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

of Blackstone, and to the obiter dicta of the Bench, we must give a very qualified interpretation. There is no legal basis for the theory that judges, as exponents of morality, may overrule Acts of Parliament. Language which might seem to imply this

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      amounts in reality to nothing more than the assertion that the judges, when attempting to ascertain what is the meaning to be affixed to an Act of Parliament, will presume that Parliament did not intend to violate³⁵ the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be consistent with the doctrines both of private and of international morality. A modern judge would never listen to a barrister who argued that an Act of Parliament was invalid because it was immoral, or because it went beyond the limits of Parliamentary authority. The plain truth is that our tribunals uniformly act on the principle that a law alleged to be a bad law is ex hypothesi a law, and therefore entitled to obedience by the Courts.

      Prerogative.

      Secondly, doctrines have at times³⁶ been maintained which went very near to denying the right of Parliament to touch the Prerogative.

      In the time of the Stuarts³⁷ the doctrine was maintained, not only by the King, but by lawyers and statesmen who, like Bacon, favoured the increase of royal authority, that the Crown possessed under the name of the “prerogative” a reserve, so to speak, of wide and indefinite rights and powers, and that this prerogative or residue of sovereign power was superior to the ordinary law of the land. This doctrine combined with the deduction from it that the Crown could suspend the operation of statutes, or at any rate grant dispensation from obedience to them, certainly suggested the notion that the high powers of the prerogative were to a certain extent beyond the reach of Parliamentary enactment. We need not, however, now enter into the political controversies of another age. All that need be noticed is that though certain powers—as, for example, the right of making treaties—are now left by law in the hands of the Crown, and are exercised in fact by the executive government, no modern lawyer would maintain that these powers or any other branch of royal authority

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      could not be regulated or abolished by Act of Parliament, or, what is the same thing, that the judges might legally treat as invalid a statute, say, regulating the mode in which treaties are to be made, or making the assent or the Houses of Parliament necessary to the validity of a treaty.³⁸

      Preceding Acts of Parliament.

      Thirdly, language has occasionally been used in Acts of Parliament which implies that one Parliament can make laws which cannot be touched by any subsequent Parliament, and that therefore the legislative authority of an existing Parliament may be limited by the enactments of its predecessors.³⁹

      The Acts of Union.

      That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure. Of statutes intended to arrest the possible course of future legislation, the most noteworthy are the Acts which embody the treaties of Union with Scotland⁴⁰ and Ireland.⁴¹ The legislators who passed these Acts assuredly intended to give to certain portions of them more than the ordinary effect of statutes. Yet the history of legislation in respect of these very

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      Acts affords the strongest proof of the futility inherent in every attempt of one sovereign legislature to restrain the action of another equally sovereign body. Thus the Act of Union with Scotland enacts in effect that every professor of a Scotch University shall acknowledge and profess and subscribe the Confession of Faith as his profession of faith, and in substance enacts that this provision shall be a fundamental and essential condition of the treaty of union in all time coming.⁴² But this very provision has been in its main part repealed by the Universities (Scotland) Act, 1853,⁴³ which relieves most professors in the Scotch universities from the necessity of subscribing the Confession of Faith. Nor is this by any means the only inroad made upon the terms of the Act of Union; from one point of view at any rate the Act 10 Anne, c. 12,⁴⁴ restoring the exercise of lay patronage, was a direct infringement upon the Treaty of Union. The intended unchangeableness, and the real liability of these Acts or treaties to be changed by Parliament, comes out even more strikingly in the history of the Act of Union with Ireland. The fifth Article of that Act runs as follows:

      That it be the fifth article of Union, that the Churches of England and Ireland as now by law established, be united into one Protestant episcopal Church, to be called the United Church of England and Ireland; and that the doctrine, worship, discipline, and government of the said United Church shall be and shall remain in full force for ever, as the same are now by law established for the Church of England; and that the continuance and preservation of the said United Church, as the established Church of England and Ireland, shall be deemed and be taken to be an essential and fundamental part of the Union.

      That the statesmen who drew and passed this Article meant to bind the action of future Parliaments is apparent from its language. That the attempt has failed of success is apparent to every one who knows the contents of the Irish Church Act, 1869.

      Act limiting right of Parliament to tax colonies.

      One Act, indeed, of the British Parliament might, looked at in the light of history, claim a peculiar sanctity. It is certainly an enactment

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      of which the terms, we may safely predict, will never be repealed and the spirit will never be violated. This Act is the Taxation of Colonies Act, 1778.⁴⁵ It provides that Parliament

      will not impose any duty, tax, or assessment whatever, payable in any of his Majesty’s colonies, provinces, and plantations in North America or the West Indies; except only such duties as it may be expedient to impose for the regulation of commerce; the net produce of such duties to be always paid and applied to and for the use of the colony, province, or plantation, in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective general courts, or general assemblies, of such colonies, provinces, or plantations, are ordinarily paid and applied.⁴⁶

      This language becomes the more impressive when contrasted with the American Colonies Act, 1776,⁴⁷ which, being passed in that year to repeal the Acts imposing the Stamp Duties, carefully avoids any surrender of Parliament’s right to tax the colonies. There is no need to dwell on the course of events of which these two Acts are a statutory record. The point calling for attention is that though policy and prudence condemn the repeal of the Taxation of Colonies Act, 1778, or the enactment of any law inconsistent with its spirit, there is under our constitution no legal difficulty in the way of repealing or overriding this Act. If Parliament were tomorrow to impose a tax, say on New Zealand or on the Canadian Dominion, the statute imposing it would be a legally valid enactment. As stated in short by a very judicious writer—

      It is certain that a Parliament cannot so bind its successors by the terms of any statute, as to limit the discretion of a future Parliament, and thereby disable the Legislature from entire freedom of action at any future time when it might be needful to invoke the interposition of Parliament to legislate for the public welfare.⁴⁸

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      Parliamentary sovereignty is therefore an undoubted legal fact.

      It is complete both on its positive and on its negative side. Parliament can legally legislate on any topic whatever which, in the judgment of Parliament, is a fit subject for legislation. There is no power which, under the English constitution, can come into rivalry with the legislative sovereignty of Parliament.

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      No one of the limitations alleged to be imposed by law on the absolute authority of Parliament has any real existence, or receives any countenance, either from the statute-book or from the practice of the Courts.

      This doctrine of the legislative supremacy of Parliament