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166

In 1929, the Lord Chief Justice of England found it necessary to denounce "the pretensions and encroachments of bureaucracy" in these words : "The whole scheme of self-gov ernment is being undermined, and that, too, in a way which no self-respecting people, if they were aware of the facts, would for a moment tolerate."' A few years later, a former chief justice of Ontario took occasion to express his concurrence in these views. He said : "For long years legislatures have en-croached upon many of the people's most sacred rights. . . . This legislative invasion of the people's rights is continuing with ever-increasing momentum, and will undoubtedly continue until an aroused public opinion teaches the people's representatives that the spirit of John Hampden still lives and demands the restora-tion of the people's rights, and regards every representative who fails to resist arbitrary legislation as an enemy and a traitor to Canada."'

Such fervour in expression is symptomatic. Leading mem-bers of the judiciary do not "sound the alarm" without cause, and we need not go far afield to discover the nature of the events which led them to protest so vigorously. Our governmental institutions are undergoing a profound change - a change so radical as to disturb the equanimity of the conservative common lawyer. But changes in government rarely occur of their own accord ; they parallel with, or are induced by, changes in other parts of the social structure. Consequently, to understand these developments in government, we shall have to examine them in the light of current theories of social philosophy, and that is what I propose to do this evening. The situation may be summed up in a few words. Society is abandoning one philosophy and is adopting another.

Laissez-faire is

rapidly fading into the limbo of forgotten things and in its place we are developing new doctrines, doomed perhaps to failure like their precursors, but our hope, at any rate, is that they foreshadow the beginning of a better world.

The industrial revolution came at a time when all branches of human knowledge were glorifying the individual. In political and in social philosophy, the divine right of kings was being * An address delivered before The Public Administration Seminar at Ottawa, October 14th, 1938.

'LORD HEWART OF BURY, THE NEW DESPOTISM (London, 1929), at p. 16.

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1939] Government_ By Civil Servants 167 superseded by the concepts of liberty and of the compact theory of the state. In religion, the voluntary society of worshippers was gaining recognition in the face of opposition from the estab lished church. The laws of the economists declared that private endeavour was the most efficient motive power for the social mechanism. Thus, in theory, all hope for social progress seemed to depend primarily on the aggressiveness of the individual. At the same time, practical experience seemed to bear out the experience of the theorist. On the one hand, there was eighteenth century government, corrupt and inefficient to such a degree as to destroy any lingering affection which one might have for the solution of social problems through the intervention ofthe state; on the other, there was the undeniable fact that "material pro-gress between 1750 and 1850 came from individual initiative, and owed almost nothing to the directive influence of organized society."' In the words of Professor Keynes : "Nothing could seem more ,opposed than the old doctrine. and the new-the doctrine which looked on the world as the work of the divine Watchmaker and the doctrine which seemed to draw all things out of Chance, Chaos and Old Time. But at this one point the new ideas bolstered up the old. The Economists were teach-ing that wealth, commerce and machinery were the children of free, competition-that free competition had built London. But the Darwinians could go one better than that-free competition had built Man. The human eye was no longer the demonstra-tion of Design, miraculously contriving all things for the best; it was the supreme achievement of Chance operating under con-ditions of free competition and laissez-faire. The principle of the Survival of the Fittest could be regarded as a vast generaliza-tion of the Ricardian economics. Socialistic interference became, in the light of this grander synthesis, not merely inexpedient, but impious, as calculated to retard the onward movement of the mighty process by which we ourselves had risen like Aphrodite out of the primeval slime of the Ocean. 9'4 This was the setting in whichlaissez-faire became the accepted social, economic, and legal - philosophy.

In political thought, the doctrine of laissez-faire was trans-muted into a concept of "liberty" explained in terms of the free play of individual interests. To ensure that there would be a minimum of interference with these individual interests, the various institutions of the state had to be so organized that 3J. M. KEYNES, THE END OF LAISSEZ-FAIRE (London, 1927), p. 12.

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168 The Canadian Bar Review

[Vol . VII

no man or group of men exercised absolute powers. The age

was in a mood for prophets who could clothe the sentiments of

the people in scientific phrases. And it came to pass that at

this time a French civil servant by the name of Montesquieu

was concerned to combat French despotism and he looked about

him in the eighteenth century world and saw that England

enjoyed far more liberty than did any other country in Europe.

Obviously, then, there must be some principle inherent in the

British system of government which guaranteed the liberties of

its citizens. That essential principle, Montesquieu concluded,

was the separation of powers whereby the executive, the

legislature, and the judiciary were formally distinguished and

separated. Thus he declared : "When the Legislative Power is

united with the Executive Power in the same person or body

of magistrates, there is no liberty because it is feared that the

same Monarch or the same Senate will make tyrannical laws

in order to execute them tyrannically. There is again no liberty

if the Judicial Power is not separated from the Legislative Power

and from the Executive Power. If it were joined with the

Legislative Power, the power over life and liberty of citizens

would be arbitrary, because the judge would be legislator. If it

were joined to the Executive Power, the judge would have the

strength of an oppressor. All would be lost if the same man,

or the same body of chief citizens, or the nobility, or the people,

exercised these three powers, that of making laws, that of

execut-ing public decisions, and that of judgexecut-ing the crimes or the

disputes of private persons."'

Now, if we examine the activities of governmental agencies

in England in the first half of the eighteenth century, it becomes

apparent at once that this analysis does not represent the situa

tion accurately. Montesquieu seems to have overlooked or

suppressed facts of which he was undoubtedly aware but which

did not fit in with his thesis. Nowhere does he take into account

the composite activities of that vast body of government officials

-the justices of the peace. The solution to the riddle seems

to be that he was not making an exact and complete analysis

of the functions of government. He was looking only for facts

to support his general thesis and, as Madison explained, "his

meaning, as his own words import, and still more conclusively

as illustrated by the example in his eye (i.e., England), can

amount to no more than this, that where the whale power of

one department is exercised by the same hands which possess

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1939] Government By Civil Servants 169 the whole power in another department, the fundamental prin-ciples of a free constitution are subverted."s

Whatever may be the true interpretation of Montesquieu's doctrines, his writings had an influence in the United States which can hardly be exaggerated, especially in that aspect which defended the necessity of the doctrine of the separation of powers if political freedom were to be preserved. This point of view coloured from the very beginning American juristic thought and American - constitution-making. One of the best expositions of its application in the United States is given by Mr. Justice Miller, in the case of Kilbourne v. Thompson : "It is believed to be one of the chief merits of the American system of written constitutional law, that all powers intrusted to govern-ment, whether state or national, are divided into three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons' intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers

appro-priate to its own department and no other."'

Although the absence of â written constitution prevented the doctrine of the separation of powers becoming a part of British constitutional law, nevertheless with Blackstone it passed at least into the stream of English legal thought. He said " [Wherever] the, right both of making and of enforcing the laws

is

vested in one and the same man, or one and the same body of men; and wherever these twopowers are united together, there can be no public liberty. The magistrate may enact tyran-nical laws, and execute them in a tyrantyran-nical manner, since he is possessed in quality of dispenser of justice, with all the power. which he, as legislator thinks proper to give himself. , . . Were

[the judicial power] joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are .bound to

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170 The Canadian Bar Review [Vol. XVII

observe. Were it joined with the executive, this union might soon be an overbalance for the legislature.""

Although, as I have already pointed out, these views could not be written permanently into the British constitution, never-theless they became a fundamental principle of faith. Parliament made laws, the judges interpreted them, and the executive enforced them. In fact, each of these agencies of government acquired something in the nature of a divine right to the exercise of its functions and woe betide the unbeliever who sought to lay profane hands on the ark of the covenant. Attempts to deviate from the norm were, and for that matter are, denounced with an angry vigour which lacks nothing in picturesqueness. Thus, for example, in the debate in the House of Lords in 1929 on the Factory and Work Shop (Cotton Cloth Factories) Act, Lord Banbury declared : "This bill perpetuates a vicious prin-ciple which unfortunately has grown much in the last few years. It gives power to a government department to usurp the func-tions of Parliament and to pass what they call regulafunc-tions which have the effect of an Act of Parliament and which deal with His Majesty's subjects; in fact this does what in days gone by caused a king to lose his head."' I could go on and multiply examples, but I am afraid I would only weary you with a compilation of vituperative epithets.

Now let us turn from theory to practise ; let us turn from diatribes to realities; let us examine the facts. First, what effect did the doctrine of the separation of powers have on the statute book. When Parliament in England established itself as the supreme power in the state, the king's command could operate only within a very narrow sphere and it could no longer be regarded as a justification for governmental action. Jealous of its newly acquired powers, it was to be expected that parlia-ment would be very loath to permit any part of its jurisdiction, no matter how small, to slip from its grasp. Consequently, as Sir John Marriott has pointed out, "Parliament attempted, in making laws, to provide beforehand, by precise statutory enact-ment, for every contingency which might reasonably be expected to arise. This naturally rendered the form of English statutes exceptionally elaborate and detailed."" Of course, this required a great deal of time, but the demands on Parliament during

s_{COMMENTARIES ON THE LAws, Vol. I, at pp. 146, .269. See generally}

J. Finkelman, Separation of Powers, in (1936), 1 University of Toronto Law Journal, at pp. 313f._s

72 House of Lords Debates, 5, ss. 932-3.

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1939] - Govdrnment By Civil Servants 171 this period were slight and no great hardship was involved in

dealing with each problem in meticulous detail.

In the judicial sphere, since the courts were in theory con-cerned only with the interpretation of the law, any suggestion that they wer6 also making new law was regarded with abhorrence. As Professor Dickinson points out, "under the old system of adjudication by courts of law alone, the process of adjudication went on within a separate cell or compartment as it were, tightly closed off from the sphere of governmental action. There was thus made possible a single-minded attention to the individual rights of the parties immediately before the court, with only an accidental regard for , the interests of the

public

at large, and with a disregard for the exigencies of social policy which has been congenial to the naïve individualism embedded in our philosophy of _law.",,- So long as the emphasis was on the free play of indiyidual interests, this attitude was reasonably satisfactory. Actions in contract, in tort, in relation to pro-perty, in fact in every field of law, could be dealt with efficiently by a tribunal which operated only after a wrong had been com-mitted and only as between the immediate parties to the dispute, the public interest being recognized, if at all, only incidentally and as a minor consideration . Even in the criminal law, where today we regard the public interest as of paramount importance, the approach was individualistic. Society, in the person of the Crown, litigated a dispute with an alleged offender. In fact, through the idiosyncracies of our legal nomenclature, criminal proceedings in the British Empire were deprived even of that appearance of social concern which exists in the United States. Thus, to sum up, the whole legal and political thought was dominated by a philosophy of individualism and the system- was moulded to serve a society motivated: by a philosophy of laissez-faire.

Then came the rude awakening. The romance was ended. Laissez-faire had failed to bring happiness to the masses of mankind. In fact; the untold misery and suffering and the social waste which followed in the wake of the new industrial system caused a revulsion of feeling which is gradually under-mining even the pôsitive achievements of the past century. Whether the hypotheses upon which laissez-faire was based were sound is a matter upon which I am not prepared to venture an opinion, although an eminent economist, Professor C. Ii. Fay, has declared that "it will not be surprising if some of these

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apostles of social laissez-faire are found on the lowest ledge of Dante's Inferno."" What is of importance for us is that people began to realize that the operation of that doctrine doomed millions of people to want and privation. The situation has been admirably summed up by Professor Keynes in these words "Economists have begun by assuming a state of affairs where the ideal distribution of productive resources can be brought about through individuals acting independently by the method of trial and error in such a way that those individuals who move in the right direction will destroy by competition those who move in the wrong direction. This implies that there must be no mercy or protection for those who embark their capital or their labour in the wrong direction. It is a method of bring-ing the most successful profit-makers to the top by a ruthless struggle-for survival, which selects the most efficient by the bankruptcy of the less efficient. It does not count the cost of the struggle, but looks only for the benefits of the final result which are assumed to be permanent. The object of life being to crop the leaves off the branches up to the greatest possible height, the likeliest way of achieving this end is to leave the giraffes with the longest necks to starve out those whose necks are shorter. . . Yet . . . there are other considerations, familiar enough, which rightly bring into the calculation the cost and character of the competitive struggle itself, and the tend-ency for wealth to be distributed where it is not appreciated most. If we have the welfare of the giraffes at heart, we must not overlook the sufferings of the shorter necks who are starved out, or the sweet leaves which fall to the ground and are trampled under foot in the struggle, or the over-feeding of the long-necked ones, or the evil look of anxiety or struggling greediness which overcasts the mild faces of the herd."" So, gradually, the various schools of human thought began to entertain doubts as to the validity of laissez-faire. They became ashamed of

the excesses of laissez-faire. And even the most devout apostles

of that doctrine sought ways and means to soften its effects on the masses of mankind.

To sum up, and without pronouncing anything like a judg-ment on the benefits or otherwise of laissez-faire philosophy, we

recall that Lord Macmillan has recently pointed out that each individual citizen has a competitive and a co-operative side, and that the fundamental defect in laissez-faire philosophy was the 12GREAT BRITAIN FROM ADAM SMITH TO THE PRESENT DAY (London, 1928), p. 358.

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1939] -

Government By Civil Servants

173 exaggerated emphasis on the former almost at the total expense

of the latter. He went on to add that whatever one's theory

of the state may be, it must include an attempt, reasoned and

deliberate, to integrate these two fundamental aspects of the

individual citizen's personality.

Now, if society is not so divinely ordered that to each will

be given according to his just deserts, and if, moreover, that

happy -circumstance cannot be achieved by the pursuit of private

benefit, what remains but to turn to the state; and, as we know,

that is what the people did and what they are still doing. The

character of the demands which the people made .on the state

may be deduced from a memorandum submitted by Professor

W. A. Robson to the Committee on Ministers' Powers, which

sat in Great Britain in 1932. He said : "The scope and

character of government have changed enormously in the last

50 years. Formerly, government was èhiefly regulatory and

negative : its main task (apart from defence) was to keep the

ring and maintain fair play while private interests asserted

themselves freely. Today, government is largely concerned with

the administration of social services, and has become positive

in à new sense. A century ago, the State acted mainly as

police-man, soldier and jiidgé. To-day, the State acts also as doctor,

nurse, teacher, insurance organizer, house builder, sanitary

en-gineer, chemist, railway controller, supplier of gas, water and

electricity, town planner, pensions distributor, provider of

trans-port, hospital organizer, road maker, and in a large number of

other capacities.""

' .

14Report of the Committee on Ministers' Powers, _{Minutes of Evidence}

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Now, this recital of the demands made on government in recent years,-demands which had to be satisfied in some way if the whole system of government was to endure-may cause some of you to sigh forthe good old days of rugged individualism. That is the popular refrain in many quarters today, especially among taxpayers. Candidates for political office who promise reduction in the cost of government are almost sure to gain popular support today. And there is a good deal of preaching about the fact that people today are spineless and that they lack the solid qualities of the pioneers. But the interesting thing about these contentions was pointed out recently by the professor of industrial psychology of the Business School at Harvard University. He said : " We are all taught to admire `rugged individualism', and I have no doubt it is something to be admired. Rugged individualists interest me, and I have observed that they are most often to be seen in the wealthy classes of society. In other words, so long as our position in society is secure, we can enjoy the enormous luxury of being individualists. We would all like to be individualists, but the first prerequisite for a rugged individualist is that he should be securely set in a worthwhile and stable society. Disintegrated societies are not rich in rugged individualists. In unstable societies, one finds frightened people herding together trying to find stability somewhere in human relationships."16 In other words, the best answer to the apostles of rugged individualism is - give us something worthwhile to live for.

But the law-making and law-interpreting branches of the government were utterly unprepared to cope with the new demands. And you must remember that these demands could not be regarded as the whining and murmuring of the rabble. Universal franchise had given political power to the masses of the citizens. They were in a position to turn out a government that did not pay heed to their wishes, and the leaders of the political parties sought desperately to gain their support. Then, when the "pay-off" came, in sheer despair of satisfying the demands for legislation, parliament "passed the buck." It created new administrative agencies and delegated to them wide powers to seek solutions to the many social ills thatbesettheworld. for several years, various units of government have been compelled to pro-vide for temporary employment and poor relief on an unprecedented scale; also to construct public works and to undertake numerous enterprises directly offering employment to those who cannot secure it elsewhere ."

F. F. BLACHLY and M. E. OATMAN, ADMINISTRATIVE LEGISLATION AND ADJUDICATION_ie (Washington, 1934), at pp. 2-3.

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1939] Government By Civil Servants 175 Now let us put aside generalities and deal, more specifically with the reasons which induced parliament to surrender part of its jealously guarded legislative -monopoly and to deprive the courts of. part of their jurisdiction. First as to the legislative side of the problem. In this connection, I do not think that I could do better than read the considered opinion of the Com-mittee on Ministers' Powers which looked . into this whole problem in Great Britain in 1932 : "(1) Pressure upon Parlia-mentary time is great. The more procedure and subordinate matters can be withdrawn from detailed Parliamentary con-sideration, the greater will be the time which Parliament can devote to the consideration of essential principles in legislation. (2) The subject matter of modern legislation is very often of a technical nature. Apart from the broad principles involved, technical matters are difficult to include in _a Bill, since they cannot be effectively discussed in Parliament. (3) If large and complex schemes of reform are to be given technical shape, it is difficult to work out the administrative machinery in time to insert in the Bill all the provisions required ; it is impossible to foresee all the contingencies and local conditions for which pro-vision must eventually be made. (4) The practice, further, is valuable because it provides for a power of constant adaptation to unknown future conditions without the necessity of amending legislation. Flexibility is essential. The method of delegates. legislation permits of the rapid utilization of experience, and enables the results of consultation with interests affected by the operation of new Acts to be translated into practice. (5) The practice, . again, permits of experiment being made and thus affords an opportunity, otherwise difficult to ensure, of utilizing the lessons of experience. (6) In a modern State there are many occasions when there is a sudden need of legislative action. For many such needs delegated legislation is the only convenient or even possible remedy."" And the report of the Committee con-tains these significant observations : "We do not agree with those critics who think that the practice .of delegating legislative power is wholly bad. We see in it definite advantages. . - . . But in truth whether good or bad the development' of the practice is inevitable. It is a natural reflection, in the sphere of constitu-tional law, of changes in our ideas of government which have resulted from changes in political, social And economic ideas, and

of changes in the circumstances of our lives which have* resulted from scientific discoveries."17

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At this point, I should like to make it clear that, through-out these arguments in favour of the delegation of legislative authority, there is no suggestion that parliament should abdicate its powers. There are many grave dangers inherent in such delegation, and the critics of the system are quite right in calling attention to these dangers. The greatest danger is that men of affairs are blissfully unaware of recent tendencies. Any knotty problem can be shelved by delegating it to an adminis-trative agency with the patience and persistence to seek a solution. If democracy is not to disappear, then those to whom we have entrusted the duty of making our laws must be alert to prevent our heritage of freedom from being frittered away. But, on the other hand, little is to be gained by polemics. We must face the facts. If Parliament itself cannot pass all the laws which the citizens call for, then new methods must be devised to cope with the situation. If the new methods create new hazards, we must devise new safeguards which reproduce in a substantial degree the essential principles which made Parliament the great bulwark of British liberties, and the most important of these is an informed public opinion.

What of the judicial side of the problem. Here also the Committee on Ministers' Powers saw certain advantages. This is what the members of the Committee said : "In cases where justice can only be done if it is done at a minimum cost, such Tribunals, which are likely to be cheaper to the parties, may on this ground be preferred to the ordinary Courts of Law--In addition, they may be more readily accessible, freer from technicality, and where relief must be given quickly - more expeditious. They possess the requisite expert knowledge of their subject - a specialized Court may often be better for the exercise of a special jurisdiction. Such Tribunals may also be better able, at least than the inferior courts of law, to establish uniformity of practice."" And again the Committee, after a careful examination of the fact declares : "Our conclusion on the whole matter is that there is nothing radically wrong about the existing practice of Parliament in permitting the exercise of judicial and quasi-judicial powers by Ministers.""

Now here also, the advantages bring in their train many disadvantages. In fact, as a lawyer, I would be so bold as to say that the dangers here are greater than in the case of the delegation of legislative power; and I would like to assure you

is Ibid., p. 97.

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1939] Government By Civil Servants 177 that this statement is not - dictated by sentimental attachment to established -procedures. The average citizen is fairly well acquainted with legislative processes and he understands fairly . well the basic principles of lawmaking -in a democratic state. It is a process in which he participates, albeit indirectly. If the laws which his representatives make are distasteful to him, he will protest and eventually he will unmake them. But the decision of a judicial or of a quasi-judicial body he is prone to accept as in the nature of the inevitable. The protests of the lawyer he regards as no more than the attempt of a closed profession to,retain its monopoly of litigation. As the result of these attitudes, much harm may be done to the administra-tion of justice before the citizen realizes the full significance of the events which pass before him. And if the citizen loses faith in these new quasi-judicial agencies, that feeling of distrust may undermine his respect for all judicial agencies. So here also it . is of the utmost importance that the essential principles of justice

should be safeguarded. These principles are simple : No man may be judge in his own cause, no party ought to be condemned unheard. To these, some would add a third, that a party is entitled to know the reason for the decision. If these principles are observed, it matters little whether justice is administered in the courts or-in the office of an administrative agency.

Law Building,

University of Toronto.