A Leap in the Dark - A Criticism of the Principles of Home Rule as Illustrated by the - Bill of 1893 by Albert Venn Dicey
page 85 of 237 (35%)
page 85 of 237 (35%)
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of legal revolution. The veto of the Crown means little in New Zealand;
it will at best mean no more in Ireland; but in truth it will mean a good deal less. New Zealand sends no member to Westminster to stay the hand of the Imperial Government whenever it attempts by way of veto or otherwise to put in force the reserved powers of the Imperial Parliament.[74] _The Privy Council and the Courts_. The English Privy Council[75] may nullify the effect of Irish legislation in two ways. It may as an administrative body give a decision that an Act is void.[76] This power can by exercised only upon the application of the Lord Lieutenant or a Secretary of State, and it is a power which we may expect will be but rarely employed, for its use would at once give rise to a direct conflict between the Irish Parliament and the English Privy Council. Let it be noted in passing that this provision for the decision of constitutional questions is foreign to the habits and traditions of English Courts; no judge throughout the United Kingdom ever pronounces a speculative opinion upon the extent, operation, or validity of an Act of Parliament. It is the inveterate habit of our judges to deal with particular cases as they come before them, and with particular cases alone. They will find themselves greatly perplexed when they come to pronounce judgment upon abstract questions of law. This is not all. The proposed arrangement is as foreign to the spirit of American Federalism as it is to the spirit of English law. The Supreme Court of the United States never in strictness pronounces an Act either of Congress or of a State Legislature void. What the Court does is to treat it as void in the decision of a particular case. Tocqueville and other critics have directed special attention to the care with which the Federal tribunals, by dealing only with given cases as they arise, avoid as far as possible |
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