Introduction to the Study of the Law of the Constitution. A. V. Dicey

no remedy. The maxim that there is no wrong without a remedy, does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal, and made without consideration; nor for many kinds of verbal slander, though each may involve utter ruin; nor for oppressive legislation, though it may reduce men practically to slavery; nor for the worst damage to person and property inflicted by the most unjust and cruel war. The maxim means only that legal wrong and legal remedy are correlative terms; and it would be more intelligibly and correctly stated, if it were reversed, so as to stand, “Where there is no legal remedy, there is no legal wrong.”²³

      Law as to effect of resolutions of either House.

      The law therefore stands thus. Either House of Parliament has the fullest power over its own proceedings, and can, like a Court, commit for contempt any person who, in the judgment of the House, is guilty of insult or affront to the House. The Case of the Sheriff of Middlesex²⁴ carries this right to the very farthest point. The Sheriff was imprisoned for contempt under a warrant issued by the Speaker. Every one knew that the alleged contempt was nothing else than obedience by the Sheriff to the judgment of the Court of Queen’s Bench in the case of Stockdale v. Hansard, and that the Sheriff was imprisoned by the House because under such judgment he took the goods of the defendant Hansard in execution. Yet when the Sheriff was brought by Habeas Corpus before the Queen’s Bench the Judges held that they could not inquire what were the contempts for which the Sheriff was committed by the House. The Courts, in other words, do not claim any right to protect their own officials from being imprisoned by the House of Commons for alleged contempt of the House, even though the so-called contempt is nothing else than an act of obedience to the Courts. A declaration or resolution of either House, on the other

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      hand, is not in any sense a law. Suppose that X were by order of the House of Commons to assault A out of the House, irrespective of any act done in the House, and not under a warrant committing A for contempt; or suppose that X were to commit some offence by which he incurred a fine under some Act of Parliament, and that such fine were recoverable by A as a common informer. No resolution of the House of Commons ordering or approving of X’s act could be pleaded by X as a legal defence to proceedings, either civil or criminal, against him.²⁵ If proof of this were wanted it would be afforded by the Act 3 & 4 Vict. c. 9. The object of this Act, passed in consequence of the controversy connected with the case of Stockdale v. Hansard, is to give summary protection to persons employed in the publication of Parliamentary papers, which are, it should be noted, papers published by the order of one or other of the Houses of Parliament. The necessity for such an Act is the clearest proof that an order of the House is not of itself a legal defence for the publication of matters which would otherwise be libellous. The House of Commons

      by invoking the authority of the whole Legislature to give validity to the plea they had vainly set up in the action [of Stockdale v. Hansard], and by not appealing against the judgment of the Court of Queen’s Bench, had, in effect, admitted the correctness of that judgment and affirmed the great principle on which it was founded, viz. that no single branch of the Legislature can, by an assertion of its alleged privileges, alter, suspend, or supersede any known law of the land, or bar the resort of any Englishman to any remedy, or his exercise and enjoyment of any right, by that law established.²⁶

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      The Constituencies.

      The Vote of the Parliamentary Electors Expressions are constantly used in the course of political discussions which imply that the body of persons entitled to choose members of Parliament possess under the English constitution some kind of legislative authority. Such language is, as we shall see, not without a real meaning;²⁷ it points to the important consideration that the wishes of the constituencies influence the action of Parliament. But any expressions which attribute to Parliamentary electors a legal part in the process of law-making are quite inconsistent with the view taken by the law of the position of an elector. The sole legal right of electors under the English constitution is to elect members of Parliament. Electors have no legal means of initiating, of sanctioning, or of repealing the legislation of Parliament. No Court will consider for a moment the argument that a law is invalid as being opposed to the opinion of the electorate; their opinion can be legally expressed through Parliament, and through Parliament alone. This is not a necessary incident of representative government. In Switzerland no change can be introduced in the constitution²⁸ which has not been submitted for approval or disapproval to all male citizens who have attained their majority; and even an ordinary law which does not involve a change in the constitution may, after it has been passed by the Federal Assembly, be submitted

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      on the demand of a certain number of citizens to a popular vote, and is annulled if a vote is not obtained in its favour.²⁹

      The Courts.

      The Law Courts A large proportion of English law is in reality made by the judges, and whoever wishes to understand the nature and the extent of judicial legislation in England, should read Pollock’s admirable essay on the Science of Case Law.³⁰ The topic is too wide a one to be considered at any length in these lectures. All that we need note is that the adhesion by our judges to precedent, that is, their habit of deciding one case in accordance with the principle, or supposed principle, which governed a former case, leads inevitably to the gradual formation by the Courts of fixed rules for decision, which are in effect laws. This judicial legislation might appear, at first sight, inconsistent with the supremacy of Parliament. But this is not so. English judges do not claim or exercise any power to repeal a Statute, whilst Acts of Parliament may override and constantly do override the law of the judges. Judicial legislation is, in short, subordinate legislation, carried on with the assent and subject to the supervision of Parliament.

       ALLEGED LEGAL LIMITATIONS ON THE LEGISLATIVE SOVEREIGNTY OF PARLIAMENT

      Alleged limitations.

      All that can be urged as to the speculative difficulties of placing any limits whatever on sovereignty has been admirably stated by Austin and by Professor Holland.³¹ With these difficulties we have, at this moment, no concern. Nor is it necessary to examine whether it be or be not true, that there must necessarily be found in every state some person, or combination of persons, which, according to the constitution, whatever be its form, can legally change every law, and therefore

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      constitutes the legally supreme power in the state. Our whole business is now to carry a step further the proof that, under the English constitution, Parliament does constitute such a supreme legislative authority or sovereign power as, according to Austin and other jurists, must exist in every civilised state, and for that purpose to examine into the validity of the various suggestions, which have from time to time been made, as to the possible limitations on Parliamentary authority, and to show that none of them are countenanced by English law.

      The suggested limitations are three in number.³²

      Moral law.

      First, Acts of Parliament, it has been asserted, are invalid if they are opposed to the principles of morality or to the doctrines of international law. Parliament, it is in effect asserted, cannot make a law opposed to the dictates of private or public morality. Thus Blackstone lays down in so many words that the

      law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original;³³

      and expressions are sometimes used by modern judges which imply that the Courts might refuse to enforce statutes going beyond the proper limits (internationally speaking) of Parliamentary authority.³⁴ But to