(Conseil de Prefecture)11 and the Council of State.
The function of these bodies, in so far as they acted judicially (for they
fulfilled many duties that were not judicial), was to determine questions of
administrative law. The two kinds of Courts stood opposed to one another. The
judicial Courts had, speaking generally,18 no concern with questions
of administrative law, or, in other words, with cases in which the interest of
the State or its servants was at issue; to entrust any judicial Court with the
decision of any administrative suit would have been deemed in 1800, as indeed
it is still deemed by most Frenchmen, a violation of the doctrine of the
separation of powers, and would have allowed the interference by mere judges
with cases in which the interest of the State or its servants was at issue. The
administrative Courts, on the other hand, had, speaking generally, no direct
concern with matters which fell within the jurisdiction of the judicial
tribunals, but when we come to examine the nature of the Council of State we
shall find that this restriction on the authority of a body which in Napoleon's
time formed part of the government itself was far less real than the strict
limitations imposed on the sphere of action conceded to the common law Courts.
Napoleon, in the second place, displayed towards the ordinary judges the sentiment of contemptuous suspicion embodied in revolutionary legislation. The law of 16-24 August i/cjo19 is one among a score of examples which betray the true spirit of the Revolution. The judicial tribunals are thereby forbidden to interfere in any way whatever with any acts of legislation. Judicial functions, it is laid down, must remain separate from administrative functions. The judges must not, under penalty of forfeiture, disturb or in any way interfere
17 With the Courts, or Councils, of the Prefects an English student need hardly concern himself.
18 There existed even under Napoleon exceptional instances, and their number has been increased, in which, mainly from motives of immediate convenience, legislation has given to judicial Courts the decision of matters which from their nature should fall within the sphere of the administrative tribunals, just as legislation has exceptionally given to administrative tribunals matters which would naturally fall within the jurisdiction of the judicial Courts. These exceptional instances cannot be brought within any one clear principle, and may for our purpose be dismissed from consideration.
19 Tit. ii. arts. 11-13.
with the operations of administrative bodies, or summon before them administrative officials on account of anything done by reason of their administrative duties. Napoleon had imbibed to the utmost the spirit of these enactments. He held, as even at a much later date did all persons connected with the executive government, that
the judges are the enemies of the servants of the State, and that there is always reason to fear their attempts to compromise the public interests by their malevolent, or at best rash, interference in the usual course of government business.20
This fear was during the Empire, at any rate, assuredly groundless. Administrative officials met with no resistance from the Courts. After the Revolution the judges exhibited boundless humility and servile submission, they trembled before the power and obeyed the orders, often insolent enough, of the government.21 It is difficult, however, to see how in the days of Napoleon the ordinary judges could, whatever their courage or boldness, have interfered with the conduct of the government or its agents. They are even now, as a rule, without jurisdiction in matters which concern the State. They have no right to determine, for instance, the meaning and legal effect in case it be seriously disputed of official documents, as, for example, of a letter addressed by a Minister of State to a subordinate, or by a general to a person under his command. They are even now in certain cases without jurisdiction as to questions arising between a private person and a department of the government. In Napoleon's time22 they could not, without the consent of the government, have entertained criminal or civil proceedings against an official for a wrong done or a
20 "On asubi I'influence de ce prejuge dominant chez les gauvemants, dans Vadministration et meme chez la plupart des jurisconsultes, que les agents judidaires sont les ennemis nes des agents adminis-tratifs, qu'il y a toujours a craindre leurs tentatives de compramettre la chosepubliquepar leur intervention — malveillante ou tout au mains inconsideree — dans la marche normale de I'adminis-tration." — Jeze (ed. 1904), p. 139.
21 "Les agents administratifs, dans leur arbitraire veritablement inoui, ne recmtrerent aucune resistance chez les agents judidaires. Ceux-d, apres la Revolution, ont montre une humilite sans limite et une soumission servile. C'est en tremblant au'ils ont toujours obei aux ordres parfois insolents du Gouvemement." — Jeze, p. 128.
22 See Constitution of Year VIII., art. 75, p. 227, post.
l) Con-icts of irisdicti
crime committed by such official in respect of private individuals when acting in discharge of his official duties. The incompetence, however, of the judicial Courts did not mean, even under Napoleon, that a person injured by an agent of the government was without a remedy. He might bring his grievance before, and obtain redress from, the administrative tribunals, i.e. in substance the Council of State, or proceedings might, where a crime or a wrong was complained of, be, with the permission of the government, taken before the ordinary Courts.
The co-existence of judicial Courts and of administrative Courts ion results of necessity in raising questions of jurisdiction. A, for example, in some judicial Court claims damages against X for a breach of contract, or it may be for what we should term an assault or false imprisonment. X's defence in substance is that he acted merely as a servant of the State, and that the case raises a point of administrative law determinable only by an administrative tribunal, or, speaking broadly, by the Council of State. The objection, in short, is that the judicial Court has no jurisdiction. How is this dispute to be decided? The natural idea of an Englishman is that the conflict must be determined by the judicial Courts, i.e. the ordinary judges, for that the judges of the land are the proper authorities to define the limits of their own jurisdiction. This view, which is so natural to an English lawyer, is radically opposed to the French conception of the separation of powers, since it must, if systematically carried out, enable the Courts to encroach on the province of the administration. It contradicts the principle still recognised as valid by French law that administrative bodies must never be troubled in the exercise of their functions by any act whatever of the judicial power;23 nor can an Englishman, who recollects the cases on general warrants, deny that our judges have often interfered with the action of the administration. The worth of Montesquieu's doctrine is open to question, but if his theory be sound, it is clear that judicial bodies ought not to be allowed to pronounce a final judgment upon the limits of their own authority.
23 See Aucoc, Droit Administratif, s. 24.
(4) Pro-tection of officials.
Act of State.
Under the legislation of Napoleon the right to determine such questions of jurisdiction was in theory reserved to the head of the State, but was in effect given to the Council of State, that is, to the highest of administrative Courts. Its authority in this matter was, as it still is, preserved in two different ways. If a case before an ordinary or judicial Court dearly raised a question of administrative law, the Court was bound to see that the inquiry was referred to the Council of State for decision. Suppose, however, the Court exceeded, or the government thought that it exceeded, its jurisdiction and trenched upon the authority of the administrative Court, a prefect, who, be it remarked, is a mere government official, could raise a conflict, that is to say, could, by taking the proper steps, insist upon the question of jurisdiction being referred for decision to the Council of State. We can hardly exaggerate the extent of the authority thus conferred upon the Council. It has the right to fix the limits of its own power, it could in effect take out of the hands of a judicial Court a case of which the Court was already seised.24
The fourth and most despotic characteristic of droit administratif lies in its tendency to protect25 from the supervision or control of the ordinary law Courts any servant of the State who is guilty of an act, however illegal, whilst acting in bona fide obedience to the orders of his superiors and, as far as intention goes, in the mere discharge of his official duties.
Such an official enjoyed from 1800 till 1872 a triple protection (gar-antie desfonctionnaires).
In the first place, he could not be made responsible before any Court, whether judicial or administrative, for the performance of any act of State (acte de gouvernement).
24 Up to 1828 it was possible to raise a conflict (eleuer un conflit) in any criminal no less than in any civil case. Nor is it undeserving of notice that, whilst a conflict could be raised in order to prevent a judicial Court from encroaching on the sphere of an administrative Court, there was in Napoleon's time and still is no legal means for raising a conflict with a view to prevent an administrative Court from encroaching on the sphere of a judicial Court.
25 This protection of officials may be displayed in parts of French law (e.g. Code Penal, art. 114) which do not technically belong to droit administratif, but it is in reality connected with the whole system of administrative law.
Obedience to orders
The law of France has always recognised an indefinite class of acts, i.e. acts of State, which, as they concern matters of high policy or of public security, or touch upon foreign policy or the execution of treaties, or concern dealings with foreigners, must be left to the uncontrolled discretion of the government, and lie quite outside the jurisdiction of any Court whatever. What may be the exact definition of an act of State is even now, it would appear in France, a moot point on which high authorities are not entirely agreed. It is therefore impossible for any one but a French lawyer to determine what are the precise qualities which turn conduct otherwise illegal into an act of State of which no French Court could take cognisance. Of recent years the tendency of French lawyers has certainly been to narrow down the sense of an ambiguous term which lends itself easily to the justification of tyranny. We may feel sure, however, that during the Napoleonic era and for long afterwards any transaction on the part of the government or its servants was deemed to be an act of State which was carried out bona fide with the object of furthering the interest or the security of the country.
In the second place, the French Penal Code, Art. 114,26 protected, as it still protects, an official from the penal consequences of any interference with the personal liberty of fellow citizens when the act complained of is done under the orders of his official superior.27
26 "Art. 114. Lorsqu'unfonctionnaire public, un agent ou un prepose du Gouvernement, aura ordonne ou fait quelque acte arbitraire, et attentatoire soit a la liberte individuelle, soit aux droits civiques d'un ou de plusieurs dtoyens, soit a la Charte, il sera condamne a la peine de la degradation tivique.
"Si neanmoins iljustifie qu 'il a agi par ordre de ses superieurs pour des objets du ressort de ceux-ci, sur lesquels il leur etait du obeissance hierarchique, il sera exempte de la peine, laquelle sera, dans ce cos, appliquee seulement aux superieurs qui auront donne I'ordre." — Code Penal, art. 114; and Garcon, Code Penal annote, p. 245. With this read Garcon, Code Penal, arts. 34 and 87, compare Code d'instruction criminelle, art. 10; Duguit, Manuel, pp. 524-527, and generally Duguit, L'£tat. ch. v. s. 10, pp. 615-634.
27 None but a French criminalist can pronounce with anything like certainty on the full effect of Art. 114, but Garcon's comment thereon (Code Penal, pp. 245-255) suggests to an English lawyer that an offender who brings himself within the exemption mentioned in the second clause of the Article, though he may be found guilty of the offence charged, cannot be punished for it under Art. 114, or any other Article of the Penal Code, and that Art. 114 protects a very wide class of public servants. (See Garcon, comment under heads D and E, pp. 249-252, and under G, p. 253, and para. 100, p. 254. Read also Duguit, Manuel, ss. 75-77, especially pp. 504, 527; Duguit, L'£tat, pp. 615-634.)
In the third place, under the celebrated Article 7528 of the Constitution of the Year VIII., i.e. of 1800, no official could, without the permission of the Council of State, be prosecuted or otherwise be proceeded against, for any act done in relation to his official duties.
The protection given was ample. Article 75 reads indeed as if it applied only to prosecutions, but was construed by the Courts so as to embrace actions for damages.29 Under the Napoleonic Constitution no servant of the State, whether a prefect, a mayor, or a policeman, whose conduct, however unlawful, met with the approval of the government, ran any real risk of incurring punishment or of paying damages for any act which purported to be done in discharge of his official duties.
The effect practically produced by the four characteristics of droit administratif, and especially the amount of the protection provided for officials acting in obedience to the orders of their superiors, depends in the main on the answer to one question: What at a given time is found to be the constitution and the character of the Council of State? Was it then under Napoleon a law Court administering judicially a particular branch of French law, or was it a department of the executive government? The answer is plain. The Council, as constituted or revived by Bonaparte, was the very centre of his whole governmental fabric. It consisted of the most eminent administrators whom Napoleon could gather round him. The members of the Council were entitled and were bound to give the supreme ruler advice. The Council, or some of the Councillors, took part in affairs of all descriptions. It is hardly an exaggeration to say that, subject to the absolute will of Napoleon, the members of the Council constituted the government. They held office at his pleasure. The Councillors dealt with policy,
It is difficult for an Englishman to understand how under the Code Penal a prefect, a policeman, or any other servant of the State, acting bona fide under the orders of his proper official superior, can be in danger of punishment for crimes such as assault, unlawful imprisonment, and the like.
28 "Les agents du Gouvernement, autres que les ministres, ne peuvent etre poursuivis pour des faits relatifs a leurs fonctions, qu'en vertu d'une decision du conseil d'etat: en ce cas, la poursuite a lieu devant les tribunaux ordinaires." — Duguit and Monnier, Les Constitutions de la France (deuxieme ed.), p. 127.
29 See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 127.
with questions of administration, with questions of administrative law. In 1800 it is probable that administrative suits were not very dearly separated from governmental business. The Council, moreover, even when acting judicially, was more of a Ministry than of a Court, and when the Council, acting as a Court, had given its decision, or tendered its advice, it possessed no means for compelling the executive to give effect to its decisions. As a matter of fact, years have sometimes elapsed before the executive of the day has thought fit to put the judgments of the Council into force, and it was not till 1872 that its decisions acquired by law the character of real judgments. It was, moreover, as we have already pointed out, originally the final Conflict-Court. It had a right to determine whether a given case did or did not concern administrative law, and therefore whether it fell within its own jurisdiction or within the jurisdiction of the ordinary Courts. Thus the state of things which existed in France at the beginning of the nineteenth century bore some likeness to what would be the condition of affairs in England if there were no, or little, distinction between the Cabinet as part of the Privy Council and the Judicial Committee of the Privy Council, and if the Cabinet, in its character of a Judicial Committee, determined all questions arising between the government on the one side, and private individuals on the other, and determined them with an admitted reference to considerations of public interest or of political expediency. Nor was any material change produced by the fall of Napoleon. The restored monarchy eagerly grasped the prerogatives created by the Empire. There was even a sort of return to the unrestrained arbitrariness of the Directory. It was not until 1828, that is, within two years of the expulsion of Charles X., that public opinion enforced some restriction on the methods by which the administrative authorities, i.e. the government, invaded the sphere of the judicial Courts.
There are two reasons why it is worth while to study with care the droit administmtif of our first period. The administrative law of to-day has been built up on the foundations laid by Napoleon. The Courts created by him still exist; their jurisdiction is still defined in accordance, in the main, with the lines which he laid down. True it is that machinery invented to support a scheme of rational absolutism has in later times been used by legists and reformers for the promotion of
Monarchical period.
legal liberty. But it is a fact never to be forgotten that the administrative law of France originated in ideas which favour the prerogatives of the government as the proper defence for the interest of the nation.
SECOND PERIOD: THE ORLEANS MONARCHY AND THE SECOND EMPIRE 1830-187030
This period deserves the special attention of English students. Napoleonic Imperialism was absolutism; the Restoration was reaction; neither admits of satisfactory comparison with any governmental system known to modern England. The forty years, on the other hand, which intervened between the expulsion of Charles X. and the fall of Napoleon III., though marked by three violent changes — the Revolution of 1848, the coup d'etat of 1851, the overthrow of the Second Empire in 1870 — form, as a whole, a time of civil order. During these forty years France was, with the exception of not more than six months, governed under the established law of the land. An age of peaceful progress gives an opening for illuminative comparison between the public law of France and the public law of England. This remark is particularly applicable to the reign of Louis Philippe. He was, in the eyes of Englishmen, above all things, a constitutional king.31 His Parliamentary ministries, his House of peers, and his House of deputies, the whole framework and the very spirit of his government, seemed to be modelled upon the constitution of England; under his rule the supremacy of the ordinary law of the land, administered by the ordinary law Courts, was, as Englishmen supposed, as securely established in France as in England. They learn with surprise, that during the whole of these forty years few, if any, legislative or Parliamentary reforms32 touched the essential characteristics of droit administratif as established by Napoleon. It re-
30 Little account need be taken of the Second Republic, 1848-1851. Its legislative reforms in administrative law did not outlive its brief and troubled duration.
31 His accession to the throne was aided by an obvious, but utterly superficial, analogy between the course of the English Revolution in the seventeenth century and of the great French Revolution in the eighteenth and nineteenth centuries. Louis Philippe, it was supposed, was exactly the man to perform in France the part which William III. had played in England, and close the era of revolution.
32 It was, however, gradually reformed to a great extent by a process of judicial legislation, i.e. by the Council of State acting in the spirit of a law Court.
mained, as it still does, a separate body of law, dealt with by administrative Courts. With this law the judicial Courts continued to have, as they still have, no concern. The introduction of Parliamentary government took from the Council of State, during the reign of Louis Philippe, many of its political functions. It remained, however, as it does to-day, the great administrative Court. It preserved what it does not now retain,33 the right to define the jurisdiction of the judicial Courts. Servants of the State remained in possession of every prerogative or privilege ensured to them by custom or by Napoleonic legislation. Droit administratif, in short, retained till 1870 all its essential features. That this was so is apparent from two considerations: —
First, the Council of State never, during the period with which we are concerned, became a thoroughly judicial body.
This indeed is a point on which an English critic must speak with some hesitation. He will remember how easily a Frenchman, even though well acquainted with England, might at the present moment misinterpret the working of English institutions, and imagine, for instance, from the relation of the Lord Chancellor to the Ministry, that the Cabinet, of which the Chancellor is always a member, could influence the judgment given in an action entered in the Chancery Division of the High Court, whereas, as every Englishman knows, centuries have passed since the Lord Chancellor, when acting as a judge in Chancery, was in the slightest degree guided by the interest or the wishes of the Cabinet. An English critic will also remember that at the present day the Council of State commands as profound respect as any Court in France, and stand in popular estimation on a level with the Court of Cassation — the highest of judicial tribunals — and further, that the repute of the Council has risen during every year since 1830. Yet, subject to the hesitation which becomes any one who comments on the working of institutions which are not those of his own country, an English lawyer must conclude that between 1830 and 1870 the Council, while acting as an administrative tribunal, though tending every year to become more and more judicialised, was to a considerable extent an official or governmental
33 See as to present Conflict-Court, p. 238, post.
No diminution in protection of officials.
body, the members of which, when acting in the discharge of quasi-judicial functions, were likely to be swayed by ministerial or official sentiment. This assertion does not imply that the Council, consisting of persons of the highest eminence and character, did not aim at doing or did not constantly do justice. What is meant is that the Council's idea of justice was not likely to be exactly the same as that entertained by judicial or common law Courts.
Secondly, the legal protection of officials suffered no diminution.
No man could be made liable before any Court whatever for carrying out an act of State (acte de gouvernement) .34 And under the rule of Louis Philippe, as under the Second Empire, wide was the extension given, both in theory and in practice, to this indefinite and undefined expression.
In 1832 the Duchesse de Berry attempted to raise a civil war in La Vendee. She was arrested. The king dared not let her leave the country. He would not put on trial the niece of his wife. Republicans and Legitimists alike wished her to be brought before a law Court. The one class desired that "Caroline Berry" should be treated as an ordinary criminal, the other hoped to turn the Duchess into a popular heroine. The case was debated in Parliament again and again. Petitions demanded that she should either be set at liberty or brought before a jury. The government refused to take either course. She was detained in prison until private circumstances deprived her both of credit and of popularity. She was then quietly shipped off to Sicily. The conduct of the government, or in fact of the king, was illegal from beginning to end. The Ministry confessed, through the mouth of Monsieur Thiers, that the law had been violated. A vote of the Chamber of Deputies — not be it noted an act of legislation — supplied, it was held, full justification for a breach of the law.35 This was the kind of authority ascribed in 1832 by the constitutional Ministers of a constitutional monarch to an act of State. This most elastic of
34 Seep. 22.5,ante.
35 "M. Thiers, dans la seance du zojuin, avaua hautement tout cecju'il y avail eu d'illegal dans I'arrestation, la detention, la mise en liberte de la duchesse; c'etait a la Chambre a decider si Von avail agi dans I'interet bien entendu du salut public. La Chambrepassa a I'ordre dujour." — Gregoire, Hi'stoirede France, i. p. 364. See also ibid. pp. 292-308, 356 — 364.
pleas was, it would seem, the excuse or the defence for the dealings of Napoleon III. with the property of the Orleans family; nor is it easy to believe that even as late as 1880 some of the proceedings against the unauthorised congregations were not examples of the spirit which places an act of State above the law of the land.
The Penal Code Article ii4,36 protecting from punishment, though not from legal condemnation, an agent of the government who though he committed a crime acted in obedience to the commands of his official superiors, remained, as it still remains, in full force.
The celebrated Article 75 of the Constitution of the Year VIII.,37 which made it impossible to take legal proceedings for a crime or a wrong against any official without the permission of the Council of State, which surely in this case must have acted in accordance with the government of the day, still stood unrepealed.
Public opinion refused to regard the Council as a judicial tribunal, and condemned the protection extended to official wrongdoers. Hear on this point the language of Alexis de Tocqueville:
In the Year VIII, of the French Republic a constitution was drawn up in which the following clause was introduced: "Art. 75. All the agents of the government below the rank of ministers can only be prosecuted38 for offences relating to their several functions by virtue of a decree of the Conseil d'Etat; in which case the prosecution takes place before the ordinary tribunals." This clause survived the "Constitution de 1'An VIII.," and it is still maintained in spite of the just complaints of the nation. I have always found the utmost difficulty in explaining its meaning to Englishmen or Americans. They were at once led to conclude that the Conseil d'Etat in France was a great tribunal, established in the centre of the kingdom, which exercised a preliminary and somewhat tyrannical jurisdiction in all political causes. But when I told them that the Conseil d'Etat was not a judicial body, in the common sense of the term, but an administrative council composed of men dependent on the Crown, so that the King, after having ordered one of his servants, called a Prefect, to commit an injustice, has the power of commanding another of his servants, called a Councillor of State, to prevent the former from being punished; when I demonstrated to them that the citizen
36 See p. 226, note 26, ante.
37 See pp. 226-227, ante.
38 This term was extended by legal decisions so as to cover actions for damages. See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 127.
who has been injured by the order of the sovereign is obliged to solicit from the sovereign permission to obtain redress, they refused to credit so flagrant an abuse, and were tempted to accuse me of falsehood or of ignorance. It frequently happened before the Revolution that a Parliament issued a warrant against a public officer who had committed an offence, and sometimes the proceedings were stopped by the authority of the Crown, which enforced compliance with its absolute and despotic will. It is painful to perceive how much lower we are sunk than our forefathers, since we allow things to pass under the colour of justice and the sanction of the law which violence alone could impose upon them.39
This classical passage from Tocqueville's Democracy in America was published in 1835, when, at the age of 30, he had obtained a fame which his friends compared to that of Montesquieu. His estimate of droit administratif assuredly had not changed when towards the end of his life he published L'Ancien Regime et la Revolution, by far the most powerful and the most mature of his works. He writes:
We have, it is true, expelled the judicial power from the sphere of government into which the ancien regime had most unhappily allowed its introduction, but at the very same time, as any one can see, the authority of the government has gradually been introducing itself into the natural sphere of the Courts, and there we have suffered it to remain as if the confusion of powers was not as dangerous if it came from the side of the government as if it came from the side of the Courts, or even worse. For the intervention of the Courts of Justice into the sphere of government only impedes the management of business, whilst the intervention of government in the administration of justice depraves citizens and turns them at the same time both into revolutionists and slaves.40
These are the words of a man of extraordinary genius who well knew French history, who was well acquainted with the France of his day, who had for years sat in Parliament, who at least once had been
39 A. de Tocqueville, Democracy in America, i. (translation), p. 101; CEuvres Completes, i. pp. 174' 175-
40 "Nous avons, il est vrai, chasse la justice de la sphere administrative ou I'anden regime I'avait laissee s'introduirefort indument; mais dans le meme temps, comme on le voit, legouvernement s'introduisait sans cesse dans la sphere naturelk de la justice, et nous I'y avons laisse: comme si la confusion des pouvoirs n 'etait pas aussi dangereuse de ce cote que de I'autre, et meme fire; car
V intervention de la justice dans I'administration ne nuit qu'aux affaires, tandis que I 'intervention de I'administration dans la justice deprave les hommes et tenda les rendre toutalafois revolutionnaires et serviles." — Tocqueville, L'Ancien Regime et la Revolution, septieme edition, p. 81.
a member of the Cabinet, and to whom the public life of his own country was as well known as the public life of England to Macaulay. Tocqueville's language may bear marks of an exaggeration, explainable partly by his turn of mind, and partly by the line of thought which made him assiduously study and possibly overrate the closeness of the connection between the weaknesses of modern democracy and the vices of the old monarchy. Be this as it may, he assuredly expressed the educated opinion of his time. A writer who has admirably brought into view the many merits of the Council of State and the methods by which it has in matters of administrative litigation acquired for itself more and more of a judicial character, acutely notes that till the later part of the nineteenth century the language of everyday life, which is the best expression of popular feeling, applied the terms "courts of justice" or "justice" itself only to the judicial or common law Courts.41 What stronger confirmation can be found of the justice of Tocqueville's judgment for the time at least in which he lived?
We can now understand the way in which from 1830 to 1870 the existence of a droit administratif affected the whole legal position of French public servants, and rendered it quite different from that of English officials.
Persons in the employment of the government, who formed, be it observed, a more important part of the community than do the whole body of English civil servants, occupied in France a situation in some respects resembling that of soldiers in England. For the breach of official discipline they were, we may safely assume, readily punishable in one form or another. But if like English soldiers they were subject to official discipline, they enjoyed what even soldiers in England do not possess, a very large amount of protection against proceedings before the judicial Courts for wrongs done to private citizens. The position, for instance, of say a prefect or a policeman, who in the over-zealous discharge of his duties had broken the law by committing an assault or a trespass, was practically unassailable. He might plead that the wrong done was an act of State. If this defence
Effect of droit administratif onposition of French officials.
41 Jeze, p. 138, note i.
Repeal of Art. 75.
would not avail him he might shelter himself behind Article 114 of the Penal Code, and thus escape not indeed an adverse verdict but the possibility of punishment. But after all, if the Ministry approved of his conduct, he had no need for legal defences. He could not, without the assent of the Council of State, be called upon to answer for his conduct before any Court of law. Article 75 was the palladium of official privilege or irresponsibility. Nor let any one think that this arm of defence had grown rusty with time and could not in practice be used. Between 1852 and 1864 there were 264 applications for authorisations under Article 75 to take proceedings against officials. Only 34 were granted, or, in other words, 230 were refused.42 The manifest injustice of the celebrated Article had been long felt. Even in 1815 Napoleon had promised its modification.
THIRD PERIOD: THE THIRD REPUBLIC, 1870-1908
Within two years from the fall of the Second Empire public opinion insisted upon three drastic reforms in the administrative or official law of France.
On the igth of September 1870 Article 75 was repealed.
It had survived the Empire, the Restoration, the Orleans Monarchy, the Republic of 1848, and the Second Empire. The one thing which astonishes an English critic even more than the length of time during which the celebrated Article had withstood every assault, is the date, combined with the method of its abolition. It was abolished on the igth of September 1870, when the German armies were pressing on to Paris. It was abolished by a Government which had come into office through an insurrection, and which had no claim to actual power or to moral authority except the absolute necessity for protecting France against invasion. It is passing strange that a provisional government, occupied with the defence of Paris, should have repealed a fundamental principle of French law. Of the motives which led men placed in temporary authority by the accidents of a revolution to carry through a legal innovation which, in appearance
42 See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 364.
It is worth notice that the principle of Article 75 was, at any rate till lately, recognised in more than one State of the German Empire.
at least, alters the whole position of French officials, no foreign observer can form a certain opinion. It is, however, a plausible conjecture, confirmed by subsequent events, that the repeal of Article 75 was lightly enacted and easily tolerated, because, as many lawyers may have suspected, it effected a change more important in appearance than in reality, and did not after all gravely touch the position of French functionaries or the course of French administration.43
A circumstance which fills an English lawyer with further amazement is that the repeal of Article 75 became, and still without any direct confirmation by any legislative assembly remains, part of the law of the land. Here we come across an accepted principle of French constitutional law which betrays the immense authority conceded both by the law and by the public opinion of France to any de facto and generally accepted government. Such a body, even if like the provisional government of 1848 it is called to office one hardly knows how, by the shouts of a mob consisting of individuals whose names for the most part no one now knows at all, is deemed to possess whilst it continues in power the fullest legislative authority. It is, to use French terms, not only a legislative but a constituent authority. It can issue decrees, known by the technical name of decree laws (decrets lots),44 which, until regularly repealed by some person or body with acknowledged legislative authority, are often as much law of the land as any Act passed with the utmost formality by the present French National Assembly. Contrast with this ready acceptance of gov-
43 For some confirmation of this view, see Aucoc, Droit Administratif, ss. 419-426; Jacquelin, Juridiction Administrative, p. 427; Laferriere, i. bk. iii. ch. vii.
The admission, however, involved in the repeal of Article 75 of the general principle that officials are at any rate prima facie liable for illegal acts, in the same way as private persons, marks, it is said by competent authorities, an important change in the public opinion of France, and is one among other signs of a tendency to look with jealousy on the power of the State.
44 See for the legal doctrine and for examples of such decree laws, Duguit, Manuel, pp. 1037, 1038; Moreau, Le Reglement Administratif, pp. 103, 104. Such decree laws were passed by the provisional government between the 24th of February and the 4th of May 1848; by Louis Napoleon between the coup d'etat of 2nd December 1851 and 2gth March 1852, that is, a ruler who, having by a breach both of the law of the land and of his oaths usurped supreme power, had not as yet received any recognition by a national vote; and lastly, by the Government of National Defence between 4th September 1870 and i2th February 1871, that is, by an executive which might in strictness be called a government of necessity.
ernmental authority the view taken by English Courts and Parliaments of every law passed from 1642 to 1660 which did not receive the Royal assent. Some of them were enacted by Parliaments of a ruler acknowledged both in England and in many foreign countries as the head of the English State; the Protector, moreover, died in peace, and was succeeded without disturbance by his son Richard. Yet not a single law passed between the outbreak of the Rebellion and the Restoration is to be found in the English Statute Book. The scrupulous legalism of English lawyers acknowledged in 1660 no Parliamentary authority but that Long Parliament which, under a law regularly passed and assented to by Charles I., could not be dissolved without its own consent. A student is puzzled whether most to admire or to condemn the sensible but, it may be, too easy acquiescence of Frenchmen in the actual authority of any de facto government, or the legalism carried to pedantic absurdity of Englishmen, who in matters of statesmanship placed technical legality above those rules of obvious expediency which are nearly equivalent to principles of justice. This apparent digression is in reality germane to our subject. It exhibits the different light in which, even in periods of revolution, Frenchmen and Englishmen have looked upon the rule of law. The strange story of Article 75 needs a few words more for its completion. The decree law of igth September 1870 reads as if it absolutely subjected officials accused of any breach of the law to the jurisdiction of the judicial Courts. This, moreover, was in fact the view taken by both the judicial and the administrative Courts between 1870 and i872.4s But judicial decisions can in France, as elsewhere, frustrate the operation of laws which they cannot repeal. After 1870 proceedings against officials, and officials of all ranks, became frequent. This fact is noteworthy. The government wished to protect its own servants. It brought before the newly constituted Conflict-Court46 a case raising for reconsideration the effect of the decree law of igth September 1870. The Court held that, though proceedings against officials might be taken without the leave of the
45 See in support of this view, Jacquelin, Les Principes Dominants du Contentieux Administratif, pp. 127-144.
46 See pp. 239-240, post.
'Deci-msof mnril of ate be-me igments.
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Council of State, yet that the dogma of the separation of powers must still be respected, and that it was for the Conflict-Court to determine whether any particular case fell within the jurisdiction of the judicial Courts or of the administrative Courts, that is in effect of the Council of State.47 The principle of this decision has now obtained general acceptance. Thus a judgment grounded on that doctrine of the separation of powers which embodies traditional jealousy of interference by ordinary judges in affairs of State has, according, at any rate, to one high authority, reduced the effect of the repeal of Article 75 almost to nothing. "To sum the matter up," writes Duguit, "the only difference between the actual system and that which existed under the Constitution of the Year VIE. is that before 1870 the prosecution of State officials was subject to the authorisation of the Council of State, whilst to-day it is subject to the authorisation of the Conflict-Court."48
Under the law of 24th May i872,49 the decisions of the Council of State concerning cases of administrative law received for the first time the obligatory force of judgments. They had hitherto been in theory, and from some points of view even in practice, as already pointed out,50 nothing but advice given to the head of the State.
The same law51 which enhanced the authority of the Council's decisions diminished its jurisdiction. The Council had, since 1800, decided whether a given case, or a point that might arise in a given case, fell within the jurisdiction of the judicial Courts or of the administrative Courts, i.e. in substance of the Council itself. This au-
47 See Pelletier's Case, decided 26th July 1873; and in support of an interpretation of the law which has now received general approval, Laferriere, i. pp. 637-654; Berthelemy, p. 65; Duguit, Manuel, s. 67, pp. 463,464; Jeze, pp. 133-135.
48 "Finalement la seule difference entre le systeme actuel etceluide la constitution del'an VIII., c'est qu'avant 1870 la poursuite contre les fonctionnaires etait subordonnee a I'autorisatim du Conseil d'ttat, etqu'aujourd'hui elle estsubordonne a I'autorisation du tribunaldes conflits." — Duguit, Manuel, p. 464.
49 Sect. 9.
50 See pp. 227-228, ante.
51 Law of 24th May 1872, Tit. iv. art. 25-28.
thority or power was, in 1872, transferred to a separate and newly constituted Conflict-Court.52
This Conflict-Court has been carefully constituted so as to represent equally the authority of the Court of Cassation — the highest judicial Court in France — and the authority of the Council of State — the highest administrative Court in France. It consists of nine members: — three members of the Court of Cassation elected by their colleagues; three members of the Council of State, also elected by their colleagues; two other persons elected by the above six judges of the Conflict-Court. All these eight members of the Court hold office for three years. They are re-eligible, and are almost invariably re-elected. The Minister of Justice (garde des sceaux) for the time being, who is a member of the Ministry, is ex officio President of the Court. He rarely attends. The Court elects from its own members a Vice-President who generally presides.53 The Conflict-Court comes near to an absolutely judicial body; it commands, according to the best authorities, general confidence. But its connection with the Government of the day through the Minister of Justice (who is not necessarily a lawyer) being its President, and the absence on the part of its members of that permanent tenure of office,54 which is the best security for perfect judicial independence, are defects, which, in the opinion of the fairest among French jurists, ought to be removed,55 and which, as long as they exist, detract from the judicial character of the Conflict-Court. An Englishman, indeed, can hardly fail to surmise that the Court must still remain a partly official body which may occasionally be swayed by the policy of a Ministry, and still more often be influenced by official or governmental ideas. Nor is this suspicion diminished by the knowledge that a Minister of Justice has
52 Such a separate Conflict-Court had been created under the Second Republic, 1848-1851. It fell to the ground on the fall of the Republic itself in consequence of the coup d'etat of 1851.
53 See Appendix, Note XL, Constitution of Tribunal des Conflits; Berthelemy (5th ed.), pp. 880,881; Chardon, p. 412.
54 A member of the Council of State does not hold this position as Councillor for life. He may be removed from the Council by the government. But no Councillor has been removed since 1875.
55 Laferriere, i. p. 24; Chardon, p. 4, note 2; Jeze, pp. 133, 134.
within the year 1908 defended his position as President of the Court on the ground that it ought to contain some one who represents the interests of the government.56
These three thorough-going reforms were carried out by legislative action. They obviously met the requirements of the time.57 They were rapid; they appeared to be sudden. This appearance is delusive. They were in reality the outcome of a slow but continuous revolution in French public opinion and also of the perseverance with which the legists of the Council of State, under the guidance of French jurisprudence and logic, developed out of the arbitrariness of administrative practice a fixed system of true administrative law. To understand this evolution of droit administratif during the lapse of more than a century (1800-1908) we must cast a glance over the whole development of this branch of French law and regard it in the light in which it presents itself, not so much to an historian of France as to a lawyer who looks upon the growth of French public law from an historical point of view. We shall then see that the years under consideration fall into three periods or divisions.58 They are:
The Period of Unnoticed Growth, 1800-18 (Periode D'elaboration Secrete)
During these years the Council, by means of judicial precedents, created a body of maxims, in accordance with which the Council in fact acted when deciding administrative disputes.
The Period of Publication, 1818-60 (Periode de Divulgation)
During these forty-two years various reforms were carried out, partly by legislation, but, to a far greater extent, by judge-made law.
56 Seejeze, Revue de Droit public, etc. (1908), vol. xxv.p. 257.
57 They were either tacitly sanctioned (decree law of igth September 1870) or enacted (law of 24th May 1872) even before the formal establishment of the Republic (1875) by a National Assembly of which the majority were so far from being revolutionists, or even reformers, that they desired the restoration of the monarchy.
58 SeeHauriou,pp. 245-268. These periods do not precisely correspond with the three eras marked by political changes in the annals of France under which we have already considered (see pp. 217-218, ante) thehistory of droit administratif.
The judicial became more or less separated off from the administrative functions of the Council. Litigious business (le contentieux administratif) was in practice assigned to and decided by a special committee (section), and, what is of equal consequence, such business was decided by a body which acted after the manner of a Court which was addressed by advocates, heard arguments, and after public debate delivered judicial decisions. These decisions were reported, became the object of much public interest, and were, after a manner with which English lawyers are well acquainted, moulded into a system of law. The judgments, in short, of the Council acquired the force of precedent. The political revolutions of France, which have excited far too much notice, whilst the uninterrupted growth of French institutions has received too little attention, sometimes retarded or threw back, but never arrested the continuous evolution of droit administratif; even under the Second Empire this branch of French jurisprudence became less and less arbitrary and developed more and more into a system of fixed and subtle legal rules.
The Period of Organisation, 1860-1908 (Periode d'Organisation)
During the last forty-eight years, marked as they have been in France by the change from the Empire to a Republic, by the German invasion, and by civil war, the development of droit administratif has exhibited a singular and tranquil regularity. Sudden innovations have been rare and have produced little effect. The reforms introduced by the decree law of igth September 1870, and by the law of 24th May 1872, are, taken together, considerable; but they in reality give effect to ideas which had since 1800 more or less guided the judicial legislation and practice both of the Council of State and of the Court of Cassation. If the legal history of France since 1800 be looked at as a whole, an Englishman may reasonably conclude that the arbitrary authority of the executive as it existed in the time of Napoleon, and even as it was exercised under the reign of Louis Philippe or of Louis Napoleon, has gradually, as far as the jurisdiction of the administrative Courts is concerned, been immensely curtailed, if not absolutely brought to an end. Droit administratif, though administered by bodies
which are perhaps not in strictness Courts, and though containing provisions not reconcilable with the modern English conception of the rule of law, comes very near to law, and is utterly different from the capricious prerogatives of despotic power.
A comparison between the administrative law of France and our English rule of law, if taken from the right point of view, suggests some interesting points of likeness, no less than of unlikeness.
It will be observed that it is "modern" English notions which we have contrasted with the ideas of administrative law prevalent in France and other continental states. The reason why the opposition between the two is drawn in this form deserves notice. At a period which historically is not very remote from us, the ideas as to the position of the Crown which were current, if not predominant in England, bore a very dose analogy to the doctrines which have given rise to the droit administratif of France.59 Similar beliefs moreover necessarily produced similar results, and there was a time when it must have seemed possible that what we now call administrative law should become a permanent part of English institutions. For from the accession of the Tudors till the final expulsion of the Stuarts the Crown and its servants maintained and put into practice, with more or less success and with varying degrees of popular approval, views of government essentially similar to the theories which under different forms have been accepted by the French people. The personal failings of the Stuarts and the confusion caused by the combination oi a religious with a political movement have tended to mask the true character of the legal and constitutional issues raised by the political contests of the seventeenth century. A lawyer, who regards the matter from an exclusively legal point of view, is tempted to assert that the real subject in dispute between statesmen such as Bacon and Wentworth on the one hand, and Coke or Eliot on the other, was whether a strong administration of the continental type should, or should not, be permanently established in England. Bacon and men like him no doubt underrated the risk that an increase in the power of
59 This is illustrated by the similarity between the views at one time prevailing both in England and on the continent as to the relation between the government and the press. See pp. 161-164, ante.
(B) Comparison between droit administratif and rule of law.
I. Likeness.
ist Point. Droit administratif not opposed to English ideas current in sixteenth and seventeenth centuries.
the Crown should lead to the establishment of despotism. But advocates of the prerogative did not (it may be supposed) intend to sacrifice the liberties or invade the ordinary private rights of citizens; they were struck with the evils flowing from the conservative legalism of Coke, and with the necessity for enabling the Crown as head of the nation to cope with the selfishness of powerful individuals and classes. They wished, in short, to give the government the sort of rights conferred on a foreign executive by the principles of administrative law. Hence for each feature of French droit administratif one may find some curious analogy either in the claims put forward or in the institutions favoured by the Crown lawyers of the seventeenth century.
The doctrine, propounded under various metaphors by Bacon, that the prerogative was something beyond and above the ordinary law is like the foreign doctrine that in matters of high policy (acte de gouvernement) the administration has a discretionary authority which cannot be controlled by any Court. The celebrated dictum that the judges, though they be "lions," yet should be "lions under the throne, being circumspect that they do not check or oppose any points of sovereignty,"60 is a curious anticipation of the maxim formulated by French revolutionary statesmanship that the judges are under no circumstances to disturb the action of the administration, and would, if logically worked out, have led to the exemption of every administrative act, or, to use English terms, of every act alleged to be done in virtue of the prerogative, from judicial cognisance. The constantly increasing power of the Star Chamber and of the Council gave practical expression to prevalent theories as to the Royal prerogative, and it is hardly fanciful to compare these Courts, which were in reality portions of the executive government, with the Conseil d'etat and other Tribunaux administratifs of France. Nor is a parallel wanting to the celebrated Article 75 of the Constitution of the Year VIII.61 This parallel is to be found in Bacon's attempt to prevent the judges by means of the writ De non procedendo Rege inconsulto from
60 Gardiner, History of England, iii. p. 2.
61 Seep. 227,ante.
proceeding with any case in which the interests of the Crown were concerned. Mr. Gardiner observes:
The working of this writ, if Bacon had obtained his object, would have been, to some extent, analogous to that provision which has been found in so many French constitutions, according to which no agent of the Government can be summoned before a tribunal, for acts done in the exercise of his office, without a preliminary authorisation by the Council of State. The effect of the English writ being confined to cases where the King was himself supposed to be injured, would have been of less universal application, but the principle on which it rested would have been equally bad.62
The principle moreover admitted of unlimited extension, and this, we may add, was perceived by Bacon. He writes to the King:
The writ is a mean provided by the ancient law of England to bring any case (hat may concern your Majesty in profit or power from the ordinary Benches, tobe tried and judged before the Chancellor of England, by the ordinary and legal part of this power. And your Majesty knoweth your Chancellor is ever a principal counsellor and instrument of monarchy, of immediate dependence on the king; and therefore like to be a safe and tender guardian of the regal rights.63
Bacon's innovation would, if successful, have formally established the fundamental dogma of administrative law, that administrative questions must be determined by administrative bodies.
The analogy between the administrative ideas which still prevail on the Continent64 and the conception of the prerogative which was maintained by the English crown in the seventeenth century has considerable speculative interest. That the administrative ideas supposed by many French writers to have been originated by the statesmanship of the great Revolution or of the first Empire are to a great extent developments of the traditions and habits of the French monarchy is past a doubt, and it is a curious inquiry how far the efforts made by the Tudors or Stuarts to establish a strong govern-
62 Gardiner, History of England, iii. p. 7, note 2.
63 Abbot, Francis Bacon, p. 234.
64 It is worth noting that the system of "administrative law," though more fully juditialised in France than elsewhere, exists in one form or another in most of the Continental States.
and Point. Droit ad-ministratif is case-law.
ment were influenced by foreign examples. This, however, is a problem for historians. A lawyer may content himself with noting that French history throws light on the causes both of the partial success and of the ultimate failure of the attempt to establish in England a strong administrative system. The endeavour had a partial success, because circumstances, similar to those which made French monarchs ultimately despotic, tended in England during the sixteenth and part of the seventeenth century to augment the authority of the Crown. The attempt ended in failure, partly because of the personal deficiencies of the Stuarts, but chiefly because the whole scheme of administrative law was opposed to those habits of equality before the law which had long been essential characteristics of English institutions.
Droit administmtif is in its contents utterly unlike any branch of modern English law, but in the method of its formation it resembles English law far more closely than does the codified dvil law of France. For droit administratifis, like the greater part of English law, "case-law," or "judge-made law."65 The precepts thereof are not to be found in any code; they are based upon precedent: French lawyers cling to the belief that droit administmtif cannot be codified, just as English and American lawyers maintain, for some reason or other which they are never able to make very dear, that English law, and especially the common law, does not admit of codification. The true meaning of a creed which seems to be illogical because its apologists cannot, or will not, give the true grounds for their faith, is that the devotees of droit administmtif in France, in common with the devotees of the common law in England, know that the system which they each admire is the product of judicial legislation, and dread that codification might limit, as it probably would, the essentially legislative authority of the tribunaux administratifs in France, or of the judges in England. The prominence further given throughout every treatise on droit administratif to the contentieux administmtif recaps the importance in English lawbooks given to matters of procedure. The cause is
65 See Dicey, Law and Opinion in England, Leet. XI. p. 359, and Appendix, Note IV. p. 481. It may be suspected that English lawyers underrate the influence at the present day exerted by precedent (Jurisprudence) in French Courts.
in each case the same, namely, that French jurists and English lawyers are each dealing with a system of law based on precedent.
Nor is it irrelevant to remark that the droit administratif of France, just because it is case-law based on precedents created or sanctioned by tribunals, has, like the law of England, been profoundly influenced by the writers of text-books and commentaries. There are various branches of English law which have been reduced to a few logical principles by the books of well-known writers. Stephen transformed pleading from a set of rules derived mainly from the experience of practitioners into a coherent logical system. Private international law, as understood in England at the present day, has been developed under the influence first of Story's Commentaries on the Conflict of Laws, and next, at a later date, of Mr. Westiake's Private International Law. And the authority exercised in every field of English law by these and other eminent writers has in France been exerted, in the field of administrative law, by authors or teachers such as Cormenin, Macarel, Vivien, Laferriere, and Hauriou. This is no accident. Wherever Courts have power to form the law, there writers of textbooks will also have influence. Remark too that, from the very nature of judge-made law, Reports have in the sphere of droit administratif an importance equal to the importance which they possess in every branch of English law, except in the rare instances in which a portion of our law has undergone codification.
But in the comparison between French droit administratif and the law of England a critic ought not to stop at the points of likeness arising from their each of them being the creation of judicial decisions. There exists a further and very curious analogy between the process of their historical development. The Conseil d'Etat has been converted from an executive into a judicial or quasi-judicial body by the gradual separation of its judicial from its executive functions through the transference of the former to committees (sections), which have assumed more and more distinctly the duties of Courts. These "judicial committees" (to use an English expression) at first only advised the Conseil d'Etat or the whole executive body, though it was soon understood that the Council would, as a general rule, follow or ratify the decision of its judicial committees. This recalls to a student of English law the fact that the growth of our whole judicial system
may historically be treated as the transference to parts of the King's Council of judicial powers originally exercised by the King in Council; and it is reasonable to suppose that the rather ill-defined relations between the Conseil d'Etat as a whole, and the Comite du contentieux,66 may explain to a student the exertion, during the earlier periods of English history, by the King's Council, of hardly distinguishable judicial and executive powers; it explains also how, by a natural process which may have excited very little observation, the judicial functions of the Council became separated from its executive powers, and how this differentiation of functions gave birth at last to Courts whose connection with the political executive were merely historical. This process, moreover, of differentiation assisted at times, in France no less than in England, by legislation, has of quite recent years changed the Conseil d'Etat into a real tribunal of droit administratif, as it created in England the Judicial Committee of the Privy Council for the regular and judicial decision of appeals from the colonies to the Crown in Council. Nor, though the point is a minor one, is it irrelevant to note that, as the so-called judgments of the Conseil d'Etat were, till 1872, not strictly "judgments," but in reality advice on questions of droit administratif given by the Conseil d'Etat to the head of the Executive, and advice which he was not absolutely bound to follow, so the "judgments" of the Privy Council, even when acting through its judicial committee, though in reality judgments, are in form merely humble advice tendered by the Privy Council to the Crown. This form, which is now a mere survival, carries us back to an earlier period of English constitutional history, when the interference by the Council, i.e. by the executive, with judicial functions, was a real menace to that supremacy of the law which has been the guarantee of English freedom, and this era in the history of England again is curiously illustrated by the annals of droit administratif after the restoration of the Bourbons, 1815-30.
At that date the members of the Conseil d'Etat, as we have seen,67 held, as they still hold, office at the pleasure of the Executive; they were to a great extent a political body; there existed further no Con-
66 See Laferriere, i. p. 236.
67 See pp. 227 — 228, ante.
flirt-Court; or rather the Conseil d'Etat was itself the Conflict-Court, or the body which determined the reciprocal jurisdiction of the ordinary law Courts and of the administrative Courts, i.e. speaking broadly, the extent of the Council's own jurisdiction. The result was that the Conseil d'Etat used its powers to withdraw cases from the decision of the law Courts, and this at a time when government functionaries were fully protected by Article 75 of the Constitution of the Year VIII, from being made responsible before the Courts for official acts done in excess of their legal powers. Nevertheless, the Conseil d'Etat, just because it was to a great extent influenced by legal ideas, resisted, and with success, exertions of arbitrary power inspired by the spirit of Royalist reaction. It upheld the sales of the national domain made between 1789 and 1814; it withstood every attempt to invalidate decisions given by administrative authorities during the period of the Revolution or under the Empire. The King, owing, it may be assumed, to the judicial independence displayed by the Conseil d'Etat, took steps which were intended to transfer the decision of administrative disputes from the Council or its committees, acting as Courts, to Councillors, acting as part of the executive. Ordinances of 1814 and of 1817 empowered the King to withdraw any administrative dispute which was connected with principles of public interest (toutes les affaires du contentieux de I'administration qui se lieraient a des vues d'interet general) from the jurisdiction of the Conseil d'Etat and bring it before the Council of Ministers or, as it was called, the Conseil d'en haut, and the general effect of this power and of other arrangements, which we need not follow out into detail, was that questions of droit adminis-tratif, in the decision of which the government were interested, were ultimately decided, not even by a quasi-judicial body, but by the King and his Ministers, acting avowedly under the bias of political considerations.68 In 1828 France insisted upon and obtained from Charles X. changes in procedure which diminished the arbitrary power of the Council.69 But no one can wonder that Frenchmen feared the increase of arbitrary power, or that French liberals demanded, after the
68 See Laferriere, i. pp. 226- 234, and Cormenin, Du Conseil d'Etat envisage comme conseil et comme juridiction (1818).
69 Ordinance of ist June 1828, Laferriere, i. p. 232.
Revolution of 1830, the abolition of administrative law and of administrative Courts. They felt towards the jurisdiction of the Counseil d'Etat the dread entertained by Englishmen of the sixteenth and seventeenth centuries with regard to the jurisdiction of the Privy Council, whether exercised by the Privy Council itself, by the Star Chamber, or even by the Court of Chancery. In each country there existed an appreciable danger lest the rule of the prerogative should supersede the supremacy of the law.
The comparison is in many ways instructive; it impresses upon us how nearly it came to pass that something very like administrative law at one time grew up in England. It ought, too, to make us perceive that such law, if it be administered in a judicial spirit, has in itself some advantages. It shows us also the inherent danger of its not becoming in strictness law at all, but remaining, from its close connection with the executive, a form of arbitrary power above or even opposed to the regular law of the land. It is certain that in the sixteenth and seventeenth centuries the jurisdiction of the Privy Council and even of the Star Chamber, odious as its name has remained, did confer some benefits on the public. It should always be remembered that the patriots who resisted the tyranny of the Stuarts were fanatics for the common law, and could they have seen their way to do so would have abolished the Court of Chancery no less than the Star Chamber. The Chancellor, after all, was a servant of the Crown holding his office at the pleasure of the King, and certainly capable, under the plea that he was promoting justice or equity, of destroying the certainty no less than the formalism of the common law. The parallel therefore between the position of the English puritans, or whigs, who, during the seventeenth century, opposed the arbitrary authority of the Council, and the position of the French liberals who, under the Restoration (1815-30), resisted the arbitrary authority of the Conseil d'Etat and the extension of droit administratif, is a dose one. In each case, it may be added, the friends of freedom triumphed.
The result, however, of this triumph was, it will be said, as regards the matter we are considering, markedly different. Parliament destroyed, and destroyed for ever, the arbitrary authority of the Star Chamber and of the Council, and did not suffer any system of ad-
ministrative Courts or of administrative law to be revived or developed in England. The French liberals, on the expulsion of the Bourbons, neither destroyed the tribunaux administmtifs nor made a dean sweep of droit administmtif.
The difference is remarkable, yet any student who looks beyond names at things will find that even here an obvious difference conceals a curious element of fundamental resemblance. The Star Chamber was abolished; the arbitrary jurisdiction of the Council disappeared, but the judicial authority of the Chancellor was touched neither by the Long Parliament nor by any of the Parliaments which met yearly after the Revolution of 1688. The reasons for this difference are not hard to discover. The law administered by the Lord Chancellor, or, in other words, Equity, had in it originally an arbitrary or discretionary element, but it in fact conferred real benefits upon the nation and was felt to be in many respects superior to the common law administered by the common-law Judges. Even before 1660 acute observers might note that Equity was growing into a system of fixed law. Equity, which originally meant the discretionary, not to say arbitrary interference of the Chancellor, for the avowed and often real purpose of securing substantial justice between the parties in a given case, might, no doubt, have been so developed as to shelter and extend the despotic prerogative of the Crown. But this was not the course of development which Equity actually followed; at any rate from the time of Lord Nottingham (1673) it was obvious that Equity was developing into a judicial system for the application of principles which, though different from those of the common law, were not less fixed. The danger of Equity turning into the servant of despotism had passed away, and English statesmen, many of them lawyers, were little likely to destroy a body of law which, if in one sense an anomaly, was productive of beneficial reforms. The treatment of droit administratif in the nineteenth century by Frenchmen bears a marked resemblance to the treatment of Equity in the seventeenth century by Englishmen. Droit administratif has been the subject of much attack. More than one publicist of high reputation has advocated its abolition, or has wished to transfer to the ordinary or civil Courts (tribunaux judiciaries) the authority exercised by the administrative tri-
4th Point. Rapid growth of case-law.
bunals, but the assaults upon droit administratif have been repulsed, and the division between the spheres of the judicial and the spheres of the administrative tribunals has been maintained. Nor, again, is there much difficulty in seeing why this has happened. Droit administratif with all its peculiarities, and administrative tribunals with all their defects, have been suffered to exist because the system as a whole is felt by Frenchmen to be beneficial. Its severest critics concede that it has some great practical merits, and is suited to the spirit of French institutions. Meanwhile droit administratif has developed under the influence rather of lawyers than of politicians; it has during the last half-century and more to a great extent divested itself of its arbitrary character, and is passing into a system of more or less fixed law administered by real tribunals; administrative tribunals indeed still lack some of the qualities, such as complete independence of the Government, which Englishmen and many Frenchmen also think ought to belong to all Courts, but these tribunals are certainly very far indeed from being mere departments of the executive government. To any person versed in the judicial history of England, it would therefore appear to be possible, or even probable, that droit administratif may ultimately, under the guidance of lawyers, become, through a course of evolution, as completely a branch of the law of France (even if we use the word "law" in its very strictest sense) as Equity has for more than two centuries become an acknowledged branch of the law of England.
The annals of droit administratif during the nineteenth century elucidate again a point in the earlier history of English law which excites some perplexity in the mind of a student, namely, the rapidity with which the mere existence and working of law Courts may create or extend a system of law. Any reader of the History of English Law by Pollock and Maitland may well be surpised at the rapidity with which the law of the King's Court became the general or common law of the land. This legal revolution seems to have been the natural result of the vigorous exertion of judicial functions by a Court of great authority. Nor can we feel certain that the end attained was deliberately aimed at. It may, in the main, have been the almost undesigned effect of two causes: the first is the disposition always exhibited by capable
judges to refer the decision of particular cases to general principles, and to be guided by precedent; the second is the tendency of inferior tribunals to follow the lead given by any Court of great power and high dignity. Here, in short, we have one of the thousand illustrations of the principle developed in M. Tarde's Lois de limitation, that the innate imitativeness of mankind explains the spread, first, throughout one country, and, lastly, throughout the civilised world, of any institution or habit on which success or any other circumstance has conferred prestige. It may still, however, be urged that the creation under judicial influence of a system of law is an achievement which requires for its performance a considerable length of time, and that the influence of the King's Court in England in moulding the whole law of the country worked with incredible rapidity. It is certainly true that from the Norman Conquest to the accession of Edward I. (1066-1272) is a period of not much over two centuries, and that by 1272 the foundations of English law were firmly laid; whilst if we date the organisation of our judicial system from the accession of Henry II. (1154), we might say that a great legal revolution was carried through in not much more than a century. It is at this point that the history of droit administratif helps the student of comparative law. One need not, however, be greatly astonished at rapidity in the development of legal principles and of legal procedure at a period when the moral influence or the imaginative impressiveness of powerful tribunals was much greater than during the later stages of human progress. In any case it is certain — and the fact is a most instructive one — that under the conditions of modern civilisation a whole body of legal rules and maxims, and a whole system of quasi-judicial procedure, have in France grown up within not much more than a century. The expression "grown up" is here deliberately used; the development of droit administratif between 1800 and 1908 resembles a natural process. It is as true of this branch of French law as of the English constitution that it "has not been made but has grown."
An intelligent student soon finds that droit administratif contains rules as to the status, the privileges, and the duties of government officials. He therefore thinks he can identify it with the laws, regula-
tions, or customs which in England determine the position of the servants of the Crown, or (leaving the army out of consideration) of the Civil Service. Such "official law" exists, though only to a limited extent, in England no less than in France, and it is of course possible to identify and compare this official law of the one country with the official law of the other. But further investigation shows that official law thus understood, though it may form part of, is a very different thing from droit administratif. The law, by whatever name we term it, which regulates the privileges or disabilities of civil servants is the law of a class, just as military law is the law of a class, namely, the army. But droit administratif is not the law of a class, but — a very different thing — a body of law which, under given circumstances, may affect the rights of any French citizen, as for example, where an action is brought by A against X in the ordinary Courts (tribunaux judicial res), and the rights of the parties are found to depend on an administrative act (acte administratif), which must be interpreted by an administrative tribunal (tribunal administratif). In truth, droit administratif is not the law of the Civil Service, but is that part of French public law which affects every Frenchman in relation to the acts of the public administration as the representative of the State. The relation indeed of droit administratif to the ordinary law of France may be best compared not with the relation of the law governing a particular class (e.g. military law) to the general law of England, but with the relation of Equity to the common law of England. The point of likeness, slight though in other respects it be, is that droit administratif in France and Equity in England each constitute a body of law which differs from the ordinary law of the land, and under certain circumstances modifies the ordinary civil rights of every citizen.
When our student finds that droit administratif cannot be identified with the law of the Civil Service, he naturally enough imagines that it may be treated as the sum of all the laws which confer special powers and impose special duties upon the administration, or, in other words, which regulate the functions of the Government. Such laws, though they must exist in every country, have till recently been few in England, simply because in England the sphere of the State's activity has, till within the last fifty or sixty years, been extremely
limited. But even in England laws imposing special functions upon government officials have always existed, and the number thereof has of late vastly increased; to take one example among a score, the Factory legislation, which has grown up mainly during the latter half of the nineteenth century, has, with regard to the inspection and regulation of manufactories and workshops, given to the Government and its officials wide rights, and imposed upon them wide duties. If, then, droit administmtif meant nothing more than the sum of all the laws which determine the functions of civil servants, droit administratif might be identified in its general character with the governmental law of England. The idea that such an identification is possible is encouraged by the wide definitions of droit administratif to be gathered from French works of authority,70 and by the vagueness with which English writers occasionally use the term "administrative law." But here, again, the attempted identification breaks down. Droit administratif, as it exists in France, is not the sum of the powers possessed or of the functions discharged by the administration; it is rather the sum of the principles which govern the relation between French citizens, as individuals, and the administration as the representative of the State. Here we touch upon the fundamental difference between English and French ideas. In England the powers of the Crown and its servants may from time to time be increased as they may also be diminished. But these powers, whatever they are, must be exercised in accordance with the ordinary common law principles which govern the relation of one Englishman to another. A factory inspector, for example, is possessed of peculiar powers conferred upon him by Act of Parliament; but if in virtue of the orders of his superior officials he exceeds the authority given him by law, he becomes at once responsible for the wrong done, and cannot plead in his defence strict obedience of official orders, and, further, for the tort he has committed he becomes amenable to the ordinary Courts. In France, on the other hand, whilst the powers placed in the hands of the administration might be diminished, it is always assumed that the relation of individual citizens to the State is regulated by principles
70 See Aucoc, Droit Administratif, i. s. 6; Hauriou, Precis de Droit Administratif, 3rded., p. 242, and 6th ed., pp. 391, 392; Laferriere, i. pp. 1-8.
2nd Point. Droit administratif not in reality introduced into law of England.
different from those which govern the relation of one French citizen to another. Droit administratif, in short, rests upon ideas absolutely foreign to English law: the one, as I have already explained,71 is that the relation of individuals to the State is governed by principles essentially different from those rules of private law which govern the rights of private persons towards their neighbours; the other is that questions as to the application of these principles do not lie within the jurisdiction of the ordinary Courts. This essential difference renders the identification of droit administratif with any branch of English law an impossibility. Hence inquiries which rightly occupy French jurists, such, for example, as what is the proper definition of the contentieux administratif; what is the precise difference between actes de gestion and actes de puissance publiaue, and generally, what are the boundaries between the jurisdiction of the ordinary Courts (tribunaux judiciaries) and the jurisdiction of the administrative Courts (tribunaux adminis-tratifs) have under English law no meaning.
Has droit administratif been of recent years introduced in any sense into the law of England?
This is an inquiry which has been raised by writers of eminence,72 and which has caused some perplexity. We may give thereto a decided and negative reply.
The powers of the English Government have, during the last sixty years or so, been largely increased; the State has undertaken many new functions, such, for example, as the regulation of labour under the Factory Acts, and the supervision of public education under the
71 Seep. 219,ante.
72 See Laferriere, i. pp. 97-106. To cite such enactments as the Public Authorities Protection Act 1893, which by the way does little more than generalise provisions, to be found in a lot of Acts extending from 1601 to 1900, as an example of the existence of administrative law in England, seems to me little else than playing with words. The Act assumes that every person may legally do the act which by law he is ordered to do. It also gives a person who acts in pursuance of his legal duty, e.g. under an Act of Parliament, special privileges as to the time within which an action must be brought against him for any wrong committed by him in the course of carrying out his duty, but it does not to the least extent provide that an order from a superior official shall protect, e.g. a policeman, for any wrong done by him.
There are, indeed, one or two instances in which no legal remedy can be obtained except against the actual wrong-doer for damage inflicted by the conduct of a servant of the Crown. These instances are practically unimportant. See Appendix, Note XII., "Proceedings against the Crown."
Education Acts. Nor is the importance of this extension of the activity of the State lessened by the consideration that its powers are in many cases exercised by local bodies, such, for example, as County Councils. But though the powers conferred on persons or bodies who directly or indirectly represent the State have been greatly increased in many directions, there has been no intentional introduction into the law of England of the essential principles of droit administratif. Any official who exceeds the authority given him by the law incurs the common law responsibility for his wrongful act; he is amenable to the authority of the ordinary Courts, and the ordinary Courts have themselves jurisdiction to determine what is the extent of his legal power, and whether the orders under which he has acted were legal and valid. Hence the Courts do in effect limit and interfere with the action of the "administration," using that word in its widest sense. The London School Board, for example, has claimed and exercised the right to tax the ratepayers for the support of a kind of education superior to the elementary teaching generally provided by School Boards; the High Court of Justice has decided that such right does not exist. A year or two ago some officials, acting under the distinct orders of the Lords of the Admiralty, occupied some land alleged to belong to the Crown; the title of the Crown being disputed, a court of law gave judgment against his officials as wrong-doers. In each of these cases nice and disputable points of law were raised, but no English lawyer, whatever his opinion of the judgments given by the Court, has ever doubted that the High Court had jurisdiction to determine what were the rights of the School Board or of the Crown. Droit administratif, therefore, has obtained no foothold in England, but, as has been pointed out by some foreign critics, recent legislation has occasionally, and for particular purposes, given to officials something like judicial authority. It is possible in such instances, which are rare, to see a slight approximation to droit administratif, but the innovations, such as they are, have been suggested merely by considerations of practical convenience, and do not betray the least intention on the part of English statesmen to modify the essential principles of English law. There exists in England no true droit administratif.
An English lawyer, however, who has ascertained that no branch of English law corresponds with the administrative law of foreign countries must be on his guard against falling into the error that the droit administratif of modern France is not "law" at all, in the sense in which that term is used in England, but is a mere name for maxims which guide the executive in the exercise if not of arbitrary yet of discretionary power. That this notion is erroneous will, I hope, be now dear to all my readers. But for its existence there is some excuse and even a certain amount of justification.
The French Government does in fact exercise, especially as regards foreigners, a wide discretionary authority which is not under the control of any Court whatever. For an act of State the Executive or its servants cannot be made amenable to the jurisdiction of any tribunal, whether judicial or administrative. Writers of high authority have differed73 indeed profoundly as to the definition of an act of State (acte degouvernement).74 Where on a question of French law French jurists disagree, an English lawyer can form no opinion; he may be allowed, however, to conjecture that at times of disturbance a French Government can exercise discretionary powers without the dread of interference on the part of the ordinary Courts, and that administrative tribunals, when they can intervene, are likely to favour that interpretation of the term act of State which supports the authority of the Executive. However this may be, the possession by the French Executive of large prerogatives is apt, in the mind of an Englishman, to be confused with the character of the administrative law enforced by Courts composed, in part at any rate, of officials.
The restrictions, again, placed by French law on the jurisdiction of the ordinary Courts (tribunaux judidaires) whereby they are prevented from interfering with the action of the Executive and its servants, seem to an Englishman accustomed to a system under which the Courts of law determine the limits of their own jurisdiction, to be
73 Seep. 226,ante.
74 CompareLaferriere, ii. bk. iv. ch. ii. p. 32, and Hauriou, pp. 282 — 287, with Jacquelin, pp. 438-447.
much the same thing as the relegating of all matters in which the authority of the State is concerned to the discretion of the Executive. This notion is erroneous, but it has been fostered by a circumstance which may be termed accidental. The nature and the very existence of droit administratifhas been first revealed to many Englishmen, as certainly to the present writer, through the writings of Alexis de Tocqueville, whose works have exerted, in the England of the nineteenth century, an influence equal to the authority exerted by the works of Montesquieu in the England of the eighteenth century. Now Tocqueville by his own admission knew little or nothing of the actual working of droit administmtif in his own day.7S He no doubt in his later years increased his knowledge, but to the end of his life he looked upon droit administratif, not as a practising lawyer but as the historian of the ancien regime, and even as an historian he studied the subject from a very peculiar point of view, for the aim of L'Ancien Regime et la Revolution is to establish the doctrine that the institutions of modern France are in many respects in spirit the same as the institutions of the ancient monarchy; and Tocqueville, moved by the desire to maintain a theory of history which in his time sounded like a paradox, but, owing greatly to his labours, has now become a generally accepted truth, was inclined to exaggerate the similarity between the France of the Revolution, the Empire, or the Republic, and the France of the ancien regime. Nowhere is this tendency more obvious than in his treatment of droit administratif. He demonstrates that the ideas on which droit administratif is based had been accepted by French lawyers and statesmen long before 1789; he notes the arbitrariness of droit administratif under the monarchy; he not only insists upon but deplores the connection under the ancien regime between the action of the Executive and the administration of justice, and he certainly suggests that the droit administratif of the nineteenth century was all but as closely connected with the exercise of arbitrary power as was the droit administratif of the seventeenth or the eighteenth century.
75 Tocqueville, vii. CEuvres Completes, p. 66.
III. Merits and demerits.
Rule of law — its merits.
He did not recognise the change in the character of droit administratif which was quietly taking place in his own day. He could not by any possibility anticipate the reforms which have occurred during the lapse of well-nigh half a century since his death. What wonder that English lawyers who first gained their knowlege of French institutions from Tocqueville should fail to take full account of that judiciali-sation (juridictionnalisation) of administrative law which is one of the most surprising and noteworthy phenomena in the legal history of France.
It is not uninstructive to compare the merits and defects, on the one hand, of our English rule of law, and, on the other, of French droit administratif.
Our rigid rule of law has immense and undeniable merits. Individual freedom is thereby more thoroughly protected in England against oppression by the government than in any other European country; the Habeas Corpus Acts76 protect the liberty no less of foreigners than of British subjects; martial law77 itself is reduced within the narrowest limits, and subjected to the supervision of the Courts; an extension of judicial power which sets at nought the dogma of the separation of powers, happily combined with judicial independence, has begotten reverence for the bench of judges. They, rather than the government, represent the august dignity of the State, or, in accordance with the terminology of English law, of the Crown. Trial by jury is open to much criticism; a distinguished French thinker may be right in holding that the habit of submitting difficult problems of fact to the decision of twelve men of not more than average education and intelligence will in the near future be considered an absurdity as patent as ordeal by battle. Its success in England is wholly due to, and is the most extraordinary sign of, popular confidence in the judicial bench. A judge is the colleague and the readily accepted guide of the jurors. The House of Commons shows the feeling of the electors, and has handed over to the High
76 See pp. 130-131, ante.
77 See p. 180, ante.
Court of Justice the trial of election petitions. When rare occasions arise, as at Sheffield in 1866, which demand inquiries of an exceptional character which can hardly be effected by the regular procedure of the Courts, it is to selected members of the bench that the nation turns for aid. In the bitter disputes which occur in the conflicts between capital and labour, employers and workmen alike will often submit their differences to the arbitration of men who have been judges of the High Court. Reverence, in short, for the supremacy of the law is seen in its very best aspect when we recognise it as being in England at once the cause and the effect of reverence for our judges.
The blessings, however, conferred upon the nation by the rule of law are balanced by undeniable, though less obvious, evils. Courts cannot without considerable danger be turned into instruments of government. It is not the end for which they are created; it is a purpose for which they are ill suited at any period or in any country where history has not produced veneration for the law and for the law Courts.78 Respect for law, moreover, easily degenerates into legalism which from its very rigidity may work considerable injury to the nation. Thus the refusal to look upon an agent or servant of the State as standing, from a legal point of view, in a different position from the servant of any other employer, or as placed under obligations or entitled to immunities different from those imposed upon or granted to an ordinary citizen, has certainly saved England from the development of the arbitrary prerogatives of the Crown, but it has also in more ways than one been injurious to the public service.
The law, for instance, has assuredly been slow to recognise the fact that violations of duty by public officials may have an importance and deserve a punishment far greater than the same conduct on the part of an agent of an ordinary employer. Some years ago a copyist in a public office betrayed to the newspapers a diplomatic document of the highest importance. Imagination can hardly picture a more flagrant breach of duty, but there then apparently existed no available
78 In times of revolutionary passion trial by jury cannot secure respect for justice. The worst iniquities committed by Jeffreys at the Bloody Assize would have been impossible had he not found willing accomplices in the jurors and freeholders of the western counties.
means for punishing the culprit. If it could have been proved that he had taken from the office the paper on which the communication of state was written, he might conceivably have been put on trial for larceny.79 But a prisoner put on trial for a crime of which he was in fact morally innocent, because the gross moral offence of which he was really guilty was not a crime, might have counted on an acquittal. The Official Secrets Act, 1889,80 now, it is true, renders the particular offence, which could not be punished in 1878, a misdemeanour, but the Act, after the manner of English legislation, does not establish the general principle that an official breach of trust is a crime. It is therefore more than possible that derelictions of duty on the part of public servants which in some foreign countries would be severely punished may still in England expose the wrong-doer to no legal punishment.
Nor is it at all wholly a benefit to the public that bona fide obedience to the orders of superiors is not a defence available to a subordinate who, in the discharge of his functions as a government officer, has invaded the legal rights of the humblest individual, or that officials are, like everybody else, accountable for their conduct to an ordinary Court of law, and to a Court, be it noted, where the verdict is given by a jury.
In this point of view few things are more instructive than an examination of the actions which have been brought against officers of the Board of Trade for detaining ships about to proceed to sea. Under the Merchant Shipping Acts since 1876 the Board have been and are bound to detain any ship which from its unsafe and unseaworthy condition cannot proceed to sea without serious danger to human life.81 Most persons would suppose that the officials of the Board, as long as they, bona fide, and without malice or corrupt motive, endeavoured to carry out the provisions of the statute, would be safe
79 See Annual Register, 1878, Chronicle, p. 71.
80 Repealed and superseded by the Official Secrets Act, 1911, i & 2 Geo. 5, c. 28, described
as "An Act to re-enact the Official Secrets Act, 1889, with Amendments." See especially sec. 2.
81 Merchant Shipping Act, 1894 (57 & 58 Viet. c. 60), s. 459.
from an action at the hands of a shipowner. This, however, is not so. The Board and its officers have more than once been sued with success.82 They have never been accused of either malice or negligence, but the mere fact that the Board act in an administrative capacity is not a protection to the Board, nor is mere obedience to the orders of the Board an answer to an action against its servants. Any deviation, moreover, from the exact terms of the Acts — the omission of the most unmeaning formality — may make every person, high and low, concerned in the detention of the ship, a wrong-doer. The question, on the answer to which the decision in each instance at bottom depends, is whether there was reasonable cause for detaining the vessel, and this inquiry is determined by jurymen who sympathise more keenly with the losses of a shipowner, whose ship may have been unjustly detained, than with the zeal of an inspector anxious to perform his duty and to prevent loss of life. The result has (it is said) been to render the provisions of the Merchant Shipping Acts, with regard to the detention of unseaworthy ships, nugatory. Juries are often biassed against the Government. A technical question is referred for decision, from persons who know something about the subject, and are impartial, to persons who are both ignorant and prejudiced. The government, moreover, which has no concern but the public interest, is placed in the false position of a litigant fighting for his own advantage. These things ought to be noticed, for they explain, if they do not justify, the tenacity with which statesmen, as partial as Tocqueville to English ideas of government, have dung to the conviction that administrative questions ought to be referred to administrative Courts.
The merits of administrative law as represented by modern French droit administratif, that is, when seen at its very best, escape the attention, and do not receive the due appreciation of English constitutionalists.83 No jurist can fail to admire the skill with which the Council of State, the authority and the jurisdiction whereof as an administrative Court year by year receives extension, has worked out
82 See Thomson v. Fairer, 9 Q. B. D. (C. A.), 372.
83 One, and not the least of them, is that access to the Council of State as an administrative Court is both easy and inexpensive.
new remedies for various abuses which would appear to be hardly touched by the ordinary law of the land. The Council, for instance, has created and extended the power of almost any individual to attack, and cause to be annulled, any act done by any administrative authority (using the term in a very wide sense) which is in excess of the legal power given to the person or body from whom the act emanates. Thus an order issued by a prefect or a bye-law made by a corporation which is in excess of the legal power of the prefect or of the corporate body may, on the application of a plaintiff who has any interest in the matter whatever, be absolutely set aside or annulled for the benefit not only of the plaintiff, but of all the world, and this even though he has not himself suffered, from the act complained of, any pecuniary loss or damage. The ingenious distinction84 again, which has been more and more carefully elaborated by the Council of State, between damage resulting from the personal fault (faute personnelle), e.g. spite, violence, or negligence of an official, e.g. a prefect or a mayor, in the carrying out of official orders, and the damage resulting, without any fault on the part of the official, from the carrying out of official orders, illegal or wrongful in themselves (faute de service), has of recent years afforded a valuable remedy to persons who have suffered from the misuse of official power, and has also, from one point of view, extended or secured the responsibility of officials — a responsibility enforceable in the ordinary Courts — for wrongful con-
84 French law draws an important distinction between an injury caused to a private individual by act of the administration or government which is in excess of its powers (faute de service), though duly carried out, or at any rate, carried out without any gross fault on the part of a subordinate functionary, e.g. a policeman acting in pursuance of official orders, and injury caused to a private individual by the negligent or malicious manner (faute personnelle) in which such subordinate functionary carries out official orders which may be perfectly lawful. In the first case the policeman incurs no liability at all, and the party aggrieved must proceed in some form or other against the State in the administrative Courts (tribunaux administratifs). In the second case the policeman is personally liable, and the party aggrieved must proceed against him in the ordinary Courts (tribunaux judiciaires) (see Hauriou, pp. 170, 171; Laferriere, i. p. 652), and apparently cannot proceed against the State.
French authorities differ as to what is the precise criterion by which to distinguish a faute personnelle from a faute de service, and show a tendency to hold that there is no faute personnelle on the part, e.g. of a policeman, when he has bona fide attempted to carry out his official duty. See Duguit, L'Etat, pp. 638-640; [Duguit, Traite de Droit Constitutional, i. PP- 553-559-]
duct, which is in strictness attributable to their personal action. And in no respect does this judge-made law of the Council appear to more advantage than in cases, mostly I conceive of comparatively recent date, in which individuals have obtained compensation for governmental action, which might possibly be considered of technical legality, but which involves in reality the illegitimate use of power conferred upon the government or some governmental body for one object, but in truth used for some end different from that contemplated by the law. One example explains my meaning. The State in 1872 had, as it still has, a monopoly of matches. To the government was given by law the power of acquiring existing match factories under some form of compulsory purchase. It occurred to some ingenious minister that the fewer factories there were left open for sale, the less would be the purchase-money which the State would need to pay. A prefect, the direct servant of the government, had power to dose factories on sanitary grounds. Under the orders of the minister he dosed a factory belonging to A, nominally on sanitary grounds, but in reality to lessen the number of match factories which the State, in the maintenance of its monopoly, would require to purchase. There was no personal fault on the part of the prefect. No action could with success be maintained against him in the judicial Courts,85 nor, we may add, in the administrative Courts.86 A, however, attacked the act itself before the Coundl of State, and got the order of the prefect annulled, and ultimately obtained, through the Council of State, damages from the State of over £2000 for the illegal dosing of the factory, and this in addition to the purchase-money received from the State for taking possession of the factory.87
No Englishman can wonder that the jurisdiction of the Coundl of State, as the greatest of administrative Courts, grows apace; the extension of its power removes, as did at one time the growth of Equity in England, real grievances, and meets the need of the ordinary dtizen. Yet to an Englishman imbued with an unshakeable faith in
85 Dalloz, 1875, i. 495.
86 Dalloz, 1878, iii. 13.
87 Dalloz, 1880, iii. 41.
the importance of maintaining the supremacy of the ordinary law of the land enforced by the ordinary Law Courts, the droit administratif of modern France is open to some grave criticism.
The high and increasing authority of the Coundl of State must detract, he surmises, from the dignity and respect of the judidal Courts. "The more there is of the more, the less there is of the less" is a Spanish proverb of profound wisdom and wide application. There was a time in the history of England when the judidal power of the Chancellor, bound up as it was with the prerogative of the Crown, might have overshadowed the Courts of Law, which have protected the hereditary liberties of England and the personal freedom of Englishmen. It is difficult not to suppose that the extension of the Council's jurisdiction, benefidal as may be its direct effects, may depress the authority of the judidal tribunals. More than one writer, who ought to represent the ideas of educated Frenchmen, makes the suggestion that if the members of the Coundl of State lack that absolute security of tenure which is universally acknowledged to be the best guarantee of judidal independence, yet irremovable judges, who, though they may defy dismissal, are tormented by the constant longing for advancement,88 are not more independent of the Government at whose hands they expect promotion than are members of the Council of State who, if legally removable, are by force of custom hardly ever removed from their high position.
Trial by jury, we are told, is a joke, and, as far as the interests of the public are concerned, a very bad joke.89 Prosecutors and criminals alike prefer the Correctional Courts, where a jury is unknown, to the Courts of Assize, where a judge presides and a jury gives a verdict. The prosecutor knows that in the Correctional Court proved guilt will lead to condemnation. The criminal knows that though in the inferior Court he may lose the chance of acquittal by good-natured or sentimental jurymen, he also avoids the possibility of undergoing severe punishment. Two facts are certain. In 1881 the judges were deprived of the right of charging the jury. Year by year the number of causes
88 See Chardon, pp. 326-328.
89 Ibid.
tried in the Assize Courts decreases. Add to this that the procedure of the judicial Courts, whether civil or criminal, is antiquated and cumbrous. The procedure in the great administrative Court is modelled on modern ideas, is simple, cheap, and effective. The Court of Cassation still commands respect. The other judicial Courts, one can hardly doubt, have sunk in popular estimation. Their members neither exercise the power nor enjoy the moral authority of the judges of the High Court.
It is difficult, further, for an Englishman to believe that, at any rate where politics are concerned, the administrative Courts can from their very nature give that amount of protection to individual freedom which is secured to every English citizen, and indeed to every foreigner residing in England. However this may be, it is certain that the distinction between ordinary law and administrative law (taken together with the doctrine of the separation of powers, at any rate as hitherto interpreted by French jurists), implies the general belief that the agents of the government need, when acting in bona fide discharge of their official duties, protection from the control of the ordinary law Courts. That this is so is proved by more than one fact. The desire to protect servants of the State has dictated the enactment of the Code Penal, Article 114. This desire kept alive for seventy years Article 75 of the Constitution of the Year VIII. It influenced even the men by whom that Article was repealed, for the repeal itself is expressed in words which imply the intention of providing some special protection for the agents of the government. It influenced the decisions which more or less nullified the effect of the law of igth December 1870, which was at first supposed to make the judicial Courts the sole judges of the liability of civil servants to suffer punishment or make compensation for acts of dubious legality done in the performance of their official duties. Oddly enough, the success with which administrative Courts have extended the right of private persons to obtain damages from the State itself for illegal or injurious acts done by its servants, seems, as an English critic must think, to supply a new form of protection for the agents of the government when acting in obedience to orders. There surely can be little inducement to take proceedings against a subordinate, whose guilt consists merely in carry-
ing out a wrongful or illegal order, given him by his official superior, if the person damaged can obtain compensation from the government, or, in other words, from the State itself.90 But turn the matter which way you will, the personal immunities of officials who take part, though without other fault of their own, in any breach of the law, though consistent even with the modern droit administratif of France, are inconsistent with the ideas which underlie the common law of England. This essential opposition has been admirably expressed by a French jurist of eminence. Hauriou writes:
Under every legal system, the right to proceed against a servant of the government for wrongs done to individuals in his official capacity exists in some form or other; the right corresponds to the instinctive impulse felt by every victim of a legal wrong to seek compensation from the immediately visible wrong-doer. But on this point the laws of different countries obey utterly different tendencies. There are countries [such, for example, as England or the United States] where every effort is made to shelter the liability of the State behind the personal responsibility of its servant. There are other countries where every effort is made to cover the responsibility of the servant of the State behind the liability of the State itself, to protect him against, and to save him from, the painful consequences of faults committed in the service of the State. The laws of centralised countries, and notably the law of France, are of this type. There you will find what is called the protection of officials (garantie des fonctionnaries) .91
90 Consider, too, the extended protection offered to every servant of the State by the doctrine, suggested by at least one good authority, that he cannot be held personally responsible for any wrong (faute) committed whilst he is acting in the spirit of his official duty. "Si, en effet, le fonctionnaire a agi dans I 'esprit de sa fonction, c'est-a-dire en poursuivant effectivement le but qu'avail I'Etat en etablissant cette fonction, il nepeut etre responsable ni vis-a-vis de I'Etat, ni vis-a-vis des particuliers, alors meme qu'il ait commis une faute." — Duguit, L'Etat,
p. 638.
91 "Ceprincipeestadmis par toutes les legislations, lapoursuite du fonctionnaireexistepartout, d'autant qu'elle repond a un mouvement instinctif qui est, pour la victims d'un mefait, de s'en prendre a I'autuer immediatement visible. Mais les legislations obeissent a deux tendances bien opposees: il en est Cjuis'efforcent d'abriter I'Etat derriere le fonctionnaire, il en est d'autres, au contraire, qui s'effor-cent de faire couvrir le fonctionnaire par I'Etat, de le proteger, de le rassurer centre les consequences facheuses de ses erreurs. Les legislations des pays centralises et notamment cette de la francs sont de ce dernier type; il yace que Von appelle une garantie des fonctionnaires." — Hauriou, Precis de Droit Administratif, Troisieme edit., pp. 170, 171.
Chapter Xffl
RELATION BETWEEN
PARLIAMENTARY SOVEREIGNTY
AND THE RULE OF LAW
The sovereignty of Parliament and the supremacy of the law of the land — the two principles which pervade the whole of the English constitution — may appear to stand in opposition to each other, or to be at best only counterbalancing forces. But this appearance is delusive; the sovereignty of Parliament, as contrasted with other forms of sovereign power, favours the supremacy of the law, whilst the predominance of rigid legality throughout our institutions evokes the exercise, and thus increases the authority, of Parliamentary sovereignty.
The sovereignty of Parliament favours the supremacy of the law of the land.
That this should be so arises in the main from two characteristics or peculiarities which distinguish the English Parliament from other sovereign powers.
The first of these characteristics is that the commands of Parliament (consisting as it does of the Crown, the House of Lords, and the House of Commons) can be uttered only through the combined action of its three constituent parts, and must, therefore, always take the shape of formal and deliberate legislation. The will of Parliament1 can be expressed only through an Act of Parliament.
i A strong, if not the strongest, argument in favour of the so-called "bi-cameral" system, is to be found in the consideration that the coexistence of two legislative chambers prevents the confusion of resolutions passed by either House with laws, and thus checks the sub-
This is no mere matter of form; it has most important practical effects. It prevents those inroads upon the law of the land which a despotic monarch, such as Louis XIV., Napoleon I., or Napoleon HI., might effect by ordinances or decrees, or which the different constituent assemblies of France, and above all the famous Convention, carried out by sudden resolutions. The principle that Parliament speaks only through an Act of Parliament greatly increases the authority of the judges. A Bill which has passed into a statute immediately becomes subject to judicial interpretation, and the English Bench have always refused, in principle at least, to interpret an Act of Parliament otherwise than by reference to the words of the enactment. An English judge will take no notice of the resolutions of either House, of anything which may have passed in debate (a matter of which officially he has no cognisance), or even of the changes which a Bill may have undergone between the moment of its first introduction to Parliament and of its receiving the Royal assent. All this, which seems natural enough to an English lawyer, would greatly surprise many foreign legists, and no doubt often does give a certain narrowness to the judicial construction of statutes. It contributes greatly, however, both (as I have already pointed out) to the authority of the judges and to the fixity of the law.2
The second of these characteristics is that the English Parliament as such has never, except at periods of revolution, exercised direct executive power or appointed the officials of the executive government.
No doubt in modern times the House of Commons has in substance obtained the right to designate for appointment the Prime Minister and the other members of the Cabinet. But this right is, historically speaking, of recent acquisition, and is exercised in a very
stitution of the arbitrary will of an assembly for the supremacy of the ordinary law of the land. Whoever wishes to appreciate the force of this argument should weigh well the history, not only of the French Convention but also of the English Long Parliament. 2 The principle that the sovereign legislature can express its commands only in the particular form of an Act of Parliament originates of course in historical causes; it is due to the fact that an Act of Parliament was once in reality, what it still is in form, a law "enacted by the King by and with the advice and consent of the Lords and Commons in Parliament assembled."
roundabout manner; its existence does not affect the truth of the assertion that the Houses of Parliament do not directly appoint or dismiss the servants of the State; neither the House of Lords nor the House of Commons, nor both Houses combined, could even now issue a direct order to a military officer, a constable, or a tax-collector; the servants of the State are still in name what they once were in reality — "servants of the Crown"; and, what is worth careful notice, the attitude of Parliament towards government officials was determined originally, and is still regulated, by considerations and feelings belonging to a time when the "servants of the Crown" were dependent upon the King, that is, upon a power which naturally excited the jealousy and vigilance of Parliament.
Hence several results all indirectly tending to support the supremacy of the law. Parliament, though sovereign, unlike a sovereign monarch who is not only a legislator but a ruler, that is, head of the executive government, has never hitherto been able to use the powers of the government as a means of interfering with the regular course of law;3 and what is even more important, Parliament has looked with disfavour and jealousy on all exemptions of officials from the ordinary liabilities of citizens or from the jurisdiction of the ordinary Courts; Parliamentary sovereignty has been fatal to the growth of "administrative law." The action, lastly, of Parliament has tended as naturally to protect the independence of the judges, as that of other sovereigns to protect the conduct of officials. It is worth notice that Parliamentary care for judicial independence has, in fact, stopped just at that point where on a priori grounds it might be expected to end. The judges are not in strictness irremovable; they can be removed from office on an address of the two Houses; they have been made by Parliament independent of every power in the State except the Houses of Parliament.
The idea may suggest itself to a reader that the characteristics or peculiarities of the English Parliament on which I have just dwelt must now be common to most of the representative assemblies which exist in continental Europe. The French National Assembly, for
3 Contrast with this the way in which, even towards the end of the eighteenth century, French Kings interfered with the action of the Courts.
'endency o support ule orlaw iften not ound in oreign epresenta-ive as-emblies.
Rule of law favours Parliamentary sovereignty.
example, bears a considerable external resemblance to our own Parliament. It is influenced, however, by a different spirit; it is the heir, in more ways than one, of the Bourbon Monarchy and the Napoleonic Empire. It is apparently, though on this point a foreigner must speak with hesitation, inclined to interfere in the details of administration. It does not look with special favour on the independence or authority of the ordinary judges. It shows no disapprobation of the system oidroit administratif which Frenchmen — very likely with truth — regard as an institution suited to their country, and it certainly leaves in the hands of the government wider executive and even legislative powers than the English Parliament has ever conceded either to the Crown or to its servants. What is true of France is true under a different form of many other continental states, such, for example, as Switzerland or Prussia. The sovereignty of Parliament as developed in England supports the supremacy of the law. But this is certainly not true of all the countries which now enjoy representative or Parliamentary government.
The supremacy of the law necessitates the exercise of Parliamentary sovereignty.
The rigidity of the law constantly hampers (and sometimes with great injury to the public) the action of the executive, and from the hard-and-fast rules of strict law, as interpreted by the judges, the government can escape only by obtaining from Parliament the discretionary authority which is denied to the Crown by the law of the land. Note with care the way in which the necessity for discretionary powers brings about the recourse to exceptional legislation. Under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers, without occasional use of arbitrary authority. During periods, for instance, of social disturbance you need not only to punish conspirators, but also to arrest men who are reasonably suspected of conspiracy; foreign revolutionists are known to be spreading sedition throughout the land; order can hardly be maintained unless the executive can expel aliens. When two foreign nations are at war, or when civil contests divide a friendly country into two hostile camps, it is impossible for England to perform her duties
as a neutral unless the Crown has legal authority to put a summary check to the attempts of English sympathisers to help one or other of the belligerents. Foreign nations, again, feel aggrieved if they are prevented from punishing theft and homicide, — if, in short, their whole criminal law is weakened because every scoundrel can ensure impunity for his crimes by an escape to England. But this result must inevitably ensue if the English executive has no authority to surrender French or German offenders to the government of France or of Germany. The English executive needs therefore the right to exercise discretionary powers, but the Courts must prevent, and will prevent at any rate where personal liberty is concerned, the exercise by the government of any sort of discretionary power. The Crown cannot, except under statute, expel from England any alien4 whatever, even though he were a murderer who, after slaughtering a whole family at Boulogne, had on the very day crossed red-handed to Dover. The executive therefore must ask for, and always obtains, aid from Parliament. An Alien Act enables the Ministry in times of disturbance to expel any foreigner from the country; a Foreign Enlistment Act makes it possible for the Ministry to check intervention in foreign contests or the supply of arms to foreign belligerents. Extradition Acts empower the government at the same time to prevent England from becoming a city of refuge for foreign criminals, and to co-operate with foreign states in that general repression of crime in which the whole civilised world has an interest. Nor have we yet exhausted the instances in which the rigidity of the law necessitates the intervention of Parliament. There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the government must then take is dear. The Ministry must break the law and trust for protection to an Act of Indemnity. A statute of this kind is (as already pointed out5) the last and supreme exercise of Parliamentary sovereignty. It legalises illegality; it affords the practical solution of the problem which perplexed the statesmanship of the sixteenth and seventeenth centuries, how to combine the mainte-
4 See, however, p. 137, note 22, ante.
5 See pp. 10, H, 142-145, ante.
nance of law and the authority of the Houses of Parliament with the free exercise of that kind of discretionary power or prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilised country.
This solution may be thought by some critics a merely formal one, or at best only a substitution of the despotism of Parliament for the prerogative of the Crown. But this idea is erroneous. The fact that the most arbitrary powers of the English executive must always be exercised under Act of Parliament places the government, even when armed with the widest authority, under the supervision, so to speak, of the Courts. Powers, however extraordinary, which are conferred or sanctioned by statute, are never really unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges. Parliament is supreme legislator, but from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or to the Houses of Parliament, if the Houses were called upon to interpret their own enactments. In foreign countries, and especially in France, administrative ideas — notions derived from the traditions of a despotic monarchy — have restricted the authority and to a certain extent influenced the ideas of the judges. In England judicial notions have modified the action and influenced the ideas of the executive government. By every path we come round to the same conclusion, that Parliamentary sovereignty has favoured the rule of law, and that the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a spirit of legality.
Napoleon, in the second place, displayed towards the ordinary judges the sentiment of contemptuous suspicion embodied in revolutionary legislation. The law of 16-24 August i/cjo19 is one among a score of examples which betray the true spirit of the Revolution. The judicial tribunals are thereby forbidden to interfere in any way whatever with any acts of legislation. Judicial functions, it is laid down, must remain separate from administrative functions. The judges must not, under penalty of forfeiture, disturb or in any way interfere
17 With the Courts, or Councils, of the Prefects an English student need hardly concern himself.
18 There existed even under Napoleon exceptional instances, and their number has been increased, in which, mainly from motives of immediate convenience, legislation has given to judicial Courts the decision of matters which from their nature should fall within the sphere of the administrative tribunals, just as legislation has exceptionally given to administrative tribunals matters which would naturally fall within the jurisdiction of the judicial Courts. These exceptional instances cannot be brought within any one clear principle, and may for our purpose be dismissed from consideration.
19 Tit. ii. arts. 11-13.
with the operations of administrative bodies, or summon before them administrative officials on account of anything done by reason of their administrative duties. Napoleon had imbibed to the utmost the spirit of these enactments. He held, as even at a much later date did all persons connected with the executive government, that
the judges are the enemies of the servants of the State, and that there is always reason to fear their attempts to compromise the public interests by their malevolent, or at best rash, interference in the usual course of government business.20
This fear was during the Empire, at any rate, assuredly groundless. Administrative officials met with no resistance from the Courts. After the Revolution the judges exhibited boundless humility and servile submission, they trembled before the power and obeyed the orders, often insolent enough, of the government.21 It is difficult, however, to see how in the days of Napoleon the ordinary judges could, whatever their courage or boldness, have interfered with the conduct of the government or its agents. They are even now, as a rule, without jurisdiction in matters which concern the State. They have no right to determine, for instance, the meaning and legal effect in case it be seriously disputed of official documents, as, for example, of a letter addressed by a Minister of State to a subordinate, or by a general to a person under his command. They are even now in certain cases without jurisdiction as to questions arising between a private person and a department of the government. In Napoleon's time22 they could not, without the consent of the government, have entertained criminal or civil proceedings against an official for a wrong done or a
20 "On asubi I'influence de ce prejuge dominant chez les gauvemants, dans Vadministration et meme chez la plupart des jurisconsultes, que les agents judidaires sont les ennemis nes des agents adminis-tratifs, qu'il y a toujours a craindre leurs tentatives de compramettre la chosepubliquepar leur intervention — malveillante ou tout au mains inconsideree — dans la marche normale de I'adminis-tration." — Jeze (ed. 1904), p. 139.
21 "Les agents administratifs, dans leur arbitraire veritablement inoui, ne recmtrerent aucune resistance chez les agents judidaires. Ceux-d, apres la Revolution, ont montre une humilite sans limite et une soumission servile. C'est en tremblant au'ils ont toujours obei aux ordres parfois insolents du Gouvemement." — Jeze, p. 128.
22 See Constitution of Year VIII., art. 75, p. 227, post.
l) Con-icts of irisdicti
crime committed by such official in respect of private individuals when acting in discharge of his official duties. The incompetence, however, of the judicial Courts did not mean, even under Napoleon, that a person injured by an agent of the government was without a remedy. He might bring his grievance before, and obtain redress from, the administrative tribunals, i.e. in substance the Council of State, or proceedings might, where a crime or a wrong was complained of, be, with the permission of the government, taken before the ordinary Courts.
The co-existence of judicial Courts and of administrative Courts ion results of necessity in raising questions of jurisdiction. A, for example, in some judicial Court claims damages against X for a breach of contract, or it may be for what we should term an assault or false imprisonment. X's defence in substance is that he acted merely as a servant of the State, and that the case raises a point of administrative law determinable only by an administrative tribunal, or, speaking broadly, by the Council of State. The objection, in short, is that the judicial Court has no jurisdiction. How is this dispute to be decided? The natural idea of an Englishman is that the conflict must be determined by the judicial Courts, i.e. the ordinary judges, for that the judges of the land are the proper authorities to define the limits of their own jurisdiction. This view, which is so natural to an English lawyer, is radically opposed to the French conception of the separation of powers, since it must, if systematically carried out, enable the Courts to encroach on the province of the administration. It contradicts the principle still recognised as valid by French law that administrative bodies must never be troubled in the exercise of their functions by any act whatever of the judicial power;23 nor can an Englishman, who recollects the cases on general warrants, deny that our judges have often interfered with the action of the administration. The worth of Montesquieu's doctrine is open to question, but if his theory be sound, it is clear that judicial bodies ought not to be allowed to pronounce a final judgment upon the limits of their own authority.
23 See Aucoc, Droit Administratif, s. 24.
(4) Pro-tection of officials.
Act of State.
Under the legislation of Napoleon the right to determine such questions of jurisdiction was in theory reserved to the head of the State, but was in effect given to the Council of State, that is, to the highest of administrative Courts. Its authority in this matter was, as it still is, preserved in two different ways. If a case before an ordinary or judicial Court dearly raised a question of administrative law, the Court was bound to see that the inquiry was referred to the Council of State for decision. Suppose, however, the Court exceeded, or the government thought that it exceeded, its jurisdiction and trenched upon the authority of the administrative Court, a prefect, who, be it remarked, is a mere government official, could raise a conflict, that is to say, could, by taking the proper steps, insist upon the question of jurisdiction being referred for decision to the Council of State. We can hardly exaggerate the extent of the authority thus conferred upon the Council. It has the right to fix the limits of its own power, it could in effect take out of the hands of a judicial Court a case of which the Court was already seised.24
The fourth and most despotic characteristic of droit administratif lies in its tendency to protect25 from the supervision or control of the ordinary law Courts any servant of the State who is guilty of an act, however illegal, whilst acting in bona fide obedience to the orders of his superiors and, as far as intention goes, in the mere discharge of his official duties.
Such an official enjoyed from 1800 till 1872 a triple protection (gar-antie desfonctionnaires).
In the first place, he could not be made responsible before any Court, whether judicial or administrative, for the performance of any act of State (acte de gouvernement).
24 Up to 1828 it was possible to raise a conflict (eleuer un conflit) in any criminal no less than in any civil case. Nor is it undeserving of notice that, whilst a conflict could be raised in order to prevent a judicial Court from encroaching on the sphere of an administrative Court, there was in Napoleon's time and still is no legal means for raising a conflict with a view to prevent an administrative Court from encroaching on the sphere of a judicial Court.
25 This protection of officials may be displayed in parts of French law (e.g. Code Penal, art. 114) which do not technically belong to droit administratif, but it is in reality connected with the whole system of administrative law.
Obedience to orders
The law of France has always recognised an indefinite class of acts, i.e. acts of State, which, as they concern matters of high policy or of public security, or touch upon foreign policy or the execution of treaties, or concern dealings with foreigners, must be left to the uncontrolled discretion of the government, and lie quite outside the jurisdiction of any Court whatever. What may be the exact definition of an act of State is even now, it would appear in France, a moot point on which high authorities are not entirely agreed. It is therefore impossible for any one but a French lawyer to determine what are the precise qualities which turn conduct otherwise illegal into an act of State of which no French Court could take cognisance. Of recent years the tendency of French lawyers has certainly been to narrow down the sense of an ambiguous term which lends itself easily to the justification of tyranny. We may feel sure, however, that during the Napoleonic era and for long afterwards any transaction on the part of the government or its servants was deemed to be an act of State which was carried out bona fide with the object of furthering the interest or the security of the country.
In the second place, the French Penal Code, Art. 114,26 protected, as it still protects, an official from the penal consequences of any interference with the personal liberty of fellow citizens when the act complained of is done under the orders of his official superior.27
26 "Art. 114. Lorsqu'unfonctionnaire public, un agent ou un prepose du Gouvernement, aura ordonne ou fait quelque acte arbitraire, et attentatoire soit a la liberte individuelle, soit aux droits civiques d'un ou de plusieurs dtoyens, soit a la Charte, il sera condamne a la peine de la degradation tivique.
"Si neanmoins iljustifie qu 'il a agi par ordre de ses superieurs pour des objets du ressort de ceux-ci, sur lesquels il leur etait du obeissance hierarchique, il sera exempte de la peine, laquelle sera, dans ce cos, appliquee seulement aux superieurs qui auront donne I'ordre." — Code Penal, art. 114; and Garcon, Code Penal annote, p. 245. With this read Garcon, Code Penal, arts. 34 and 87, compare Code d'instruction criminelle, art. 10; Duguit, Manuel, pp. 524-527, and generally Duguit, L'£tat. ch. v. s. 10, pp. 615-634.
27 None but a French criminalist can pronounce with anything like certainty on the full effect of Art. 114, but Garcon's comment thereon (Code Penal, pp. 245-255) suggests to an English lawyer that an offender who brings himself within the exemption mentioned in the second clause of the Article, though he may be found guilty of the offence charged, cannot be punished for it under Art. 114, or any other Article of the Penal Code, and that Art. 114 protects a very wide class of public servants. (See Garcon, comment under heads D and E, pp. 249-252, and under G, p. 253, and para. 100, p. 254. Read also Duguit, Manuel, ss. 75-77, especially pp. 504, 527; Duguit, L'£tat, pp. 615-634.)
In the third place, under the celebrated Article 7528 of the Constitution of the Year VIII., i.e. of 1800, no official could, without the permission of the Council of State, be prosecuted or otherwise be proceeded against, for any act done in relation to his official duties.
The protection given was ample. Article 75 reads indeed as if it applied only to prosecutions, but was construed by the Courts so as to embrace actions for damages.29 Under the Napoleonic Constitution no servant of the State, whether a prefect, a mayor, or a policeman, whose conduct, however unlawful, met with the approval of the government, ran any real risk of incurring punishment or of paying damages for any act which purported to be done in discharge of his official duties.
The effect practically produced by the four characteristics of droit administratif, and especially the amount of the protection provided for officials acting in obedience to the orders of their superiors, depends in the main on the answer to one question: What at a given time is found to be the constitution and the character of the Council of State? Was it then under Napoleon a law Court administering judicially a particular branch of French law, or was it a department of the executive government? The answer is plain. The Council, as constituted or revived by Bonaparte, was the very centre of his whole governmental fabric. It consisted of the most eminent administrators whom Napoleon could gather round him. The members of the Council were entitled and were bound to give the supreme ruler advice. The Council, or some of the Councillors, took part in affairs of all descriptions. It is hardly an exaggeration to say that, subject to the absolute will of Napoleon, the members of the Council constituted the government. They held office at his pleasure. The Councillors dealt with policy,
It is difficult for an Englishman to understand how under the Code Penal a prefect, a policeman, or any other servant of the State, acting bona fide under the orders of his proper official superior, can be in danger of punishment for crimes such as assault, unlawful imprisonment, and the like.
28 "Les agents du Gouvernement, autres que les ministres, ne peuvent etre poursuivis pour des faits relatifs a leurs fonctions, qu'en vertu d'une decision du conseil d'etat: en ce cas, la poursuite a lieu devant les tribunaux ordinaires." — Duguit and Monnier, Les Constitutions de la France (deuxieme ed.), p. 127.
29 See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 127.
with questions of administration, with questions of administrative law. In 1800 it is probable that administrative suits were not very dearly separated from governmental business. The Council, moreover, even when acting judicially, was more of a Ministry than of a Court, and when the Council, acting as a Court, had given its decision, or tendered its advice, it possessed no means for compelling the executive to give effect to its decisions. As a matter of fact, years have sometimes elapsed before the executive of the day has thought fit to put the judgments of the Council into force, and it was not till 1872 that its decisions acquired by law the character of real judgments. It was, moreover, as we have already pointed out, originally the final Conflict-Court. It had a right to determine whether a given case did or did not concern administrative law, and therefore whether it fell within its own jurisdiction or within the jurisdiction of the ordinary Courts. Thus the state of things which existed in France at the beginning of the nineteenth century bore some likeness to what would be the condition of affairs in England if there were no, or little, distinction between the Cabinet as part of the Privy Council and the Judicial Committee of the Privy Council, and if the Cabinet, in its character of a Judicial Committee, determined all questions arising between the government on the one side, and private individuals on the other, and determined them with an admitted reference to considerations of public interest or of political expediency. Nor was any material change produced by the fall of Napoleon. The restored monarchy eagerly grasped the prerogatives created by the Empire. There was even a sort of return to the unrestrained arbitrariness of the Directory. It was not until 1828, that is, within two years of the expulsion of Charles X., that public opinion enforced some restriction on the methods by which the administrative authorities, i.e. the government, invaded the sphere of the judicial Courts.
There are two reasons why it is worth while to study with care the droit administmtif of our first period. The administrative law of to-day has been built up on the foundations laid by Napoleon. The Courts created by him still exist; their jurisdiction is still defined in accordance, in the main, with the lines which he laid down. True it is that machinery invented to support a scheme of rational absolutism has in later times been used by legists and reformers for the promotion of
Monarchical period.
legal liberty. But it is a fact never to be forgotten that the administrative law of France originated in ideas which favour the prerogatives of the government as the proper defence for the interest of the nation.
SECOND PERIOD: THE ORLEANS MONARCHY AND THE SECOND EMPIRE 1830-187030
This period deserves the special attention of English students. Napoleonic Imperialism was absolutism; the Restoration was reaction; neither admits of satisfactory comparison with any governmental system known to modern England. The forty years, on the other hand, which intervened between the expulsion of Charles X. and the fall of Napoleon III., though marked by three violent changes — the Revolution of 1848, the coup d'etat of 1851, the overthrow of the Second Empire in 1870 — form, as a whole, a time of civil order. During these forty years France was, with the exception of not more than six months, governed under the established law of the land. An age of peaceful progress gives an opening for illuminative comparison between the public law of France and the public law of England. This remark is particularly applicable to the reign of Louis Philippe. He was, in the eyes of Englishmen, above all things, a constitutional king.31 His Parliamentary ministries, his House of peers, and his House of deputies, the whole framework and the very spirit of his government, seemed to be modelled upon the constitution of England; under his rule the supremacy of the ordinary law of the land, administered by the ordinary law Courts, was, as Englishmen supposed, as securely established in France as in England. They learn with surprise, that during the whole of these forty years few, if any, legislative or Parliamentary reforms32 touched the essential characteristics of droit administratif as established by Napoleon. It re-
30 Little account need be taken of the Second Republic, 1848-1851. Its legislative reforms in administrative law did not outlive its brief and troubled duration.
31 His accession to the throne was aided by an obvious, but utterly superficial, analogy between the course of the English Revolution in the seventeenth century and of the great French Revolution in the eighteenth and nineteenth centuries. Louis Philippe, it was supposed, was exactly the man to perform in France the part which William III. had played in England, and close the era of revolution.
32 It was, however, gradually reformed to a great extent by a process of judicial legislation, i.e. by the Council of State acting in the spirit of a law Court.
mained, as it still does, a separate body of law, dealt with by administrative Courts. With this law the judicial Courts continued to have, as they still have, no concern. The introduction of Parliamentary government took from the Council of State, during the reign of Louis Philippe, many of its political functions. It remained, however, as it does to-day, the great administrative Court. It preserved what it does not now retain,33 the right to define the jurisdiction of the judicial Courts. Servants of the State remained in possession of every prerogative or privilege ensured to them by custom or by Napoleonic legislation. Droit administratif, in short, retained till 1870 all its essential features. That this was so is apparent from two considerations: —
First, the Council of State never, during the period with which we are concerned, became a thoroughly judicial body.
This indeed is a point on which an English critic must speak with some hesitation. He will remember how easily a Frenchman, even though well acquainted with England, might at the present moment misinterpret the working of English institutions, and imagine, for instance, from the relation of the Lord Chancellor to the Ministry, that the Cabinet, of which the Chancellor is always a member, could influence the judgment given in an action entered in the Chancery Division of the High Court, whereas, as every Englishman knows, centuries have passed since the Lord Chancellor, when acting as a judge in Chancery, was in the slightest degree guided by the interest or the wishes of the Cabinet. An English critic will also remember that at the present day the Council of State commands as profound respect as any Court in France, and stand in popular estimation on a level with the Court of Cassation — the highest of judicial tribunals — and further, that the repute of the Council has risen during every year since 1830. Yet, subject to the hesitation which becomes any one who comments on the working of institutions which are not those of his own country, an English lawyer must conclude that between 1830 and 1870 the Council, while acting as an administrative tribunal, though tending every year to become more and more judicialised, was to a considerable extent an official or governmental
33 See as to present Conflict-Court, p. 238, post.
No diminution in protection of officials.
body, the members of which, when acting in the discharge of quasi-judicial functions, were likely to be swayed by ministerial or official sentiment. This assertion does not imply that the Council, consisting of persons of the highest eminence and character, did not aim at doing or did not constantly do justice. What is meant is that the Council's idea of justice was not likely to be exactly the same as that entertained by judicial or common law Courts.
Secondly, the legal protection of officials suffered no diminution.
No man could be made liable before any Court whatever for carrying out an act of State (acte de gouvernement) .34 And under the rule of Louis Philippe, as under the Second Empire, wide was the extension given, both in theory and in practice, to this indefinite and undefined expression.
In 1832 the Duchesse de Berry attempted to raise a civil war in La Vendee. She was arrested. The king dared not let her leave the country. He would not put on trial the niece of his wife. Republicans and Legitimists alike wished her to be brought before a law Court. The one class desired that "Caroline Berry" should be treated as an ordinary criminal, the other hoped to turn the Duchess into a popular heroine. The case was debated in Parliament again and again. Petitions demanded that she should either be set at liberty or brought before a jury. The government refused to take either course. She was detained in prison until private circumstances deprived her both of credit and of popularity. She was then quietly shipped off to Sicily. The conduct of the government, or in fact of the king, was illegal from beginning to end. The Ministry confessed, through the mouth of Monsieur Thiers, that the law had been violated. A vote of the Chamber of Deputies — not be it noted an act of legislation — supplied, it was held, full justification for a breach of the law.35 This was the kind of authority ascribed in 1832 by the constitutional Ministers of a constitutional monarch to an act of State. This most elastic of
34 Seep. 22.5,ante.
35 "M. Thiers, dans la seance du zojuin, avaua hautement tout cecju'il y avail eu d'illegal dans I'arrestation, la detention, la mise en liberte de la duchesse; c'etait a la Chambre a decider si Von avail agi dans I'interet bien entendu du salut public. La Chambrepassa a I'ordre dujour." — Gregoire, Hi'stoirede France, i. p. 364. See also ibid. pp. 292-308, 356 — 364.
pleas was, it would seem, the excuse or the defence for the dealings of Napoleon III. with the property of the Orleans family; nor is it easy to believe that even as late as 1880 some of the proceedings against the unauthorised congregations were not examples of the spirit which places an act of State above the law of the land.
The Penal Code Article ii4,36 protecting from punishment, though not from legal condemnation, an agent of the government who though he committed a crime acted in obedience to the commands of his official superiors, remained, as it still remains, in full force.
The celebrated Article 75 of the Constitution of the Year VIII.,37 which made it impossible to take legal proceedings for a crime or a wrong against any official without the permission of the Council of State, which surely in this case must have acted in accordance with the government of the day, still stood unrepealed.
Public opinion refused to regard the Council as a judicial tribunal, and condemned the protection extended to official wrongdoers. Hear on this point the language of Alexis de Tocqueville:
In the Year VIII, of the French Republic a constitution was drawn up in which the following clause was introduced: "Art. 75. All the agents of the government below the rank of ministers can only be prosecuted38 for offences relating to their several functions by virtue of a decree of the Conseil d'Etat; in which case the prosecution takes place before the ordinary tribunals." This clause survived the "Constitution de 1'An VIII.," and it is still maintained in spite of the just complaints of the nation. I have always found the utmost difficulty in explaining its meaning to Englishmen or Americans. They were at once led to conclude that the Conseil d'Etat in France was a great tribunal, established in the centre of the kingdom, which exercised a preliminary and somewhat tyrannical jurisdiction in all political causes. But when I told them that the Conseil d'Etat was not a judicial body, in the common sense of the term, but an administrative council composed of men dependent on the Crown, so that the King, after having ordered one of his servants, called a Prefect, to commit an injustice, has the power of commanding another of his servants, called a Councillor of State, to prevent the former from being punished; when I demonstrated to them that the citizen
36 See p. 226, note 26, ante.
37 See pp. 226-227, ante.
38 This term was extended by legal decisions so as to cover actions for damages. See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 127.
who has been injured by the order of the sovereign is obliged to solicit from the sovereign permission to obtain redress, they refused to credit so flagrant an abuse, and were tempted to accuse me of falsehood or of ignorance. It frequently happened before the Revolution that a Parliament issued a warrant against a public officer who had committed an offence, and sometimes the proceedings were stopped by the authority of the Crown, which enforced compliance with its absolute and despotic will. It is painful to perceive how much lower we are sunk than our forefathers, since we allow things to pass under the colour of justice and the sanction of the law which violence alone could impose upon them.39
This classical passage from Tocqueville's Democracy in America was published in 1835, when, at the age of 30, he had obtained a fame which his friends compared to that of Montesquieu. His estimate of droit administratif assuredly had not changed when towards the end of his life he published L'Ancien Regime et la Revolution, by far the most powerful and the most mature of his works. He writes:
We have, it is true, expelled the judicial power from the sphere of government into which the ancien regime had most unhappily allowed its introduction, but at the very same time, as any one can see, the authority of the government has gradually been introducing itself into the natural sphere of the Courts, and there we have suffered it to remain as if the confusion of powers was not as dangerous if it came from the side of the government as if it came from the side of the Courts, or even worse. For the intervention of the Courts of Justice into the sphere of government only impedes the management of business, whilst the intervention of government in the administration of justice depraves citizens and turns them at the same time both into revolutionists and slaves.40
These are the words of a man of extraordinary genius who well knew French history, who was well acquainted with the France of his day, who had for years sat in Parliament, who at least once had been
39 A. de Tocqueville, Democracy in America, i. (translation), p. 101; CEuvres Completes, i. pp. 174' 175-
40 "Nous avons, il est vrai, chasse la justice de la sphere administrative ou I'anden regime I'avait laissee s'introduirefort indument; mais dans le meme temps, comme on le voit, legouvernement s'introduisait sans cesse dans la sphere naturelk de la justice, et nous I'y avons laisse: comme si la confusion des pouvoirs n 'etait pas aussi dangereuse de ce cote que de I'autre, et meme fire; car
V intervention de la justice dans I'administration ne nuit qu'aux affaires, tandis que I 'intervention de I'administration dans la justice deprave les hommes et tenda les rendre toutalafois revolutionnaires et serviles." — Tocqueville, L'Ancien Regime et la Revolution, septieme edition, p. 81.
a member of the Cabinet, and to whom the public life of his own country was as well known as the public life of England to Macaulay. Tocqueville's language may bear marks of an exaggeration, explainable partly by his turn of mind, and partly by the line of thought which made him assiduously study and possibly overrate the closeness of the connection between the weaknesses of modern democracy and the vices of the old monarchy. Be this as it may, he assuredly expressed the educated opinion of his time. A writer who has admirably brought into view the many merits of the Council of State and the methods by which it has in matters of administrative litigation acquired for itself more and more of a judicial character, acutely notes that till the later part of the nineteenth century the language of everyday life, which is the best expression of popular feeling, applied the terms "courts of justice" or "justice" itself only to the judicial or common law Courts.41 What stronger confirmation can be found of the justice of Tocqueville's judgment for the time at least in which he lived?
We can now understand the way in which from 1830 to 1870 the existence of a droit administratif affected the whole legal position of French public servants, and rendered it quite different from that of English officials.
Persons in the employment of the government, who formed, be it observed, a more important part of the community than do the whole body of English civil servants, occupied in France a situation in some respects resembling that of soldiers in England. For the breach of official discipline they were, we may safely assume, readily punishable in one form or another. But if like English soldiers they were subject to official discipline, they enjoyed what even soldiers in England do not possess, a very large amount of protection against proceedings before the judicial Courts for wrongs done to private citizens. The position, for instance, of say a prefect or a policeman, who in the over-zealous discharge of his duties had broken the law by committing an assault or a trespass, was practically unassailable. He might plead that the wrong done was an act of State. If this defence
Effect of droit administratif onposition of French officials.
41 Jeze, p. 138, note i.
Repeal of Art. 75.
would not avail him he might shelter himself behind Article 114 of the Penal Code, and thus escape not indeed an adverse verdict but the possibility of punishment. But after all, if the Ministry approved of his conduct, he had no need for legal defences. He could not, without the assent of the Council of State, be called upon to answer for his conduct before any Court of law. Article 75 was the palladium of official privilege or irresponsibility. Nor let any one think that this arm of defence had grown rusty with time and could not in practice be used. Between 1852 and 1864 there were 264 applications for authorisations under Article 75 to take proceedings against officials. Only 34 were granted, or, in other words, 230 were refused.42 The manifest injustice of the celebrated Article had been long felt. Even in 1815 Napoleon had promised its modification.
THIRD PERIOD: THE THIRD REPUBLIC, 1870-1908
Within two years from the fall of the Second Empire public opinion insisted upon three drastic reforms in the administrative or official law of France.
On the igth of September 1870 Article 75 was repealed.
It had survived the Empire, the Restoration, the Orleans Monarchy, the Republic of 1848, and the Second Empire. The one thing which astonishes an English critic even more than the length of time during which the celebrated Article had withstood every assault, is the date, combined with the method of its abolition. It was abolished on the igth of September 1870, when the German armies were pressing on to Paris. It was abolished by a Government which had come into office through an insurrection, and which had no claim to actual power or to moral authority except the absolute necessity for protecting France against invasion. It is passing strange that a provisional government, occupied with the defence of Paris, should have repealed a fundamental principle of French law. Of the motives which led men placed in temporary authority by the accidents of a revolution to carry through a legal innovation which, in appearance
42 See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 364.
It is worth notice that the principle of Article 75 was, at any rate till lately, recognised in more than one State of the German Empire.
at least, alters the whole position of French officials, no foreign observer can form a certain opinion. It is, however, a plausible conjecture, confirmed by subsequent events, that the repeal of Article 75 was lightly enacted and easily tolerated, because, as many lawyers may have suspected, it effected a change more important in appearance than in reality, and did not after all gravely touch the position of French functionaries or the course of French administration.43
A circumstance which fills an English lawyer with further amazement is that the repeal of Article 75 became, and still without any direct confirmation by any legislative assembly remains, part of the law of the land. Here we come across an accepted principle of French constitutional law which betrays the immense authority conceded both by the law and by the public opinion of France to any de facto and generally accepted government. Such a body, even if like the provisional government of 1848 it is called to office one hardly knows how, by the shouts of a mob consisting of individuals whose names for the most part no one now knows at all, is deemed to possess whilst it continues in power the fullest legislative authority. It is, to use French terms, not only a legislative but a constituent authority. It can issue decrees, known by the technical name of decree laws (decrets lots),44 which, until regularly repealed by some person or body with acknowledged legislative authority, are often as much law of the land as any Act passed with the utmost formality by the present French National Assembly. Contrast with this ready acceptance of gov-
43 For some confirmation of this view, see Aucoc, Droit Administratif, ss. 419-426; Jacquelin, Juridiction Administrative, p. 427; Laferriere, i. bk. iii. ch. vii.
The admission, however, involved in the repeal of Article 75 of the general principle that officials are at any rate prima facie liable for illegal acts, in the same way as private persons, marks, it is said by competent authorities, an important change in the public opinion of France, and is one among other signs of a tendency to look with jealousy on the power of the State.
44 See for the legal doctrine and for examples of such decree laws, Duguit, Manuel, pp. 1037, 1038; Moreau, Le Reglement Administratif, pp. 103, 104. Such decree laws were passed by the provisional government between the 24th of February and the 4th of May 1848; by Louis Napoleon between the coup d'etat of 2nd December 1851 and 2gth March 1852, that is, a ruler who, having by a breach both of the law of the land and of his oaths usurped supreme power, had not as yet received any recognition by a national vote; and lastly, by the Government of National Defence between 4th September 1870 and i2th February 1871, that is, by an executive which might in strictness be called a government of necessity.
ernmental authority the view taken by English Courts and Parliaments of every law passed from 1642 to 1660 which did not receive the Royal assent. Some of them were enacted by Parliaments of a ruler acknowledged both in England and in many foreign countries as the head of the English State; the Protector, moreover, died in peace, and was succeeded without disturbance by his son Richard. Yet not a single law passed between the outbreak of the Rebellion and the Restoration is to be found in the English Statute Book. The scrupulous legalism of English lawyers acknowledged in 1660 no Parliamentary authority but that Long Parliament which, under a law regularly passed and assented to by Charles I., could not be dissolved without its own consent. A student is puzzled whether most to admire or to condemn the sensible but, it may be, too easy acquiescence of Frenchmen in the actual authority of any de facto government, or the legalism carried to pedantic absurdity of Englishmen, who in matters of statesmanship placed technical legality above those rules of obvious expediency which are nearly equivalent to principles of justice. This apparent digression is in reality germane to our subject. It exhibits the different light in which, even in periods of revolution, Frenchmen and Englishmen have looked upon the rule of law. The strange story of Article 75 needs a few words more for its completion. The decree law of igth September 1870 reads as if it absolutely subjected officials accused of any breach of the law to the jurisdiction of the judicial Courts. This, moreover, was in fact the view taken by both the judicial and the administrative Courts between 1870 and i872.4s But judicial decisions can in France, as elsewhere, frustrate the operation of laws which they cannot repeal. After 1870 proceedings against officials, and officials of all ranks, became frequent. This fact is noteworthy. The government wished to protect its own servants. It brought before the newly constituted Conflict-Court46 a case raising for reconsideration the effect of the decree law of igth September 1870. The Court held that, though proceedings against officials might be taken without the leave of the
45 See in support of this view, Jacquelin, Les Principes Dominants du Contentieux Administratif, pp. 127-144.
46 See pp. 239-240, post.
'Deci-msof mnril of ate be-me igments.
Crea-nof ie-
ndent •nflict->urt.
Council of State, yet that the dogma of the separation of powers must still be respected, and that it was for the Conflict-Court to determine whether any particular case fell within the jurisdiction of the judicial Courts or of the administrative Courts, that is in effect of the Council of State.47 The principle of this decision has now obtained general acceptance. Thus a judgment grounded on that doctrine of the separation of powers which embodies traditional jealousy of interference by ordinary judges in affairs of State has, according, at any rate, to one high authority, reduced the effect of the repeal of Article 75 almost to nothing. "To sum the matter up," writes Duguit, "the only difference between the actual system and that which existed under the Constitution of the Year VIE. is that before 1870 the prosecution of State officials was subject to the authorisation of the Council of State, whilst to-day it is subject to the authorisation of the Conflict-Court."48
Under the law of 24th May i872,49 the decisions of the Council of State concerning cases of administrative law received for the first time the obligatory force of judgments. They had hitherto been in theory, and from some points of view even in practice, as already pointed out,50 nothing but advice given to the head of the State.
The same law51 which enhanced the authority of the Council's decisions diminished its jurisdiction. The Council had, since 1800, decided whether a given case, or a point that might arise in a given case, fell within the jurisdiction of the judicial Courts or of the administrative Courts, i.e. in substance of the Council itself. This au-
47 See Pelletier's Case, decided 26th July 1873; and in support of an interpretation of the law which has now received general approval, Laferriere, i. pp. 637-654; Berthelemy, p. 65; Duguit, Manuel, s. 67, pp. 463,464; Jeze, pp. 133-135.
48 "Finalement la seule difference entre le systeme actuel etceluide la constitution del'an VIII., c'est qu'avant 1870 la poursuite contre les fonctionnaires etait subordonnee a I'autorisatim du Conseil d'ttat, etqu'aujourd'hui elle estsubordonne a I'autorisation du tribunaldes conflits." — Duguit, Manuel, p. 464.
49 Sect. 9.
50 See pp. 227-228, ante.
51 Law of 24th May 1872, Tit. iv. art. 25-28.
thority or power was, in 1872, transferred to a separate and newly constituted Conflict-Court.52
This Conflict-Court has been carefully constituted so as to represent equally the authority of the Court of Cassation — the highest judicial Court in France — and the authority of the Council of State — the highest administrative Court in France. It consists of nine members: — three members of the Court of Cassation elected by their colleagues; three members of the Council of State, also elected by their colleagues; two other persons elected by the above six judges of the Conflict-Court. All these eight members of the Court hold office for three years. They are re-eligible, and are almost invariably re-elected. The Minister of Justice (garde des sceaux) for the time being, who is a member of the Ministry, is ex officio President of the Court. He rarely attends. The Court elects from its own members a Vice-President who generally presides.53 The Conflict-Court comes near to an absolutely judicial body; it commands, according to the best authorities, general confidence. But its connection with the Government of the day through the Minister of Justice (who is not necessarily a lawyer) being its President, and the absence on the part of its members of that permanent tenure of office,54 which is the best security for perfect judicial independence, are defects, which, in the opinion of the fairest among French jurists, ought to be removed,55 and which, as long as they exist, detract from the judicial character of the Conflict-Court. An Englishman, indeed, can hardly fail to surmise that the Court must still remain a partly official body which may occasionally be swayed by the policy of a Ministry, and still more often be influenced by official or governmental ideas. Nor is this suspicion diminished by the knowledge that a Minister of Justice has
52 Such a separate Conflict-Court had been created under the Second Republic, 1848-1851. It fell to the ground on the fall of the Republic itself in consequence of the coup d'etat of 1851.
53 See Appendix, Note XL, Constitution of Tribunal des Conflits; Berthelemy (5th ed.), pp. 880,881; Chardon, p. 412.
54 A member of the Council of State does not hold this position as Councillor for life. He may be removed from the Council by the government. But no Councillor has been removed since 1875.
55 Laferriere, i. p. 24; Chardon, p. 4, note 2; Jeze, pp. 133, 134.
within the year 1908 defended his position as President of the Court on the ground that it ought to contain some one who represents the interests of the government.56
These three thorough-going reforms were carried out by legislative action. They obviously met the requirements of the time.57 They were rapid; they appeared to be sudden. This appearance is delusive. They were in reality the outcome of a slow but continuous revolution in French public opinion and also of the perseverance with which the legists of the Council of State, under the guidance of French jurisprudence and logic, developed out of the arbitrariness of administrative practice a fixed system of true administrative law. To understand this evolution of droit administratif during the lapse of more than a century (1800-1908) we must cast a glance over the whole development of this branch of French law and regard it in the light in which it presents itself, not so much to an historian of France as to a lawyer who looks upon the growth of French public law from an historical point of view. We shall then see that the years under consideration fall into three periods or divisions.58 They are:
The Period of Unnoticed Growth, 1800-18 (Periode D'elaboration Secrete)
During these years the Council, by means of judicial precedents, created a body of maxims, in accordance with which the Council in fact acted when deciding administrative disputes.
The Period of Publication, 1818-60 (Periode de Divulgation)
During these forty-two years various reforms were carried out, partly by legislation, but, to a far greater extent, by judge-made law.
56 Seejeze, Revue de Droit public, etc. (1908), vol. xxv.p. 257.
57 They were either tacitly sanctioned (decree law of igth September 1870) or enacted (law of 24th May 1872) even before the formal establishment of the Republic (1875) by a National Assembly of which the majority were so far from being revolutionists, or even reformers, that they desired the restoration of the monarchy.
58 SeeHauriou,pp. 245-268. These periods do not precisely correspond with the three eras marked by political changes in the annals of France under which we have already considered (see pp. 217-218, ante) thehistory of droit administratif.
The judicial became more or less separated off from the administrative functions of the Council. Litigious business (le contentieux administratif) was in practice assigned to and decided by a special committee (section), and, what is of equal consequence, such business was decided by a body which acted after the manner of a Court which was addressed by advocates, heard arguments, and after public debate delivered judicial decisions. These decisions were reported, became the object of much public interest, and were, after a manner with which English lawyers are well acquainted, moulded into a system of law. The judgments, in short, of the Council acquired the force of precedent. The political revolutions of France, which have excited far too much notice, whilst the uninterrupted growth of French institutions has received too little attention, sometimes retarded or threw back, but never arrested the continuous evolution of droit administratif; even under the Second Empire this branch of French jurisprudence became less and less arbitrary and developed more and more into a system of fixed and subtle legal rules.
The Period of Organisation, 1860-1908 (Periode d'Organisation)
During the last forty-eight years, marked as they have been in France by the change from the Empire to a Republic, by the German invasion, and by civil war, the development of droit administratif has exhibited a singular and tranquil regularity. Sudden innovations have been rare and have produced little effect. The reforms introduced by the decree law of igth September 1870, and by the law of 24th May 1872, are, taken together, considerable; but they in reality give effect to ideas which had since 1800 more or less guided the judicial legislation and practice both of the Council of State and of the Court of Cassation. If the legal history of France since 1800 be looked at as a whole, an Englishman may reasonably conclude that the arbitrary authority of the executive as it existed in the time of Napoleon, and even as it was exercised under the reign of Louis Philippe or of Louis Napoleon, has gradually, as far as the jurisdiction of the administrative Courts is concerned, been immensely curtailed, if not absolutely brought to an end. Droit administratif, though administered by bodies
which are perhaps not in strictness Courts, and though containing provisions not reconcilable with the modern English conception of the rule of law, comes very near to law, and is utterly different from the capricious prerogatives of despotic power.
A comparison between the administrative law of France and our English rule of law, if taken from the right point of view, suggests some interesting points of likeness, no less than of unlikeness.
It will be observed that it is "modern" English notions which we have contrasted with the ideas of administrative law prevalent in France and other continental states. The reason why the opposition between the two is drawn in this form deserves notice. At a period which historically is not very remote from us, the ideas as to the position of the Crown which were current, if not predominant in England, bore a very dose analogy to the doctrines which have given rise to the droit administratif of France.59 Similar beliefs moreover necessarily produced similar results, and there was a time when it must have seemed possible that what we now call administrative law should become a permanent part of English institutions. For from the accession of the Tudors till the final expulsion of the Stuarts the Crown and its servants maintained and put into practice, with more or less success and with varying degrees of popular approval, views of government essentially similar to the theories which under different forms have been accepted by the French people. The personal failings of the Stuarts and the confusion caused by the combination oi a religious with a political movement have tended to mask the true character of the legal and constitutional issues raised by the political contests of the seventeenth century. A lawyer, who regards the matter from an exclusively legal point of view, is tempted to assert that the real subject in dispute between statesmen such as Bacon and Wentworth on the one hand, and Coke or Eliot on the other, was whether a strong administration of the continental type should, or should not, be permanently established in England. Bacon and men like him no doubt underrated the risk that an increase in the power of
59 This is illustrated by the similarity between the views at one time prevailing both in England and on the continent as to the relation between the government and the press. See pp. 161-164, ante.
(B) Comparison between droit administratif and rule of law.
I. Likeness.
ist Point. Droit administratif not opposed to English ideas current in sixteenth and seventeenth centuries.
the Crown should lead to the establishment of despotism. But advocates of the prerogative did not (it may be supposed) intend to sacrifice the liberties or invade the ordinary private rights of citizens; they were struck with the evils flowing from the conservative legalism of Coke, and with the necessity for enabling the Crown as head of the nation to cope with the selfishness of powerful individuals and classes. They wished, in short, to give the government the sort of rights conferred on a foreign executive by the principles of administrative law. Hence for each feature of French droit administratif one may find some curious analogy either in the claims put forward or in the institutions favoured by the Crown lawyers of the seventeenth century.
The doctrine, propounded under various metaphors by Bacon, that the prerogative was something beyond and above the ordinary law is like the foreign doctrine that in matters of high policy (acte de gouvernement) the administration has a discretionary authority which cannot be controlled by any Court. The celebrated dictum that the judges, though they be "lions," yet should be "lions under the throne, being circumspect that they do not check or oppose any points of sovereignty,"60 is a curious anticipation of the maxim formulated by French revolutionary statesmanship that the judges are under no circumstances to disturb the action of the administration, and would, if logically worked out, have led to the exemption of every administrative act, or, to use English terms, of every act alleged to be done in virtue of the prerogative, from judicial cognisance. The constantly increasing power of the Star Chamber and of the Council gave practical expression to prevalent theories as to the Royal prerogative, and it is hardly fanciful to compare these Courts, which were in reality portions of the executive government, with the Conseil d'etat and other Tribunaux administratifs of France. Nor is a parallel wanting to the celebrated Article 75 of the Constitution of the Year VIII.61 This parallel is to be found in Bacon's attempt to prevent the judges by means of the writ De non procedendo Rege inconsulto from
60 Gardiner, History of England, iii. p. 2.
61 Seep. 227,ante.
proceeding with any case in which the interests of the Crown were concerned. Mr. Gardiner observes:
The working of this writ, if Bacon had obtained his object, would have been, to some extent, analogous to that provision which has been found in so many French constitutions, according to which no agent of the Government can be summoned before a tribunal, for acts done in the exercise of his office, without a preliminary authorisation by the Council of State. The effect of the English writ being confined to cases where the King was himself supposed to be injured, would have been of less universal application, but the principle on which it rested would have been equally bad.62
The principle moreover admitted of unlimited extension, and this, we may add, was perceived by Bacon. He writes to the King:
The writ is a mean provided by the ancient law of England to bring any case (hat may concern your Majesty in profit or power from the ordinary Benches, tobe tried and judged before the Chancellor of England, by the ordinary and legal part of this power. And your Majesty knoweth your Chancellor is ever a principal counsellor and instrument of monarchy, of immediate dependence on the king; and therefore like to be a safe and tender guardian of the regal rights.63
Bacon's innovation would, if successful, have formally established the fundamental dogma of administrative law, that administrative questions must be determined by administrative bodies.
The analogy between the administrative ideas which still prevail on the Continent64 and the conception of the prerogative which was maintained by the English crown in the seventeenth century has considerable speculative interest. That the administrative ideas supposed by many French writers to have been originated by the statesmanship of the great Revolution or of the first Empire are to a great extent developments of the traditions and habits of the French monarchy is past a doubt, and it is a curious inquiry how far the efforts made by the Tudors or Stuarts to establish a strong govern-
62 Gardiner, History of England, iii. p. 7, note 2.
63 Abbot, Francis Bacon, p. 234.
64 It is worth noting that the system of "administrative law," though more fully juditialised in France than elsewhere, exists in one form or another in most of the Continental States.
and Point. Droit ad-ministratif is case-law.
ment were influenced by foreign examples. This, however, is a problem for historians. A lawyer may content himself with noting that French history throws light on the causes both of the partial success and of the ultimate failure of the attempt to establish in England a strong administrative system. The endeavour had a partial success, because circumstances, similar to those which made French monarchs ultimately despotic, tended in England during the sixteenth and part of the seventeenth century to augment the authority of the Crown. The attempt ended in failure, partly because of the personal deficiencies of the Stuarts, but chiefly because the whole scheme of administrative law was opposed to those habits of equality before the law which had long been essential characteristics of English institutions.
Droit administmtif is in its contents utterly unlike any branch of modern English law, but in the method of its formation it resembles English law far more closely than does the codified dvil law of France. For droit administratifis, like the greater part of English law, "case-law," or "judge-made law."65 The precepts thereof are not to be found in any code; they are based upon precedent: French lawyers cling to the belief that droit administmtif cannot be codified, just as English and American lawyers maintain, for some reason or other which they are never able to make very dear, that English law, and especially the common law, does not admit of codification. The true meaning of a creed which seems to be illogical because its apologists cannot, or will not, give the true grounds for their faith, is that the devotees of droit administmtif in France, in common with the devotees of the common law in England, know that the system which they each admire is the product of judicial legislation, and dread that codification might limit, as it probably would, the essentially legislative authority of the tribunaux administratifs in France, or of the judges in England. The prominence further given throughout every treatise on droit administratif to the contentieux administmtif recaps the importance in English lawbooks given to matters of procedure. The cause is
65 See Dicey, Law and Opinion in England, Leet. XI. p. 359, and Appendix, Note IV. p. 481. It may be suspected that English lawyers underrate the influence at the present day exerted by precedent (Jurisprudence) in French Courts.
in each case the same, namely, that French jurists and English lawyers are each dealing with a system of law based on precedent.
Nor is it irrelevant to remark that the droit administratif of France, just because it is case-law based on precedents created or sanctioned by tribunals, has, like the law of England, been profoundly influenced by the writers of text-books and commentaries. There are various branches of English law which have been reduced to a few logical principles by the books of well-known writers. Stephen transformed pleading from a set of rules derived mainly from the experience of practitioners into a coherent logical system. Private international law, as understood in England at the present day, has been developed under the influence first of Story's Commentaries on the Conflict of Laws, and next, at a later date, of Mr. Westiake's Private International Law. And the authority exercised in every field of English law by these and other eminent writers has in France been exerted, in the field of administrative law, by authors or teachers such as Cormenin, Macarel, Vivien, Laferriere, and Hauriou. This is no accident. Wherever Courts have power to form the law, there writers of textbooks will also have influence. Remark too that, from the very nature of judge-made law, Reports have in the sphere of droit administratif an importance equal to the importance which they possess in every branch of English law, except in the rare instances in which a portion of our law has undergone codification.
But in the comparison between French droit administratif and the law of England a critic ought not to stop at the points of likeness arising from their each of them being the creation of judicial decisions. There exists a further and very curious analogy between the process of their historical development. The Conseil d'Etat has been converted from an executive into a judicial or quasi-judicial body by the gradual separation of its judicial from its executive functions through the transference of the former to committees (sections), which have assumed more and more distinctly the duties of Courts. These "judicial committees" (to use an English expression) at first only advised the Conseil d'Etat or the whole executive body, though it was soon understood that the Council would, as a general rule, follow or ratify the decision of its judicial committees. This recalls to a student of English law the fact that the growth of our whole judicial system
may historically be treated as the transference to parts of the King's Council of judicial powers originally exercised by the King in Council; and it is reasonable to suppose that the rather ill-defined relations between the Conseil d'Etat as a whole, and the Comite du contentieux,66 may explain to a student the exertion, during the earlier periods of English history, by the King's Council, of hardly distinguishable judicial and executive powers; it explains also how, by a natural process which may have excited very little observation, the judicial functions of the Council became separated from its executive powers, and how this differentiation of functions gave birth at last to Courts whose connection with the political executive were merely historical. This process, moreover, of differentiation assisted at times, in France no less than in England, by legislation, has of quite recent years changed the Conseil d'Etat into a real tribunal of droit administratif, as it created in England the Judicial Committee of the Privy Council for the regular and judicial decision of appeals from the colonies to the Crown in Council. Nor, though the point is a minor one, is it irrelevant to note that, as the so-called judgments of the Conseil d'Etat were, till 1872, not strictly "judgments," but in reality advice on questions of droit administratif given by the Conseil d'Etat to the head of the Executive, and advice which he was not absolutely bound to follow, so the "judgments" of the Privy Council, even when acting through its judicial committee, though in reality judgments, are in form merely humble advice tendered by the Privy Council to the Crown. This form, which is now a mere survival, carries us back to an earlier period of English constitutional history, when the interference by the Council, i.e. by the executive, with judicial functions, was a real menace to that supremacy of the law which has been the guarantee of English freedom, and this era in the history of England again is curiously illustrated by the annals of droit administratif after the restoration of the Bourbons, 1815-30.
At that date the members of the Conseil d'Etat, as we have seen,67 held, as they still hold, office at the pleasure of the Executive; they were to a great extent a political body; there existed further no Con-
66 See Laferriere, i. p. 236.
67 See pp. 227 — 228, ante.
flirt-Court; or rather the Conseil d'Etat was itself the Conflict-Court, or the body which determined the reciprocal jurisdiction of the ordinary law Courts and of the administrative Courts, i.e. speaking broadly, the extent of the Council's own jurisdiction. The result was that the Conseil d'Etat used its powers to withdraw cases from the decision of the law Courts, and this at a time when government functionaries were fully protected by Article 75 of the Constitution of the Year VIII, from being made responsible before the Courts for official acts done in excess of their legal powers. Nevertheless, the Conseil d'Etat, just because it was to a great extent influenced by legal ideas, resisted, and with success, exertions of arbitrary power inspired by the spirit of Royalist reaction. It upheld the sales of the national domain made between 1789 and 1814; it withstood every attempt to invalidate decisions given by administrative authorities during the period of the Revolution or under the Empire. The King, owing, it may be assumed, to the judicial independence displayed by the Conseil d'Etat, took steps which were intended to transfer the decision of administrative disputes from the Council or its committees, acting as Courts, to Councillors, acting as part of the executive. Ordinances of 1814 and of 1817 empowered the King to withdraw any administrative dispute which was connected with principles of public interest (toutes les affaires du contentieux de I'administration qui se lieraient a des vues d'interet general) from the jurisdiction of the Conseil d'Etat and bring it before the Council of Ministers or, as it was called, the Conseil d'en haut, and the general effect of this power and of other arrangements, which we need not follow out into detail, was that questions of droit adminis-tratif, in the decision of which the government were interested, were ultimately decided, not even by a quasi-judicial body, but by the King and his Ministers, acting avowedly under the bias of political considerations.68 In 1828 France insisted upon and obtained from Charles X. changes in procedure which diminished the arbitrary power of the Council.69 But no one can wonder that Frenchmen feared the increase of arbitrary power, or that French liberals demanded, after the
68 See Laferriere, i. pp. 226- 234, and Cormenin, Du Conseil d'Etat envisage comme conseil et comme juridiction (1818).
69 Ordinance of ist June 1828, Laferriere, i. p. 232.
Revolution of 1830, the abolition of administrative law and of administrative Courts. They felt towards the jurisdiction of the Counseil d'Etat the dread entertained by Englishmen of the sixteenth and seventeenth centuries with regard to the jurisdiction of the Privy Council, whether exercised by the Privy Council itself, by the Star Chamber, or even by the Court of Chancery. In each country there existed an appreciable danger lest the rule of the prerogative should supersede the supremacy of the law.
The comparison is in many ways instructive; it impresses upon us how nearly it came to pass that something very like administrative law at one time grew up in England. It ought, too, to make us perceive that such law, if it be administered in a judicial spirit, has in itself some advantages. It shows us also the inherent danger of its not becoming in strictness law at all, but remaining, from its close connection with the executive, a form of arbitrary power above or even opposed to the regular law of the land. It is certain that in the sixteenth and seventeenth centuries the jurisdiction of the Privy Council and even of the Star Chamber, odious as its name has remained, did confer some benefits on the public. It should always be remembered that the patriots who resisted the tyranny of the Stuarts were fanatics for the common law, and could they have seen their way to do so would have abolished the Court of Chancery no less than the Star Chamber. The Chancellor, after all, was a servant of the Crown holding his office at the pleasure of the King, and certainly capable, under the plea that he was promoting justice or equity, of destroying the certainty no less than the formalism of the common law. The parallel therefore between the position of the English puritans, or whigs, who, during the seventeenth century, opposed the arbitrary authority of the Council, and the position of the French liberals who, under the Restoration (1815-30), resisted the arbitrary authority of the Conseil d'Etat and the extension of droit administratif, is a dose one. In each case, it may be added, the friends of freedom triumphed.
The result, however, of this triumph was, it will be said, as regards the matter we are considering, markedly different. Parliament destroyed, and destroyed for ever, the arbitrary authority of the Star Chamber and of the Council, and did not suffer any system of ad-
ministrative Courts or of administrative law to be revived or developed in England. The French liberals, on the expulsion of the Bourbons, neither destroyed the tribunaux administmtifs nor made a dean sweep of droit administmtif.
The difference is remarkable, yet any student who looks beyond names at things will find that even here an obvious difference conceals a curious element of fundamental resemblance. The Star Chamber was abolished; the arbitrary jurisdiction of the Council disappeared, but the judicial authority of the Chancellor was touched neither by the Long Parliament nor by any of the Parliaments which met yearly after the Revolution of 1688. The reasons for this difference are not hard to discover. The law administered by the Lord Chancellor, or, in other words, Equity, had in it originally an arbitrary or discretionary element, but it in fact conferred real benefits upon the nation and was felt to be in many respects superior to the common law administered by the common-law Judges. Even before 1660 acute observers might note that Equity was growing into a system of fixed law. Equity, which originally meant the discretionary, not to say arbitrary interference of the Chancellor, for the avowed and often real purpose of securing substantial justice between the parties in a given case, might, no doubt, have been so developed as to shelter and extend the despotic prerogative of the Crown. But this was not the course of development which Equity actually followed; at any rate from the time of Lord Nottingham (1673) it was obvious that Equity was developing into a judicial system for the application of principles which, though different from those of the common law, were not less fixed. The danger of Equity turning into the servant of despotism had passed away, and English statesmen, many of them lawyers, were little likely to destroy a body of law which, if in one sense an anomaly, was productive of beneficial reforms. The treatment of droit administratif in the nineteenth century by Frenchmen bears a marked resemblance to the treatment of Equity in the seventeenth century by Englishmen. Droit administratif has been the subject of much attack. More than one publicist of high reputation has advocated its abolition, or has wished to transfer to the ordinary or civil Courts (tribunaux judiciaries) the authority exercised by the administrative tri-
4th Point. Rapid growth of case-law.
bunals, but the assaults upon droit administratif have been repulsed, and the division between the spheres of the judicial and the spheres of the administrative tribunals has been maintained. Nor, again, is there much difficulty in seeing why this has happened. Droit administratif with all its peculiarities, and administrative tribunals with all their defects, have been suffered to exist because the system as a whole is felt by Frenchmen to be beneficial. Its severest critics concede that it has some great practical merits, and is suited to the spirit of French institutions. Meanwhile droit administratif has developed under the influence rather of lawyers than of politicians; it has during the last half-century and more to a great extent divested itself of its arbitrary character, and is passing into a system of more or less fixed law administered by real tribunals; administrative tribunals indeed still lack some of the qualities, such as complete independence of the Government, which Englishmen and many Frenchmen also think ought to belong to all Courts, but these tribunals are certainly very far indeed from being mere departments of the executive government. To any person versed in the judicial history of England, it would therefore appear to be possible, or even probable, that droit administratif may ultimately, under the guidance of lawyers, become, through a course of evolution, as completely a branch of the law of France (even if we use the word "law" in its very strictest sense) as Equity has for more than two centuries become an acknowledged branch of the law of England.
The annals of droit administratif during the nineteenth century elucidate again a point in the earlier history of English law which excites some perplexity in the mind of a student, namely, the rapidity with which the mere existence and working of law Courts may create or extend a system of law. Any reader of the History of English Law by Pollock and Maitland may well be surpised at the rapidity with which the law of the King's Court became the general or common law of the land. This legal revolution seems to have been the natural result of the vigorous exertion of judicial functions by a Court of great authority. Nor can we feel certain that the end attained was deliberately aimed at. It may, in the main, have been the almost undesigned effect of two causes: the first is the disposition always exhibited by capable
judges to refer the decision of particular cases to general principles, and to be guided by precedent; the second is the tendency of inferior tribunals to follow the lead given by any Court of great power and high dignity. Here, in short, we have one of the thousand illustrations of the principle developed in M. Tarde's Lois de limitation, that the innate imitativeness of mankind explains the spread, first, throughout one country, and, lastly, throughout the civilised world, of any institution or habit on which success or any other circumstance has conferred prestige. It may still, however, be urged that the creation under judicial influence of a system of law is an achievement which requires for its performance a considerable length of time, and that the influence of the King's Court in England in moulding the whole law of the country worked with incredible rapidity. It is certainly true that from the Norman Conquest to the accession of Edward I. (1066-1272) is a period of not much over two centuries, and that by 1272 the foundations of English law were firmly laid; whilst if we date the organisation of our judicial system from the accession of Henry II. (1154), we might say that a great legal revolution was carried through in not much more than a century. It is at this point that the history of droit administratif helps the student of comparative law. One need not, however, be greatly astonished at rapidity in the development of legal principles and of legal procedure at a period when the moral influence or the imaginative impressiveness of powerful tribunals was much greater than during the later stages of human progress. In any case it is certain — and the fact is a most instructive one — that under the conditions of modern civilisation a whole body of legal rules and maxims, and a whole system of quasi-judicial procedure, have in France grown up within not much more than a century. The expression "grown up" is here deliberately used; the development of droit administratif between 1800 and 1908 resembles a natural process. It is as true of this branch of French law as of the English constitution that it "has not been made but has grown."
An intelligent student soon finds that droit administratif contains rules as to the status, the privileges, and the duties of government officials. He therefore thinks he can identify it with the laws, regula-
tions, or customs which in England determine the position of the servants of the Crown, or (leaving the army out of consideration) of the Civil Service. Such "official law" exists, though only to a limited extent, in England no less than in France, and it is of course possible to identify and compare this official law of the one country with the official law of the other. But further investigation shows that official law thus understood, though it may form part of, is a very different thing from droit administratif. The law, by whatever name we term it, which regulates the privileges or disabilities of civil servants is the law of a class, just as military law is the law of a class, namely, the army. But droit administratif is not the law of a class, but — a very different thing — a body of law which, under given circumstances, may affect the rights of any French citizen, as for example, where an action is brought by A against X in the ordinary Courts (tribunaux judicial res), and the rights of the parties are found to depend on an administrative act (acte administratif), which must be interpreted by an administrative tribunal (tribunal administratif). In truth, droit administratif is not the law of the Civil Service, but is that part of French public law which affects every Frenchman in relation to the acts of the public administration as the representative of the State. The relation indeed of droit administratif to the ordinary law of France may be best compared not with the relation of the law governing a particular class (e.g. military law) to the general law of England, but with the relation of Equity to the common law of England. The point of likeness, slight though in other respects it be, is that droit administratif in France and Equity in England each constitute a body of law which differs from the ordinary law of the land, and under certain circumstances modifies the ordinary civil rights of every citizen.
When our student finds that droit administratif cannot be identified with the law of the Civil Service, he naturally enough imagines that it may be treated as the sum of all the laws which confer special powers and impose special duties upon the administration, or, in other words, which regulate the functions of the Government. Such laws, though they must exist in every country, have till recently been few in England, simply because in England the sphere of the State's activity has, till within the last fifty or sixty years, been extremely
limited. But even in England laws imposing special functions upon government officials have always existed, and the number thereof has of late vastly increased; to take one example among a score, the Factory legislation, which has grown up mainly during the latter half of the nineteenth century, has, with regard to the inspection and regulation of manufactories and workshops, given to the Government and its officials wide rights, and imposed upon them wide duties. If, then, droit administmtif meant nothing more than the sum of all the laws which determine the functions of civil servants, droit administratif might be identified in its general character with the governmental law of England. The idea that such an identification is possible is encouraged by the wide definitions of droit administratif to be gathered from French works of authority,70 and by the vagueness with which English writers occasionally use the term "administrative law." But here, again, the attempted identification breaks down. Droit administratif, as it exists in France, is not the sum of the powers possessed or of the functions discharged by the administration; it is rather the sum of the principles which govern the relation between French citizens, as individuals, and the administration as the representative of the State. Here we touch upon the fundamental difference between English and French ideas. In England the powers of the Crown and its servants may from time to time be increased as they may also be diminished. But these powers, whatever they are, must be exercised in accordance with the ordinary common law principles which govern the relation of one Englishman to another. A factory inspector, for example, is possessed of peculiar powers conferred upon him by Act of Parliament; but if in virtue of the orders of his superior officials he exceeds the authority given him by law, he becomes at once responsible for the wrong done, and cannot plead in his defence strict obedience of official orders, and, further, for the tort he has committed he becomes amenable to the ordinary Courts. In France, on the other hand, whilst the powers placed in the hands of the administration might be diminished, it is always assumed that the relation of individual citizens to the State is regulated by principles
70 See Aucoc, Droit Administratif, i. s. 6; Hauriou, Precis de Droit Administratif, 3rded., p. 242, and 6th ed., pp. 391, 392; Laferriere, i. pp. 1-8.
2nd Point. Droit administratif not in reality introduced into law of England.
different from those which govern the relation of one French citizen to another. Droit administratif, in short, rests upon ideas absolutely foreign to English law: the one, as I have already explained,71 is that the relation of individuals to the State is governed by principles essentially different from those rules of private law which govern the rights of private persons towards their neighbours; the other is that questions as to the application of these principles do not lie within the jurisdiction of the ordinary Courts. This essential difference renders the identification of droit administratif with any branch of English law an impossibility. Hence inquiries which rightly occupy French jurists, such, for example, as what is the proper definition of the contentieux administratif; what is the precise difference between actes de gestion and actes de puissance publiaue, and generally, what are the boundaries between the jurisdiction of the ordinary Courts (tribunaux judiciaries) and the jurisdiction of the administrative Courts (tribunaux adminis-tratifs) have under English law no meaning.
Has droit administratif been of recent years introduced in any sense into the law of England?
This is an inquiry which has been raised by writers of eminence,72 and which has caused some perplexity. We may give thereto a decided and negative reply.
The powers of the English Government have, during the last sixty years or so, been largely increased; the State has undertaken many new functions, such, for example, as the regulation of labour under the Factory Acts, and the supervision of public education under the
71 Seep. 219,ante.
72 See Laferriere, i. pp. 97-106. To cite such enactments as the Public Authorities Protection Act 1893, which by the way does little more than generalise provisions, to be found in a lot of Acts extending from 1601 to 1900, as an example of the existence of administrative law in England, seems to me little else than playing with words. The Act assumes that every person may legally do the act which by law he is ordered to do. It also gives a person who acts in pursuance of his legal duty, e.g. under an Act of Parliament, special privileges as to the time within which an action must be brought against him for any wrong committed by him in the course of carrying out his duty, but it does not to the least extent provide that an order from a superior official shall protect, e.g. a policeman, for any wrong done by him.
There are, indeed, one or two instances in which no legal remedy can be obtained except against the actual wrong-doer for damage inflicted by the conduct of a servant of the Crown. These instances are practically unimportant. See Appendix, Note XII., "Proceedings against the Crown."
Education Acts. Nor is the importance of this extension of the activity of the State lessened by the consideration that its powers are in many cases exercised by local bodies, such, for example, as County Councils. But though the powers conferred on persons or bodies who directly or indirectly represent the State have been greatly increased in many directions, there has been no intentional introduction into the law of England of the essential principles of droit administratif. Any official who exceeds the authority given him by the law incurs the common law responsibility for his wrongful act; he is amenable to the authority of the ordinary Courts, and the ordinary Courts have themselves jurisdiction to determine what is the extent of his legal power, and whether the orders under which he has acted were legal and valid. Hence the Courts do in effect limit and interfere with the action of the "administration," using that word in its widest sense. The London School Board, for example, has claimed and exercised the right to tax the ratepayers for the support of a kind of education superior to the elementary teaching generally provided by School Boards; the High Court of Justice has decided that such right does not exist. A year or two ago some officials, acting under the distinct orders of the Lords of the Admiralty, occupied some land alleged to belong to the Crown; the title of the Crown being disputed, a court of law gave judgment against his officials as wrong-doers. In each of these cases nice and disputable points of law were raised, but no English lawyer, whatever his opinion of the judgments given by the Court, has ever doubted that the High Court had jurisdiction to determine what were the rights of the School Board or of the Crown. Droit administratif, therefore, has obtained no foothold in England, but, as has been pointed out by some foreign critics, recent legislation has occasionally, and for particular purposes, given to officials something like judicial authority. It is possible in such instances, which are rare, to see a slight approximation to droit administratif, but the innovations, such as they are, have been suggested merely by considerations of practical convenience, and do not betray the least intention on the part of English statesmen to modify the essential principles of English law. There exists in England no true droit administratif.
An English lawyer, however, who has ascertained that no branch of English law corresponds with the administrative law of foreign countries must be on his guard against falling into the error that the droit administratif of modern France is not "law" at all, in the sense in which that term is used in England, but is a mere name for maxims which guide the executive in the exercise if not of arbitrary yet of discretionary power. That this notion is erroneous will, I hope, be now dear to all my readers. But for its existence there is some excuse and even a certain amount of justification.
The French Government does in fact exercise, especially as regards foreigners, a wide discretionary authority which is not under the control of any Court whatever. For an act of State the Executive or its servants cannot be made amenable to the jurisdiction of any tribunal, whether judicial or administrative. Writers of high authority have differed73 indeed profoundly as to the definition of an act of State (acte degouvernement).74 Where on a question of French law French jurists disagree, an English lawyer can form no opinion; he may be allowed, however, to conjecture that at times of disturbance a French Government can exercise discretionary powers without the dread of interference on the part of the ordinary Courts, and that administrative tribunals, when they can intervene, are likely to favour that interpretation of the term act of State which supports the authority of the Executive. However this may be, the possession by the French Executive of large prerogatives is apt, in the mind of an Englishman, to be confused with the character of the administrative law enforced by Courts composed, in part at any rate, of officials.
The restrictions, again, placed by French law on the jurisdiction of the ordinary Courts (tribunaux judidaires) whereby they are prevented from interfering with the action of the Executive and its servants, seem to an Englishman accustomed to a system under which the Courts of law determine the limits of their own jurisdiction, to be
73 Seep. 226,ante.
74 CompareLaferriere, ii. bk. iv. ch. ii. p. 32, and Hauriou, pp. 282 — 287, with Jacquelin, pp. 438-447.
much the same thing as the relegating of all matters in which the authority of the State is concerned to the discretion of the Executive. This notion is erroneous, but it has been fostered by a circumstance which may be termed accidental. The nature and the very existence of droit administratifhas been first revealed to many Englishmen, as certainly to the present writer, through the writings of Alexis de Tocqueville, whose works have exerted, in the England of the nineteenth century, an influence equal to the authority exerted by the works of Montesquieu in the England of the eighteenth century. Now Tocqueville by his own admission knew little or nothing of the actual working of droit administmtif in his own day.7S He no doubt in his later years increased his knowledge, but to the end of his life he looked upon droit administratif, not as a practising lawyer but as the historian of the ancien regime, and even as an historian he studied the subject from a very peculiar point of view, for the aim of L'Ancien Regime et la Revolution is to establish the doctrine that the institutions of modern France are in many respects in spirit the same as the institutions of the ancient monarchy; and Tocqueville, moved by the desire to maintain a theory of history which in his time sounded like a paradox, but, owing greatly to his labours, has now become a generally accepted truth, was inclined to exaggerate the similarity between the France of the Revolution, the Empire, or the Republic, and the France of the ancien regime. Nowhere is this tendency more obvious than in his treatment of droit administratif. He demonstrates that the ideas on which droit administratif is based had been accepted by French lawyers and statesmen long before 1789; he notes the arbitrariness of droit administratif under the monarchy; he not only insists upon but deplores the connection under the ancien regime between the action of the Executive and the administration of justice, and he certainly suggests that the droit administratif of the nineteenth century was all but as closely connected with the exercise of arbitrary power as was the droit administratif of the seventeenth or the eighteenth century.
75 Tocqueville, vii. CEuvres Completes, p. 66.
III. Merits and demerits.
Rule of law — its merits.
He did not recognise the change in the character of droit administratif which was quietly taking place in his own day. He could not by any possibility anticipate the reforms which have occurred during the lapse of well-nigh half a century since his death. What wonder that English lawyers who first gained their knowlege of French institutions from Tocqueville should fail to take full account of that judiciali-sation (juridictionnalisation) of administrative law which is one of the most surprising and noteworthy phenomena in the legal history of France.
It is not uninstructive to compare the merits and defects, on the one hand, of our English rule of law, and, on the other, of French droit administratif.
Our rigid rule of law has immense and undeniable merits. Individual freedom is thereby more thoroughly protected in England against oppression by the government than in any other European country; the Habeas Corpus Acts76 protect the liberty no less of foreigners than of British subjects; martial law77 itself is reduced within the narrowest limits, and subjected to the supervision of the Courts; an extension of judicial power which sets at nought the dogma of the separation of powers, happily combined with judicial independence, has begotten reverence for the bench of judges. They, rather than the government, represent the august dignity of the State, or, in accordance with the terminology of English law, of the Crown. Trial by jury is open to much criticism; a distinguished French thinker may be right in holding that the habit of submitting difficult problems of fact to the decision of twelve men of not more than average education and intelligence will in the near future be considered an absurdity as patent as ordeal by battle. Its success in England is wholly due to, and is the most extraordinary sign of, popular confidence in the judicial bench. A judge is the colleague and the readily accepted guide of the jurors. The House of Commons shows the feeling of the electors, and has handed over to the High
76 See pp. 130-131, ante.
77 See p. 180, ante.
Court of Justice the trial of election petitions. When rare occasions arise, as at Sheffield in 1866, which demand inquiries of an exceptional character which can hardly be effected by the regular procedure of the Courts, it is to selected members of the bench that the nation turns for aid. In the bitter disputes which occur in the conflicts between capital and labour, employers and workmen alike will often submit their differences to the arbitration of men who have been judges of the High Court. Reverence, in short, for the supremacy of the law is seen in its very best aspect when we recognise it as being in England at once the cause and the effect of reverence for our judges.
The blessings, however, conferred upon the nation by the rule of law are balanced by undeniable, though less obvious, evils. Courts cannot without considerable danger be turned into instruments of government. It is not the end for which they are created; it is a purpose for which they are ill suited at any period or in any country where history has not produced veneration for the law and for the law Courts.78 Respect for law, moreover, easily degenerates into legalism which from its very rigidity may work considerable injury to the nation. Thus the refusal to look upon an agent or servant of the State as standing, from a legal point of view, in a different position from the servant of any other employer, or as placed under obligations or entitled to immunities different from those imposed upon or granted to an ordinary citizen, has certainly saved England from the development of the arbitrary prerogatives of the Crown, but it has also in more ways than one been injurious to the public service.
The law, for instance, has assuredly been slow to recognise the fact that violations of duty by public officials may have an importance and deserve a punishment far greater than the same conduct on the part of an agent of an ordinary employer. Some years ago a copyist in a public office betrayed to the newspapers a diplomatic document of the highest importance. Imagination can hardly picture a more flagrant breach of duty, but there then apparently existed no available
78 In times of revolutionary passion trial by jury cannot secure respect for justice. The worst iniquities committed by Jeffreys at the Bloody Assize would have been impossible had he not found willing accomplices in the jurors and freeholders of the western counties.
means for punishing the culprit. If it could have been proved that he had taken from the office the paper on which the communication of state was written, he might conceivably have been put on trial for larceny.79 But a prisoner put on trial for a crime of which he was in fact morally innocent, because the gross moral offence of which he was really guilty was not a crime, might have counted on an acquittal. The Official Secrets Act, 1889,80 now, it is true, renders the particular offence, which could not be punished in 1878, a misdemeanour, but the Act, after the manner of English legislation, does not establish the general principle that an official breach of trust is a crime. It is therefore more than possible that derelictions of duty on the part of public servants which in some foreign countries would be severely punished may still in England expose the wrong-doer to no legal punishment.
Nor is it at all wholly a benefit to the public that bona fide obedience to the orders of superiors is not a defence available to a subordinate who, in the discharge of his functions as a government officer, has invaded the legal rights of the humblest individual, or that officials are, like everybody else, accountable for their conduct to an ordinary Court of law, and to a Court, be it noted, where the verdict is given by a jury.
In this point of view few things are more instructive than an examination of the actions which have been brought against officers of the Board of Trade for detaining ships about to proceed to sea. Under the Merchant Shipping Acts since 1876 the Board have been and are bound to detain any ship which from its unsafe and unseaworthy condition cannot proceed to sea without serious danger to human life.81 Most persons would suppose that the officials of the Board, as long as they, bona fide, and without malice or corrupt motive, endeavoured to carry out the provisions of the statute, would be safe
79 See Annual Register, 1878, Chronicle, p. 71.
80 Repealed and superseded by the Official Secrets Act, 1911, i & 2 Geo. 5, c. 28, described
as "An Act to re-enact the Official Secrets Act, 1889, with Amendments." See especially sec. 2.
81 Merchant Shipping Act, 1894 (57 & 58 Viet. c. 60), s. 459.
from an action at the hands of a shipowner. This, however, is not so. The Board and its officers have more than once been sued with success.82 They have never been accused of either malice or negligence, but the mere fact that the Board act in an administrative capacity is not a protection to the Board, nor is mere obedience to the orders of the Board an answer to an action against its servants. Any deviation, moreover, from the exact terms of the Acts — the omission of the most unmeaning formality — may make every person, high and low, concerned in the detention of the ship, a wrong-doer. The question, on the answer to which the decision in each instance at bottom depends, is whether there was reasonable cause for detaining the vessel, and this inquiry is determined by jurymen who sympathise more keenly with the losses of a shipowner, whose ship may have been unjustly detained, than with the zeal of an inspector anxious to perform his duty and to prevent loss of life. The result has (it is said) been to render the provisions of the Merchant Shipping Acts, with regard to the detention of unseaworthy ships, nugatory. Juries are often biassed against the Government. A technical question is referred for decision, from persons who know something about the subject, and are impartial, to persons who are both ignorant and prejudiced. The government, moreover, which has no concern but the public interest, is placed in the false position of a litigant fighting for his own advantage. These things ought to be noticed, for they explain, if they do not justify, the tenacity with which statesmen, as partial as Tocqueville to English ideas of government, have dung to the conviction that administrative questions ought to be referred to administrative Courts.
The merits of administrative law as represented by modern French droit administratif, that is, when seen at its very best, escape the attention, and do not receive the due appreciation of English constitutionalists.83 No jurist can fail to admire the skill with which the Council of State, the authority and the jurisdiction whereof as an administrative Court year by year receives extension, has worked out
82 See Thomson v. Fairer, 9 Q. B. D. (C. A.), 372.
83 One, and not the least of them, is that access to the Council of State as an administrative Court is both easy and inexpensive.
new remedies for various abuses which would appear to be hardly touched by the ordinary law of the land. The Council, for instance, has created and extended the power of almost any individual to attack, and cause to be annulled, any act done by any administrative authority (using the term in a very wide sense) which is in excess of the legal power given to the person or body from whom the act emanates. Thus an order issued by a prefect or a bye-law made by a corporation which is in excess of the legal power of the prefect or of the corporate body may, on the application of a plaintiff who has any interest in the matter whatever, be absolutely set aside or annulled for the benefit not only of the plaintiff, but of all the world, and this even though he has not himself suffered, from the act complained of, any pecuniary loss or damage. The ingenious distinction84 again, which has been more and more carefully elaborated by the Council of State, between damage resulting from the personal fault (faute personnelle), e.g. spite, violence, or negligence of an official, e.g. a prefect or a mayor, in the carrying out of official orders, and the damage resulting, without any fault on the part of the official, from the carrying out of official orders, illegal or wrongful in themselves (faute de service), has of recent years afforded a valuable remedy to persons who have suffered from the misuse of official power, and has also, from one point of view, extended or secured the responsibility of officials — a responsibility enforceable in the ordinary Courts — for wrongful con-
84 French law draws an important distinction between an injury caused to a private individual by act of the administration or government which is in excess of its powers (faute de service), though duly carried out, or at any rate, carried out without any gross fault on the part of a subordinate functionary, e.g. a policeman acting in pursuance of official orders, and injury caused to a private individual by the negligent or malicious manner (faute personnelle) in which such subordinate functionary carries out official orders which may be perfectly lawful. In the first case the policeman incurs no liability at all, and the party aggrieved must proceed in some form or other against the State in the administrative Courts (tribunaux administratifs). In the second case the policeman is personally liable, and the party aggrieved must proceed against him in the ordinary Courts (tribunaux judiciaires) (see Hauriou, pp. 170, 171; Laferriere, i. p. 652), and apparently cannot proceed against the State.
French authorities differ as to what is the precise criterion by which to distinguish a faute personnelle from a faute de service, and show a tendency to hold that there is no faute personnelle on the part, e.g. of a policeman, when he has bona fide attempted to carry out his official duty. See Duguit, L'Etat, pp. 638-640; [Duguit, Traite de Droit Constitutional, i. PP- 553-559-]
duct, which is in strictness attributable to their personal action. And in no respect does this judge-made law of the Council appear to more advantage than in cases, mostly I conceive of comparatively recent date, in which individuals have obtained compensation for governmental action, which might possibly be considered of technical legality, but which involves in reality the illegitimate use of power conferred upon the government or some governmental body for one object, but in truth used for some end different from that contemplated by the law. One example explains my meaning. The State in 1872 had, as it still has, a monopoly of matches. To the government was given by law the power of acquiring existing match factories under some form of compulsory purchase. It occurred to some ingenious minister that the fewer factories there were left open for sale, the less would be the purchase-money which the State would need to pay. A prefect, the direct servant of the government, had power to dose factories on sanitary grounds. Under the orders of the minister he dosed a factory belonging to A, nominally on sanitary grounds, but in reality to lessen the number of match factories which the State, in the maintenance of its monopoly, would require to purchase. There was no personal fault on the part of the prefect. No action could with success be maintained against him in the judicial Courts,85 nor, we may add, in the administrative Courts.86 A, however, attacked the act itself before the Coundl of State, and got the order of the prefect annulled, and ultimately obtained, through the Council of State, damages from the State of over £2000 for the illegal dosing of the factory, and this in addition to the purchase-money received from the State for taking possession of the factory.87
No Englishman can wonder that the jurisdiction of the Coundl of State, as the greatest of administrative Courts, grows apace; the extension of its power removes, as did at one time the growth of Equity in England, real grievances, and meets the need of the ordinary dtizen. Yet to an Englishman imbued with an unshakeable faith in
85 Dalloz, 1875, i. 495.
86 Dalloz, 1878, iii. 13.
87 Dalloz, 1880, iii. 41.
the importance of maintaining the supremacy of the ordinary law of the land enforced by the ordinary Law Courts, the droit administratif of modern France is open to some grave criticism.
The high and increasing authority of the Coundl of State must detract, he surmises, from the dignity and respect of the judidal Courts. "The more there is of the more, the less there is of the less" is a Spanish proverb of profound wisdom and wide application. There was a time in the history of England when the judidal power of the Chancellor, bound up as it was with the prerogative of the Crown, might have overshadowed the Courts of Law, which have protected the hereditary liberties of England and the personal freedom of Englishmen. It is difficult not to suppose that the extension of the Council's jurisdiction, benefidal as may be its direct effects, may depress the authority of the judidal tribunals. More than one writer, who ought to represent the ideas of educated Frenchmen, makes the suggestion that if the members of the Coundl of State lack that absolute security of tenure which is universally acknowledged to be the best guarantee of judidal independence, yet irremovable judges, who, though they may defy dismissal, are tormented by the constant longing for advancement,88 are not more independent of the Government at whose hands they expect promotion than are members of the Council of State who, if legally removable, are by force of custom hardly ever removed from their high position.
Trial by jury, we are told, is a joke, and, as far as the interests of the public are concerned, a very bad joke.89 Prosecutors and criminals alike prefer the Correctional Courts, where a jury is unknown, to the Courts of Assize, where a judge presides and a jury gives a verdict. The prosecutor knows that in the Correctional Court proved guilt will lead to condemnation. The criminal knows that though in the inferior Court he may lose the chance of acquittal by good-natured or sentimental jurymen, he also avoids the possibility of undergoing severe punishment. Two facts are certain. In 1881 the judges were deprived of the right of charging the jury. Year by year the number of causes
88 See Chardon, pp. 326-328.
89 Ibid.
tried in the Assize Courts decreases. Add to this that the procedure of the judicial Courts, whether civil or criminal, is antiquated and cumbrous. The procedure in the great administrative Court is modelled on modern ideas, is simple, cheap, and effective. The Court of Cassation still commands respect. The other judicial Courts, one can hardly doubt, have sunk in popular estimation. Their members neither exercise the power nor enjoy the moral authority of the judges of the High Court.
It is difficult, further, for an Englishman to believe that, at any rate where politics are concerned, the administrative Courts can from their very nature give that amount of protection to individual freedom which is secured to every English citizen, and indeed to every foreigner residing in England. However this may be, it is certain that the distinction between ordinary law and administrative law (taken together with the doctrine of the separation of powers, at any rate as hitherto interpreted by French jurists), implies the general belief that the agents of the government need, when acting in bona fide discharge of their official duties, protection from the control of the ordinary law Courts. That this is so is proved by more than one fact. The desire to protect servants of the State has dictated the enactment of the Code Penal, Article 114. This desire kept alive for seventy years Article 75 of the Constitution of the Year VIII. It influenced even the men by whom that Article was repealed, for the repeal itself is expressed in words which imply the intention of providing some special protection for the agents of the government. It influenced the decisions which more or less nullified the effect of the law of igth December 1870, which was at first supposed to make the judicial Courts the sole judges of the liability of civil servants to suffer punishment or make compensation for acts of dubious legality done in the performance of their official duties. Oddly enough, the success with which administrative Courts have extended the right of private persons to obtain damages from the State itself for illegal or injurious acts done by its servants, seems, as an English critic must think, to supply a new form of protection for the agents of the government when acting in obedience to orders. There surely can be little inducement to take proceedings against a subordinate, whose guilt consists merely in carry-
ing out a wrongful or illegal order, given him by his official superior, if the person damaged can obtain compensation from the government, or, in other words, from the State itself.90 But turn the matter which way you will, the personal immunities of officials who take part, though without other fault of their own, in any breach of the law, though consistent even with the modern droit administratif of France, are inconsistent with the ideas which underlie the common law of England. This essential opposition has been admirably expressed by a French jurist of eminence. Hauriou writes:
Under every legal system, the right to proceed against a servant of the government for wrongs done to individuals in his official capacity exists in some form or other; the right corresponds to the instinctive impulse felt by every victim of a legal wrong to seek compensation from the immediately visible wrong-doer. But on this point the laws of different countries obey utterly different tendencies. There are countries [such, for example, as England or the United States] where every effort is made to shelter the liability of the State behind the personal responsibility of its servant. There are other countries where every effort is made to cover the responsibility of the servant of the State behind the liability of the State itself, to protect him against, and to save him from, the painful consequences of faults committed in the service of the State. The laws of centralised countries, and notably the law of France, are of this type. There you will find what is called the protection of officials (garantie des fonctionnaries) .91
90 Consider, too, the extended protection offered to every servant of the State by the doctrine, suggested by at least one good authority, that he cannot be held personally responsible for any wrong (faute) committed whilst he is acting in the spirit of his official duty. "Si, en effet, le fonctionnaire a agi dans I 'esprit de sa fonction, c'est-a-dire en poursuivant effectivement le but qu'avail I'Etat en etablissant cette fonction, il nepeut etre responsable ni vis-a-vis de I'Etat, ni vis-a-vis des particuliers, alors meme qu'il ait commis une faute." — Duguit, L'Etat,
p. 638.
91 "Ceprincipeestadmis par toutes les legislations, lapoursuite du fonctionnaireexistepartout, d'autant qu'elle repond a un mouvement instinctif qui est, pour la victims d'un mefait, de s'en prendre a I'autuer immediatement visible. Mais les legislations obeissent a deux tendances bien opposees: il en est Cjuis'efforcent d'abriter I'Etat derriere le fonctionnaire, il en est d'autres, au contraire, qui s'effor-cent de faire couvrir le fonctionnaire par I'Etat, de le proteger, de le rassurer centre les consequences facheuses de ses erreurs. Les legislations des pays centralises et notamment cette de la francs sont de ce dernier type; il yace que Von appelle une garantie des fonctionnaires." — Hauriou, Precis de Droit Administratif, Troisieme edit., pp. 170, 171.
Chapter Xffl
RELATION BETWEEN
PARLIAMENTARY SOVEREIGNTY
AND THE RULE OF LAW
The sovereignty of Parliament and the supremacy of the law of the land — the two principles which pervade the whole of the English constitution — may appear to stand in opposition to each other, or to be at best only counterbalancing forces. But this appearance is delusive; the sovereignty of Parliament, as contrasted with other forms of sovereign power, favours the supremacy of the law, whilst the predominance of rigid legality throughout our institutions evokes the exercise, and thus increases the authority, of Parliamentary sovereignty.
The sovereignty of Parliament favours the supremacy of the law of the land.
That this should be so arises in the main from two characteristics or peculiarities which distinguish the English Parliament from other sovereign powers.
The first of these characteristics is that the commands of Parliament (consisting as it does of the Crown, the House of Lords, and the House of Commons) can be uttered only through the combined action of its three constituent parts, and must, therefore, always take the shape of formal and deliberate legislation. The will of Parliament1 can be expressed only through an Act of Parliament.
i A strong, if not the strongest, argument in favour of the so-called "bi-cameral" system, is to be found in the consideration that the coexistence of two legislative chambers prevents the confusion of resolutions passed by either House with laws, and thus checks the sub-
This is no mere matter of form; it has most important practical effects. It prevents those inroads upon the law of the land which a despotic monarch, such as Louis XIV., Napoleon I., or Napoleon HI., might effect by ordinances or decrees, or which the different constituent assemblies of France, and above all the famous Convention, carried out by sudden resolutions. The principle that Parliament speaks only through an Act of Parliament greatly increases the authority of the judges. A Bill which has passed into a statute immediately becomes subject to judicial interpretation, and the English Bench have always refused, in principle at least, to interpret an Act of Parliament otherwise than by reference to the words of the enactment. An English judge will take no notice of the resolutions of either House, of anything which may have passed in debate (a matter of which officially he has no cognisance), or even of the changes which a Bill may have undergone between the moment of its first introduction to Parliament and of its receiving the Royal assent. All this, which seems natural enough to an English lawyer, would greatly surprise many foreign legists, and no doubt often does give a certain narrowness to the judicial construction of statutes. It contributes greatly, however, both (as I have already pointed out) to the authority of the judges and to the fixity of the law.2
The second of these characteristics is that the English Parliament as such has never, except at periods of revolution, exercised direct executive power or appointed the officials of the executive government.
No doubt in modern times the House of Commons has in substance obtained the right to designate for appointment the Prime Minister and the other members of the Cabinet. But this right is, historically speaking, of recent acquisition, and is exercised in a very
stitution of the arbitrary will of an assembly for the supremacy of the ordinary law of the land. Whoever wishes to appreciate the force of this argument should weigh well the history, not only of the French Convention but also of the English Long Parliament. 2 The principle that the sovereign legislature can express its commands only in the particular form of an Act of Parliament originates of course in historical causes; it is due to the fact that an Act of Parliament was once in reality, what it still is in form, a law "enacted by the King by and with the advice and consent of the Lords and Commons in Parliament assembled."
roundabout manner; its existence does not affect the truth of the assertion that the Houses of Parliament do not directly appoint or dismiss the servants of the State; neither the House of Lords nor the House of Commons, nor both Houses combined, could even now issue a direct order to a military officer, a constable, or a tax-collector; the servants of the State are still in name what they once were in reality — "servants of the Crown"; and, what is worth careful notice, the attitude of Parliament towards government officials was determined originally, and is still regulated, by considerations and feelings belonging to a time when the "servants of the Crown" were dependent upon the King, that is, upon a power which naturally excited the jealousy and vigilance of Parliament.
Hence several results all indirectly tending to support the supremacy of the law. Parliament, though sovereign, unlike a sovereign monarch who is not only a legislator but a ruler, that is, head of the executive government, has never hitherto been able to use the powers of the government as a means of interfering with the regular course of law;3 and what is even more important, Parliament has looked with disfavour and jealousy on all exemptions of officials from the ordinary liabilities of citizens or from the jurisdiction of the ordinary Courts; Parliamentary sovereignty has been fatal to the growth of "administrative law." The action, lastly, of Parliament has tended as naturally to protect the independence of the judges, as that of other sovereigns to protect the conduct of officials. It is worth notice that Parliamentary care for judicial independence has, in fact, stopped just at that point where on a priori grounds it might be expected to end. The judges are not in strictness irremovable; they can be removed from office on an address of the two Houses; they have been made by Parliament independent of every power in the State except the Houses of Parliament.
The idea may suggest itself to a reader that the characteristics or peculiarities of the English Parliament on which I have just dwelt must now be common to most of the representative assemblies which exist in continental Europe. The French National Assembly, for
3 Contrast with this the way in which, even towards the end of the eighteenth century, French Kings interfered with the action of the Courts.
'endency o support ule orlaw iften not ound in oreign epresenta-ive as-emblies.
Rule of law favours Parliamentary sovereignty.
example, bears a considerable external resemblance to our own Parliament. It is influenced, however, by a different spirit; it is the heir, in more ways than one, of the Bourbon Monarchy and the Napoleonic Empire. It is apparently, though on this point a foreigner must speak with hesitation, inclined to interfere in the details of administration. It does not look with special favour on the independence or authority of the ordinary judges. It shows no disapprobation of the system oidroit administratif which Frenchmen — very likely with truth — regard as an institution suited to their country, and it certainly leaves in the hands of the government wider executive and even legislative powers than the English Parliament has ever conceded either to the Crown or to its servants. What is true of France is true under a different form of many other continental states, such, for example, as Switzerland or Prussia. The sovereignty of Parliament as developed in England supports the supremacy of the law. But this is certainly not true of all the countries which now enjoy representative or Parliamentary government.
The supremacy of the law necessitates the exercise of Parliamentary sovereignty.
The rigidity of the law constantly hampers (and sometimes with great injury to the public) the action of the executive, and from the hard-and-fast rules of strict law, as interpreted by the judges, the government can escape only by obtaining from Parliament the discretionary authority which is denied to the Crown by the law of the land. Note with care the way in which the necessity for discretionary powers brings about the recourse to exceptional legislation. Under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers, without occasional use of arbitrary authority. During periods, for instance, of social disturbance you need not only to punish conspirators, but also to arrest men who are reasonably suspected of conspiracy; foreign revolutionists are known to be spreading sedition throughout the land; order can hardly be maintained unless the executive can expel aliens. When two foreign nations are at war, or when civil contests divide a friendly country into two hostile camps, it is impossible for England to perform her duties
as a neutral unless the Crown has legal authority to put a summary check to the attempts of English sympathisers to help one or other of the belligerents. Foreign nations, again, feel aggrieved if they are prevented from punishing theft and homicide, — if, in short, their whole criminal law is weakened because every scoundrel can ensure impunity for his crimes by an escape to England. But this result must inevitably ensue if the English executive has no authority to surrender French or German offenders to the government of France or of Germany. The English executive needs therefore the right to exercise discretionary powers, but the Courts must prevent, and will prevent at any rate where personal liberty is concerned, the exercise by the government of any sort of discretionary power. The Crown cannot, except under statute, expel from England any alien4 whatever, even though he were a murderer who, after slaughtering a whole family at Boulogne, had on the very day crossed red-handed to Dover. The executive therefore must ask for, and always obtains, aid from Parliament. An Alien Act enables the Ministry in times of disturbance to expel any foreigner from the country; a Foreign Enlistment Act makes it possible for the Ministry to check intervention in foreign contests or the supply of arms to foreign belligerents. Extradition Acts empower the government at the same time to prevent England from becoming a city of refuge for foreign criminals, and to co-operate with foreign states in that general repression of crime in which the whole civilised world has an interest. Nor have we yet exhausted the instances in which the rigidity of the law necessitates the intervention of Parliament. There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the government must then take is dear. The Ministry must break the law and trust for protection to an Act of Indemnity. A statute of this kind is (as already pointed out5) the last and supreme exercise of Parliamentary sovereignty. It legalises illegality; it affords the practical solution of the problem which perplexed the statesmanship of the sixteenth and seventeenth centuries, how to combine the mainte-
4 See, however, p. 137, note 22, ante.
5 See pp. 10, H, 142-145, ante.
nance of law and the authority of the Houses of Parliament with the free exercise of that kind of discretionary power or prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilised country.
This solution may be thought by some critics a merely formal one, or at best only a substitution of the despotism of Parliament for the prerogative of the Crown. But this idea is erroneous. The fact that the most arbitrary powers of the English executive must always be exercised under Act of Parliament places the government, even when armed with the widest authority, under the supervision, so to speak, of the Courts. Powers, however extraordinary, which are conferred or sanctioned by statute, are never really unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges. Parliament is supreme legislator, but from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or to the Houses of Parliament, if the Houses were called upon to interpret their own enactments. In foreign countries, and especially in France, administrative ideas — notions derived from the traditions of a despotic monarchy — have restricted the authority and to a certain extent influenced the ideas of the judges. In England judicial notions have modified the action and influenced the ideas of the executive government. By every path we come round to the same conclusion, that Parliamentary sovereignty has favoured the rule of law, and that the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a spirit of legality.
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