erroneous conclusions; and, upon an erroneous application of them, it is more than probable that many, if not most of English writers have been under their influence, led to assign to, and vest in the Parliament of England the attributes of omnipotence in the scale of political existence. It has been supposed by most of them, that it is a settled principle of the law of England, that an act of parliament, delivered in clear and intelligible terms, cannot be questioned, or its authority controlled by any power on earth.

Sir William Blackstone says: "It is the exercise of the highest authority that the kingdom acknowledges upon earth." The doctrine has been laid down in several English authorities, that if a statute be against common right or reason, or repugnant, or impossible to be performed, the common law shall control it, and pronounce it void. (a) Although it is said that judges will not hold a statute void unless it be clearly contrary to natural equity. Chancellor Kent, however, says"Where it is said that a statute contrary to natural equity, or reason, or repugnant, or impossible to be performed, the cases are understood to mean, that the court is to give them a reasonable construction. They will not readily presume, out of respect and duty to the law giver, that every unjust or absurd consequence was within the contemplation of the law; but if it should happen to be too palpable to meet with but one construction, there is no doubt in the English law of the binding efficacy of the statute."(b) In this view he is sustained by the weight of authority in England.

§ 126. Christian maintains the doctrine, that if an act of parliament is clearly and unequivocally expressed,

(a) 8 Co. 118; 2 Inst. 527; Finch, 74; Hob. 87; 10 Mod. 115; 11 Co. 63; Bacon Ab. Stat. A.

(b) 1 Com. 408.

that it will be neither void in its direct or collateral consequences, however absurd or unreasonable they may

appear.

If the expression will admit of a doubt, it will not then be presumed that the construction can be agreeable to the intention of the legislature, the consequences of which are unreasonable, but when the signification is manifest, no authority less than the parliament can restrain its operation." He admits, however, the omnipotence of parliament signifies nothing more than the supreme power of the state, or the power of action uncontrolled by any superior. In this sense, the king in the exercise of his prerogative, and the house of lords in the interpretation of laws, are also equally omnipotent; that is, free from the control of any superior provided by the constitution.(a)

Chipman, an American author, is of the opinion that neither the parliament, the house of lords, nor the king, are possessed of sovereign power; nor is it any where to be found but in a state of absolute despotism, in which all the powers of government are concentrated in a sole organ; and hence it merits all the epithets so fondly lavished upon it of-absolute, uncontrollable, arbitrary, despotic.(b)

§ 127. The power and jurisdiction of parliament, says Sir Edward Coke, is so transcendental and absolute that it cannot be controlled or confined, either for causes or persons, within any bounds. It has sovereign and uncontrollable authority in the making, confirming, enlarging, restricting, abrogating, repealing, renewing, and expounding all laws concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal; this being the place where that

absolute, despotie power, which must in all countries 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, so that what the parliament doth, no authority on earth can undo." (a)

Another English author maintains the doctrine that the statutes of the realm, unless they are repugnant to the laws of God, all subjects are bound to obey. Created by an exercise of the highest authority which the constitution of the country acknowledges, they cannot be dispensed with, altered, amended, suspended, or repealed, but by the same authority of parliament by which they were made. For it is a maxim of the law, conveniens naturali equitate unum quodcumque dissolvi eo ligamine quo ligatum est.(b)

§ 128. Other writers maintain on the other hand, that there are boundaries set to the exercise even of the supreme sovereign power of the state; that it is limited in its exercise by the great and fundamental principles of the social compact, which is founded in consent, expressed or implied; that it shall be called into exercise only for the attainment of the great ends which that compact was designed to secure; and hence it cannot be converted into such an unlimited power as to defeat the end which mankind had in view when they entered into the social compact. Among this number are Vattel, and the celebrated John Locke. The former considers this question incidentally, in treating upon the extent of, the power and sovereign authority of the prince. He maintains, that this power is derived from the nation, and is exactly equal to what they have entrusted him

(a) 1 Bl. Com. 160.

(b) Steph. Elec. Law, vol. i, p. 11.

圈

with. If the nation have simply and strictly invested him with the sovereignty without limitation or division, he is supposed to be invested with all the prerogatives without which the sovereign command or authority could not be exerted in the manner most conducive to the public good. But that the sovereign power is limited and regulated by the fundamental law of the state, which show the extent and bounds of this power and the manner in which it ought to be exercised. The fundamental law being the plan by which the nation resolved to endeavor to obtain happiness, he is entrusted with the execution of it, and must religiously follow this plan, and regard it as an inviolable and sacred rule. The moment he departs from it, his commands are unjust, and become a criminal abuse of power from which no obligation to obedience can arise.(a)

In answer to the arguments of those who maintain, that if the prince is invested with the supreme command in a full and absolute manner, nobody has a right to resist him; that then the nation have no recourse left, but to suffer and obey with patience; that an absolute sovereign possesses completely, all the political authority of the society, no one can oppose him; if he abuses it, he does ill, and wounds his own conscience; yet, that his commands are not the less obligatory, as being founded in a lawful right to command; the nation by giving a lawful right to command, had reserved nothing to itself but to submit to his discretion: he replies, "Let us remember the essential ends of civil society. Is it not to labour in concert for the common happiness of all? Is it not with this view that every citizen strips himself of his rights, and resigns his liberty? Was it in the power of the society to make such use of its authority as to

(a) Vattel, b. 4, sec. 45, 46.

deliver up itself and all its members without relief to the discretion of a cruel tyrant? No, certainly not; since it had no right itself, if it was so disposed, to oppress a part of the citizens. When it therefore conferred the supreme and absolute government without an express reserve, it was necessarily with the tacit reserve that it should be used for the safety of the people, and not for their ruin."(a)

§ 129. Locke contends that the great end of man's entering into society being the enjoyment of property in peace and safety, and the great instrument and means of that, being the laws established in that society; the first and fundamental positive law is the establishing of the legislative power; the first and fundamental natural law, which is to govern the legislature itself, is the preservation of the society, and so far as consistent with the public good, every person in it. While, on the one hand, he concedes the doctrine that the legislative power is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have placed it, the edict of any, in what form soever conceived, or by what power soever backed, can not have the force and obligation of a law without the sanction of the legislature which the public has chosen and appointed, and in whom the legislative power is invested by the consent of those for whom they are to legislate; on the other hand, he contends that though the legislative be the supreme power, it cannot possibly be absolutely arbitrary over the lives and fortunes of the people. For, it being but the joint power of every member of the society, given up to that person or assembly which is the legislative, it can be no more than those persons had in a state of nature before they entered into

(a) Vattel, b. 1, ch. 4, sec. 51.