“If two laws conflict with each other, the courts must decide on the operation of each. If the courts are to regard the constitution, and the constitution is superior to any ordinary act of the Legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”(76)
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. Some of the earlier Acts establishing self-government, following the common form of the old colonial charter, provided that local legislation should not be repugnant to the laws of England. This might have been held to forbid such revolutionary changes as abolishing the publicity of Courts of Justice or depriving prisoners of the right to trial by jury. In our own time the question has been raised whether the sacred number of twelve jurymen could be reduced by Order in Council in a criminal court established under the Foreign Jurisdiction Acts in an Asiatic country.(78) But in 1865 it was expressly declared by the Colonial Laws Validity Act that the enactments of colonial legislatures should not be called in question for repugnancy to the law of England in any other sense than repugnancy to some Act of the Imperial Parliament or an order made under its authority.