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Chapter

CHAPTER II.

POWER AND JURISDICTION OF PARLIAMENT.

Table of Contents, see Introduction.

The legislative authority of Parliament extends over the Legislative

authority United Kingdom, and all its colonies and foreign posses- of Parlia sions; and there are no other limits to its power of making men laws for the whole empire than those which are incident to all sovereign authority—the willingness of the people to obey, or their power to resist. Unlike the legislatures of many other countries, it is bound by no fundamental charter or constitution : but has itself the sole constitutional right of establishing and altering the laws and government of the empire.

In the ordinary course of government, Parliament does not legislate directly for the colonies; and the introduction of responsible government has necessarily limited the occasions for such legislation. For some colonies the king in council legislates, while others have legislatures of their own, which propound laws for their internal government, subject to the approval of the king in council : but these may afterwards be repealed or amended by statutes of the Imperial Parliament; for their legislatures and their laws are both subordinate to the supreme power of the mother country. For example, the constitution of Lower Canada was suspended in 1838; and a provisional government, with legislative functions and great executive powers, was established by the British Parliament. Slavery, also, was

I "Parliamentary legislation, on any subject of exclusively internal concern to any British colony, possessing a representative assembly, is, as a general rule, unconstitutional. It is a right of which the exercise is reserved for extreme cases, in which necessity at once creates and justifies

the exception."-Lord Glenelg. (Parl. Paper, 1839 (118), p. 7.)

? 1 & 2 Vict. c. 9; 2 & 3 Vict. c. 53. See also the Parliament of Canada Act, 1875, and the Canada Copyright Act, 1875, as examples of the interposition of Parliament in colonial legislation.

abolished by an Act of Parliament, in 1833, throughout all Chapter the British possessions, whether governed by local legisla- _ tures or not: but certain measures for carrying into effect the intentions of Parliament were left for subsequent enactment by the local bodies, or by the queen in council. In 1838, the house of assembly of Jamaica had neglected to pass an effectual law for the regulation of prisons, which became necessary upon the emancipation of the negroes; when Parliament immediately interposed and passed a statute for that purpose. The assembly, resenting the interference of the mother country, withheld the supplies, and otherwise neglected their functions : but Parliament reduced them to submission by an Act to suspend the colonial constitution, unless within a given time they should resume their duties. And again, in 1866, that ancient constitution was surrendered by acts of the local legislature, confirmed by an Act of the Imperial Parliament. In 1849, the constitutions of the Australian colonies were defined by statute: but the colonial governors and legislative councils were permitted to amend them, with the assent of the queen in council. The vast territories of British India, which had long been subject to the anomalous government of the East India Company, were transferred, by statute, to the Crown, in 1858, and have since been under the immediate legislative authority of Parliament. In 1867, the dominion of Canada was constituted by statute; and in like manner, in 1890, a constitution was conferred upon Western Australia, while the Commonwealth of Australia was also constituted by statute in 1900.

There are some subjects upon which Parliament, in familiar language, is said to have no right to legislate : but the constitution has assigned no limits to its authority. A law may be unjust, and contrary to sound principles of government: but Parliament is not controlled in its discretion, and when it errs, its errors can only be corrected by itself. To adopt the words of Sir Edward Coke, the power of Parliament “is so transcendent and absolute, that

* Cf. Parl Paper, 142 (Sess. 1905).

reference

Chapter it cannot be confined, either for causes or persons, within

any bounds.” 1

This being the authority of Parliament collectively, the laws and usage of the constitution have assigned peculiar powers, rights, and privileges to each of its branches, in connection with their joint legislative functions. It is by the act of the Crown alone that Parliament can Preroga

tives of the be assembled. The only occasions on which the Lords and Crown in Commons have met by their own authority, were previously

vy, ouPomury to Parlia. to the restoration of King Charles II., and at the Revolution ment. in 1688. The first Act of Charles the Second's reign declared the Lords and Commons to be the two houses of Parliament, notwithstanding the irregular manner in which they had been assembled; and all their Acts were confirmed by the succeeding Parliament summoned by the king, which however qualified the confirmation of them, by declaring that “the manner of the assembling, enforced by the difficulties and exigencies which then lay upon the nation, is not to be drawn into example.” In the same manner, the first Act of the reign of William and Mary declared the convention of Lords and Commons to be the two houses of Parliament, as if they had been summoned according to the usual form ; and the succeeding Parliament recognized the legality of their Acts. But although the king may determine the period for Annual

thin meeting of calling Parliaments, his prerogative is restrained within Parlia certain limits; as he is bound by statute 2 to issue writs ment. within three years after the determination of a Parliament; while the practice of providing money for the public service by annual enactments, renders it compulsory upon him to meet Parliament every year.

The annual meeting of Parliament, now placed beyond the power of the Crown by a system of finance rather than by distinct enactment, had, in fact, been the law of England from very early times. By the statute 4 Edw. III. c. 14, “it is accorded that Parliament shall be holden every year once, [and] [or] more often if need be." And again, in the 14 Inst. 36. 2 16 Chas. II. c. 1; and 6 & 7 Will. & Mary, c. 2.

36 Edw. III. c. 10, it was granted "for redress of divers Chaptar mischiefs and grievances which daily happen [a Parliament _1. shall be holden or] be the Parliament holden every year, as another time was ordained by statute.” 1

It is well known that by extending the words, “ if need be," to the whole sentence instead of to the last part only, to which they are obviously limited, the kings of England constantly disregarded these laws. It is impossible, however, for any words to be more distinct than those of the 36th Edward III., and it is plain from many records that they were rightly understood at the time. In the 50th Edward III., the Commons petitioned the king to establish, by statute, that a Parliament should be held each year; to which the king replied, “In regard to a Parliament each year, there are statutes and ordinances made, which should be duly maintained and kept.” So also to a similar petition in the 1st Richard II., it was answered, “ So far as relates to the holding of Parliament each year, let the statutes thereupon be kept and observed ; and as for the place of meeting, the king will therein do his pleasure." And in the following year the king declared that he had summoned Parliament, because at the prayer of the Lords and Commons it had been ordained and agreed that Parliament should be held each year.2

In the preamble of the Act 16 Chas. I. c. 1, it was also distinctly affirmed, that "by the laws and statutes of this realm, Parliament ought to be holden at least once every year for the redress of grievances : but the appointment of the time and place of the holding thereof hath always belonged, as it ought, to his majesty and his royal progenitors." 3 Yet by the 16 Chas. II. c. 1, a recognition of these ancient laws was withheld: for the Act of Charles I. was repealed as “ derogatory of his majesty's just rights and

1 Record Comm. Statutes.

By an ordinance in the 5th Edward III., the object of the law had been more clearly explained; viz. “Qe le roi tiegne Parlement une foiz p an', ou deu foiz si mestier soit.”

1 Rot. Parl, 285 ; 2 ib. 335 ; 3 ib. 23. 32.

3. Act for preventing of inconvenience happening from long intermission of Parliaments."

Chapter prerogative; "and the statutes of Edward III. were incor-
II.

rectly construed to signify no more than that “ Parliaments
are to be held very often." All these statutes, however,
were repealed, by implication, by this Act, and also by
the 6 & 7 Will. & Mary, c. 2, which declares and enacts
“ that from henceforth Parliament shall be holden once in
three years, at the least.” .

The Parliament is summoned by the King's writ or letter Summons.
issued out of Chancery, by advice of the privy council. By
the 7 & 8 Will. III. c. 25, it was required that there shall
be forty days 1 between the teste and the return of the writ
of summons; and since the union with Scotland this period
was extended to fifty days, such being the period assigned
in the case of the first Parliament of Great Britain after
the Union. But by the 15 & 16 Vict. c. 23, the time be-
tween the proclamation and the meeting of Parliament
may be any time not less than thirty-five days; 8 subject,
however, to a prorogation of the meeting of Parliament
by proclamation, from the day to which it shall stand
summoned to any further day, not being less than fourteen
days from the date of the proclamation, under the Act 30 &
31 Vict. c. 81. The writ of summons has always named
the day and place of meeting, without which the requisition
to meet would be imperfect and nugatory.
The demise of the Crown is the only contingency upon Demise of

. the Crown. which Parliament is required to meet without summons in the usual form. By the 6 Anne, c. 7, on the demise of the Crown, Parliament, if sitting, is immediately to proceed to act: and, if separated by adjournment or prorogation, is immediately to meet and sit. Before the passing of this

"Forty days were assigned for the period of the summons by the great charter of King John, in which are these words: “Faciemus summoneri ... ad certum diem, scilicet ad terminum quadraginta dierum ad mi. nus, et ad certum locum.”

See 22 Art. of Union, 5 Anne, c. 8; 2 Hatsell, 290.

3 This period was specially reduced to twenty-eight days by the

Registration Act, 1868, s. 11, in regard to the dissolution of 1868, in order to ensure an earlier meeting of the new Parliament.

- The power of accelerating the meeting of Parliament for despatch of business by proclamation, given by Statutes 37 Geo. III. c. 127, and 33 & 34 Vict. c. 81, see p. 44, applies only to a meeting of Parliament pursuant to & prorogation.

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