The exercise of legislative power is admittedly subject to legal conditions; why not, then, to legal limitations? If the law can regulate the manner of the exercise of legislative power, why not also its matter? As the law stands, Parliament may repeal a statute in the same session and in the same manner in which it was passed. What, then, would be the effect of a statute providing that no statute should be repealed save by an absolute majority in both Houses? Would it not create good law, and so prevent either itself or any other statute from being repealed save in manner so provided? What if it is provided further, that no statute shall be repealed until after ten years from the date of its enactment? Is such a statutory provision void? And if valid, will it not be applied by the law courts, so that any attempt to repeal either it or any other statute less than ten years old will be disregarded, as beyond the competence of Parliament? And if a statute can be made unrepealable for ten years, how is it legally impossible that it should be made unrepealable for ever? Such a rule may be very unwise, but by what argument are we to prove that it involves a logical absurdity?
In respect of its legislative omnipotence the English Parliament is almost unique in modern times. Most modern constitutions impose more or less stringent limitations upon the powers of the legislature In the United States of America neither Congress nor any State Legislature possesses unrestricted powers. They cannot alter the constitutions by which they have been established, and those constitutions expressly withdraw certain matters from their jurisdiction. Where, then, is the sovereignty vested? The reply made is that these constitutions contain provisions for their alteration by some other authority than the ordinary legislature, and that the missing legislative power is therefore to be found in that body to which the right of altering the constitution has been thus entrusted. In the United States the sovereignty, it is said, is vested not in Congress, but in a majority of three-fourths of the State Legislatures; this composite body has absolute power to alter the constitution, and is therefore unbound by any of the provisions of it, and is so possessed of unlimited legislative power.
Now, whenever the constitution has thus entrusted absolute powers of amendment to some authority other than the ordinary legislature, this is a perfectly valid reply. But what shall we say of a constitution which, while it prohibits alteration by the ordinary legislature, provides no other method of effecting constitutional amendments? There is no logical impossibility in such a constitution, yet it would be clearly unalterable in law. That it would be amended in defiance of the law cannot be doubted, for a constitution which will not bend will sooner or later break. But all questions as to civil and supreme power are questions as to what is possible within, not without, the limits of the constitution. If there is no constitution which meets with due observance, there is no body politic, and the theory of political government is deprived of any subject-matter to which it can apply. The necessary datum of all problems relating to sovereignty is the existence and observance of a definite scheme of organised structure and operation, and it is with this datum and presupposition that we must discuss the question of the extent of legislative power.
Even where a constitution is not wholly, it may be partly unchangeable in law. Certain portions of it may on their original establishment be declared permanent and fundamental, beyond the reach even of the authority to which in other respects the amendment of the constitution is entrusted. Article V. of the Constitution of the United States of America provides that no State shall be deprived of its equal suffrage in the Senate without its own consent. Having regard to this provision, what body is there in the United States which has vested in it unlimited legislative power? The same Article provides that certain portions of the Constitution shall be unalterable until the year 1808. What became of sovereign power in the meantime?[[521]]
APPENDIX III.
THE MAXIMS OF THE LAW.
Legal maxims are the proverbs of the law. They have the same merits and defects as other proverbs, being brief and pithy statements of partial truths. They express general principles without the necessary qualifications and exceptions, and they are therefore much too absolute to be taken as trustworthy guides to the law. Yet they are not without their uses. False and misleading when literally read, these established formulae provide useful means for the expression of leading doctrines of the law in a form which is at the same time brief and intelligible. They constitute a species of legal shorthand, useful to the lawyer, but dangerous to any one else; for they can be read only in the light of expert knowledge of that law of which they are the elliptical expression.
The language of legal maxims is almost invariably Latin, for they are commonly derived from the civil law, either literally or by adaptation, and most of those which are not to be found in the Roman sources are the invention of medieval jurists. The following is a list of the more familiar and important of them, together with brief comments and references.
1. Actus non facit reum nisi mens sit rea.
Leges Henrici Primi, V. 28. (Thorpe’s Ancient Laws and Institutes of England, I. 511.) Coke’s Third Institute, f. 6.
The act alone does not make the doer of it guilty, unless it is done with a guilty mind. Material without formal wrongdoing is not a ground of liability. The presence either of wrongful intent or of culpable negligence is a necessary condition of responsibility. See §§ 127, 132, 145.