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Parliament not Omnipotent.
by recent constitutional discussions in this and other countries—whether within the limits of the Constitution there is any part which, like an impregnable fortress, defies the assault of Parliament itself. The alleged omnipotence of Parliament, which was so distasteful or impossible a notion to Coleridge, is in fact, according to the views explained at length in the previous chapter, almost a contradiction in terms. Admitting that there are both stable and variable elements in the Constitution, it is obvious that the moment Parliament lays its hand on what is stable—and here lie concealed the roots of its own existence—it commits an act of suicide. While, then, it must be confessed that in one sense Parliament can do anything, because it can pass a law which by the existing Constitution must be recognised in every Court of Justice in the land, still there is a moral, not to say a mechanical force behind Courts of Justice themselves, which, by a more or less rough, irregular, dilatory, and often hazardous process, may nullify the decisions of Courts of Justice, either overtuming the Constitution itself, or marking out afresh the limits within which legislation shall be permissible. The real history of this process is often lost, either by being buried in the annals of a violent revolution, or, when extending over a considerable period, by escaping notice through the imperceptible gradation of the steps by which the popular criticism finally attains its end. There have been notable epochs in English, American, and French history, when a patient constitutional observer might have done much to quiet the alarm of his countrymen by overhearing amidst the earthquake and fire of revolution the natural voices of a healthy and teeming constitutional life. In the United States, indeed, the ultimate judgment on the constitutional character of all legislative acts, which is reserved to the Supreme Court, is practically subject to a carefully organised method of appeal to the people; and this often leads Englishmen to suppose, by a process of comparison, that their own Constitution has a finality which is not subject to the uncertain decisions of a Court of Justice, and which is still less open to admit change at the bidding of the popular voice. The fact is, that the Constitution of the United States, as here indicated, only expresses an attempt to reduce to strict language and form that which is an essential characteristic of every political Constitution in every country. The Legislature supplies the first motive force; the Courts of Justice-more or less bound and tied by their own unswerving traditions and principles—register the acts proceeding from this exertion of force; the People, as an organic whole, and as acting deliberately over a sufficient period of time, either accept or reject the Parliamentary innovations.!
In suggesting a comparison between the constitutional functions of any English Court of Justice and the Supreme Court of the United States, it may perhaps be needless to mention that the English Court, when pronouncing a constitutional decision based on the interpretation of an Act of Parliament, cannot travel out of the limits and language of the Act itself, except (1) to ascertain (in case of dispute) that what purports to be an Act was passed with all the recognised constitutional formalities; (2) in case of ambiguous language to give a preference to that reading which best gives effect to recognised constitutional maxims; and (3) to raise a presumption
only to be rebutted by the most express language, if at all-against any interpretation of an Act of Parliament which shall appear to contravene certain constitutional doctrines which have already been judicially limited and explained, e.g., "The King can do no wrong,' • No length of prescription avails against the rights of the Crown,' the prerogative of the Crown in respect to the pardon of criminals, and the like.
The Nation the Arbiter of Change.
It is one of the main problems of modern politics to facilitate on the one hand, and to obstruct on the other, changes in the Constitution. M. de Tocqueville and other well-known writers have laboured to point out the ultimate inefficacy of all artificial barriers against the strong and steady torrent of the popular will. The various obstructions to this will which already exist in England, or which are ingeniously contrived from time to time, serve a most useful purpose, partly by ensuring delay, partly by handing on the existing framework of the Constitution to a time when general education shall be more widely diffused, and political experience increased. For the present purpose it is sufficient to enforce the principle that it is to the two Houses of Parliament that immediate reference must be made when changes in the Constitution are believed to be imminent, or are held to be desirable or the contrary ; but that, on the other hand, Parliament is not omnipotent, and that if the Constitution is changed ever so little in any direction, it is the people themselves who, by their activity or neglect, have changed it. Securus judicat orbis terrarum.
How far, during the period now under discussion, Parliament has, with general public assent, been in fact overstepping the limits by which its alleged omnipotence was formerly restricted, will be necessarily brought to light as the general characteristics of recent legislation are passed under review. It will then be seen how far there are any limits to legislation at a given time; how far these limits are moveable; and by what process they are moved.
Assuming then that the primary source of the movements of the Constitution throughout any definite period must be sought in the structure, relations, and action of the two Houses of Parliament, it is important to compare the condition of the Houses in these respects as it was some fifty years ago and as it is at present.
It was not, perhaps, till about the commencement of the present reign—that is, in 1837—that the true consequences of the Reform Act of 1832 began to be fully apprehended. Mr. Walter Bagehot, in the Introduction to the latest edition of his memorable treatise,' has pointed out what the aristocracy really lost by the abolition of nomination boroughs and the enfranchisement of populous towns. The central force of the Constitution in fact swayed over from the titled nobility,who had become, by a series of social changes, paramount in both Houses,—not to the general body of the people, but to the lately-enriched middle-classes, who must thenceforth preponderate in the Lower House, and thereby carry with them, for reasons which Mr. Bagehot explains at length, the Upper House. It may here be said, parenthetically, that it would be a misleading mode of treatment to discourse (as is necessarily done in text-books) on either House apart. As in the earliest days of the English Constitution, so now, the two Assemblies are emphatically one House of Legislature. Fully to vindicate the fact of this unity and the mode of its expression has required, and may yet require, many a tentative struggle and experiment conducted by the Assemblies in their mutual relations. It is, of course, easy to ignore this progressive identification by speaking carelessly of the weakness and worthlessness of the one body and the tyrannical force of the other; or of the | English Constitution, Introduction to 2nd Edition, pp. xxiv. xxv.
Jurisdiction of the House of Lords.
subserviency of one, or of its degeneration, or of its being an anachronism, or of its needing radical reconstruction, or of the adventitious force it may owe to the presence of members of the Cabinet, and yet of the impotency of any devices to arrest the absorption of one Assembly into the other. So long as the two Assemblies are regarded as wholly separate and rival, not to say hostile, all sorts of crude and unpractical schemes will be afloat to reform one or the other House in a way which will be found persistently blocked by the spirit of the Constitution.
The history of the period under review has exhibited a series of improvements in the constitution of each House, and, it may be said, in the relations of the Houses to each other. The modifications in the constitution of the House of Lords are not of considerable importance, though, so far as they go, they point in the direction of making that House a more effective portion of the Legislature, and not in that of crippling and weakening it. The House has, in both its aspects, as a judicial and a legislative body, passed through two critical epochs, in the former of which characters it has been strengthened, and in the latter of which it has been weakened only in appearance, through having the region of its activity more strictly determined. After much controversy and some inconsistent legislation, the Appellate Jurisdiction Act of 1876 entirely remodelled the House of Lords as a court of final judicial appeal. Without derogating from the privileges of all Peers, that Act provided that three Peers, specially selected on the ground of their presumed legal capacity, must necessarily be present at the trial of appeals. The three were to be selected out of a list including the