¹ 1952 (2) S.A. 428; [1952] 1 T.L.R. 1245; Keir, and Lawson, Cases in Constitutional Law (4th ed.) 506.Google Scholar For comment on the case see 68 L.Q.R. 285; 65 Harv.L.R. 1361; 30 Can.B.R. 692, 734; 31 Can.B.R. 52. After losing this case the South African Government attempted to achieve its ends by establishing special courts for such questions, since the legislature has power to establish courts of law without recourse to the “entrenched” procedure; but the Act constituting Parliament itself into such a court was held illegal: Minister of the Interior v. Harris and Others, 1952 (4) S.A. 769. The government has now procured legislation for increasing the number of appellate judges and the number of Senators: Appeal Court Quorum Act, 1955; Senate Act, 1955. A most valuable commentary on the principal case will be found in Professor D. V. Cowen's two articles on “Legislature and Judiciary” in 15 M.L.R. 282 and 16 M.L.R. 273, to which as will be seen the present article is much indebted. Its object is not to survey further the voluminous literature on sovereignty, but to attempt to bring to a head the current controversies on the subject. In a sense, therefore, it starts at the point where Professor Cowen leaves off, for after his excellent account of the background and the arguments of both sides he concludes that the fundamentals of the subject are “fluid, elusive and obscure.”

² Dicey, , Law of the Constitution (9th edition by Professor E. C. S. Wade), 39.Google Scholar

³ MacCormick v. Lord Advocate, 1953 S.C. 396 at p. 412.

⁴ [1932] A.C. 526.

⁵ For a case of 1670 see below, note 46; and see the case of Sir John Pylkington (1454–5) Y.B. 33 Hen. VI, fo. 17, p. 8, referred to in Craies, Statute Law, 5th ed. 34, and discussed by Professor Cowen in 16 M.L.R. at pp. 276–7.

⁶ [1932] 1 K.B. 733.

⁷ [1934] 1 K.B. 590.

⁸ [1935] A.C. 500.

⁹ At p. 743.

¹⁰ At p. 597

¹¹ s. 5.

¹² At p. 520.

¹³ See Jennings, , The Law and the Constitution, 3rd ed., p. 145.Google Scholar

¹⁴ The meaning of the South African counterblast “Freedom once conferred cannot be revoked” (Stratford A.C.J. in Ndlwana v. Hofmeyr, 1937 A.D. 229 at p. 237) will appear later.

¹⁵ Note 12, above.

¹⁶ At p. 142.

¹⁷ At p. 144.

¹⁸ At pp. 145–6.

¹⁹ See Dicey, , Law of the Constitution, 9th ed., 65–6,Google Scholar and Jennings, , The Law and the Constitution, 3rd ed., pp. 146–7.Google Scholar

²⁰ But now see MacCormick v. Lord Advocate, note 29 below.

²¹ In an article in 24 Australian L.J. 103 (1950), at p. 104.

²² Magrath v. Commonwealth (1944) 69 C.L.R. 156 is cited, but all the judges in that case (Rich J. at p. 170, McTiernan J. at p. 175 and Williams J. at p. 183) state clearly the ordinary rule that Parliament cannot bind its successors, without any qualification of the kind suggested by Professor Friedmann.

²³ The Law of the Constitution, Chap. II.

²⁴ The quotation is the well-known passage from the judgment of Dixon J. (as he then was) in the High Court of Australia, 44 C.L.R. at p. 426, in which he discussed the possible outcome of a case of the same type in England. He suggested that if an Act was passed without a referendum to repeal an Act which purported to be repealable only after a referendum, “the courts might be called upon to consider whether the supreme legislative power in respect of the matter had in truth been exercised in the manner required for its authentic expression and by the elements in which it had come to reside. And he added that the answer to this question, whether evident or obscure, would be deduced from the principle of parliamentary supremacy over the law.” This is a carefully guarded statement. If, as Keir and Lawson appear to infer, it hints at the conclusion that the courts would hold that sovereign power had “come to reside” in some body different from Parliament as at present constituted, that assumes a revolution in the legal system, as is explained below.

²⁵ 4th ed., 7.

²⁶ Cf. Professor Friedmann's remarks in 24 Australian L.J. at p. 105.

²⁷ In Trethowan's case, 44 C.L.R. at p. 427. See also at p. 426 for the contrast between sovereign and subordinate legislatures.

²⁸ [1932] A.C. at p. 539.

²⁹ 1953 S.C. 396.

³⁰ See note 19, above.

³¹ Dicey himself considered this possibility, but pointed out (rightly, it is submitted) that the Parliament of Great Britain would then have been a subordinate legislature: Law of the Constitution, 9th ed., p. 68, note 1. Lord President Cooper's opinion has perhaps something in common with the state-ment of Lord Mansfield (also possibly inspired by Scottish principles) that the articles of a treaty of cession are “sacred and inviolable according to their true intent and meaning”: Campbell v. Hall (1774) 1 Cowp. 204 at p. 208. But Lord Mansfield does not say how they are to be enforced.

³² 1953 S.C. at p. 413.

³³ Ibid.

³⁴ Note 12, above.

³⁵ The Law and the Constitution, 3rd ed., p. 146.

³⁶ Notes 7 and 10, above.

³⁷ See the passages quoted by Dicey, p. 64 note 2, and by Professor Cowen in 16 M.L.R. at p. 291 from Bacon's Works, 1859 ed., Vol. VI, 159–60 and Vol. VII, 370. As to the following passage about Parliament's alleged ability to extinguish or transfer its power, see note 69 below.

³⁸ 4 Inst. 42.

³⁹ Comm. i, 90: “Acts of Parliament derogatory from the power of subsequent parliaments bind not.” The phrase derives from Coke, 4 Inst. 42.

⁴⁰ The Law and the Constitution, 3rd ed., 138–40. Jennings truly says that legal sovereignty is a lawyer's concept expressing the relations between Parliament and the courts. But his statement that it is “not sovereignty at all,” because it is not the same as political sovereignty, is hard to follow.

⁴¹ The Law and the Constitution, 3rd ed., 145, 148.

⁴² Bacon opposed the view stated in the text and maintained, like Jennings, that such Acts were “void:” see 16 M.L.R. at p. 291, note 98, where Professor Cowen notes the conflict between Bacon's opinion and Jethro Brown's. It is surely more accurate to say with Coke and Blackstone that such Acts “bind not ”: see note 39, above; or (in Bacon's own words) that “things that do not bind may satisfy for the time”: see note 69, below. No one would maintain that the Interpretation Act, 1889, or the Regency Act, 1937 (see note 60, below), is “void” because it contains provisions relating to the operation of future legislation. But those provisions would be bound to yield to any future Act inconsistent with them.

⁴³ Jurisprudence, 10th ed. (by Dr. Glanville Williams), 155. Professor Cowen in 15 M.L.R. 294 mentions this passage in connection with the present status in South Africa of the South Africa Act, 1909, but not in connection with the wider questions raised in his second article in 16 M.L.R. 273. For the similarity between Salmond's “ultimate legal principle” and Kelsen's Grundnorm, see Jones, J. W., Historical Introduction to the Theory of Law, 226.Google Scholar

⁴⁴ Italics supplied.

⁴⁵ The same point is made by Professor E. C. S. Wade, following Mr. R. T. E. Latham, in the 9th ed. of Dicey, p. xxxviii: “Where the purported sovereign is anyone but a single actual person, rules are required to ascertain the will of the sovereign. They must be observed as a condition of the validity of legislation. The rules are therefore logically superior to the sovereign.”

⁴⁶ Maitland, , Constitutional History, 282.Google Scholar In Heath v. Pryn (1670) 1 Vent. 14 counsel had the hardihood to challenge an Act of the Restoration Parliament: “The plaintiff's counsel would have denied the Act of 12 Car. to be an Act of Parliament because they were not summoned by the King's writ; but the judges would not admit it to be questioned, and said, that all the judges resolved, that the Act being made by King, Lords and Commons they ought not now to pry into any defects of the circumstance of calling them together …”

⁴⁷ Maitland, , Constitutional History, 284–5.Google Scholar

⁴⁸ The same point is well put by Wheare, K. C., The Statute of Westminster and Dominion Status, 5th ed., pp. 155–6.Google Scholar

⁴⁹ The Law of the Constitution, Chap. II.

⁵⁰ The Law and the Constitution, 3rd ed., 142. Similarly Professor Friedmann in 24 Australian L.J. at p. 104 says that the distinction is “irrelevant to this problem, ” i.e., to the discussion of Trethowan's case. He is therefore compelled to differ from the conclusions so convincingly stated by Dixon J.: see p. 182, above.

⁵¹ R. v. Ndobe, 1930 A.D. 484, at 492–3.

⁵² See Professor E. C. S. Wade's introduction to Dicey, 9th ed., xlviii; cf. Wheare, K. C., The Statute of Westminster and Dominion Status, 5th ed., 153–7, 246–7.Google Scholar

⁵³ See Professor Cowen in 15 M.L.R. 294, note 47.

⁵⁴ Cmd. 2768 (1926).

⁵⁵ Note 14, above.

⁵⁶ 1 Gul. & Mar. sess. 1, c. 1 (confirming Parliament's authority); 1 Gul. & Mar. sess. 2, c. 2 (the Bill of Rights, 1689, confirming the title to the Crown).

⁵⁷ 1937 A.D. 229. An extract from the case is printed in Keir, and Lawson, . Cases in Constitutional Law, 3rd ed., 528.Google Scholar The case was in one sense the converse of Harris v. Minister of the Interior, since an Act of the South African legislature was unsuccessfully challenged on the ground that the “entrenched” procedure had been used, but was not applicable. In Harris's case the court refused to follow Ndlwana's case on the ground that it conflicted with R. v. Ndobe, 1930 A.D. 484, and that the point had not been fully argued.

⁵⁸ Stratford A.C.J. at p. 238.

⁵⁹ See The Prince's Case (1606) 8 Co.Rep. 1a at 20b, holding that an Act of Parliament, even though entered on the Parliament Roll, is no Act if it “be penned, that the King with the assent of the Lords, or with the assent of the Commons, for three ought to assent, soil, the King, the Lords and the Commons, or otherwise it is not an Act of Parliament; and by the record of the Act it is expressed which of them gave their assent, and that excludes all other intendments that any other gave their assent. This passage was cited by Centlivres, C.J. in Harris v. Minister of the Interior, 1952 (2) S.A. at p. 469.Google Scholar The conclusiveness of the Parliament Roll is a rule of evidence of limited application, as is shown by the above passage and by Professor Cowen in 16 M.L.R. 274–83. There is no reason to suppose that the Parliament Roll is conclusive as to the validity of any statute enrolled upon it. But it is conclusive as to the fact of such a statute having been made. Thus Centlivres C.J. said: “Had Act 46 of 1951 stated that it had been enacted by the King, the Senate and the House of Assembly in accordance with the requirements of ss. 35 and 152 of the South Africa Act, it may be that courts of law would have been precluded from inquiring whether that statement was correct …” (Harris's case at p. 469).

⁶⁰ The indications in the Act of 1911 are: the procedural rules laid down by ss. 1 and 2, to which the sovereign legislature is not subject; the restrictions as to subject-matter in ss. 1 (Money Bills) and 2 (Bills for extending the life of Parliament beyond five years)— the latter makes the limited power of the Crown and Commons alone particularly plain; the preamble prescribed by s. 4 (1), by which any Act made by Crown and Commons alone recites that it is made “in accordance with the provisions of the Parliament Act, 1911, and by authority of the same.” The Regency Act, 1937, provides a similar example, since it provides (s. 1) that the functions of an infant sovereign shall be performed by a Regent, and limits (s. 4) the Regent's power to assent to legislation. Presumably an infant sovereign could nevertheless effectively assent to a Bill repealing or amending the Regency Act.

⁶¹ The Law and the Constitution, 3rd ed., 144.

⁶² See note 60, above.

⁶³ Keir, and Lawson, , Cases in Constitutional Law, 4th ed., 7.Google Scholar

⁶⁴ The most important passage is in 16 M.L.R. 286–98.

⁶⁵ (1886) 2 L.Q.R. 427.

⁶⁶ Quoted by Anson, ibid, at p. 435.

⁶⁷ Ibid. at p. 436.

⁶⁸ Ibid. at p. 440.

⁶⁹ England's Case Against Home Rule, 244–5. For a similar statement of Dicey's views see The Law of the Constitution, 9th ed., 68–9, where there is the same dogmatism but the same absence of convincing reasons. How Dicey reconciled his assertions that Parliament could destroy or transfer its sovereignty with the proposition that it could not bind future parliaments is nowhere explained. But Bacon was of the same opinion, saying “It is in the power of Parliament to extinguish or transfer their own authority, but not, whilst the authority remains entire, to restrain the functions and exercises of the same authority” (Works, 1859 ed., Vol. VII, 370–1; quoted by Professor Cowen). To this one can best reply in Bacon's own words, that “things which do not bind may satisfy for the time” (ibid., Vol. VI, 160); for no act of extinction or transfer would be proof against repeal if the courts remained faithful in their obedience to the legislature. Bacon, Anson and Dicey are assuming that the act of extinction or transfer is accompained by a political revolution which permanently alters the allegiance of the courts.

⁷⁰ Maitland, , Constitutional History, 288.Google Scholar

⁷¹ Cf. Marshall, G., “What is Parliament? The Changing Concept of Parliamentary Sovereignty,” Political Studies, Vol. II, 193.Google Scholar Mr. Marshall seems to favour a doctrine which would allow changes in the composition of the sovereign body to be made by Acts of Parliament which could (presumably) be “entrenched,”, a view similar to that of Keir and Lawson, note 25 above.

⁷² 16 M.L.R. at 297.