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INTRODUCTORY CHAPTER.

On the
Use and Power of Parliaments.

..

THE power and jurisdiction of Parliament, says Sir Tho power and Edward Cokė (a), is so transcendant and absolute, that it Parliament. cannot be confined, either for causes or persons, within any bounds. It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal; this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the Constitution of these Kingdoms; all mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or re-model the succession to the Crown; as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land; as was done in a variety of instances in the reigns of Henry VIII. and his three children. It 'can change and create afresh even the Constitution of the Kingdom and of Parliaments themselves; as was done by 'the Acts of Union, and the several statutes for triennial and septennial elections (6). It can, in short, do everything

jurisdiction of

(a) 4 Inst. 36.
(6) 6 Wm. & Mary, ch. 2; and 1 Geo. 1, stat. 2, c. 38.

that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, “the omnipotence of Parliament”—an expression, however, which signifies nothing more than the supreme sovereign power of the State, or a power of action uncontrolled by any carthly superior. 'True it is, that what the Parliament doth, no authority upon earth can undo; so that it is a matter most essential to the liberties of this Kingdorn, that such Members be delegated to this important trust as are most eminent for their probity, their fortitude, and their knowledge ; for it was a known apophthegm of the great Lord Treasurer Burleigh, “That England could never be ruined but by a Parliament," and as Sir Matthew Hale observes (a), " this being the highest and greatest court, " over which none other can have jurisdiction in the King“ dom, if by any means a misgovernment should in any way “ fall upon it, the subjects of this Kingdom are left without “all manner of remedy of Parliament." To the same purpose, the President Montesquieu (6) (though it is earnestly to be hoped, too hastily) presages, that as Rome, Sparta and Carthage have lost their liberty and perished, so the constitution of England will, in time, lose its liberty and perish ; whenever the legislative power shall become more corrupt than the executive. (c) So long, however, as the British constitution lasts, we may venture to affirm, that the power of Parliament is absolute and without control.

But these great and extensive powers are not applicable in their fulness to each or either branch of the legislature, but only to the three estates* of King, Lords and Coma mons, united.

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160.

(@) Hale, Parlts. 49. (6). Spirit of the Laws, b. 11, ch. 6. (c) 1 Bl. Com. p. 160. * This opinion, that the Threo Estates are formed by the King, Lords and Commons, although the popular one, and one which appears to be correct,-is

C 2

al Legislature.

Neither can these powers be claimed by a Colonial Nor to a ColoniLegislature, which is, of necessity, dependant on the Par- al liament of the Empire, and is liable at any time to have its constitution re-modelled, or taken away, by the general superintending power of the mother country (a); and in granting local Governments to her Colonies, Great Britain has reserved to herself the right of legislating for their general, and even internal affairs (6): and therefore the holding of such extensive powers by a Colonial Legislature would not only be incompatible with its dependant state, but would tend to weaken the connection of a Colony with the mother country, by bringing the authority of the local and Imperial Parliaments into frequent collision.

There is an opinion of the English Crown Lawyers on this subject, of very recent date, which says—

Temple, 30 December, 1838. “ We think it impossible to contend that the Crown Crown Lawyers “can, by constituting or calling together a general Assem“ bly in a Colony with power to assist in making laws for “ the Colony, not repugnant to the laws of the Mother “ Country, thereby give impliedly to that body the undefined and extensive privileges possessed by the House “ of Commons as a branch of the High Court of Parlia“ ment.(signed) J. CAMPBELL, Attorney-General.

R. M. Rolfe, Solicitor-General.

Opinion of the

on the subject.

far from being generally allowed. Sir Matthew Hale, Stillingfleet, Warburton, and others, have strenuously opposed it, and with many weighty arguments, holding that the lords Spiritual and Temporal, with the Commons, constitute the three cstates, the King being the head. But such an opinion would seem as inconsistent with the present Constitution of this Kingdom, as for the Knights of Shires to hold themselves a separate estate from the Burgesses, in the House of Commons-for a Bill would undoubtedly be valid if it passed, although all the Bishops voted against it, (t) which would not be the case, were they, in reality, a separate estate, instead of being pares, or equals with the Lords Temporal.

† The Act of Uniformity, 1 Eliz. ch. 2, was so passed.
(@) 1 Bl. Com. 107, and soe Stokes on the Colonies, 4, 28, 29.
(5) 6 Geo. III. ch. 12.

But it is not the object of the present work to define, in any way, the limits of a Colonial Legislature in its jurisdiction or authority, but rather to endeavour to mark out the practice and privileges of the Houses of Lords and Commons, as far as possible leaving to those whose duty it may be, the important and difficult task of drawing the line of demarcation between the privileges of a local Parliament and those of the Imperial, from whence it received its Constitution.

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