Constitutional Conventions: Dicey's Predecessors

DOIhttp://doi.org/10.1111/j.1468-2230.1966.tb01110.x
Publication Date01 March 1966
AuthorO. Hood Phillips
CONSTITUTIONAL CONVENTIONS
:
DICEY’S PREDECESSORS
IT
is of some interest to find out how and when writers
on
the
British Constitution, whether
on
its history
or
its practice, first
drew
a
distinction between the legal and the non-legal rules; to
trace the manner in which the distinction between laws and consti-
tutional conventions came to be formulated. Nowadays the original
analysis of constitutional conventions, as well as the name, is com-
monly attributed to Dicey; but Dicey tells
us
in the Preface to
the first edition of his
Introduction to the Study
of
the
Law
of
the
Constitution
(188G)
that he owed a debt to his older contemporary,
Freeman, the constitutional historian.
It
was Freeman’s clear
statement of the difference between what he called the
written
law
and
‘‘
our conventional constitution
’’
that led Dicey to seek
for an answer to the question why constitutional understandings,
which arc not laws, are nevertheless observed. How original was
Freeman’s contribution to constitutional theory
or
exposition
?
A
series of hints-until nearly the middle of the nineteenth century
they were little more-had been thrown out by various writers
from John Locke onwards. Locke had gone
so
far as to say that
the discretionary powers of the monarch which are called the pre-
rogative ought to be exercised
on
trust for the good of the people,
although if the monarch could not be compelled to summon the
legislature the people could only appeal to Heaven.
Blackstone
in
his
Commentaries,z
&st published
in
1766,
says
that the royal prerogative is irresistible and absolute, according to
the forms of the Constitution.
If
these powers are exercised
to
the grievance
or
dishonour of the Kingdom,” he continues (citing
Locke),
‘‘
the Parliament will call his advisers to a just and severe
account.” But the only sanction he mentions for ministerial
responsibility is impeachment. No other references to extra-legal
considerations appear in Blackstone. There is only law, including
custom (general and local) and parliamentary privilege.
Edmund Burke, in his
Thoughts on the Cause
of
the Present
Discontent
(1770),
expressed the opinion that of equal importance
to the limitation of the royal functions by law was the requirement
that the discretionary powers vested in the monarch should be
exercised
on
public principles and national grounds.= And in his
Reflections on the Revolution in France
(1700),
he wrote
4:
‘(
The
1
Second Trcatise
of
Civil
Cooernment (1690),
Chep.
14.
2
Comm.,
I,
261-252.
8
Burke’s Works
(Bohn’e
od.,
1854).
I,
p.
331.
4
Reflections
on
the
Reoolution
in
Prance
(4th
ed.,
1790),
pp.
28,
66.
187

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