framing the laws with the generality which is one of the conditions of their fairness. Among instances of the evils of combining the judicial and administrative power may be cited the example of the Star Chamber, in which the principal judges were administrative officers of the Crown, and in which, consequently, the judicial power was perverted to the worst political purposes (a). Among instances of the evils of combining the judicial and legislative power may be cited the enormous abuses which at one time prevailed with respect to parliamentary privileges, when the Houses of Parliament, and especially the House of Commons, without laying down beforehand any rules defining those privileges, were accustomed to exercise very oppressively the power of adjudicating upon cases of alleged breach of privilege (b).

A further division of the functions of government has to be made, which is of an entirely different kind to that above referred to, and distributes the offices of government locally under the heads of domestic, colonial, and international government. The distinction of legislative and executive functions is most completely observed with respect to domestic government; with respect to the colonies the work of legislation, so far as it is carried on in the country, is performed partly by Parliament and partly by the administrative government. In international affairs, also, the powers of the legislature are necessarily very different from those which they exercise in domestic affairs. The three essential attributes of making, interpreting, and administering laws, exist in each of the three divisions of domestic, colonial, and international government, but in such a different manner in each that it will be necessary to consider the domestic government separately from that which relates to the colonies and foreign nations.

(a) See as to the constitution and abolition of the Star Chamber, Book I. ch. 10, infra.

(b) These cases are further considered in a subsequent chapter.

8

CHAPTER II.

THE AUTHORITY OF PARLIAMENT.

THE supreme legislative power of the British Empire is by its constitution given to Parliament. "The jurisdiction of this Court," says Coke, "is so transcendent, that it maketh, enlargeth, diminisheth, abrogateth, repeateth, and reviveth laws, statutes, acts and ordinances concerning matters ecclesiastical, capital, criminal, common, civil, martial, maritime, and the rest." And Blackstone, after speaking to the same effect as to the legislative power of Parliament, adds, that it is "the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms "(a).

"The will of the legislature," says a later authority, "is the supreme law of the land, and demands perfect obedience. But while we admit this conclusive of English law we cannot but admire the intrepidity and powerful sense of justice which led Lord Coke, when Chief Justice of the King's Bench, to declare, as he did in Doctor Bonham's case, that the common law doth control Acts of Parliament, and adjudge them to be void when against common right and reason. Perhaps what Lord Coke said in his reports on this point may have been one of the many things that King James alluded to, when he said that in Coke's reports there were many conceits of his own uttered for law to the pre

(a) Co. Litt. 110 a; 1 Blackstone, ch. 2.

judice of the Crown, Parliament, and subjects"(a). Coke's words in the passage referred to are " It appears in our books, that in many cases the common law will control Acts of Parliament, and sometimes adjudge them to be void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void" (b); and it appears by the context that Coke refers to cases of obvious mistakes in Acts of Parliament, and that he does not assert any power of the judges to control the clearly manifested intention of the legislature.

It must not be overlooked that in many important cases Parliament systematically abstains from legislating, or allows laws made by other bodies.

Thus the Act for the union of England and Scotland expresses several restrictions of the powers of Parliament, and declares that the Acts for settling the Church-government in England and Scotland "shall be ever held and adjudged to be, and observed as fundamental conditions of the said union." Similarly the Act (c) for the union of Great Britain and Ireland provides for the perpetual observance of the articles of union agreed to by the Parliaments of the two kingdoms.

Again, Parliament abstains from taxing the Colonies for the benefit of this country. The attempt to impose taxes on the provinces of North America having led to the severance of those States from the British Empire, an Act(d) was passed, which has been styled the Colonial Magna Charta, which declared that the Parliament of Great Britain will not impose taxes on the Colonies of North America for the use of this country. The principle of this Act is observed in practice with respect to all the British Colonies.

These are some of the instances in which Parliament systematically abstains from legislation. There are also

(a) Kent's 'Commentaries on American Law,' part iii. lect. 20.

(b) 8 Coke's Reports, 118.

(c) 39 & 40 Geo. III. c. 67.

(d) 18 Geo. III. c. 12.

cases in which Parliament allows laws to be made by other bodies. Thus a large part of the law not founded on enactments is that which has been styled judge-made law—that is, law of which the authority depends on judicial decisions. The system of jurisprudence administered in English Lawcourts is in a great measure independent of statute-law, and an important part of the common law is more ancient than any statute extant.

Again, among laws made by other powers than that of Parliament, are laws which the Sovereign, by prerogative, has power to make. In other cases Parliament has expressly delegated to the Colonies a power of making laws for their own internal government, and a somewhat similar power is given to municipal corporations in this country.

Lastly, by the comity of nations, or by treaties, many international rights are established, which, as they are founded on mutual agreement of nations, cannot generally be abrogated by the statutes of any particular nation (a).

(a) Story, 'Conflict of Laws,' ch. 2.

11

CHAPTER III.

THE ORIGIN OF PARLIAMENT.

It is scarcely possible without some reference to the ancient history of Parliament to give a clear account of its present constitution; but it will be sufficient in this place to summarize a few ascertained particulars which appear to be of the greatest constitutional importance, without adverting to controverted questions, or those of merely antiquarian interest (a).

William the Conqueror confirmed to a considerable extent the Saxon laws and customs, but established no national assemblies similar to the general assemblies under the Saxon kings(b).

According to the usual obligations of feudal tenure, the immediate free tenants of every superior lord were bound to attend his court, and the King's immediate tenants were bound to attend his court. The Charter of John recognizes as already existing the right of all tenants-in-chief of the Crown, or at least those who held by military service, to be summoned to a common council of the realm, in order to give validity to any extraordinary aid to the Crown. It ap

(a) A full account of the literature of the history of Parliament is to be found in the preface to 'The Parliaments and Councils of England, chronologically arranged, from the Reign of William I. to the Revolution in 1688.' By Charles Henry Parry. Lond. 1839.

(b) As to the ante-Norman councils, see Palgrave's 'Rise and Progress of the English Commonwealth;' Parry's 'Parliaments,' ch. 1.; Butler's Co. Litt. 110 a.