The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Second Edition
• One: the Doctrine of the Separation of Powers and Institutional Theory
• Two: the Foundation of the Doctrine
• Three: the Theory of the Balanced Constitution
• Four: Montesquieu
• Five: the Matchless Constitution and Its Enemies
• Six: the Doctrine In America
• Seven: the Doctrine In France
• Eight: the Rise and Fall of Parliamentary Government
• Nine: From the Third Republic to the Fifth
• Ten: Progressivism and Political Science In America
• Eleven: Political Theory, Constitutionalism, and the Behavioural Approach
• Twelve: a Model of a Theory of Constitutionalism
• Thirteen: Epilogue: the Separation of Powers and the Administrative State
• Bibliography

EIGHT

The Rise and Fall of Parliamentary Government

We have seen that in the constitutional thought of America and France up to the mid nineteenth century the separation of powers provided the only real alternative to some variant of the balanced constitution as a basis for a system of limited government. The only other possibilities were autocracy or a system of unchecked legislative domination. In Britain, however, the situation was rather different. In spite of the enthusiasm of certain radicals for French and American models, the pure separation of powers was not, after the experiment of the Protectorate, a serious alternative to some form of a balanced constitution. It was a distant threat, but no more than that. Its major role was as a secondary hypothesis in the dominant constitutional theory. We find, in fact, that at the end of the eighteenth century the old theory of balanced government merged almost imperceptibly into a new theory of balance. The theory of mixed government gave way to the theory of parliamentary government, but the essential belief in the necessity of balance in a system of limited government remained. This new theory drew upon both of the older constitutional theories, reformulating the old concepts of checks and balances and refashioning the functional analysis of the separation of powers to suit the new balance.

The central theme of this new theory was that of “harmony”; to “ensure harmony, in place of collision, between the various powers of the state,” as Lord Durham wrote in 1838,1 was the aim of writers on politics in the first half of the nineteenth century, and Durham’s formulation was echoed and re-echoed in the literature of the time. The old view of government as an equilibrium between conflicting forces was now outdated, the relic of an antiquated view of class government. The checks and balances of the constitution remained, but now they were to be applied as a means of achieving a balance between government and parliament in a system dominated by the elected representatives of the middle class. The separation of powers was still an important element in attaining this balance, as it had been under the system of mixed government, but its functional and personal elements were necessarily modified to suit the new conditions. Indeed this process of reformulation often took the form of an attack upon extreme versions of the separation of powers, and, therefore, upon French and American precedents. Taken to extremes, as in the case of Bagehot, this was represented as a complete rejection of the doctrine, but for the most part the theorists of parliamentary government had a more subtle and complex view of the part its precepts played in English constitutional theory. The result was a theory of government that seemed at last to have solved the problems of unity and control which had perplexed political writers for centuries, combining all the desirable qualities of limited and balanced government with all the requirements of harmony and co-operation between the parts of the State that modern conditions demanded. Indeed the theory of parliamentary government so dazzled observers that it has remained to this day the ideal of foreign constitutionalists, long after it has ceased to operate in its home country. Yet this system was in fact based upon a set of political conditions of such delicacy, and of such a unique quality, that it required relatively little change in the party system to put an end to it in Britain, and it is doubtful if it has ever been successfully copied elsewhere.

In The English Constitution Walter Bagehot laid claim to a twofold originality. Two obsolete doctrines had hitherto dominated English constitutional thought, he wrote; these were the theory of mixed government and the theory of the separation of powers. He defined the latter as the belief that in England the legislative, executive, and judicial powers are “quite divided—that each is entrusted to a separate person or set of persons—that no one of these can at all interfere with the work of the other.”2 This was the constitutional theory he set out to discredit, and it is of course the extreme doctrine of the separation of powers. In its place Bagehot defined the essential principle of English government in an equally extreme form; it was, he said, the “fusion” of the legislative and executive powers. The central element in this fused system was the cabinet, the role of which in parliamentary government no one had described. These claims of Bagehot have been too easily accepted, and therefore the false alternatives that he presented, of the complete separation or the complete fusion of powers in British government, have been over-influential. It is true that Bagehot’s description of cabinet government was more compelling and better written than earlier discussions of British government, but it was also misleading and exaggerated. Not only was his claim to originality false, but his treatment of the central principles of the Constitution reveal a distorted and unhistorical approach to the subject he claimed to lay bare for the first time. An examination of Bagehot’s claims is an essential step in the understanding of the development of English constitutional thought, for it reveals that by his particular brand of journalism Bagehot helped to destroy the very system he wished so strongly to defend.

It is a remarkable fact that very few people had characterized the Constitution in the way that Bagehot claimed was the generally accepted view of British government. The two theories Bagehot mentioned had been combined into a single theory of the balanced constitution in the eighteenth century, and this precluded acceptance of the naïve view of the separation of powers that Bagehot intended to destroy. It is true, as we have seen, that certain radical critics of the Constitution proposed the pure separation of powers as a basis for a remodelling of the British system, but certainly none of them for a moment thought that the existing system embodied this theory; they complained bitterly that it did not. As for the role of the cabinet as a link between the legislative and executive powers, it was just this aspect of British government that called forth, in the work of John Cartwright, for example, the loudest complaints that the doctrine was being infringed. If the critics of the Constitution at the end of the eighteenth century were well aware of the importance of the cabinet, so also were the exponents of the mid-nineteenth-century Constitution. The role of the cabinet was set forth in works well before Bagehot’s that could hardly have been called avant-garde. Thus a political dictionary published in 1845 gives a perfectly reasonable account of the cabinet and its relation to the Commons.3 An elementary manual on the Constitution of 1859 gives a concise picture of the role of the cabinet, “to which all the duties of the executive government are confided . . . it consists (generally without exception) of members of the houses of parliament of the same political views, and of the party at the time prevalent in the House of Commons.”4 Even one of a little series entitled “The First Class Readers” could give in 1864 a reasonable statement of the nature of the cabinet.5 Two years before Bagehot wrote, Sir George Cornewall Lewis anticipated his most oft-quoted phrase, by referring to the idea of an executive which was “a standing committee of the supreme legislature.”6

More important than this refusal to acknowledge the general understanding of cabinet government, however, was Bagehot’s complete misrepresentation of the theory of the Constitution as it had developed in the first sixty years of the nineteenth century. The constitutional theory that he sets up, only to knock down again, does violence to the views of Fox, Burke, and Paine, but it is little short of ludicrous as a statement of the mid-nineteenth-century view of British government. It is true that one popular work did embody these naïve views, the work of Lord Brougham, and it is difficult to avoid the feeling that when Bagehot referred slightingly to “the literary theory” of the Constitution, it was Brougham’s work, and his alone, that Bagehot had in mind. The mixed constitution and the separation of powers were indeed the main props of Brougham’s treatise on British government, published in the 1840’s and reissued in a more popular form in 1860.7 But his work is incredibly anachronistic, and to take it as representative of British writing on the Constitution at that date would be wholly misleading. The fact is that from the very beginning of the century, even well before the passage of the Reform Act, over which Brougham presided as Lord Chancellor, there had been a continuous process of reformulation of the eighteenth-century theory of balanced government, which had resulted in a subtle theory of parliamentary government.

The ideas of Fox and Burke, the attacks upon the cabinet system by Paine, Williams, and Cartwright, and the running fusillade maintained by Cobbett in the Political Register, had focussed attention upon the idea, inimical to the theory of the balanced constitution, that the cabinet combined in one set of hands both legislative and executive power. The outright defenders of the status quo chose to ignore these charges and to fall back upon an idealized version of the mixed and balanced constitution such as that defended at the time of the Reform Bill. But this position was already being abandoned in the early nineteenth century in favour of a new approach to the Constitution. George III’s demand that a binding declaration be made by the Grenville Ministry on the Catholic emancipation issue led to a fierce discussion of the nature of ministerial responsibility. Cobbett attacked the cabinet system and the relations between the ministry and the Commons, renewing the radical demand for an extensive place-bill, and for the exclusion of ministers from the House.8 The reply made to Cobbett in the Edinburgh Review of July 1807 was not based, however, upon the eighteenth-century theory of the Constitution; rather it undertook to explain the English system of government in realistic terms, and not according to outdated ideas. The system of the balanced constitution, the reviewer argued, had been based upon the existence of three orders of society, and these orders still existed and were essential parts of the system of government, but they now exercised their power in a different way. The three orders of society had originally possessed distinct functions and privileges, which they “exercised separately and successively, frequently with very little concert, and sometimes with considerable hostility.”9 Now, however, the business of government had become “more complicated and operose,” and some expedient had to be found in order that the three estates of the government should be able to work together with greater sympathy and more mutual contact. The principle of “harmony” was now the dominant one in the British system of government.

How was this harmony achieved? “The balance of the constitution now exists,” the author continued, “in a great degree in the House of Commons; and that assembly possesses nearly the whole legislative authority.”10 This balance inside the Commons was achieved by virtue of the fact that in that body were to be found ministers with their influence over “government members,” and members who were dependent upon aristocratic support, as well as independent members. The potential conflict of the three parts of the State was thus prevented or at least ameliorated, by this “early mixture of their elements,” thus converting the sudden and successive checks of the old system into “one regulating and graduated pressure.”11 By this means of resolving conflicts in the Commons itself the balance of the Constitution, in danger of being lost because of the growing power of the Lower House, was preserved by being transferred into that assembly.12 Thus, many years before Bagehot wrote, the criticisms of the idea of mixed government, which, for example, Bentham was making, were recognized by the reformulation of the idea of balanced government to meet new political conditions. The idea of government by King, Lords, and Commons was recognized by many as merely the formal theory of the Constitution; the reality was very different. This was recognized by Thomas Erskine in 1817 when he wrote of the entirely new character of the Constitution at that date, whereby the executive government was carried on entirely in the “popular council”;13 and James Mill in his Essay on Government rejected the old classification of mixed and simple forms of government altogether. The Essay is in fact a sustained argument for the view that the old theory of the Constitution must be replaced by one the basis of which would be the two functions of “governing” and “the control of government.” Just as the idea of balanced government was being reassessed and reformulated, so the role of the separation of powers in the new system was being explored. No crude definition of the separation of powers, such as Bagehot’s, would do for a system of government so complex and so delicately balanced. This concern with the relation of the separation of powers to the new theory can be clearly seen in the Essay on the History of the English Government and Constitution, which Lord John Russell published in 1821.

Lord John Russell believed that the highest stage in the development of civilization and the perfection of civil society was achieved by a system of government which had for its aim the union of liberty with order. The merit and value of differing systems of government are to be measured in relation to the proportions in which these two qualities are combined.14 The function of the modern English system of government was, therefore, to produce harmony between the hitherto jarring parts of the Constitution, in order that they might act “without disturbance or convulsion.”15 This was achieved in practice by the system of ministerial responsibility, and by the mutual checks that Crown and Parliament exerted upon each other. But how could this system be reconciled with the principle of the separation of powers insisted upon by earlier writers, asked Lord John. In fact, he answered, the three powers never had been, and never could be completely separated with the exception of the judicial power, whose function was merely to apply general rules to particular cases.16 As for the other two powers, best styled deliberative and executive, in every constitution they continually influenced and acted upon each other.17 A few years later Austin, in his lectures at University College, London, criticized the idea that the legislative and executive powers were exercised separately in the British system of government, or indeed that they could even be precisely distinguished, as “too palpably false to endure a moment’s examination.”18

It is in the work of an almost unknown author, however, that we find best represented the stage of constitutional thought transitional between the eighteenth-century theory of balanced government and the mid-nineteenth-century theory of parliamentary government. In 1831 Professor J. J. Park inaugurated a course on the theory and practice of the Constitution at King’s College, London. The following year four of the lectures from this course were published under the title of The Dogmas of the Constitution. These lectures provide not only a survey of the development of constitutional thought at the time of the Reform Bill, but they also suggest a possible source of Bagehot’s English Constitution. The lectures were published some ten years before Bagehot took up his studies at University College, London. Both the method and some of the content of Park’s lectures are so close to those of Bagehot’s essays that it is difficult to avoid the feeling that this is no mere coincidence. Park began with the assertion that for the past one hundred and fifty years there had been two constitutions in existence, the one in substance, the other only in form. The principles of the Constitution, according to Blackstone and Paley, were the division between the legislative and executive powers, and the balance of King, Lords, and Commons. But these were principles in form only. The real Constitution was one in which the former prerogative powers of the Crown had come to be exercised and carried on in the House of Commons, “and thence in the face of the country,” which has come “to take a part, and exercise a voice, in every act of the cabinet.” The supreme power, formerly supposed to reside in the three coequal elements of Crown, aristocracy, and commonalty, had settled in the Commons, and the three elements being represented in that House, their battles have been fought out there. Thus when we turn, said Park, from the theory of the Constitution to the facts, a totally different state of affairs is found. Instead of a “chance-medley or fortuitous government” there is a highly organized system “which is not fully described in any book that I have ever met with.” In fact a revolution had gone on “silently and insensibly” before the very eyes of chroniclers and Vinerian professors.19 Over thirty years before Bagehot wrote, his argument was presented in the very same form by Professor Park. Nor was Park’s attack limited to the principle of mixed government. As Bagehot was later to do, he next turned his attention to the separation of powers.

The revolution that had taken place in the British system of government, said Park, consisted in the fact that apparently “either the executive government has merged into the legislative, or the legislative has merged into the executive.”20 We find, he continued, that no sooner is an administration formed upon the basis of majority support in Parliament than it takes upon itself not merely the executive government, but also the management, control, and direction of the whole mass of political legislation.21 Before the Revolution the functions of government had been divided into those under the direct control of the legislature, such as taxation and the making of law, and those not so directly controlled. Since the Revolution, however, the principle of English government had been to subject all the functions of government to the direct control of the legislature, but, by using the balance of power within the Commons, to prevent the democratic element from interfering too much in the government. Blackstone’s warning of the dangers of uniting the legislative and executive powers had some force when the law-making power was an irresponsible one, but when the Constitution provides for the responsibility of the parts of government, and “power is effectually countervailed,” then the question of the division or union of powers and functions becomes merely a matter of expediency and efficiency. It would be absurd, therefore, to deny the advantages of union “out of servile obedience to an unproved and ill-considered dogma.”22 Park’s view of the Constitution before the passage of the Reform Act was, therefore, of an equilibrium between the power of the government and that of the opposition, which the structure of representation ensured in the Commons. The danger in the Reform Bill, in his eyes, was that it would upset this delicate balance. By 1832 this constitutional theory, which had started as a Whig attack upon the traditional view of the eighteenth-century Constitution, had become the standpoint of Tory resistance to reform of the franchise.23 Once the Reform Act was passed, however, it was inevitable that this more virile view of the nineteenth-century Constitution would continue to influence thought about the British system of government, for it was a necessary stage in the development from a theory of balanced government based upon a mixture of King, Lords, and Commons to a new theory of balance in a system of parliamentary government.

The vital element of the new constitutional theory which had been inherited from the old, was, therefore, the idea of balance. This was also the central idea of constitutional thought after 1832, and, just as in Park’s case, there was a determined effort to resist the idea of the pure separation of powers as inappropriate to British government. The lack of enthusiasm in the British middle classes for the doctrine of the separation of powers may well have been due to the fact that even before 1832 they realized that the extension of the franchise would give to them the control of all of the functions of government, so that there was no need for a revolutionary theory. Furthermore, after 1832 the idea of the separation of powers was associated in their minds with universal suffrage on the American pattern. Certainly there was an outpouring of comparisons derogatory to the United States system of government which emphasized the virtues of the greater harmony of the British system. Nevertheless, although they rejected the extreme doctrine of the separation of powers, the strong emphasis upon balanced government remained, and, therefore, the role of a separation of powers and functions continued to be an important element in constitutional thought. What were reformulated, however, were the concepts of power and function, and just how they were to be separated. The model for this reformulation was not that of Montesquieu, but that of James Mill.

The spectre of the extreme democracy of the United States was, therefore, linked with the discrediting of extreme ideas of the separation of powers. Bagehot’s comparison with the United States was the latest of a considerable number of such discourses. In 1835 de Tocqueville had provided much of the material necessary for this exercise, and the greater harmony of British government compared with American government was continually stressed. In 1842, comparing the British cabinet system with the American separation of powers, P. F. Aiken wrote that in Britain “the executive and the legislature work together with fewer abuses, with more effect, and with greater harmony,” whereas in America the unseemly and dangerous collision between the legislature and the executive tells its own tale,24 and, he argued, the separation of powers had some rather surprising results. In a remarkable anticipation of the argument which Woodrow Wilson was to use forty years later, Aiken maintained that the American system resulted in the “absorption” of the executive powers by the legislature, whereas in the English system of parliamentary government the estates of the realm were so admirably adjusted that, paradoxically, just because the executive had influence in the legislature, and the people could influence the executive through the House of Commons, the two parts of the State were able to act together in harmony without absorbing each other.25 The difference in emphasis between Aiken and Park is a significant one. Park writes of the “merging” of the executive and legislative powers in England, just as Bagehot was later to write of “fusion”; but Aiken concluded that the main characteristic of the British system was that executive and legislature, though closely linked and interdependent, were not absorbed, merged, or fused. It was, in fact, just this characteristic of the balanced autonomy of interdependent and closely linked parts of the government that was central to the mid-nineteenth-century theory of parliamentary government.

By the mid nineteenth century the writers on the Constitution had rejected any notion of an extreme separation of powers, in favour of the balance of parliamentary government. But this balance required a functional separation of powers also. There was here no crude theory of the fusion of all power in one set of hands. Perhaps the best formulation of this line of constitutional thought is Earl Grey’s Parliamentary Government, published in 1858. Grey rejected Blackstone’s legalistic view of the Constitution, replacing it with a description of the system of ministerial responsibility. It is true that the executive power and the power to formulate and initiate legislation were united in the same hands, he wrote, but both these powers were limited. The executive was limited because it must respect the law, but equally parliament was limited because of the authority that ministers of the Crown exercised over the House of Commons. The fact that ministers were responsible to the Commons did not mean that the legislature could interfere directly with the management of executive functions. A system of parliamentary government bore no resemblance to that of the Long Parliament;26 ministers were the servants of the Crown and not of the House of Commons, and, should this position change, the system of government would become at once weak, capricious, and tyrannical. There would be all the disadvantages of American government without the checks to the exercise of arbitrary power which were to be found in that system.27 The particular virtues of the English system of government, he believed, were due to “the peculiar character of our system of representation, which has admitted the democratic element into the House of Commons without allowing it to become predominant.” The great fear of those who valued parliamentary government was, therefore, that the extension of the franchise would destroy the delicate balance of the system, and substitute a thoroughgoing democracy without restraints to its power.

The theory of parliamentary government reached a high point in constitutional thought, for it claimed, with some justification, to have attained that balance of separation and unity, of harmony and functional differentiation, of control and collaboration, which had been sought for ever since the inadequacies of the rival theories of the separation of powers and the balanced constitution had been perceived at the end of the eighteenth century. The balance of power between cabinet and parliament depended upon a differentiation of functions, and upon a distinction also of personnel, for although ministers were also members of parliament their numbers were small, as Constant had insisted they must be, and they were swamped by the large proportion of the legislature which had no official place or interest. The functional basis of the system, however, was very different from that which had characterized the earlier theories of the Constitution. The Montesquieu categories of legislation and execution became almost, but not quite, irrelevant. The theory of parliamentary government was based upon the two functions of “governing” and “the control of government.” As John Stuart Mill saw it the problem was to achieve a compromise between popular control and efficiency. This could only be achieved by “separating the functions which guarantee the one from those which essentially require the other; by disjointing the office of control and criticism from the actual conduct of affairs.”28 Thus the two parts of the government were to remain distinct and to limit themselves each to its proper function, although remaining closely linked. We see here again the difference between the English view of parliamentary supremacy and, for example, the Montagnard view of gouvernement d’assemblée. From a legal point of view Parliament is supreme, but it is the “King-in-Parliament,” and not the House of Commons, which enjoys this supremacy. Neither Locke nor John Stuart Mill conceived of a legislature that would deal with every matter of government business itself. The King-in-Parliament as a legal conception consists of two parts, the Crown and the Houses of Parliament. In modern terms this means, in fact, government and Commons respectively. The prerogative powers of the Crown, in particular the power of dissolution, transferred into the hands of ministers, meant that they would not be absorbed by the legislature, but would balance it, retaining an autonomous position, but subject to removal if they failed to carry the House with them.

This delicate balance depended entirely, however, upon the operation of internal restraints; the ministers must not attempt to use their powers to coerce the Commons, and the Commons must not attempt to control the affairs of government directly. The breaking of these restraints would soon lead to a very different system. It was realized that this balance depended, therefore, upon a particular type of party system. Too little party discipline and coherence, and there would be nothing to prevent the meddling of a faction-ridden legislature in the day-to-day business of government, an approach towards that spectre of the Long Parliament which had long haunted English constitutional thought. On the other hand, if parties became too powerful and too cohesive the ordinary members of the legislature would be subordinated to the cabinet. Thus Earl Grey attributed the weakness of governments in the 1850’s to the decline of party feeling since the Reform Act, because most of the important public questions that had divided the parties had been settled. He looked for stronger party cohesion as the only means by which the autonomy of the government could be maintained.29 However, there were those who saw the dangers of increased party discipline for the independence of members of the House of Commons. The crucial problem was how “to define the limits of party obligations.”30 The “parties” under discussion here, were, of course, essentially parliamentary parties. Few could have foreseen the results of the introduction of the caucus system and the development of mass political parties. It was this reliance of the system of parliamentary government upon a very precise, and rare, combination of independence and party allegiance that made it so short-lived, and so difficult to imitate.

Walter Bagehot’s English Constitution, first published in 1865 as essays in The Fortnightly, and as a book two years later, has undoubtedly had great influence over the course of constitutional thought during the past century. That this book is still, a century after its publication, perhaps the most oft-quoted work on the cabinet system is quite remarkable, in view of the extent to which the practice of British politics has changed during that period. No doubt the explanation of this continued popularity is that his style is so much superior to that of more academic works. As Mr. Richard Crossman pointed out in 1964, it is the journalistic quality of these essays which has made them so consistently popular. But if one of the defects of even the very best journalism is to exaggerate the points the writer wishes to make, then this is in fact just the major defect of Bagehot’s famous book. The author wished to drive home a point, and in order to do this he misrepresented the theory he was attacking, and he exaggerated his conclusions, so as to make as clear and as great a gulf as possible between the two positions. But it is not merely Bagehot’s journalism that we have to guard against. He was writing with a very strong political purpose in mind, and although this gives to his work a vehemence and a conviction which others lack, it also gives it a misleading character. Bagehot wished to warn, indeed to frighten, his middle-class readers, by pointing out to them what would be the effects of extending the franchise. He was, as he himself said in 1872, “exceedingly afraid of the ignorant multitude.”31 The American Civil War, seen in England so much in terms of a battle between the democratic North and the aristocratic South, had, in Earl Grey’s words, increased “the wholesome dread” of an extreme alteration in the English Constitution.32 If the franchise were to be extended so that the lower classes gained control of the Commons, what check would there be to their power? Bright and Forster were accused of wishing to introduce the American pattern of government into England. The result would be either an uncontrollable legislature or “Caesarism.” For, as a writer in The Quarterly Review of January 1866 pointed out, “The feeble and pliable executive of England is wholly unsuited to such an electoral body. A government that yields and must yield to the slightest wish of the House of Commons is only possible as long as that House of Commons is the organ of an educated minority.”33 This was the point of view to which Bagehot was determined to give his utmost support. He wished to make it as clear as possible to his readers that the reform of 1832 had not, as some had argued it would, restored the balance of the Constitution. It had confirmed, in fact, that there were no longer any checks or balances in the system. Whoever controlled the Commons had absolute power. The balanced constitution was dead, and the middle class should have no illusions about it.

This determination to stress the absence of restraints to the exercise of power led Bagehot into considerable difficulty. He did not distinguish clearly between the Constitution as it actually worked in the hands of an educated minority, and how it might work in the hands of the representatives of the ignorant multitude. Nor did he, in spite of all his claims to factual realism, distinguish clearly between the legal and practical aspects of English government. As a result he presented a picture of the English system which was mangled and exaggerated. Ignoring almost everything that had been written on British government during the previous sixty years, Bagehot affirmed that the “literary theory” of the Constitution, “as it exists in all the books,” was erroneously based upon the two principles of mixed government and the entire separation of the legislative and executive powers. In fact, wrote Bagehot, the efficient secret of the English system of government is “the close union, the nearly complete fusion” of the legislative and executive powers. Thus he represented the extreme doctrine of the separation of powers as the accepted theory of the Constitution, and then replaced it with an equally extreme principle, the fusion of powers. In order to make this point Bagehot used the comparison with the United States, and quickly proved that Britain did not have the same system of completely separate personnel for the two branches of government as the presidential system. The difference lay in the role of the cabinet, this “new word,” said Bagehot, with sublime disregard of the writings on English politics from Paine to Grey. The demonstration that the complete separation of powers in all its aspects did not exist in Britain was, of course, readily established, but this did not necessarily mean that the powers of government were “fused.” These alternatives were presented by Bagehot as if they represented the only possibilities. But, as we have seen, virtually the whole history of English constitutionalism has been characterized by the recognition of the need for a partial separation of the personnel of government, and a partial separation of the functions of government. Such subtleties did not exist for Bagehot, however.

Naturally enough this extreme view of the “principle” of British government did not square very well with the facts of its operation in the 1860’s, and this led Bagehot into very difficult waters. On the same page as he writes of the fusion of powers, he uses expressions quite incompatible with that idea. Thus his famous metaphor of the cabinet as “a hyphen which joins, a buckle that fastens” the two parts of the State, is itself somewhat different from the idea of fusion, and elsewhere he writes of the necessity of “the constant co-operation” of the two parts of the government—a very different matter indeed!34 His most remarkable misuse of words comes in the following passage: “The chief committee of the legislature has the power of dissolving the predominant part of that legislature—that which at a crisis is the supreme legislature. The English system, therefore, is not an absorption of the executive power by the legislative power; it is a fusion of the two.”35 This might be seen as an attempt to combine the ideas of Park and Aiken, so close is the language to that used by the earlier writers, but as a piece of logic it is very difficult to follow. How does the conclusion follow from the premiss? The fact that the cabinet has the power to dissolve the Commons surely does not prove that they are fused, but that they are not. Indeed it seems that Bagehot was trapped by his own use of language. His description of the cabinet as a committee with power to destroy its parent body did not lead him, as one might expect, to discard the idea of a committee, which is entirely inappropriate here, but to insist even more strongly upon the idea of a fusion of powers. A similar confusion is found in this statement: “The regulator, as I venture to call it, of our single sovereignty, is the power of dissolving the otherwise sovereign chamber confided to the chief executive.”36 Here we are close to the root of the confusion in Bagehot’s work. The legal idea of sovereignty can be attached to the King-in-Parliament, of which one part, the government, can use its power to dissolve the other, the Commons, and appeal, as Bagehot says, to the next Parliament. But the Commons alone is certainly not sovereign in the legal sense. In the political sense, if the term “sovereignty” can usefully be applied in this connection, again it is not the Commons that is sovereign, but the electorate, which judges between cabinet and Commons in case of a difference of opinion that ends in a dissolution. It is true of course that the Commons must be satisfied with a cabinet if it is to continue in office, but to attribute “sovereignty” to the Commons is to misunderstand the powers the ministers exercise on the one hand, and the role of the electorate on the other. Bagehot, in fact, adopted a view of legislative sovereignty or supremacy more like that of the proponents of gouvernement d’assemblée than any earlier view of legislative supremacy in England; a fact which helps to explain why his ideas were so well received in extreme republican circles in France in the early years of the Third Republic.

When Bagehot turned to the description of the working of parliamentary government he dropped his preconceived framework of a “fusion” of powers, and wrote in terms of the balance between government and parliament which earlier writers had stressed. The fate of the government is determined by the debate in parliament, he wrote, but, on the other hand, “either the cabinet legislates and acts, or else it can dissolve. It is a creature, but it has the power of destroying its creators.”37 A perfect description, but not one of a fusion of powers; rather of a subtle division and inter-dependence of two arms of government, each with its proper function to perform. Indeed Bagehot summed up the position perfectly when he wrote “The whole life of English politics is the action and reaction between the Ministry and the Parliament.”38

Bagehot’s influence upon the study of English politics has been great. His emphasis upon the need to concern ourselves with the real working of government, and not with irrelevant “principles,” has contributed to the tendency of modern students of British government to concentrate upon the day-to-day working of institutions without relating them to the over-all structure of the Constitution. Constitutional considerations became almost exclusively the domain of the lawyers, something that had never formerly been true in England. Furthermore, his characterization of the fusion of power in England seemed to become more and more relevant as the details of the system he claimed to describe changed out of all recognition. The growth of mass political parties and of party discipline in parliament created a situation in which the fusion of power seemed much more of a reality than it ever was in the period between the two Reform Acts. The concept of concentrated power that he supplied suited admirably the needs of that society, the emergence of which he had most wished to prevent. Of course, the idea of a balanced government did not die overnight. Sidgwick described the British system of government in terms of the essential balance between government and legislature, with an appeal to the electorate,39 and Bryce wrote of “the exquisite equipoise” of parliamentary government.40 In more recent years L. S. Amery relied upon this concept for his analysis of British government,41 and Herbert Morrison maintained that it was the existence of a balance between cabinet and parliament which distinguished the British system of government from that of the Third and Fourth Republics.42 But the trend of thought was against them. It was Bagehot who was read, and still is read, and who seemed to suit the mood of the age, in spite of the fact that the predominance of the Commons over the cabinet as he described it, has, in the view of present-day observers, been replaced by the predominance of the cabinet over the Commons, or indeed of the Prime Minister over both.

English constitutional thought over the past century has, therefore, been extraordinarily fragmented. The functional concepts of the theory of parliamentary government have not been jettisoned, for we still think of the function of the Commons as that of exercising control over the government, and discussion turns upon the way in which this can best be achieved, if at all. Yet the idea of a balance between government and parliament has almost entirely disappeared. The mechanisms of this balance as Grey saw them, dissolution and ministerial responsibility, have almost wholly ceased to play the role envisaged for them in the classical theory of parliamentary government. The tacit acceptance of Bagehot’s view of a fusion of powers has not, however, entirely replaced the functional categories upon which the doctrine of the separation of powers was based. Both that theory, and the theory of the balanced constitution, had been created upon a functional analysis of the acts of government, which classified them into legislation and execution, the making of laws and the putting of these laws into effect. The idea of a rule of law was, as we have seen, closely bound up with this functional view of government acts. The theory of parliamentary government had a different functional basis, whilst Bagehot suggested that there was really no significant functional distinction to be made. These two functional analyses of the eighteenth century and the nineteenth century did not, of course, coincide. The idea of “government” and of “execution” are radically different. Yet the categories of “government” and “control” could not wholly supersede the old categories of “legislation” and “execution.” For the former related only to a theory of government, whereas the latter had, in the seventeenth and eighteenth centuries, been part of both a theory of government and a theory of law. The insistence that the executive should obey the legislature was the institutional expression of the demand that the law was supreme, over King, Protector, Governor, and President alike. This view of the supremacy of the law did not come to an end with the rise of the theory of parliamentary government, and indeed it was strongly reasserted by Dicey at the end of the nineteenth century. The proponents of parliamentary government did not for a moment assert that the government was no longer subject to the restraints of the law; it was subject to the law, although it played a decisive role in the process of legislation, and in the general business of government, which bore no relation to the idea of a “mere executive.” The new categories overlaid and ran parallel to the old.

It is true that the idea of a “mere executive” power had never been fully accepted in England. The King’s prerogative, the discretionary powers of the Crown, had never been lost sight of in the theory of the balanced constitution, in the way in which the French and the Americans had, for a time at least, assumed that discretionary powers were unnecessary in a constitutional government. Nevertheless the insistence upon the supremacy of the law, and relegation of the royal power over legislation to a quiescent “negative voice,” had made the application of the term “executive power” to the King and his ministers seem not too inappropriate. In the nineteenth century, however, the explicit recognition of the role of the government in formulating, initiating, and indeed securing the passage of legislation, made the term “executive” quite inadequate as a description of the role of ministers of the Crown. That we still use the term today is indicative of the extent to which we attach a dual role to the same body of persons.

The continued vitality of the principle of the rule of law implied also a continued adherence to the ideas which had lain behind the separation of powers. Twenty years after Bagehot’s articles had been published in The Fortnightly A. V. Dicey restated the basis of the English theory of constitutionalism with unprecedented vigour, expounding the rule of law without any concessions, in a way which would have been acceptable to the most fervent anti-royalist of the seventeenth century. For Dicey the absolute supremacy of the regular law excluded arbitrary rule, prerogative, or even wide discretionary authority on the part of government.43 Dicey was no advocate of the separation of powers; indeed he fired a few shots at the doctrine himself. Yet once again it was the extreme doctrine that was under attack, the doctrine “as applied by Frenchmen,” the doctrine which gave birth to the dreaded droit administratif. Nevertheless, the whole burden of the Law of the Constitution was that the making of law, and the carrying out of the law, were distinct and separate functions, and that those who carry out the law must be subordinated to those who make it. On the one hand the executive might act only with the authority of the law; on the other, Parliament might not exercise direct executive power, or even appoint the officials of the executive government.44 Dicey did not fully explore what this meant in terms of the separation of functions among different persons, but if the subordination of the executive to the law was the keynote of his work, it would be to reduce this principle to nonsense to assume that legislators and executives were identical, that the powers of government were “fused.” Not unnaturally, therefore, an attachment to the ideas of the separation of powers in the twentieth century has been associated with lawyers rather than with students of politics, whilst the latter have preferred a point of view derived rather from an amalgam of the ideas of Grey and Bagehot. At certain points these views have come radically into conflict, and the areas in which these points of view did not overlap have become critical. The extreme, almost hysterical, criticisms made by Lord Hewart in the New Despotism, and expressed also in a more balanced way by C. K. Allen, were met, before the Second World War, with strong assertions of the need for co-ordinated, decisive government action. Since the War, however, there has been a change of tone. Lawyers are no longer so apt to think in terms of bureaucrats lusting for power, nor are students of politics so unheeding of the dangers which arise from the characteristics of modern government. There is some recognition today that there is virtue in both the theory of law and the theory of government. How to reconcile them is the great problem.

At the end of the nineteenth century the ideas of Grey, Bagehot, and Dicey seemed to run along parallel lines. The theory of parliamentary government, with its balance between government and parliament, the fusion of the legislative and executive powers, and the subordination of the executive to the law were all quite cheerfully accepted as principles of British government. They were in fact all capable of being reconciled to a considerable extent. The reconciliation between the theory of law and the theory of government was achieved through the principle of ministerial responsibility. This idea enabled the two theories to be knitted together, and the differing functional concepts they embodied to be brought into a working relationship. The “executive” must act according to the law, the “government” must exercise leadership in the development of policy; but if the government was subject to the control of parliament, and the executive to the control of the courts, then a harmony could be established between the two roles of the ministers of the Crown. Ministerial responsibility, legal and political, was thus the crux of the English system of government. Whilst it remained a reality the whole edifice of constitutionalism could be maintained; should it cease to be a workable concept the process of disintegration between the legal basis and the operation of government would begin.

At the end of the nineteenth century the view that ministers could be held responsible to Parliament for the actions of “government” and “executive” alike seemed reasonable enough. The Civil Service was seen as a passive instrument of the will of Parliament under the supervision of ministers. The tasks of government were still relatively simple and could be assumed to fit, without too much difficulty, into the categories either of policy or administration. The development of new tasks of government, however, which consisted of active intervention in the economic and social life of the country, presented a very different picture. The difference between “government” and “executive” became even more marked. It was no longer possible to restrict the discretion of government by insisting upon the adherence to detailed rules laid down by Parliament. “Delegated legislation” and “administrative justice” were the inevitable accompaniments of the expanded role of government in society. Furthermore, the “executive” could no longer be seen to be composed of responsible ministers who decided “policy” and civil servants who carried it out. The new demands upon government had called into existence an extensive, complex bureaucracy, within which important decisions were taken by anonymous civil servants. The extreme critics of these new developments suggested that a nominally responsible government could, by its control over the legislative process, obtain for the so-called executive power the right to draw up its own rules and even to free itself from the control of the courts by excluding their jurisdiction. The potential power of the government, they suggested, was being used to destroy the rule of law. More important, perhaps, than these factors was the character of the twentieth-century party system. The close links which had been forged between the government and the majority in Parliament seemed to destroy all idea of balance between cabinet and legislature, and even to throw doubt upon the possibility of a general control of government business. The assumption underlying the system of parliamentary government had been destroyed, and the reality of ministerial responsibility was therefore thrown in doubt. Once this essential principle was questioned the whole edifice began to show cracks.

In 1929 the Committee on Ministers’ Powers was appointed, with the task of rebuilding the bridge between the two concepts of the Constitution, which had come to be represented on the one hand by politicians and administrators, and on the other by lawyers. The Committee’s terms of reference instructed it to consider the powers exercised by or under the direction of ministers of the Crown by way of delegated legislation and judicial or quasi-judicial decision, and to report what safeguards were desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the law. There was, therefore, explicit in these terms of reference the remarkable admission that it was conceivable that the decisions of responsible ministers, or of their servants, could operate in a way which offended the rule of law. There was a recognition, therefore, that the rule of law must mean something more than the mere formal sanction of some legal authority for every act of government, for no one suggested that ministers or civil servants had been acting illegally. The attempt of the less sophisticated of Dicey’s critics to equate the rule of law with mere legality misses the point that the supremacy of the law in English thought since the seventeenth century has included, and must include, certain ideas about the articulation and separation of the functions of government, as well as “due process.” The evidence and report of the Committee on Ministers’ Powers illustrate the difficulty they had in reconciling this view of the Constitution with the needs of modern government, which seemed so much better served by the categories of the theory of parliamentary government than those inherited from the theory of the separation of powers.

The argument that the separation of powers was being destroyed by the way in which the ministers and civil servants were usurping the functions of the legislature and the courts was met by the Committee with the counter-argument that the doctrine of the separation of powers, whilst very important, had never been completely accepted in England, and that some deviation from its precepts was perfectly safe, acceptable, and indeed essential. The Committee in its Report stated: “The separation of powers is merely a rule of political wisdom, and must give way where sound reasons of public policy so require.”45 The delegation of legislative and judicial power to the executive was a necessary feature of modern government and so had to be tolerated, but it must be kept within bounds and surrounded by the necessary safeguards. With true British pragmatism the Committee concluded that the granting of judicial powers to a minister or ministerial tribunal “should be regarded as exceptional and requiring justification in each case,”46 although of course they could not suggest what would be regarded as sufficient justification. Nevertheless, the Committee was quite definite in its adherence to the rule of law, and stated its belief that it was “obvious” that the separation of powers is prima facie the guiding principle by which Parliament when legislating should allocate the executive and judicial tasks involved in its legislative plan.47 The problem was, therefore, to determine the criteria for distinguishing between administrative and judicial decisions.

Thus the Committee became embroiled in a discussion of the nature of the functions of government. Everyone agreed that it was impossible to draw precise boundaries, and numerous examples were cited to illustrate this difficulty. Nevertheless, the upholding of the rule of law seemed to necessitate definitions, and the Committee strove to find them. The problems they faced are well illustrated by the following excerpt from the minutes of evidence. The representatives of the Association of Municipal Corporations, W. J. Board and Sir William Hart, were discussing with members of the Committee whether or not ministers should be required to give the grounds for their decision following a public enquiry:

Sir Wm. Holdsworth:

Still I suppose a department where it has been given judicial powers and has been exercising those judicial powers does decide things on principle, and would it not be a help to the public to know what the principle was?

W. J. Board:

These are not judicial decisions, they are administrative. There may be certain times when they may have the appearance of a judicial decision, but we think they are of the nature, and should be of the nature of administrative decrees and should be treated as such; they are not therefore comparable with what takes place in the Law Courts.

Sir Wm. Holdsworth:

When you say “administrative decisions” you mean they must apply their minds to them and decide them justly?

W. J. Board:

Certainly.

Sir Wm. Holdsworth:

I do not see why the fact that they are administrative should be a reason why no reasons should be given. They are decisions whether administrative or judicial.

Professor Laski:

May I put it another way? The result may be administrative, but surely the process is judicial?

Sir Leslie Scott:

Or to put it in another way still, if the issue is a justiciable issue, either because the facts are disputed or because the law applicable is disputed, that is essentially a matter for judicial decision.

Sir Wm. Hart:

I agree.48

‡From this confusion the Committee retreated to a simple, if indefensible, criterion. Administrative decisions, they concluded, were concerned with the application of policy and therefore involved the exercise of a wide discretion, whereas judicial decisions simply applied fixed rules of law. Quasi-judicial decisions were, therefore, in the Committee’s view, essentially administrative decisions which had some element of a judicial character in that they involved disputes. Such disputes, however, were not regulated by rules of law, and so remained administrative in character, and were to be determined by the minister’s free choice.49 This device enabled the Committee to solve its problem. Justiciable issues, except in exceptional circumstances, should be left to the courts, administrative and quasi-judicial decisions to the executive. Ministers should be subject to the appellate jurisdiction of the High Court in regard to judicial decisions, and subject to the control of Parliament and public opinion in the exercise of their quasi-judicial and administrative functions. Ministerial responsibility, legal and political, remained the keystone of the Constitution. As the Treasury-Solicitor, Sir Maurice Gwyer, had warned the Committee, any departure from the principle of ministerial responsibility would imply the adoption of a new theory of government.50

The most ardent antagonist of the Committee’s view was W. A. Robson, who published his Justice and Administrative Law shortly before the Committee was appointed, gave evidence before them, and in later editions of the book took issue with their Report. Robson flatly rejected attacks upon administrative law and justice originating from the doctrine of the separation of powers. The doctrine, he said, was an “antique and rickety chariot . . . so long the favourite vehicle of writers on political science and constitutional law for the conveyance of fallacious ideas.”51 Like A. F. Pollard some years before, Robson demonstrated that the separation of powers had never been completely accepted in England, and that administrative and judicial functions have been mingled in the same offices since the beginning of English history. His objections to the doctrine went much deeper than those of the Committee who had accepted it as a general guide to the distribution of governmental functions. Furthermore, he objected to the distinction the Committee drew between law and policy, which, as we have seen, really stems from the dual character of English constitutional thought.

The root of Robson’s attack upon the separation of powers was his antagonism to the ideas associated with Dicey’s formulation of the rule of law. The implicit commitment to some form of separation of powers in Dicey’s work was the basis of his rejection of droit administratif, and the basis also of the claim of the ordinary courts to a monopoly of judicial power. Robson, however, was interested in the creation of a system of administrative courts, similar to those in France, and his attack was, therefore, directed at a doctrine which was used to argue that judicial powers ought not to be entrusted to administrators. The most important aspect of judicial institutions, Robson believed, was the development of the “judicial mind.” If a similar state of mind were to be cultivated in the minds of administrators who have to deal with judicial problems, then “we need spill no tears of regret because they do not bear the institutional characteristics of the former courts of law.”52

Robson’s attack upon the views of Dicey, and upon the conclusions of the Donoughmore Committee, might be taken as the final attack upon the separation of powers in Britain, and a rejection of it in its last stronghold, the power of the judiciary to settle judicial matters. Yet there is something of a paradox in this position, which illustrates how the values implicit in the doctrine have survived into the twentieth century, and how the precepts of the doctrine have doggedly refused to die. As with Duguit in France and Goodnow in America, Robson’s rejection of the extreme view of the separation of powers was only one side of his argument. He was forced to fight on two fronts at the same time. Whilst attacking the vested interests of the ordinary courts in the exclusive exercise of judicial power, his attachment to the idea that there is a proper sphere of action for administrative courts forced him to adhere to the basic functional concepts which Montesquieu had enunciated. He rejected the view that the definition of government functions was logically impossible; it was only the institutional articulation of these functions that he wished to challenge. And even then, like the American opponents of the extreme separation of powers, he did not relish the idea of a single man being policeman, prosecutor, and judge on the same issue. “The exercise of judicial functions by administrative bodies can be rationalised and disciplined only by the introduction of specific institutional reforms and procedural safeguards.” When it is necessary to confer legislative, administrative, and judicial powers on a single department, he wrote, it is always possible and desirable to separate these functions within the department.53

It is a remarkable fact that after the great weight of criticism that had been poured upon the Montesquieu categories of the functions of government they still remained, in the 1930’s and 1940’s, the basis of the discussion about the structure of government. The simple fact, of course, is that if one abandons the Montesquieu functions altogether, closely related as they are to the concept of the supremacy of law, one is left without any criteria for the orderly conduct of government business. Day-to-day expediency becomes the only guide for action, and few people would be prepared to admit that expediency alone should determine the organization and powers of government. The uncomfortable fact remains, however, that these categories have failed to provide the detailed guidance that would enable us to allocate the functions of government properly, i.e. in a way that is immediately seen to be efficient, and at the same time to safeguard the values inherent in the separation of powers. The attempt of the English courts to apply these categories has led, in the opinion of one authority, to a position “riddled with ambiguities.”54 The conclusions of the Committee on Ministers’ Powers were of little help in determining the later allocation of government powers. It is significant that when the Franks Committee on Administrative Tribunals came nearly thirty years later to retread some of the ground covered by the Donoughmore Committee they refused to be drawn into the discussion of the nature of the functions of government. Whilst noting that the distinctions drawn by the earlier classification of government functions were constitutionally of great importance, the Franks Committee in their Report regretted that they had been unable to fix upon a valid principle for the practical allocation of powers between ministers and administrative tribunals. The only approach that seemed to them to be useful was an empirical one, which ignored the problem of the general principles involved.55 The difference between the approach of the two Committees is perhaps symptomatic of the more sceptical approach to political principles which had evolved during the intervening thirty years, and also reflects, possibly, the chairmanship of an Oxford-trained philosopher over the deliberations of the later one.

The “separation of powers” remains, therefore, a central problem in the English political system, for the problem of the controlled exercise of power is still, and probably always will be, the critical aspect of a system of government which hopes to combine efficiency and the greatest possible exercise of personal freedom. The basic problem remains, in spite of all the changes since the seventeenth century. If our system is to remain essentially a system of government by “law” then some form of control must be exercised over the agents of government. If we abandon this philosophy of law how do we prevent mere expediency from degenerating into arbitrary government? Not the arbitrary rule of a Charles I, a Cromwell, or a Hitler, but the arbitrariness of a great machine staffed by well-intentioned men, possessing, of necessity, a limited range of vision, and a limited ability to judge where a succession of expedient decisions will lead. The fragmentation of constitutional thought in Britain, and the rejection, for good reasons, of older political theories, without their being replaced by any comprehensive view of the structure of our system of government and the values it is intended to safeguard, leaves us to drift before whatever wind of expediency may blow.

[1. ]The Report and Despatches of the Earl of Durham, London, 1839, p. 204.

[2. ]The English Constitution, London, edn. of 1964, p. 59.

[3. ]Political Dictionary, London, 1845, Vol. I, pp. 440–1.

[4. ]David Rowland, A Manual of the English Constitution, London, 1859, pp. 436 ff.

[5. ]J. S. Laurie, Sketches of the English Constitution, London, 1864, pp. 63–66.

[6. ]A Dialogue on the Best Form of Government, London, 1863, p. 90.

[7. ]Henry Brougham, Political Philosophy, 3 vols., London, 1842–3; and The British Constitution, London, 1860.

[8. ]Political Register, 1807, Vol. XI, pp. 1086–7 and 1807.

[9. ]Edinburgh Review, Vol. X, No. XX, July 1807, p. 411. “A.B.” in the Political Register, Vol. XII, p. 600, refers to the author as “Mr. Jeffrey,” i.e. Francis Jeffrey.

[10. ]Edinburgh Review, p. 413.

[11. ]Ibid.

[12. ]Ibid., p. 414.

[13. ]Armata, 1817, Vol. I, p. 67.

[14. ]Op. cit., 2nd edn., 1823, Preface, p. x.

[15. ]Ibid., pp. 94 and 162.

[16. ]Ibid., pp. 148 and 157–9.

[17. ]Ibid., p. 151.

[18. ]The Province of Jurisprudence Determined, London, 1954, p. 235.

[19. ]The Dogmas of the Constitution, London, 1832, pp. 7–8, 32–33, and 38.

[20. ]Ibid., p. 41.

[21. ]Ibid., p. 39.

[22. ]Ibid., pp. 98, and 115–16.

[23. ]See Corinne Comstock Weston, English Constitutional Theory and the House of Lords, 1556–1832, London, 1965, pp. 250–1.

[24. ]A Comparative View of the Constitutions of Great Britain and the United States of America, London, 1842, pp. 94, 105.

[25. ]Ibid., p. 108.

[26. ]Parliamentary Government considered with Reference to a Reform of Parliament, London, 1858, pp. 4, 8–9.

[27. ]Ibid., p. 94.

[28. ]Representative Government, Oxford, 1948, p. 174.

[29. ]Parliamentary Government, pp. 100–1.

[30. ]Homersham Cox, The Institutions of the English Government, London, 1863, p. 256.

[31. ]Op. cit., p. 281.

[32. ]Parliamentary Government, new edn., 1864, Preface, p. vii.

[33. ]Quarterly Review, Vol. 119, No. 237, Jan. 1866, pp. 278–9.

[34. ]The English Constitution, London, 1964, pp. 68 and 72.

[35. ]Ibid., p. 69.

[36. ]Ibid., p. 221.

[37. ]Ibid., pp. 69 and 73.

[38. ]Ibid., p. 151.

[39. ]Elements of Politics, 2nd edn., London, 1897, p. 436.

[40. ]The American Commonwealth, 2nd edn., London, 1890, Vol. I, p. 281.

[41. ]Thoughts on the Constitution, London, 1947, pp. 15–16.

[42. ]Government and Parliament, 3rd edn., London, 1964, p. 107.

[43. ]The Law of the Constitution, 8th edn., London, 1931, p. 198.

[44. ]Ibid., p. 404.

[45. ]Report of the Committee on Ministers’ Powers, Cmd. 4060, 1932, p. 95.

[46. ]Ibid., pp. 115–16.

[47. ]Ibid., p. 92.

[48. ]Committee on Ministers’ Powers, Minutes of Evidence, 1932, Vol. II, p. 265. I am indebted to Miss S. Conwill for having drawn my attention to this discussion.

[49. ]Report, pp. 74 and 81.

[50. ]Minutes of Evidence, Vol. II, p. 6.

[51. ]Justice and Administrative Law, 2nd edn., London, 1947, p. 14.

[52. ]Ibid., p. 34.

[53. ]Ibid., pp. 333 and 473.

[54. ]S. A. de Smith, Judicial Review of Administrative Action, London, 1959, p. 29.

[55. ]Report of the Committee on Administrative Tribunals and Enquiries, Cmd. 218, 1957, pp. 28–30.