Of Kings and Officers — The Judicial Development of Public Law

Publication Date01 Jun 2005
DOI10.22145/flr.33.2.2
AuthorBradley Selway
SubjectArticle
OF KINGS AND OFFICERS — THE JUDICIAL
DEVELOPMENT OF PUBLIC LAW
Bradley Selway
INTRODUCTION
The relationship of the King to the persons who actually perform the work of
government has changed profoundly over the last 250 years. The purpose of this article
is to analyse those changes and to analyse how the common law reacted (or failed to
react) to them.
For this purpose I propose first to consider the structure of English government in
about 1750. Although the structure was already evolving into a more modern form, in
1750 it was still a relatively simple governmental structure based upon a sovereign
Monarch and upon public officers, many of them in regional areas.
At that time the common law clearly distinguished between the Monarch and his
officers. Although the extent and importance of the various legal powers and
immunities of the Monarch are now often overstated, the Monarch did possess special
powers and immunities which reflected or, at least, were derived from his sovereignty.
The public officer on the other hand had various powers, duties and entitlements
related to the concept of a 'public office', but few immunities. Indeed, the public officer
was subject to a significant range of legal obligations, whether imposed by the criminal
law, the law of torts, of property, of trust, by the prerogative writs or otherwise. The
result was that there were a variety of legal mechanisms available to prevent breaches
of public duty and to require their performance.
The paper will next proceed to consider the significant changes to the structure of
English government, particularly during the period around 1850. Essentially the
former regional public officer was replaced by a bureaucrat employed within a
hierarchical system centred at Westminster and answerable not to the Monarch, but to
the Cabinet. To adopt a Weberian analysis, government was substantially restructured
from a traditional model1 based upon property, relationships and discretionary
_____________________________________________________________________________________
Justice of the Federal Court of Australia; Adjunct Professor of Law, University of Adelaide.
I acknowledge the assistance of my Associate, Su Hamsanathan in checking the accuracy of
citations. I also thank Justice Paul Finn of the Federal Court for his helpful comments and
the anonymous reviewer for his or her constructive and useful suggestions.
1 Talcott Parsons (ed), Max Weber: The Theory of Social and Economic Organization (1947) 341 ff:
'Obedience is not owed to enacted rules, but to the person who occupies a position of
authority by tradition or who has been chosen for such a position on a traditional basis.
2 Federal Law Review Volume 33
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powers, to one more closely resembling the Weberian 'ideal-typical bureaucracy'2
involving a hierarchical organisation of tasks ('offices') with limited individual
autonomy and based upon detailed rules.
It was necessary that the common law adapt to these changes and it did so. The
paper will argue that these changes occurred in a context where the courts sought to
adapt and apply the law relating to the pre-existing institutions, particularly 'the King'
and the 'public officer' to the new government structure. In doing so the courts fell into
the logical error described by Professor Stone — 'the transposition of legal conceptions
or propositions from an old subject-matter to a new one, from one part of the law to
another, or even one period to another, and the assumption that the result represents
without more, the law for the new subject-matter'.3
It will be argued that the common law, by treating 'the Crown' as a corporation
aggregate, ascribed the historical attributes of the King to the new government
structure. The result was that the whole of government, not just the King, came to
enjoy the powers and immunities historically derived from the King's sovereignty.
Similarly, the new civil servant was treated as if he or she held a historic public office,
notwithstanding that his or her duties and responsibilities were very different from
those of historic public officers.
In addition there were other changes in the common law relating to government,
particularly in the development or, at least, the evolution of a new 'public law', being a
specialised body of law relevant and applicable to the exercise of government powers
and duties. The paper will seek to analyse these changes to show that the developing
common law placed relatively less emphasis upon the criminal law, the law of
property, of trust, and of tort in controlling the exercise of public power, whilst placing
relatively greater emphasis upon the prerogative writs for this purpose. It will be
argued that the common law came to treat the prerogative writs as the primary if not
the sole remedies in public law. This has resulted in the development of those writs,
but the writs themselves have affected the development of public law. It will be argued
that the reliance on the prerogative writs has resulted in confusion between procedural
and substantive issues in public law.
Based upon this analysis I will argue that the failure by the courts to revisit the
common law concepts that they purported to apply to the new government structure
has resulted in a failure by the common law to develop a coherent understanding of
the nature of 'the State' or of the relationship of the State to the citizen. That
understanding, it seems to me, was and is an essential precondition to the orderly
development of public law by the common law.
ENGLISH GOVERNMENT, 1750
The sovereignty of the English Monarch was affirmed in Article XXXVII of the Articles
of Religion agreed upon by the Clergy of the Church of England in 1562: 'The King's
Majesty hath the chief power in this realm of England and other his Dominions, unto
whom the chief Government of all Estates of this Realm, whether they be Ecclesiastical
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What determines the relations of administrative staff to the chief is not the impersonal
obligations of office, but personal loyalty. '
2 Parsons, above n 1, 329-41; George Ritzer, Sociological Theory (4th ed, 1996) 127–8.
3 Julius Stone, The Province and Function of Law (1946) 197.
2005 Judicial Development of Public Law 3
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or Civil, in all causes doth appertain.' By the early 18th century it was well accepted
that that sovereignty was limited, particularly in relation to legislative power by the
constitutional powers of the Houses of the Parliament.4 Nevertheless, at least in
relation to the executive arm of government, the sovereignty of the Monarch5
remained broadly true in fact. As Blackstone put it, 'The king of England is... not only
the chief, but properly the sole, magistrate of the nation; all others acting by
commission from, and in due subordination to him'.6
At that time the relatively rigid distinction now made between central and regional
government did not exist. In both legal theory and largely in practice all executive
government was derived from the King. Regional government in the counties was as
much part of the King's administration as was the central government in London.
Central executive government was largely carried on by a relatively small body of
officials who were personal advisers to the Monarch and who acted with the
Monarch's direct authority. They performed a variety of functions defined by their
office. The powers exercised by them were directly derived from the Monarch both in
law and in fact.
During the course of the 18th century, many of these high officers became separate
from the King's personal household7 and came to manage their own separate
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4 Jeffrey Goldsworthy, The Sovereignty of Parliament (1999); John Allison, A Continental
Distinction in the Common Law (rev'd ed; 2000) 75–6; H T Dickinson, 'The Eighteenth
Century Debate on the Sovereignty of Parliament' (1976) 26 Transactions of the Royal
Historical Society (5th Series) 198. Interestingly, the supremacy of the Parliament over the
King after 1688 was not accepted in the American colonies, where it was argued, relying
upon Calvin's Case (1608) 7 Co Rep 2a; 77 ER 377 that they were governed by the King
personally (rather than by 'the Crown' of England) and that consequently they were not
subject to laws (particularly taxation) made by the English Parliament: see Charles
McIlwain, The American Revolution: A Constitutional Interpretation (1923); Barbara Black, 'The
Constitution of Empire: The Case for the Colonists' (1976) 124 University of Pennsylvania
Law Review 1157; Daniel Hulseboch, 'The Ancient Constitution and the Expanding Empire:
Sir Edward Coke's British Jurisprudence' (2003) 21 Law & History Review 439.
5 The Monarch in his or her ''official'' capacity was perceived as a corporation sole with
perpetual succession: see Sir William Blackstone, Commentaries on the Laws of England, Vol 1
(1783 ed) 469; contrast Frederic Maitland, 'The Crown as Corporation' (1901) 17 Law
Quarterly Review 131, 134–5; Pitt Cobbett, '"The Crown" as representing "The State"' (1903) 1
Commonwealth Law Review 23, 25–7; Sir Norman Chester, The English Administrative System
1780–1870 (1981) 93–6. Historically the dual capacities of the Monarch — one personal and
the other official – was of some constitutional significance: see Martin Loughlin, 'The State,
the Crown and the Law' in Maurice Sunkin and Sebastian Payne, The Nature of the Crown
(1999) 33, 55–9 and see above n 4 re the American colonies. The concept of the Crown as a
'corporation sole' involved an early attempt to deal with this issue. It was largely resolved
by the introduction of the Civil List (see below). In any event, in most of the Monarch's
realms, and certainly Australia, the Monarch's functions were almost entirely 'official': see
China Ocean Shipping v South Australia (1979) 145 CLR 172, 220.
6 Blackstone, above n 5, 250; see also at 190; Chester, above n 5, 3.
7 A number of public offices (particularly hereditary ones) did not separate from the Royal
Household and still remain associated with it. Some continue to exist and to have
ceremonial functions or functions relating to the management of the Queen's household or
the personal prerogatives, particularly relating to Honours. Examples include the Lord
Chamberlain, the Earl Marshall and the Keeper of the Privy Purse.

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