem necessary, which shall be observed as though they were made by Act of Parliament." It is declared that this is not to prejudice any Person's "Inheritance, Offices, Liberties, Goods, Chattels, or Life;" but anyone willingly disobeying "shall pay such Forfeitures, or be so long imprisoned, as shall be expressed in the said Proclamations," and anyone leaving the realm to escape such punishment is to be adjudged a traitor. In the Parliament of 1542-3 it was enacted that nine of the King's Council might give judgement against violators of these proclamations (34-35 Henry VIII., cap. 23). The Statute of Proclamations, Stubbs says, "is one of the most curious phenomena of our constitutional life: for it employs the legislative machinery which by centuries of careful and cautious policy the parliament had perfected in its own hands, to authorize a proceeding which was a virtual resignation of the essential character of parliament as a legislative body; the legislative power won for the parliament from the king was used to authorize the king to legislate without a parliament." (Const. Hist., vol. ii. pp. 619, 620.)

The act, with its supplement, was repealed in the first year of Edward VI. (1 Edward VI., cap. 12, sec. v.) The view of the matter held by the lawyers is contained in the well-known resolution of the judges as given in Coke's Reports, vol. xii. pp. 74-6.

Sir William Anson sums up these resolutions in convenient form. (Law and Custom of the Constitution, vol. i. p. 323.) In briefest wise these resolutions declare that the King may not by proclamation create an offence where none existed by the law before, and that he has no prerogative but what the law of the land allows him. "But the King for the prevention of offences may by proclamation admonish his subjects that they keep the laws, and do not offend them; upon punishment to be inflicted by law." It will be noticed that these resolutions say nothing directly upon the question of the delegation of legislative power, neither do they pronounce upon the validity or extent of the jurisdiction of the Court of Star Chamber beyond saying that an offence not punishable there could not be made so by the King's proclamation.

Notwithstanding these resolutions, the King's proclamations went on without interruption and were given force by the Star Chamber. This continued until that tribunal was abolished by the Long Parliament, and it was no doubt a main cause of the abolition.

After the establishment of parliamentary sovereignty in England, it is needless to say, this question of delegated authority practically disappears. The legality of proclamations does not cease to be a burning question, but its importance is henceforth confined to Proclamations based on prerogative alone. In the United States, however, this is a living constitutional issue. For some remarks of Prynne on this subject, provoked by the ordinances under the Commonwealth, see his Good Old Fundamental Liberties, vol. i. pp. 92,93; Brief Register, vol. iv. pp. 602-5. For a modern account of the whole subject generally, see Anson, Law and Custom of the Constitution, vol. i. pp. 321-5.

NOTE D. SECONDARY LEGISLATION IN ENGLAND

(Page 320)

THE similarity of conditions in Tudor England and on the Continent to-day under the Droit Administratif has never been more clearly stated than by Professor Dicey in the following extract from the sev

enth edition of his Law of the Constitution: “From the accession of the Tudors till the final expulsion of the Stuarts the Crown and its servants maintained and put into practice, with more or less success and with varying degrees of popular approval, views of government essentially similar to the theories which under different forms have been accepted by the French people. The personal failings of the Stuarts and the confusion caused by the combination of a religious with a political movement have tended to mask the true character of the legal and constitutional issues raised by the political contests of the seventeenth century. A lawyer, who regards the matter from an exclusively legal point of view, is tempted to assert that the real subject in dispute between statesmen such as Bacon and Wentworth on the one hand, and Coke or Eliot on the other, was whether a strong administration of the continental type should, or should not, be permanently established in England. Bacon and men like him no doubt underrated the risk that an increase in the power of the Crown should lead to the establishment of despotism. But advocates of the prerogative did not (it may be supposed) intend to sacrifice the liberties or invade the ordinary private rights of citizens; they were struck with the evils flowing from the conservative legalism of Coke, and with the necessity for enabling the Crown as head of the nation to cope with the selfishness of powerful individuals and classes. They wished, in short, to give the government the sort of rights conferred on a foreign executive by the principles of administrative law....

"The doctrine, propounded under various metaphors by Bacon, that the prerogative was something beyond and above the ordinary law is like the foreign doctrine that in matters of high policy (acte de gouvernement) the administration has a discretionary authority which cannot be controlled by any Court. The celebrated dictum that the judges, though they be 'lions,' yet should be 'lions under the throne, being circumspect that they do not check or oppose any points of sovereignty,' is a curious anticipation of the maxim formulated by French revolutionary statesmanship that the judges are under no circumstances to disturb the action of the administration, and would, if logically worked out, have led to the exemption of every administrative act, or, to use English terms, of every act alleged to be done in virtue of the prerogative, from judicial cognizance." (Law of the Constitution, pp. 365,366 (7th ed., 1908); see also Privy Council, pp. 92, 93.)

The Political History

of Parliamentary Supremacy

HE England of the Tudors was an “organic state”

TH

to a degree unknown before Tudor times, and forgotten almost immediately afterward. Professor Seeley says: "In our system 'republic' or 'commonwealth' are terms very suitable to describe what we have called the organic state. An organic state... springs up by the effort of the social organism to resist a hateful pressure, that is, by a striving towards the common good or commonweal. Opposed to this are all states which we have called inorganic, because they rest upon the violent effort of some group or section to coerce the community for its own advantage."

"

In this sense Tudor England was an "organic state,' taking “organic” here to indicate that the various parts of the state are in such relation the one to the other that no "group or section" or individual is raised above and beyond the state, imposing laws upon it from without, but not subject to those laws. It could not be better stated than in the phrase of Henry VIII himself quoted below, -a "body politic, knit together," in which all members, both ruler and ruled, are working in harmony for the interests of the commonwealth. It is unnecessary to our purpose to go further into the question of

1 Introduction to Political Science, p. 183.