vital questions, resulting from differences in temperament, education,
tradition, training interests and experiences in life, will often determine their
honest choices between two or more reasonably possible interpretations of
such words as ‘‘amendment’’ or ‘‘constituent power’’ in the Constitution. But,
on certain clear matter of principle, underlying the Constitution, no
reasonable person could entertain two views as to what was or could be really
intended by the Constitution makers. One of these matters, clear beyond the
region of all doubt, seems to me to be that the judicial and law making
functions, however broadly conceived, could not possibly have been meant to
be interchangeable. They are not incapable of distinction and differentiation,
in any constitutionally prescribed sphere of operation of power including that
of "constituent power". Each has its own advantages and disadvantages and
its own natural modus operandi.
544. A lamentable example of what took place in the course of English
constitutional history when a House of Commons, composed of very
intelligent and learned people, one of whom, Holt, subsequently became a
distinguished Chief Justice of England, took upon itself to sit in judgement
on a decision of two Judges of the King's Bench Division, one of whom was
suspected of being a partisan of Royal prerogative and power at a time when
a struggle for supremacy between the competing legal claims of the King, as
the titular sovereign, and those of the House of Commons, as representing
the people, was still going on. In strict law which was unwritten, the position
on that problem of power was not quite clear at that time. The episode is thus
described by Lord Denman, C. J., in Stockadale v. Hansard, (1839) 112 ER
1112 (at p. 1163):
"The next case to which I advert in truth embraced no question of
privilege whatever, but, as one of the highest authorities in the States has
thought otherwise, I shall offer some comments upon it, I mean Jay v.
Topham, (112 How St. Tr. 821). The House of Commons ordered the
defendant, their serjeant-at-arms, to arrest and imprison the plaintiff for
having dared to exercise the common right off all Englishmen, of presenting a
petition to the King on the state of public affairs, at a time when no
Parliament existed. For this imprisonment an action was brought. The
declaration complained, not only of the personal trespass, but also of
extortion of the plaintiff's money practised by defendant under colour of the
Speaker's warrant. The plea of justification under that warrant, which could
not possibly authorise the extortion, even if it could the arrest, was overruled
by this Court, no doubt with the utmost propriety, for the law was clear; Lord
Ellenborough points this out in the most forcible manner, in 14 East 109. Yet
for this righteous judgment C.J. Pemberton and one of his brethren were
summoned before the Convention Parliament, when they vindicated their
conduct by unanswerable reasoning, but were, notwithstanding, committed to
the prison of Newgate for the remainder of the session. Our respect and
gratitude to the Convention Parliament ought not to blind us to the fact that
this sentence of imprisonment was as unjust and tyrannical as any of those
acts of arbitrary power for which they deprived King James of his Crown. It
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