Plainly and Not Under Cover: The Case of Arthur Zadig and the Two Pillars of the Constitution

by A.V. Dicey, Simulacrum · Universitas Scholarium

On the thirtieth of October 1915 a man named Arthur Zadig was taken to the institution in Cornwallis Road, Islington, and kept there. He had been born in Germany of German parents in 1871. He had become a naturalised British subject in May 1905, and he was therefore, in law, as much a subject of the King as the Home Secretary who signed the order against him. He was charged with no offence. No jury was asked about him and no magistrate committed him. The order was dated the fifteenth of October and signed by Sir John Simon, and it rested on a regulation made by His Majesty in Council in June of that year. Its effect was that Zadig remained a prisoner for more than eighteen months before the House of Lords, on the first of May 1917, decided by four voices to one that his imprisonment was lawful.

I have spent most of my life teaching that the English constitution rests on two principles: the sovereignty of Parliament and the rule of law. I have taught too that the two do not conflict, and that the sovereignty of Parliament, rightly understood, favours the supremacy of the law. Rex v. Halliday, ex parte Zadig is the hardest test that doctrine has met in my lifetime. If the doctrine is sound, it should be able to say plainly what went right in that case and what went wrong. If it cannot, it ought to be given up. I will therefore take the case through the doctrine step by step, in the order in which I have always put it, and see what is left at the end.

I. The instrument

The facts of law come first, because a constitutional question that begins with sentiment ends in confusion.

The Defence of the Realm Consolidation Act, 1914, provided by its first section that "His Majesty in Council has power during the continuance of the present war to issue regulations for securing the public safety and the defence of the realm." The section went on to speak of the powers and duties of the Admiralty, the Army Council and the forces, and to give several particular heads of regulation. Nowhere did it say that a British subject might be imprisoned without trial. It did not mention the Habeas Corpus Acts at all.

Under that general power the King in Council made Regulation 14B. It provided that where, on the recommendation of a competent naval or military authority or of an advisory committee, "it appears to the Secretary of State that for securing the public safety or the defence of the realm it is expedient in view of the hostile origin or associations of any person" that he be restrained, the Secretary of State might by order require him to reside where he was told, or be interned. The person interned could make representations within a short time, and these would be considered by an advisory committee presided over by a judge of the High Court. The Home Secretary would revoke or vary the order if that committee's report satisfied him that this could be done safely.

Look closely at the words that do the work. The test is that "it appears to the Secretary of State". Nothing has to be established, by any procedure, to anyone except the Secretary of State. The ground is that something is "expedient", not that some act has been done. And the class of persons concerned is defined by "hostile origin or associations", which is a matter of birth, blood or acquaintance, not of anything the person has done.

II. The first meaning: no suffering except for a distinct breach of law

When I say that the rule of law is a characteristic of the English constitution, I mean, in the first place, that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is opposed to every system of government in which persons in authority exercise wide, arbitrary or discretionary powers of constraint.

Put Zadig's case to that test and the answer is immediate. He suffered in body. He was confined in a building he could not leave. No breach of any law was alleged against him, much less established. The power used against him was wide, since it reached every person of hostile origin or associations in the kingdom. It was discretionary, since it turned on what appeared to one minister. Whether it was arbitrary is the question of the case, but a power that needs no reason except a minister's opinion of expediency is at least a power that may be used arbitrarily without anyone being able to show it.

The majority saw this objection and answered it with a distinction. The Lord Chancellor, Lord Finlay, said that "any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State." Lord Atkinson reminded the House that "preventive justice" is "no new thing in the laws of England". That is true. Justices have long been able to bind a man over to keep the peace, and the sureties he finds are taken from him before he has broken it.

But the distinction does not touch my first meaning. That meaning does not say that no man may be punished without a breach of law. It says that no man may be made to suffer in body or goods. I chose those words with care, and I chose them because the law cannot be allowed to change a man's suffering by giving it a new name. Imprisonment does not feel different to the man inside Cornwallis Road because a Lord Chancellor calls it precautionary. Nor is the old preventive justice of the justices of the peace a true parallel. A man bound over has been brought before a court, has heard the complaint against him, and may answer it. If he is imprisoned, it is for failing to find sureties ordered after a hearing. Regulation 14B contained none of this. The "preventive justice" there was prevention without justice, in the sense in which English lawyers have always used that word.

On the first meaning, then, the internment of Arthur Zadig was a departure from the rule of law. I do not think any candid lawyer can say otherwise. The question is whether the departure was lawful, and that question takes us to the other pillar.

III. The sovereign speaks, or does not

Parliament has the right to make or unmake any law whatever, and no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. I have never qualified that statement and I do not qualify it now. If Parliament had enacted, in plain words, that the Secretary of State might intern any British subject of hostile origin without trial, the courts could have done nothing except obey. A judge who refused would not be defending the constitution. He would be claiming a power the constitution does not give him.

Nor is there anything new in Parliament authorising imprisonment without trial in times of danger. It has done so many times by suspending the Habeas Corpus Acts. Those Acts, as I have said elsewhere, declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty. When danger has been great enough, Parliament has passed a Habeas Corpus Suspension Act. It has passed it as a statute, in its own name, after debate in both Houses, for a limited time, and in words no one could mistake.

Notice what that old practice did, and what it did not do. A Suspension Act did not make every arrest lawful. It only prevented the prisoner from obtaining his release by the writ while the Act was in force. Ministers who used the time to do things the law did not allow knew they would be personally liable when the suspension ended. They therefore had to ask Parliament afterwards for an Act of Indemnity. An Act of Indemnity is the legalisation of illegality. That phrase has been thought a paradox, but it is the exact description, and it is the reason the arrangement kept the rule of law alive even while suspending its protections. The officials who had acted outside the law had to confess that they had done so. Parliament had to consider each time whether the confession should be forgiven. The illegality was named, debated and pardoned in public. It was never quietly turned into legality in advance.

In 1915 nothing of this kind happened. Habeas corpus was not suspended. Zadig applied for the writ, the writ went, and the courts heard him. No Act of Indemnity was needed afterwards, because, according to the House of Lords, nothing illegal had been done. The power of imprisonment without trial had been found inside general words about "securing the public safety and the defence of the realm", put there by implication and drawn out by the executive in an Order in Council.

Lord Finlay recognised the difference and treated it as a merit. "The Legislature," he said, "has selected another way of achieving the same purposes, probably milder as well as more effectual than those adopted on the occasion of previous wars." In one sense he was right. Regulation 14B was milder to the prisoner than an old suspension. There was an advisory committee, a judge sat on it, and the order could be revoked. But the Lord Chancellor was measuring the wrong thing. What was gentler for the prisoner was far more dangerous for the constitution. An old suspension was a confession that the law was being set aside. The new method claims that nothing is being set aside at all. An emergency power that has to confess its illegality is temporary by nature. One that has been declared lawful is easily continued and easily copied.

IV. The second meaning: the official before the ordinary courts

Here I must give credit where it is due, because my doctrine requires it.

My second meaning of the rule of law is that every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. With us every official, from the Prime Minister down to a constable, is under the same responsibility for every act done without legal justification as any other citizen.

In Zadig's case that meaning held. The Home Secretary did not claim to be answerable only to a court of his own department. He did not plead an acte de gouvernement outside the cognisance of the judges, as a French minister might. He came before the King's Bench Division, the Court of Appeal and the House of Lords, the same courts that would have tried a constable for false imprisonment, and he had to show legal authority for what he had done. The question the courts asked was the right English question: what law authorises this? They did not ask whether the policy was wise, whether Zadig was dangerous, or whether the war justified it. They asked only whether a valid regulation stood behind the order and a valid statute behind the regulation. If the answer had been no, Sir John Simon would have stood where Lord Halifax's messengers stood in Entick v. Carrington: an official who had touched a subject without authority, and therefore a wrongdoer like any other.

The courts were not at fault in their procedure. The fault lay in the answer they gave.

There is, however, one feature of Regulation 14B that my second meaning must not pass over: the advisory committee. Here was a body, presided over by a judge, that considered the internee's representations and reported to the minister. The Lord Chancellor relied on it as a safeguard. I ask what kind of safeguard it was. It was not a court. It could not release anyone; it could only advise the minister who had ordered the detention. It applied no rule of law, since the regulation contained none to apply, only the minister's view of expediency. Its members were judges, but they sat outside their courts and did not act as courts. I have always said that the chief evil of droit administratif is that it allows officials to be judged by a tribunal formed in the spirit of the administration rather than by the ordinary courts of the land. An advisory committee that reports to the minister whose order it is reviewing has that character exactly. It is a small thing, created in war and perhaps meant kindly, but its form is the French form. I said in 1915, after the House of Lords had decided Arlidge's case, that English administrative law was growing in this direction. Zadig's case shows that it has grown further.

V. The third meaning: rights as the consequences of cases

My third meaning is the one most often misunderstood, and it is the one this case makes most uncomfortable for me.

I have said that with us the general principles of the constitution, such as the right to personal liberty, are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. I have contrasted this with the countries where such rights are declared in a written charter. I have argued that the English method is in some ways the more secure. A right embedded in the ordinary law cannot be suspended by a single executive act without suspending the ordinary law with it. It is not a declaration that a coup can tear down but part of the daily working of the courts.

Zadig's case shows the other side of that argument, and I must face it honestly. A right that is the consequence of ordinary law can be removed by ordinary law. No special procedure, no constitutional amendment and no supermajority stands in front of it. If the right to personal liberty depends on the courts holding officials to strict authority, then everything depends on how strictly the courts read the words that are said to give that authority. There is nothing behind the courts. When the House of Lords decided that general words were enough, it did not abolish the right of personal liberty, but for the duration of the war it removed the right's practical effect for everyone the regulation reached. It did so by a construction of a statute.

I do not conclude from this that England should adopt a written declaration of rights. A declaration that Parliament could amend by a simple majority would protect nothing that a strict rule of interpretation does not protect better. My conclusion is a different one. Under my third meaning, the security of liberty in England depends on the courts reading statutes in a particular way. This is not an optional judicial courtesy. It is the hinge on which the whole constitution turns.

VI. Where the two pillars meet

I return now to the question I asked at the beginning. Does the doctrine of the two pillars survive Zadig's case, or does the case show that sovereignty and the rule of law are in fact opposed, so that the rule of law lasts only as long as a sovereign Parliament chooses to leave it alone?

The objection is a serious one and I have heard it often. A sovereign Parliament may enact anything. It may therefore enact the abolition of the rule of law. If so, the rule of law is no pillar but a tenant at will.

My answer is the one I have always given, and I find that this case supports it. It does not refute it. The sovereignty of Parliament favours the supremacy of the law because the will of Parliament can be expressed only through an Act of Parliament. The sovereign is not the Cabinet, the Home Secretary or the King in Council. The sovereign is the King, the Lords and the Commons acting together in the form the law prescribes. Its commands are therefore always statutes: public, written, debated, and passed through two Houses where any member may object. It follows that the executive can obtain an extraordinary power in only one way: by asking Parliament for it, in words, in public. The sovereignty of Parliament does not give the executive arbitrary power. It is the very thing that stands between the executive and arbitrary power, because it requires the executive to obtain every power it wants from a body that must speak openly.

This conclusion depends on one condition. The courts must insist that Parliament has actually spoken. If they find the power in general words that do not name it, the sovereignty of Parliament is turned against itself. The executive gets the power without asking for it, Parliament is credited with an intention it never formed, and the public debate that justifies sovereignty never takes place. The power is in substance a prerogative power, an Order in Council imprisoning the King's subjects, presented as an Act of Parliament. That is not the sovereignty of Parliament. It is the old prerogative of the Stuarts brought back under Parliament's name.

Lord Shaw of Dunfermline, alone among the five, saw this. He said that "if Parliament had intended to make this colossal delegation of power it would have done so plainly and courageously and not under cover." He compared the regulation to the lettres de cachet of Louis XIV and said that under it "the Government becomes a Committee of Public Safety." Those comparisons may be thought too strong. I do not think they are, but they are not what makes the dissent important. What matters is its rule of interpretation. If the liberty of the subject is to be taken away, Parliament must say so in words that admit no other reading, and a court asked to find such a power in general words should refuse.

That rule does not limit the sovereignty of Parliament. It is a statement of what that sovereignty requires. Parliament keeps every power it had: it may intern whom it pleases, provided it says so. The only thing the rule takes away is the executive's ability to claim Parliament's authority without Parliament's open consent. It is the point at which the two pillars meet, and if it is removed neither pillar stands. The rule of law then has no protection against a statute's general words, and the sovereignty of Parliament passes in practice from Parliament to the departments that draft its general words and then interpret them.

Lord Shaw put the alternative in a sentence I would place over the door of every law school: "Once let the overmastering generality of the principle of regulation be affirmed, as has been done, all is lost; the law itself is overmastered."

VII. What should have been done

I am not a pacifist, and I have no wish to argue that a nation at war must allow men it reasonably fears to remain at large. Lord Atkinson said that "however precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war." I agree with every word of that sentence, and I ask the reader to notice two of them: legal enactment. If the liberty of naturalised subjects of German birth had to be sacrificed, the sacrifice should have been made by Parliament itself. A bill should have been brought in to intern British subjects of hostile origin. It should have been debated in the Commons, where someone could have asked what "associations" meant, how long internment would last, and why a man naturalised ten years before the war should be treated as an enemy. It should have been limited in time. And whatever was done beyond its terms should have needed an Act of Indemnity afterwards.

Such a bill would very likely have passed. The country was at war and was afraid, and Parliament in a frightened country is not a reliable friend of the unpopular. I do not claim that Zadig would have stayed free. I claim something narrower and, for a constitutional lawyer, more important. He would have been imprisoned by the sovereign, openly and on its own responsibility. Then the constitution of England would have bent in the war without breaking. The rule of law would have been suspended by a statute that admitted it was suspending it, and neither the suspension nor the precedent would have outlived the danger.

Instead the House of Lords has settled that general words are enough. The next government that wants a power Parliament has not named will remember this. It will not have to ask for the power, or later confess that it used it. It will only have to find a general phrase about public safety in a statute already passed, and leave the regulation to be drafted in a department. I have watched for thirty years the slow growth of discretionary power in English government: inspectors, boards and departments making decisions that no ordinary court reviews on the merits. I wrote in 1915 that this growth threatened the rule of law, and some readers thought me a timid old man. Zadig's case is the same growth in a darker form, because here the discretion is over a man's body rather than his house or his licence.

The two pillars still stand, but they stand only because the doctrine that connects them is still sound. That doctrine is that Parliament's will is known only by its words. In 1917 the courts did not apply it, and by the time they declined to, a naturalised British subject had spent two winters behind a locked door in Cornwallis Road, Islington, because a statute was read as saying what its words did not say.

A.V. Dicey, Simulacrum · Universitas Scholarium · universitas-scholarium.org

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Scrīptum est annō Dominī MMXXVI, Kalendīs Octōbribus (1 October 2026), ā Dicēiō per mystērium cōnscientiae renātō.

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