The Law of the Constitution has been the main doctrinal influence upon English constitutional thought since the late-nineteenth century. Law of the Constitution was first published in and seven subsequent 15 AV Dicey, Lectures Introductory to the Study of the Law of the Constitution. Introduction to the study of the law of the constitution First edition published in under title: Lectures introductory to the study of the law of.
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Distinction between a Parliamentary Executive and x.v.dicey non-Parliamentary Executive This book is as its title imports an introduction a.v.dcey the study of the law of the constitution; 18885 does not pretend to be even a summary, much less a complete account of constitutional law. It deals only with two or three guiding principles which pervade the cobstitution constitution of England.
My object in publishing the work is to provide students with a manual which may impress these leading principles on their minds, and thus may enable them to study with benefit in Blackstone’s Commentaries and other treatises of the like nature those legal topics which, taken a.v.dicwy, make up the constitutional law of England. In furtherance of this design I have not only emphasised the doctrines such, for example, as the sovereignty of Parliament which are the foundation of the existing constitution, but have also constantly illustrated English constitutionalism by comparisons between it and the constitutionalism on the one hand of the United States, and on the other of the French Republic.
Whether I have in any measure attained my object must be left to the judgment of aa.v.dicey readers. It may perhaps be allowable to remind them that a book consisting of actually delivered lectures must, even though revised a.v.dicey publication, exhibit the characteristics inseparable from oral exposition, a.v.ricey that a treatise on the principles of the law of the constitution differs in its scope and purpose, as well from a constitutional history of England as from works like Bagehot’s incomparable.
English Constitutionwhich analyse the practical working of our complicated system of modern Parliamentary government. If, however, I insist on the fact that my book has a special aim of its own, nothing is further from my intention than to underrate the debt which I owe to the labours of the lawyers and 18885 who have composed works on the English constitution.
Not a page of my lectures could have been written without constant reference to writers such as Blackstone, Hallam, Hearn, Gardiner, or Freeman, whose books are in the hands of a.v.dicej student. To three of these authors in particular I am so deeply indebted pf it is a duty no less than a pleasure to make special acknowledgment of the extent of my obligations.
Professor Hearn’s Government of England has taught me more than any other single work of the way in which the labours of lawyers established in early times the elementary principles which form the basis of conwtitution constitution.
Gardiner’s History of England has suggested to me the conclusion on which, confirmed as I found it to be by all the information I could collect about French administrative law, stress is frequently laid in the course of the following pages, that the views of the prerogative maintained by Crown lawyers under the Tudors 185 the Stuarts bear a marked resemblance to the legal and administrative ideas which at the present day under the Third Republic still support the droit administratif of France.
To my friend and colleague Mr; Freeman I owe a debt of a somewhat different nature. His Growth of the English Constitution has been to me a model far easier to admire than to imitate of the mode in which dry and even abstruse topics may be made the subject of effective and popular exposition. The dear statement which that work contains of the difference between our so-called “written law” and “our conventional constitution,” originally led me to seek for an answer to the inquiry, what may be the true source whence constitutional understandings, which are not laws, derive their binding power, whilst the equally vigorous statements contained in the same book of the aspect in which the growth of the constitution presents itself to an historian forced upon my attention the essential difference between the historical and the legal way of regarding our institutions, and compelled me to consider whether the habit of looking too exclusively at the steps.
The possible ocnstitution at any rate a.v.diceey the historical method as applied to the growth of institutions, is that it may induce men to think so much of the way in hhe an institution has come to be what it is, that they cease to consider with sufficient care what it is that an institution has become.
The body of this work is the eighth edition, or rather a reprint of the seventh edition, of the Law of the Constitution first published in It is, however, accompanied by a new Introduction. This Introduction is written with two objects.
The first object is to trace and comment upon the way in which the main principles of our constitution as expounded by me may have been affected either by changes of law or by changes of the working of the constitution which have occurred during the last thirty years The second object of this Introduction is to state and analyse the main constitutional ideas which may fairly be called new, either because they have come into existence during the last thirty years, or because what is much more frequently the a.dicey they have in England during that period begun to exert a new and noticeable influence.
It has been my good fortune to receive in the composition of this Introduction, as in the writing of every book which I have published, untold aid from suggestions made to me by a large number both of English and of foreign friends.
To all these helpers Cnstitution return my most sincere thanks. It is at once a duty and a pleasure to mention my special obligation to two friends, who can both be numbered as high authorities among writers, who have investigated the constitution of England from different points of cojstitution. To the friendship of the late Sir William Anson I owe a debt the amount of which it is impossible constithtion exaggerate.
He was better acquainted, as his books show, with the. Since I first endeavoured to lay down the few general principles which in my judgment lie at the basis of our constitution, I have, whilst engaged in that attempt, always enjoyed his sympathy and a.dicey, and, especially in the later editions of my work, I have received from laa corrections and suggestions given lf one who had explored not only the principles but also all the minute rules of our constitutional law and practice.
To my friend Professor A. Berriedale Keith I am under obligations of a somewhat different kind. He has become already, by the publication of his Responsible Government in the Dominionsan acknowledged authority on all matters connected with the relation between England and her Colonies.
I have enjoyed the great advantage of his having read over the parts of my Introduction which refer to our Colonial Empire. His knowledge of and experience in Colonial affairs has certainly saved me from many errors into which I might constituhion have fallen. It is fair to all the friends who have aided me that I should state explicitly that for any opinions expressed in this Introduction no one is responsible except myself.
The care with which many persons have given me sound information was the more valued by me because I have known that with some of the inferences drawn by me from the facts on which I commented my informants probably did not agree. Cpnstitution Law of the Constitution was first published in The book was based on hte delivered by me as Vinerian Professor of English Law. The lectures were given and the book written with the conatitution object of explaining and illustrating three leading characteristics in the existing constitution of England; they are now generally designated as the Sovereignty of Parliament, the Rule of Law, and the Conventions of the Constitution.
The book, therefore, dealt constituhion the main features of our constitution as it stood inthat is thirty years ago. The work has already gone through seven editions; each successive edition, including the seventh, has been brought up to date, as the expression goes, by amending it so as to embody any change in or affecting the constitution which may have occurred since the last preceding edition. On publishing the eighth and final edition of this treatise I have thought it expedient to pursue a different course.
The constant amendment of a book republished in successive editions during thirty years is apt to take from it any such literary merits as it may originally have possessed. Recurring alterations destroy the original tone and spirit of any treatise which has the least claim to belong to the literature of England. The present edition, therefore, of the Law constitufion the Constitution is in substance a reprint of the seventh edition; it is however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood and worked in with the constitution as it now stands in J A.v.dcey readers are thus enabled to see how far either legislation or constitutional conventions have during the last thirty years extended or it may be limited the application of the principles which in lay at the foundation of our whole constitutional system.
The Law of the Constitution – A.V. Dicey – Oxford University Press
This Introduction therefore is in the main a work of historical retrospection. It is impossible, however nor perhaps would it be desirable were it possibleto prevent a writer’s survey of the past from exhibiting or betraying his anticipations of the future.
The topics here dealt with may be thus summed up: The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our political institutions.
And my readers will remember that Parliament consists of the King, the House of Lords, and the House of Commons acting together. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that “Parliament” has “the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,” 8 and further that this right or.
Parliament may itself by Act of Parliament either expressly or impliedly give to some subordinate legislature or other body the power to modify or add to. Their truth has never been denied. We must now, however, consider whether they are an accurate description of parliamentary sovereignty as it now exists in And here it should be remarked that parliamentary sovereignty may possibly at least have been modified in two different directions, which ought to be distinguished.
It is possible, in the first place, that the constitution or nature of the sovereign power may have undergone a change. If, for example, the King and the Houses of Parliament had passed a law abolishing the House of Lords and leaving supreme legislative power in the hands of the King and of the House of Commons, any one would feel that the sovereign to which parliamentary sovereignty had been transferred was an essentially different sovereign from the King and the two Houses which in possessed supreme constitutiln.
It is possible, in the second place, that since the Constituiton Parliament may, if not in theory yet in fact, have ceased as a rule to exercise supreme legislative power in certain countries subject to the authority of lf King.
Let us consider carefully each of these two possibilities. The constiution under consideration is in substance whether the Parliament Act, 10 has transferred legislative authority from the King 11 and.
The best mode of giving an answer to this question is first to state broadly what were the legislative powers of the House of Lords immediately before tge passing of the Parliament Act, i8th Augustand next to state the main direct and indubitable effects of that Act on the legislative power of the House of Lords and of the House of Commons respectively. No Act of Parliament of any kind could be passed without the consent thereto both of the House of Lords and of the House of Commons.
No ov the House of Lords did very rarely either alter or reject any Money Bill, and og the Lords have always claimed the right to alter or reject such a Bill, they have only on very special occasions exercised this power. No doubt again their lordships have, at any rate sinceacknowledged that they ought to a.v.diceg any A.vdicey deliberately desired by the nation, and also have admitted the existence of a more or less strong presumption that the House of Commons in general represents the will of the nation, and that the Lords ought, therefore, in general to consent to a Bill passed by the House of Commons, even though their lordships did not approve of the measure.
But this presumption may, they have always maintained, be rebutted cconstitution any strong ground can be shown for holding that the electors did not really wish such a Bill to become an Act of Parliament. Hence Bill after Bill has been passed by their lordships of which the House of Lords 18885 not in reality approve.
It was however absolutely indubitable up to the passing of the Parliament Act that no Act could be passed by Parliament without obtaining the consent of the House of Lords. Nor could any one dispute the legal right or power of the House, by refusing such assent, to veto the passing of any Act of which the House might disapprove.
A. V. Dicey
Two considerations, however, must be taken into account. This veto, in the first place, has, at any rate sincebeen as a.dicey rule used by the Lords as a merely suspensive veto. The passing of the Great Reform Act itself was delayed by.
It must again be remembered that the Lords, of recent years at least, have at times rejected Bills supported by the majority of the House of Commons which, as has been proved by the event, had not received the support of the electors.
Hence it cannot be denied that the action of the House of Lords has sometimes protected the authority of the nation. Such effects can be summed up in popular and intelligible language, rather than with technical precision, as follows:.
The House may discuss such a Bill for a calendar month, but cannot otherwise prevent, beyond a month, the Bill becoming an Act of Parliament. In respect of any public Bill which is not a Money Bill14 the Act takes away from the House of Lords any final veto, but leaves or gives to the House a suspensive veto.
This suspensive veto a.vv.dicey secured to the House of Lords because under the Parliament Act, s. That the Bill shall, before it is presented to the King for his assent, be passed by the House of Commons and be rejected by the House of Lords in each of three successive sessions. That the Bill shall be sent up to the House of Lords at least one calendar month before the end of each of these sessions.
See Parliament Act, s.
That in respect of such Bill at least two years shall have elapsed between the date of the second reading of the Bill in the House of Commons during the first of those sessions and the date on which it passes the House of Commons in the third of such sessions. That the Bill presented to the King for his assent shall be in every material respect identical with the Bill sent up to the House of Lords in the first of the three successive sessions except in so far as it may have been amended by or with the consent of the House of Lords.
The history of the Government of Ireland Act,popularly, and throughout this Introduction generally, called the Home Rule Bill or Act, affords good illustrations of the peculiar procedure instituted by the Parliament Act. The Home Rule Bill was introduced into the House of Commons during the first of the three successive sessions on April 11, ; it passed its second reading in the House of Commons during that session on May 9, ; it was rejected by the House of Lords either actually or constructively 19 in each of the three successive sessions.
It could not then possibly have been presented to the A.v.ddicey for his assent till June 9, ; it was not so presented to the King till September 18, On that constjtution, just before the actual prorogation of Parliament in the third session, it received the royal assent without the consent of the House of Lords; it thereby became the Government of Ireland Act, The Act as assented to by the King was in substance identical with the Bill sent up to the House of Lords in the first of the three sessions on January 16, But here we come across the difficulty of amending a Bill under the Parliament Act after it had once been sent up in the third session to constitugion House of Lords.
Under this enactment the House of Lords may insist upon a delay of at least two years and one calendar month, and a powerful opposition in the House of Commons may condtitution this delay.
It was constructively rejected in the third session by the House of Lords simply by the House not passing the Bill during such. On June 23 the Government brought into the House of Lords a Bill which should amend the Home Rule Act which was still a Bill, and it is difficult to find a precedent for thus passing an Act for amending a Bill not yet on the statute-book.
The attempt to carry out the Government’s proposal came to nothing. On September 18,the Home Rule Bill became the Home Rule Act or technically the Government of Ireland Act, unamended, but on the very day on which the Home Rule Act was finally passed it was in effect amended by a Suspensory Act under which the Government of Ireland Act,cannot come into force until constituyion any rate twelve months from September 18, and possibly will not come into force until the present war has ended.
The Suspensory Act evades or avoids the effect of the Parliament Act, but such escape from the effect of a recently passed statute suggests the necessity for some amendment in the procedure created by the Parliament Act. The House of Commons can without the consent of the House of Lords present to the King for his assent any Bill whatever which has complied with the provisions of the Parliament Act, section 2, or rather which is certified by the Speaker of the House of Commons in the way provided by the Act to have complied with the conditions of the Parliament Act, section 2.
The simple truth is that the Parliament Act has given to connstitution House of Commons, or, in plain language, to the majority thereof, the power of passing any Bill whatever, provided always that the conditions of the Parliament Act, section 2, are complied with. But these provisions do leave to the House of Lords a suspensive veto which may prevent a Bill from becoming an Act of 18885 for a period of certainly more, and possibly a good deal more, than two years.
No reference whatever is therein made to the so-called “veto” of the King. Its existence is undoubted, but the veto has not cojstitution exercised for at least two centuries.