NOTE A. PARLIAMENTARY OMNIPOTENCE AND INTERNATIONAL Law (Page 308)

THE most interesting case on this subject is probably Regina v. Keyn, L. R. 2 Ex. 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 administered, 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,

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.)