The New Irish Constitution: An Exposition and Some Arguments
History
The New Irish Constitution: An Exposition and Some Arguments
Home rule -- Ireland; Ireland -- Politics and government
The principle, so far as I know, has never been disputed by any English
authority, but occasions for its application did not often arise before
our own time. In strictness of law the King in Parliament has supreme
legislative power, as with or without Parliament he has supreme executive
power, in every part of his dominions. But in fact very large powers of
government have been granted in various ways and at various times, and in
the cases which now concern us are coupled with an effectual
understanding, though of a political rather than legal nature, that they
shall not be recalled. It may be observed that a grant of this kind is
quite possible without representative institutions. Extensive powers of
government and jurisdiction, including the highest “regalities” which
could be granted to a subject, were conferred on individuals by several of
the early colonial charters. William Penn’s charter is perhaps the best
known of these, and is a striking example. This, however, is remote from
the present purpose, as is the still wider subject of the political and
semi-political authorities granted by charter to the East India Company
and other trading companies. We have now to attend only to the creation of
autonomous powers by statutes of the Imperial Parliament.
The accustomed form in such creations is to confer in express words power
to make laws for the peace, order (sometimes “welfare”), and good
government of the territory in question. Within the limits prescribed in
its constitution, legislative power so created is full and perfect. The
Judicial Committee of the Privy Council has repeatedly laid down—not for
one Dominion only, but alike for British India, Ontario and New South
Wales—that it must not be likened to the merely vicarious authority of a
delegate or agent, and is not to be restrained by the rules applicable to
agency. So far as it extends, it is a plenary power analogous to that of
the Imperial Parliament itself and not to a ministerial authority which
cannot be delegated; and this applies to the federated units in a federal
system no less than to central or unitary legislature.(77) It is,
therefore, not quite accurate, though useful in the first introduction of
novices to the subject, to liken the enactments of any such local
legislature to the by-laws made under statutory authority by a railway
company or a town council. Such bodies can make the regulations they are
empowered to make, but cannot delegate the framing of any regulation, or
the decision of questions arising under it, to the traffic manager or the
town clerk. But a local legislature, within the limits of subject-matter
originally fixed, can do all that its creator the Parliament of the United
Kingdom could have done. The working safeguard against legislation which,
by improvidence or oversight, would conflict with Imperial requirements,
is the refusal of royal assent by the local Governor on the advice of his
Ministers, or, in the last resort, by the Home Government.
Public-domain text, read in full here on John Shaqi.
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