The limitations to the omnipotence of Parliament. Lee v. Bude Ry. at p. 582. Russell v. Cambefort, 23 Q.B.D. 526. principles, is a question which I presume they would not entertain a priori, because they will not entertain a priori the supposition that any such case will arise. In like manner this Court will not let itself loose into speculations as to what would be its duty under such an emergency, because it cannot, without extreme indecency, presume that any such emergency will happen; and it is the less disposed to entertain them, because its own observation and experience attest the general conformity of such orders and instructions to its principles of unwritten law." Sixty years later, in 1871, in Lee v. Bude and Torrington Railway Company, Willes J. said, "The argument resolves itself into this, that Parliament was induced by fraudulent recitals (introduced, it is said, by the plaintiffs) to pass the Act which formed the company. I would observe, as to these Acts of Parliament, that they are the law of this land; and we do not sit here as a Court of Appeal from Parliament. It was once said-I think in Hobart-that if an Act of Parliament were to create a man judge in his own case, the Court might disregard it. That dictum, however, stands as a warning, rather than an authority to be followed. We sit here as servants of the Queen and the Legislature. Are we to act as regents over what is done by Parliament with the consent of the Queen, Lords, and Commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the Legislature to correct it by repealing it; but, so long as it exists as law, the Courts are bound to obey it. The proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them." Finally, in 1889, in Russell v. Cambefort, in which the jurisdiction of the Courts in the case of a foreign partnership was considered, Cotton L. J. said, "In construing the rule, we must have regard to what Parliament has the power to do, and, in my opinion, we should be wrong in construing it as giving jurisdiction against those who are in no way subject to the English Parliament." And Lopes L. J. said, "The rule cannot have a greater effect than an Act of Parliament, and Parliament itself could not give such jurisdiction." It is probable that this short sentence exactly hits the mark; there are some things-beyond the making a man a womanwhich Parliament cannot do. And if it does what it cannot do, it does what it has no right to do, and the remedy must lie in the Courts. It may not always be possible to adopt Sir The limitations to the omnipoWilliam Scott's, and Lord Justice Cotton's convenient method tence of Parliaof construction: that what has been done is to be construed ment. by the light of what may be done. It was possibly an amplification of the rule laid down by Blackstone, that "when 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 to expound the statute by equity, and only quoad hoc to disregard it." It smoothed away the difficulties in Russell Russell v. v. Cambefort, but it is impossible to apply it where the Cambefort, 23 Q.B.D. 526. question whether Parliament has the power to do what it has claimed to do, demands a categorical answer, yes or no. branches of the Nor is there anything very alarming in the declaration that the Judges are the "servants of the Queen and the Legislature," except perhaps its unsoundness. It forces the attention back to first principles, and the first among them is that by the constitution, the Government of England is in effect a trinity of independent powers—the Legislature, the Executive, the Judiciary— linked only by the fact that the Sovereign is the head of each unity. The Legislature decrees; the Executive acts; the Judiciary interprets. It is true that, in some measure, the lines of The functions of division are not hard and fast. The House of Lords exercises the different judicial functions; some maintain that in the wide power of Government. interpreting the common law, the Judiciary become in effect law-makers—that there is such a thing, in fact, as judge-made law. But, though the functions may somewhat overlap, there is nothing which makes one branch of the Government subservient to another. The natural sequence of events arranges them in the above order. The thing to be interpreted naturally comes into being before the necessity of interpretation. So too the Legislature may legislate in respect both of the Executive and of the Judiciary, chiefly because they are made up of persons within the territory which is subject to the Legislature. But so also may it legislate in respect of the prerogatives of the Crown. But neither does this power make the Sovereign, nor does the former power make the Judiciary, "servants of the Legislature." Nor does the function allotted to the Judiciary in the State, interpretation, put it necessarily in a lower place. It has to declare whether what is done in the State is right or wrong; and if there is a limit to the power of Parliament, and that limit The limitations to the omnipotence of Parliament. [Vol. II, p. 37.] is exceeded, it seems to follow inevitably that the Courts may say so. Whether there is such a limit, and if there is what it is, are two very different questions. It is quite certain that neither the old judgment in Hobart, nor the comparatively recent one of Sir William Scott are sound. Their appeals to natural justice, to the immutable laws of nature, are too high-flown; the Judges know of no such code. It is quite certain too that the Courts could not enquire into the question whether a private Act of Parliament had been obtained by fraud, the case before the Court of Common Pleas. But is it not equally certain that if a statute made gambling by German subjects at Monte Carlo a criminal offence punishable in England, and authorised arrests by Monegascan policemen for the purpose of deportation to England, then that such a statute would be beyond the powers of Parliament; and further that the Court of Crown Cases Reserved would not be slow to say so? The illustration is, of course, absurd and far-fetched; but if Parliament is really omnipotent, it has the power to pass such an Act. The only constitutional check to prevent the wisdom of the Legislature enacting such and similar provisions would be the "practically extinct" veto of the Crown. Sir Fitz James Stephen, in his "History of the Criminal Law of England," puts a similar case, of Parliament passing an Act to the effect that the whole criminal law of England should apply to the conduct of Frenchmen in France, and that the Central Criminal Court should have jurisdiction over all offences against that law committed in France. Such a law, the learned author says, the Judges could not refuse to put in force. In effect such a law would profess to regulate men's conduct in another country, but the sanction being territorial, the result would be equivalent to saying that if persons do certain things abroad, and afterwards come to this country, they will be punished for what they have done. This is in fact one of the grounds on which extraVol. II, Chap. III. territorial laws are usually defended. Yet I cannot help thinking that such Acts are not within the power of Parliament; that there is in fact a very visible limit to its omnipotence; and that an efficient check lies dormant in the Courts to keep even "the King, Lords and Commons in Parliament assembled" within the limits of that law which is specially applicable to them. of Nationality," To revert to the question in hand. In the matter of extradi- The limitations tion the law as to variances between the Act and the treaty tence of Parliato the omnipohas been discussed in two cases. ment. between the Act The first is R. v. Wilson. The Extradition Act is drawn very R. v. Wilson, broadly, and sanctions, seeing that it does not forbid, the surren- 3 Q.B.D. 43. der of British subjects. But by the treaty with Switzerland, as by most others, the subjects of either contracting State are not to be surrendered. In the case, an extraditable offence had been committed by a British subject in Switzerland, and it was argued that the Act sanctioned his extradition. The Court held that Variances the question was to be decided by the terms of the treaty and and the treaty in not by the statute. Cockburn C. J. said, "The Order in Council extradition cases. must be co-extensive with, and limited by the treaty, for otherwise our municipal legislation might be at variance with the terms which the two countries have arranged between themselves—a proposition absurd on the very face of it. I must therefore take it that the Order in Council has embodied the terms of the treaty, and that the Act of Parliament is only applicable so far as it can be applied consistently with the terms and conditions therein contained." And Mellor J. said, "It is a matter of positive bargain between the two countries." And Field J. said, "The Act proceeds upon the fact that there has been some arrangement between this country and a foreign State, and yet we are asked to disregard this arrangement altogether, and to hold that the Act applies in its entirety, although the arrangement itself contains an exception and condition." The point here decided is of the simplest.§ The Act is an enabling Act, and it is drawn sufficiently wide to permit an "Legislature" in the report. § It may be open to question whether the same principle applies when the statute has been passed merely to give effect to a treaty, and is not a general enabling statute. The Hongkong Ordinance, No. 7 of 1889, was passed to carry out the obligations which England had undertaken towards China in the extradition article (.v.xi) of the Treaty of Tientsin. It is possible that other considerations might arise in the event of a difference between the treaty and the ordinance. In this connexion, it should be noted that the Magistrate holds a preliminary enquiry only in extradition matters, and not a trial. The question of variance, therefore, would not properly be taken before him (see the observa- 4.-G. of Hong Kong v. Kwok a tion of the Chief Justice quoted in the report of A.-G. of Hong Kong v. Kwok Sing, L.R. 5 a Sing, in the Privy Council). P.C. 179. re Counhaye, General proposition as to variances between the statute and the treaty. arrangement for the mutual surrender of subjects to be carried out, should it be made. But if the case, whether it be as to the person whose extradition is demanded, or as to the offence committed, does not fall within the terms of the arrangement, how is it possible for the State which is a party to the arrangement to ask for the offender to be surrendered in spite of it? The converse was decided in re Counhaye.* If the arrangement with the foreign State includes an offence which is not included in the schedule of extraditable offences in the statute, the Courts, for precisely the same reason, will decline the request for extradition. The general proposition, in its application to foreign jurisdiction as well as to extradition, and to all other cases in which the point may arise, may be thus stated:-The Courts will have regard to the treaty in the first place, and will only regard the statute if the exercise of the right in question is either expressly forbidden, or does not fall within it. The statute will be treated as what it in fact is, an enabling Act: an Act to enable, the law not permitting it otherwise, the Sovereign to exercise rights, or fulfil obligations, in this country, which he has acquired or entered into with foreign Sovereigns. If it does not enable entirely, the entire right cannot be exercised, nor the entire obligation fulfilled. NOTE. It is perhaps unnecessary to point out that the limitations to parliamentary omnipotence which I have dealt with in the text are, if they exist, very different from those which the old Judges contended for. It does not need the declaration the Act 6 George III. c. 12, to support the contention that the Imperial Parliament has full power to make laws for the whole of the King's dominions. But it needs something more than reliance on a vague quotation about Parliament legislating for British subjects anywhere, to test the true position of Parliament with regard to British subjects in a country which has sanctioned their exterritoriality. Directly one reads the statement that "within its own local bounds the sovereign power of each nation is absolute so long as it subsists," the query The schedule to the Extradition Act includes "crimes by bankrupts against bankruptcy laws". The Court held that with regard to the other crimes enumerated in the schedule, accessories before the fact would be included, because they are now liable to be indicted as principals, and were always liable to be punished as principals; the provision in question dealt with crimes by bankrupts, but as this could not be held to include persons who assist others in committing crimes against those laws, but who are not themselves bankrupts. |