enabling all their freemen to sell wines within certain localities generally interdicted, non obstante a particular statute, was a legal dispensation from that statute and a protection to any freeman of the company from its penalties. In addition to these legal authorities, there was an ample recognition of the dispensing power by the House of Commons in the time of Henry the Fourth. There was also (what perhaps was of greater weight) the formal admission by Sergeant Glanville, himself a great authority on such subjects, and then speaking in the name and in the presence of the House of Commons at a conference between the two Houses in the Painted-chamber on the Petition of Right. On that occasion, with reference to statutes prohibiting under penalties actions otherwise innocent, it was acknowledged to be "in His Majesty's absolute and undoubted power to grant dispensations to particular persons with the clauses of non obstante to do as they might have done before the passing of such statutes:" but it was insisted that "over the Common Law and our statutes incorporate with that law there is no trust in the King's sovereign power or prerogative royal to enable him to dispense with them." Lastly it is remarkable that the Declaration of Rights itself, while it condemned absolutely as illegal the suspending power, limited its denunciation of the dispensing power to that power "as it hath been assumed and exercised of late." So far was the Convention Parliament from denying the legality of a practice on which no small amount of property had been granted that, when two years afterwards the party of the Revolution emboldened by success ventured wholly to abolish a prerogative which the country had long outgrown, a proviso was inserted to save all prior charters, grants, and pardons.* * 1 Wm. & M., ses. 2, c. 2, s. 13. See also the case of Eton College, Broom's Const. Law, 505. § 4. It thus appears that according to the true theory of our Constitution the King cannot otherwise than with the Can a statute sanction of Parliament make a new law, or alter or prevent the operation of any existing statute. alter the Common Law? Still less could he at any time have interfered with the Common Law. Even in the worst times that precious treasury of the subject's liberties has been held sacred. When the Reformation Parliament, in the excess of its devotion to its imperious King, gave by a statute to his proclamations the force of law, it was careful to except from these proclamations and the penalties annexed to them all matters that pertained to the Common Law. When James the Second desired to execute by martial law a military deserter, Chief Justice Herbert, the same judge who for his decision in Sir Edward Hale's case incurred such deep and such lasting odium, decided,* true to his principles, that the King had no power to dispense with a law that was coeval with the monarchy. It was indeed more than doubtful whether even Parliament itself is competent to derogate from that fundamental part of our legal system. In "Doctor and Student "+ it is laid down that a "statute directly contrary to the law of God is void." Lord Coke declared that "the Common Law doth control Acts of Parliament and adjudge them when against common right to be void." Lord Chief Justice Hobart insists that an Act of Parliament is void if it be made against natural equity. Even Lord Holt remarked that the observation above cited of Lord Coke was "not at all extravagant and was a very true saying."§ Lord Mansfield, when SolicitorGeneral, did not hesitate to say (in arguendo) that the Common Law that works itself pure by rules drawn from the fountain of Justice is for this reason superior to an Act *R. v. Wm. Beal, 3 Mod., 124. + C. 6. ii. 91. See also Lord Campbell's Chief Justices, Hob. Rep. 14. § 2 Wil. 351. of Parliament. These sages of the law have left us examples of what in their view a statute is impotent to command. Parliament, they tell us, may not permit a man to commit adultery, or forbid that even in extreme necessity alms should be given, or make a man a judge in his own cause. An Act passed in the ninth year of Henry the Fourth commanding all Irish people to depart the realm and go into Ireland before the Feast of the Nativity of the Blessed Lady, upon pain of death, was, according to Lord Coke, "absolutely in terrorem and utterly against law." + We have, however, a distinct legislative recognition of Parliamentary supremacy. It was contended that the Royal prerogatives being part of the Common Law were inalterable by any statute: that no act done by the reigning King in derogation of his Common Law rights could bind either him or his successors that the succession to the Crown rested upon this firm basis, and that no Act of Parliament could bar the sacred right of the House of Stuart to the Crown and the undiminished power of their ancestors. Such views involved at one time no small amount of actual danger. A statute accordingly was passed by which the deliberate denial of the authority of the King in Parliament to change the succession is rendered, if made in writing or in print, treasonable; or if it be made in preaching teaching or advised speaking, it brings with it the penal consequences of a premunire. In 1764 at the commencement of the unhappy struggle with America the elder Pitt vehemently protested against the legality of the attempt to tax the colonies. In support of his leader's doctrines Lord Camden insisted in the House of Lords, not indeed judicially but in a set speech and with all the weight of his judicial authority, that it was idle to consider the particulars of a I Atk. 33. + 12 Rep. 76. 6 Anne, c. 7. See also 13 Eliz., c. I. bill "the very existence of which is illegal, absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of our Constitution." It was doubtless this formidable revival of an exploded doctrine* and not any idle feeling of offended dignity that led the more thoughtful part at least of Lord Rockingham's ministry to pass simultaneously with the Repeal of the Stamp Act the famous Declaratory Act in which the power of the Imperial Parliament was emphatically asserted. It is now universally conceded that the authority of Parliament in matters of legislation is unlimited. Parliament cannot indeed make an unjust or wicked action to be other than unjust or wicked: but it can make such an action not illegal. It cannot make murder or any other crime lawful, for such an attempt would involve a contradiction in terms: but it can except any given act from the definition of murder. If in such a case there should be room for doubt, the Court would earnestly struggle not to attribute such a meaning to the legislature. But when the meaning is clear, it is the duty of the Court not to question the wisdom of the statute but to obey its commands. When, as Blackstone observes, "some collateral matter arises out of the general words and happens to be unreasonable, the judges are in decency to conclude that this consequence was not foreseen by the Parliament, and are at liberty to expound the statute by equity, and only quoad hoc to disregard it." Experience, too, has shown that the most satisfactory mode of curing bad legislation is to allow it full operation. Its mischievous results supply at once its natural retribution and its surest chance of remedy. * Massey's Hist. of Eng., i. 269. + See 17 Viner's Abrid. 66. The King § 5. It is then settled that the King has power to make new laws, and to alter or repeal old laws, whether such old laws be statutes or part of the Common Law; that there is no legal limit to his discretion in in Parliament legislates. this respect, and that this great authority is exercisable in Parliament and not otherwise. But although at no period of our history did the mere personal declaration of the Royal will amount to law, the relation of the King to his Council of Legislation has undergone several remarkable changes. Even at the present day this relation is by no means duly appreciated. We hear constantly of the Royal Veto, of its obsolete character, and of the danger that its revival might produce. It is assumed that the power of legislation resides in the council; and that the sovereign has merely a negative control on its deliberations, which power however he is bound not to exercise. Such a doctrine is altogether inconsistent with a right understanding of our Constitution. The very use of the term "veto" suggests a false analogy. There is nothing in common between the refusal of our King to add to or to alter the law, and the power of a Roman Tribune to prevent in a particular instance the application of an existing law. Every Act of Parliament bears on its very front the mark of its origin. It is "enacted by the Queen's Most Excellent Majesty." It is in the Crown, and not in the body which the law assigns as the assistants and advisers of the Crown, that our Constitution places this right. It is the King, as the old Year Book* asserts, that "makes the laws by the assent of the peers, &c., and not the peers and the commune." The power of legislation resides in Queen Victoria no less than it resided in William the Norman ; but the conditions under which that power is exercised are indeed very different. * Y. B. 23 Edw. III. 36, cited in 1 Spence's Eq. Jur. 125 note. |