1. Guarantee of a Rule of Law

By 1820, educated Englishmen considered themselves the bearers of a distinctive degree of personal liberty. They were ready to think that they enjoyed freedoms unknown in Continental Europe—above all freedom from unregulated interference in their lives by those with political power over them. None of these liberties and protective guarantees were unconditional; but the security that bolstered their individual liberties was commonly thought to stem from that ‘rule’ or ‘reign’ of law which had grown with the fashioning of the non-absolutist state. The root idea of responsibility under law as a curb on the excesses of arbitrary power had classical expression in Plato and Aristotle and had surfaced as a political ideal under many social conditions thereafter. But as it blossomed in eighteenth-century Britain, it had taken particular forms. Since the securing of the Protestant succession in 1689, parliamentary government had involved constraints on monarchs which somehow fitted their limited capabilities. Autocracies might flourish in France, Austria, Saxony, Prussia, and Russia. But the balance of powers struck with William of Orange and Mary Stuart would provide a solid buttress for the English aristocracy and gentry; and the Georges from Hanover lacked the mettle to mount any fundamental assault upon it. An individual’s legal right to protection of life and bodily security, personal freedoms, and private property had become governed by what was regarded as ‘ordinary law’, without any distinct form of justice being administered in special prerogative courts such as those that had been deployed by Tudor and Stuart monarchs.¹ It was a secular law that stood to resist not only royal pretensions to hold the reins of governmental power, but also those of the Established Church.²

That ‘ordinary law’ was the statute law and the rules recognized and applied in the royal courts, particularly the courts of common law and equity. So far as concerned the judges of the three royal courts of common law—King’s Bench, (p.7) Common Pleas, and Exchequer—they could be removed from office only by vote of both houses of parliament.³ The harsh experiences of early modern England had inculcated an unswerving faith in English law as the bedrock of a liberal constitution. Life and limb were regulated by a criminal law of offences against the person and by civil liability for injuries to the person. These were the rules that established the extent to which one individual was responsible towards others and could at the same time prevent others from harming him or her. The writ of habeas corpus required any imprisoner, public or private, to show legal grounds for the restraint.⁴ The penal offences and civil liability for libels and slanders protected the reputation of individuals against defamatory attacks on their ‘personalities’.⁵

As for private property, so much was it the outward sign of an individual’s very consequence that it sat surrounded by a deep moat of legal protection. The true English freeman held property or had real prospects of doing so. When denouncing general search warrants in Entick v. Carrington, Lord Camden had echoed a common sentiment, deriving from John Locke, by insisting that:

[t]he great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.⁶

So Sir William Blackstone taught succeeding generations through his Commentaries on the Laws of England,⁷ doing much to sustain a faith in the common law of the land as the guarantor of this crucial security of property. His insistence on its sanctity made it subject to even fewer qualifications than applied to the rights to life and to liberty.⁸ In the ill-temper of the seventeenth century, many would have weighed those basic rights rather differently. English society (p.8) had become stable enough for the right of a people to overthrow a tyrant to be a matter for philosophic speculation, rather than an urgent practicality.⁹ By the early nineteenth century, the English had lost the 13 colonies of the American seaboard to their own landed gentlemen, who had set about establishing a novel form of democratic rule with separations and balances of power more strongly delineated than in the mother country that they had renounced. Far more unsettling had been the spectacle of the French revolution, with its Republic and then First Empire, its expropriations of aristocratic property and its replacement of the old police by an aggressive bureaucracy of Napoleonic snoopers. Drawn into protracted wars to settle the balance of power in Europe, the English landed class came to fear that the rule of law under parliamentary governance could not after all be taken simply as a given. Despite the final victory over Napoleon in 1815, the upper ranks of the country would remain anxious that the sharing of authority among themselves could not be sustained, despite their support for programmes of moral cleansing and their insistence that redress against those who might attack others, break promises or abuse property must be through the regular courses of law and the legal system.

The first condition for government under law was characterized by Jeremy Bentham and his disciple John Austin as a ‘habit of obedience’—a shared determination among the people to live in a degree of harmony.¹⁰ Theorists of the Enlightenment, from Locke to Rousseau and Burke, had sought to express this fundamental understanding as a social contract. In consequence, emerging governments, led by the United States, were adopting written constitutions that set forth the powers of legislature, executive, and judiciary so as to define the legal character of the state. But the deeper reality was always the need for some measure of shared trust, and the English—or at least those Englishmen and their families who had some share in property and power—had moved a century earlier to an assumption that government could be under law—an assumption that, by and large, the law then operated to sustain.¹¹

The Parliament, which the Bill of Rights had affirmed as supreme, was nominally a triumvirate, but one in which the Crown played only a formal part. Royal assent to bills passed by the two Houses was never withheld—a Hanoverian ‘convention of the constitution’ no longer open to reversal. Eighteenth-century monarchs, however, had kept charge over executive government in the Kingdom as a whole. Still in 1820, their powers to act under the royal prerogative were (p.9) considerable, since that prerogative justified any action of the central executive that Parliament had not chosen to limit. Nonetheless Parliament had intervened and continued to do so increasingly, the first great constraints lying in its control of the power to tax and to maintain a standing army—those issues that had been of such moment in the contests between Parliament and the Stuarts. After 1689 both matters had become the subject of annual Acts which renewed, and, where necessary, altered or extended the Crown’s powers. On the political balance thus struck, Georgian kings and their advisers had been able to conduct a long series of wars in Europe and across the world in pursuit of the great issue that remained within the royal prerogative—the conduct of relations with other nations.¹²

In this perception the rule of law could be treated as a corollary of parliamentary sovereignty. Eighteenth-century politicians and writers who admired the constitutional foundation of 1689 had shown little enough concern that Parliament had thereby acquired the power to turn the law on sections of its peoples, so as to make a mockery of its ‘reign’ or ‘rule’. To have acknowledged a higher set of legal values to which even Parliament must adhere was not a direction favoured by the survivors of the seventeenth-century struggles. Their concern was to eliminate the taint of Stuart appeals to the ultimate authority of kings, posited as a divine right. As it was, the Bill of Rights categorically denounced James II’s practice of deploying the royal prerogative to invalidate legislation or suspend it in relation to particular cases.¹³ Sufficient control over Parliament was taken to exist in its own edict that elections to the Commons must take place at least every seven years.¹⁴ The legislature itself remained capable of extending the life of parliaments as it chose, thanks to its untrammelled sovereignty.¹⁵ In this order of things there was no place for the judiciary (or indeed any other form of ultimate council) to nullify parliamentary legislation by finding it incompatible with a basic Constitution or any catalogue of the ‘true, ancient and indubitable rights and liberties of the people’.¹⁶In our period political pressures would lead to constitutional changes, sometimes expressed in positive legislation, but more (p.10) typically evolving as ‘conventions’, which could not be the subject of adjudication in courts, but which in practice could not be reversed or altered without risking a political crisis.

Albert Venn Dicey, the late Victorian theorist of the British Constitution, treated these conventions as sophisticated mechanisms for adjusting the relationship between the strictly legal and the purely political.¹⁷ A parliamentary enactment was certainly necessary for any increase in the range and independence of the electorate for the lower House. However, the conduct of business in the two Houses was organized through Standing Orders; and while this procedural web appeared to be enshrined in rules, the Orders were nonetheless set and amended solely by each House for itself. Then again, the relation between the Upper and Lower Houses throughout Victoria’s reign depended on more evidently ‘conventional’ understandings that were also political, it being accepted, for example, that over the vital question of raising public revenue, a Commons bill must initiate the process. Only at the end of our period had political tension between the two Chambers become so grave and persistent that the Liberal government would insist on a legal framework which curbed the powers of the Lords to reject bills from the Commons. The Parliament Act 1911 placed strict constraints on the ability of the Lords to refuse a ‘money bill’ from the Commons: and a more measured limitation on their entitlement to reject other public bills.¹⁸ In consequence a statute could exceptionally be a text passed by the Commons and signed by the Crown, it having been a convention for some 200 years that royal assent would always be given.

Mixed into the politics of securing this change was an affirmation of the convention that major legislation needed to be grounded upon a pre-election promise that it would be introduced. The immediate cause had been the Lords’ rejection of the Finance Bill of 1909, embodying the ‘People’s Budget’. This high Tory insistence on rectitude was justified by asserting that the government had no ‘mandate’ for its policy that had been spelled out in the Liberal manifesto on which they won the 1906 election. The Asquith Cabinet responded by securing a new election in 1910 that was to be fought as a way of taking the political temperature on the Budget proposals. Yet another election was then needed only months later to gain support for ‘clipping the wings’ of the Lords by the Parliament Act.¹⁹ (p.11)The requiring of an election pledge, however, was at the ‘political’ pole of what could constitute a convention. How central and how wide-ranging did the manifesto have to be in order to satisfy the requirement? The very idea left a good deal of scope for political posturing.

2. Social Relations and the Parliamentary Franchise

Adopting a rule of law can be accounted ‘itself an unqualified good’, as E. P. Thompson unexpectedly wrote.²⁰ Nonetheless, for many who have speculated about its constituent qualities, it was and has remained no more than a necessary first step towards a better society. It insists that legality is an essential presupposition for political liberty. It posits a society which places all subjects under its law, making them in-laws, rather than outlaws. Beyond that the characteristics that theorists—juristic and political—consider to be its requisites vary over time with types of society and national structures for conducting government. Blackstone’s rule of law supported the constitutional arrangements that in 1689 had laid novel foundations for a limited monarchy. But his first purpose, three-quarters of a century later, was to justify what had become that status quo. It was certainly not a doctrine that addressed the great goals of equality and fraternity, so powerful in the rhetoric of the Enlightenment in continental Europe.

In 1820 the much-vaunted freedom of the individual under law gave the bulk of the English people only a highly conditional share in it. The dependent members of families were under the dominion of their paterfamilias—not just the children below majority,²¹ but even more the wife, who by common law rule was treated as a subjugate unity with her husband.²² This was so down the many ranks of society. At the lowest socio-economic levels, it was true that formal notions of slavery—legal ownership by a master of his workforce—had disappeared in the UK and its place in British colonies, in the United States and elsewhere was already vigorously contested by the anti-slavery movement led by William Wilberforce, Thomas Clarkson, and other Evangelicals. Nonetheless the prospects open to unskilled workers to earn or produce enough to live on were often enough precarious. Labourers in agriculture and building trades, handweavers, factory and (p.12) mine hands, domestic servants, clerks, the trampers after work, the feckless, the luckless—all were subject to the iron realities of survival. Their subordinate social condition was set within notions of property and contract that derived practical force from both civil and criminal law.²³ This, for the Tory apologist, Richard Oastler, placed them in ‘a state of slavery, more horrid than are the victims of that hellish system, “colonial slavery”’.²⁴ Telling political badinage, undoubtedly; but not an issue that the law itself contained the means to rectify.

Who then could depend upon the beneficence that flowed from protection under law? The population of England and Wales as a whole was measured by the first Census of 1801 at nearly 9 million and by 1821 it has already bounded to 12 million, just over half being women.²⁵ If the right to elect members of the Commons is taken as a first indicator, we must start from the constitution of the unreformed Commons, with its two members for each county and its gradual accretion of borough seats, given particular form in an original charter and then shaped by all manner of subsequent history. Of the latter, Westminster and Yorkshire accorded the vote to a fairly wide range of its male populace, while at the other extreme, the ancient, rotten boroughs, such as Old Sarum and Grampound, had decayed into curious oddities. The Commons of 1820 therefore embodied much of what is implied in the notion of paternal government by the landed upper class—that interplay of wealth, social position, and patronage down the social scale that survived the long wars with France and from some perspectives looked set to continue for any foreseeable future.

Even remembering that a considerable proportion of the populace as a whole were under age, the proportion of those who enjoyed the inherited franchise was small. In the unreformed Parliament, some 300,000 adult men had the right to vote for the Commons, being in one way or another persons of substance. They were part of those upper cohorts of society marked out by their property. But these people maintained many links with those of lower status who were (in the usage of the time) their ‘friends’. And this engendered a sense that the conditions and concerns of lesser folk would not go entirely ignored in the central councils of the Kingdom. While many parliamentary seats remained in the apparent gift of large landowners, the expensive rigmarole of an election contest was often avoided by quite generous condescension on their part towards their social (p.13) inferiors. As Frank O’Gorman has shown, loyalty and sympathy came only at a well-understood price.²⁶

The concessions and rationalizations made in the First Reform Act of 1832, gave all men owning or occupying substantial landholdings the vote.²⁷ This increased the electorate to some 650,000; but by then the population was touching 14 million. The beneficiaries were a widening middle class, associated with manufacturing and distributing the new industrial products, the financing of economic developments, the fomenting of colonial and foreign trade, and the spread of professional services and government regulation. The great mass of ordinary labour remained outside. A growing indignation against this exclusion produced the Chartist movement, with its demands for democratic rights for all adult males, secret ballots, annual parliaments, frequent elections, and other demotic guarantees. Particularly through the economic downturn of 1837–42, Chartism posed a real threat of insurrectionary activity. It involved militaristic forces training by night. Occasionally they were put to use, as notably in the attack on Newport in 1839, when a crowd of some 8000 men sought to secure the release of a number of local Chartists who were under arrest.²⁸

The proportion of workers in factories, mines, workshops, shipping, railways, and other transport continued its rise. The population, just short of 16 million in 1841, would grow by well over 10 per cent in each decade to 1911, when the total figure reached 36 million. The actual numbers engaged in agriculture and fisheries would stay more or less constant through that period, but their proportion would decline from 22 per cent to 9 per cent.²⁹ That is one stark measure of the shift of population from country into city and town, there to struggle in the grim conditions detailed in investigative reports and emotive novels on slums, overcrowding, dangerous diseases, drink, crime, and work that broke backs and spirits.

Trailing these primary demographic shifts, periodic extensions in the franchise for the Commons would eventually be enacted—and likewise changes in various electorates for local government bodies.³⁰ The Second Reform Act of 1867 (p.14) was driven forward by a clamour that spoke as much to Tories as to Whigs (or Conservatives and Liberals, as they were coming to be called). The association between land ownership or occupation and the right to vote would long remain but it would be extended to embrace more sectors of the populace. All male freeholders in the towns, together with lessees who occupied dwellings with an annual value for rates of £12, were added, thus doubling the electorate to around 2 million.

Nonetheless it was a ‘leap in the dark’ empowering new ‘masters’ who were badly in need of education—thus did the gentry and the middle classes express their fears. From this juncture the movement towards full democracy seemed inevitable to many, but there were other elements in the equation. Despite the urgings of the early feminists and their allies, led by John Stuart Mill, women did not in 1867 secure the parliamentary franchise on the same basis as men;³¹ but two years later they did obtain it for municipal councils.³² In addition, the introduction of a secret ballot in 1872 had great impact.³³ No longer could landlords watch that their tenants voted to order—a change that lifted fetters from the Irish in particular. Political parties turned to importuning voters with ‘programmes’ setting out their proposals for legislation. That in turn called for much greater discipline from party whips in both Houses and so ushered in the modern relationship between ministers and their own back-benchers.³⁴

In 1884–5, a further extension of the parliamentary suffrage gave the vote to two male adults in three, by bringing in small-scale agricultural tenants and lodgers. Great complications ensued over who exactly was still excluded. The most evident category remained women. After the respectable campaigning of suffragists, the dramatic confrontations aroused by the civil disobedience of the (p.15)suffragettes, and in the end the crucial contribution of women to war work, their admission to the parliamentary franchise became inevitable. It was granted in 1918; but still women voters had to be aged 30, while all men, irrespective of where and how they lived, were enfranchised at 21.³⁵

Britain did not progress through its great economic and imperial transformation by some effortless conviction that all things and all creatures were indeed bright and beautiful, wise and wonderful, thanks to divine providence. Christian hymns might proclaim so,³⁶ but the reality was otherwise.³⁷What England did have was a distribution of power, wealth, and political temper that allowed it to deal with social change by concession before confrontations could build up that might not be capable of containment by the state. With the Reform Act of 1832 those who argued that Parliament itself must broaden political franchises in stages that reflected the rising position of lower social groups, had a first precedent for their arguments.

Real threats of social unrest continued in Britain until the final stand-off with the Chartists in 1848, organized for the government with military precision by the aged Duke of Wellington.³⁸ The spirit of revolution that had ignited so defiant an upsurge in the France of 1789 had soon enough sparked restive crowds in London and other British towns, stirred by the democratic visions of radical orators. During the quarter-century of wars against the French the beacons of a new world had never been extinguished. After the final defeat of Napoleon, disturbances at home flared and were tackled by attempts at repression, such as the ill-judged ‘Peterloo’ Massacre in St Peters Fields, Manchester in 1819 and the Six Acts, then pushed through by the Home Secretary, Viscount Sidmouth (Addington). Their intent was to repress militaristic formations, to make large political gatherings subject to permission from magistrates and to impose stamp duties and other curbs on the radical press, thereby eroding freedom of speech and the right to bear arms.³⁹ Individual liberty was not a cause that could be allowed to override any threat to the security of the state from within. The rule (p.16) of law was judged by the ruling classes not to be infringed precisely because the Acts had been passed by the sovereign Parliament.

In 1830, the southern counties saw fitful challenges to the prevailing order through threats made in the name of ‘Captain Swing’, and the Reform Bill riots succeeded them soon afterwards. From this time, the movement towards modern policing could be instituted bit by bit. But, save in London, it was to be organized at a local level in order to cauterize the ambitions of central government. The army could still be brought in as a last resort to deal with truly serious threats to civil peace; but it did not prove necessary or desirable to arm the police, at least in England. Central government would confine its role in policing mainly to financial support out of taxation, though for this it would extract the right to inspect the borough and county police forces in the name of value for money.⁴⁰ It was an outcome that tells a great deal about the ways in which central power was contained in the early decades of Victoria’s reign.

3. Executive Power Subject to Law

A country with a modern written constitution will set forth in that foundation document the structure around which central, regional, and perhaps smaller units of administration may legally be formed, and may state what their main powers will be. It is then to be expected that more detailed legislation will elaborate on the exercise of those powers through a whole complex of instruments from legislative enactments, formal regulations and procedural rules, down to documents notifying normal practices and administrative guidelines that today are characterized as ‘soft law’. It is one of the curiosities of the evolution of modern government in Britain, however, that at the apex of executive government, the organization of business came to be distributed as a matter of political practice, rather than under law laid down according to a documented plan.

Certainly at subordinate levels beneath the central authority, the benches of magistrates, the corporate bodies of the boroughs and many other institutions had to accept that their powers were limited by law. The judges used both common law remedies and the prerogative writs to keep these bodies and individual office-holders in legal line. At these levels, as we shall see, judicial review of governmental activities was indeed part of the rule of law and its impact would grow steadily through the nineteenth century.⁴¹ But there was nothing essentially novel about what would occur. The operation of controls over local life had for centuries been primarily in the hands of those who held sway over their manors, their justices’ bench, their parishes, their counties. It was a characteristic of continuing (p.17) significance in both rural and urban life as industrialization penetrated different parts of the country. The lively use of Parliament to sanction specific schemes of development had been an eighteenth-century phenomenon, whether the subject was an enclosure of village land, or the establishment of a turnpike road or a canal, or a corporation with, for instance, a power of compulsory purchase, or the securing of a full divorce.⁴² In all this the precondition of legality was constantly being reinforced, however tough the outcomes might be for those who lost out from the process.

As the nineteenth century unfolded, local and private legislation tended to give place to public statutes which granted powers in more or less standard form across the UK as a whole, or for England and Wales, Scotland or Ireland. Local inwardness, local initiative, local pride would remain a signal focus of Victorian life. At the same time the consciousness of a national identity would grow, which those in the southern Kingdom tended to call ‘English’—or ‘British’ when it suited them to touch on the wider political embrace. So far as legal systems were concerned, the divisions of jurisdiction meant that it was English common law that was exported (albeit in some modified form) to most of the colonies of the Empire.⁴³ Legal conceptions of the structure of government played their own part in solidifying the idea of the nation, rather than a local community, as the core of social existence under complex industrial conditions.

In 1820, the power of executive government remained formally with the king in person. Both George IV and his brother, William IV, expected deferential consultation by their Crown servants, who included not only their political advisers but also their permanent administrators, who were becoming civil servants rather than placemen. In practice, the Ministers in charge of the growing number of central departments would treat royal criticism as calling up their capacities for discreet and politic tact. Over the previous century the Hanoverians had evolved a practice of appointing a first minister and around him a group of close advisers, who formed what would be called the Cabinet. These ministers stayed in office only so long as they retained the royal favour, a practice that had coloured much of high politics in the reign of George III. Even he learned that he could express displeasure by dismissing one or more of them only if he could find other advisers better fitted to his purpose. Achieving the reform of the franchise in 1832 was a stormy experience, partly because William IV was opposed to it; but the terms finally hammered out left the propertied classes able to treat the consequences for the legislature as less than a root reform.⁴⁴ In its immediate aftermath came (p.18)the episode in which William replaced the Whig leadership with the Tory Peel, and learned in a matter of months that he no longer had the practical ability to maintain a government that could not keep the confidence of a newly elected Commons.⁴⁵

From this it followed that the ministers in the Cabinet and lesser government positions were to be chosen and retained by the Prime Minister and he would pick them from members of the lower or upper House whose loyalty and ability he trusted. Ministers would therefore be responsible collectively for the conduct of government, primarily to the House of Commons and ultimately therefore to the electorate.⁴⁶ They would be responsible individually to Parliament for the department or other executive body over which they presided. This required them to answer for accusations of malpractice or neglect by those under them, though it never became clear to what extent convention obliged them to resign from office once they admitted the fault.⁴⁷ Why theoretically they should shoulder such blame stemmed from the legal principle that suits for maladministration lay against the department or office for which officers acted, not against them personally. In the nineteenth century, French law was building towards the opposite approach, under which individual servants of the state were placed under personal responsibility for their acts. This was hailed as an incentive to act properly within the scope of powers prescribed in law. Dicey would engage in protracted discussion of which approach more faithfully realized the idea of a Rule of Law, the object of which was to demonstrate the virtues of the common law’s position.⁴⁸ Gratifying though Britain’s political and judicial leaders would find his theoretical conclusion, the argument was inherently difficult to substantiate.

Overall the framework set a balance, rather than a separation, between legislative and executive power.⁴⁹ It was a structure for modern government which could give effect to the rule of law ideal and its acceptance grew out of political practice that had been building since the decades when the younger Pitt assumed (p.19) the premiership. But as with any design that left ultimate issues to be settled by active politicians, rather than a constitutional court, it had its built-in risks. In these Volumes there is much about the growth of government administration at both the central and the local levels. The party winning an election gained the opportunity for up to seven years to put through legislation, provided that it found itself able to withstand whatever criticism might be levelled against its bills by ‘His or Her Majesty’s Opposition’ or by individual members of either House. Parliament could therefore be induced by the governing party, thanks to its majority in the Commons, to confer executive authority in terms that gave very considerable discretion to ministries, central boards, and commissions, or to general and special bodies at county, borough, parish, or district levels, and so forth. It would often give them powers to draft their own regulations. It could even confer on a Department’s subordinate legislation the same ‘sovereign’ status as that accorded by the Bill of Rights to parliamentary enactments; but that would soon enough provoke criticism from those who adhered to theories of minimal government and detected conspiracies in corners of Whitehall.⁵⁰

Measures which directly threatened the rule of law as a curb on executive action were most likely to appear when the country came under threat of invasion or major internal disturbance. Victorian England became a country too economically powerful for attacks from outside to be directed against home territory, and, at least once militant Chartism died away, insurrectionary activities could, for the most part, be handled under the criminal law and the imposition of constraints on the freedom to engage in political demonstration and discussion that were relatively marginal in practice, if ultimately threatening in general character.⁵¹ It would not be until the outbreak of hostilities in 1914 that Parliament would—at a day’s notice—succumb to the government’s demand that it be given the wholly extraordinary powers to restrain individuals in person and to take over their property that were sketched in its first Defence of the Realm Act.⁵² Then in the aftermath, an Emergency Powers Act of 1920 would confer on governments the ability, even in times of peace, to bring similar measures into operation without having to secure new legislation first.⁵³

In all these shifts, conservatives who still believed that the role of government should be restricted to the maintenance of peace and of justice under law, turned to Dicey’s version of the rule of law as their weapon against a rise of ‘Whitehall’ that necessarily undermined the liberty of the individual, for the protection (p.20) of which Parliament had been accorded supremacy more than two centuries before.⁵⁴ As the country had moved towards a full democracy, government programmes of social support expanded and the judiciary found itself increasingly pressed to settle the scope of powers conferred on public bodies. English law was slowly developing its own criteria by which judges could review the actions of public administrators, as distinct from those of legislators. The types of issue were uncomfortably diverse. It was one thing to decide whether a claimant was entitled to an old age pension, or national insurance benefit because of unemployment or loss of earnings through sickness: these rules, having been laid down by legislation, needed interpretation in order to settle their scope. It was quite another matter to determine where a garden suburb should be built and what facilities it should have, when these were policy choices that legislation left to be made by governments and their advisers. It is a crucial, but challenging, subject, and is reserved for later discussion.⁵⁵

The British constitution, never having been spelled out in an overarching document, had the appearance of considerable flexibility. It had acquired a backbone from successive records of political settlements among the powerful, commencing with Magna Carta in 1215. But while the doctrine of parliamentary supremacy had been set out in forthright terms in the Bill of Rights, that document had simply assumed the existence of Parliament in its threefold manifestation. If Parliament had to be found defined in legal terms, then it was a bundle of customary practices recognized as a matter of common law. As just noted, the modern constitution had acquired flesh through the practice of Cabinet government—flesh that changed from adherence to the royal will to retention of the confidence of the Commons.

To Blackstone the role of ministers of the Crown had no part in an exposition of constitutional law. Those who set out to explain the activities of the legislature and the central executive in the nineteenth century for the most part wrote as historians of the evolution of governmental practice or as analysts who strove to pinpoint what it was that kept that practice conjoined.⁵⁶ Not only were they to a considerable extent in agreement, but they in the main admired the result. Here was a robust form of government capable of managing an ever-growing Empire. T. B. Macaulay made this emergence of ‘The Ministry’ a crowning glory of his resplendently Whiggish History of England;⁵⁷ and Walter Bagehot treated it as a vital element in what he termed the ‘efficient’, as distinct from the ‘dignified’, (p.21)aspects of the constitution.⁵⁸ J. S. Mill likewise gave prominence to the many unwritten maxims constituting the ‘positive political morality of the country’ in his influential Considerations on Representative Government.⁵⁹ Others who wrote on British constitutional evolution sought to capture the foundational quality of customary practices, whether they expressed themselves as historians identifying customary practices in government simpliciter or as lawyers regarding those practices as imbued with ‘normativity’, albeit that they were not justiciable in courts. This was true of the legal theorists, John Austin and his London rival, John James Park,⁶⁰ at the catharsis of 1832, just as it was of barrister-historians such as Henry Hallam and—a generation later—Sir Erskine May and Homersham Cox.⁶¹

As we shall see, the idea that a British colony might shed its chrysalis and emerge as a self-governing dominion gave new impetus to defining in statutory terms the power and practices of many institutions which were simply presumed to have effect in the practice of Westminster, Whitehall, and the English courts of common law.⁶² Alpheus Todd, emigrant to Canada, would publish On the Parliamentary Government in England just as that Dominion was created. ⁶³ The talented W. E. Hearn, professing a succession of subjects in Melbourne University, published The Government of England: Its Structure and Development,⁶⁴ in which he emphasized the difficulty of expressing in legal terms the roles of Prime Minister and cabinet in abiding by the conventions of responsible government, while pointing up how crucial it was that the duties as well as the powers ascribed to these offices be respected. The tendency in his reflections was, if anything, to play down the importance of stating them as a matter of law. This was also to be found in the writer from whom Dicey would claim to have learned most, E. A. Freeman. Yet in his Growth of the English Constitution: From Earliest Times, Freeman would in effect take law only to define the established institutions and recognized doctrines that were acknowledged by Blackstone in the 1760s—a strategy which in his view was used by lawyers to justify the considerable scope that remained for the royal prerogative. This made acknowledgment of customary practices in the course of government the more essential in that they differed in kind. As he concluded:(p.22)

by the side of our written Law, there has grown up an unwritten or conventional constitution. When an Englishman speaks of the conduct of a public man being constitutional or unconstitutional, he means something wholly different from what he means by his conduct being legal or illegal.⁶⁵

Dicey therefore saw it as his task in his Introduction to the Study of the Law of the Constitution (1885) to explain how, within a structure dominated by the legal doctrine of parliamentary supremacy as a means of grounding a rule of law, these constitutional practices could be accepted as having force in terms recognized as in some sense compulsive. He found this not by suggesting that constitutional conventions were law in the straightforward sense that courts would see to their enforcement, any more than that ministers might theoretically be subjected to the ancient process of impeachment.⁶⁶Rather he claimed it to lie in the fact that failure to respect a convention would lead to a breakdown in legal powers. Of this his illustration was that if Parliament was not summoned to a yearly sitting (as convention prescribed), the annual enactments of powers to maintain the army and to apply government revenue to legitimate purposes would cease. Those who acted without this authority would commit criminal offences. The recognition of conventions acted as bridge between what he labelled legal sovereignty and political sovereignty:

[I]f Parliament be in the eye of the law a supreme legislature, the essence of representative government is that the legislature should represent or give effect to the will of political sovereign, i.e., of the electoral body or the nation. ⁶⁷

This was an explanation that turned on its in-built capacity to sustain itself and many later theorists have doubted its coherence. Yet it identified a constraining set of values which large tranches of the British people considered essential to the functioning politics of the homeland and empire. Accordingly the conception has remained central to constitutional debate in common law systems.

4. Law Reform and its Political Background