23 See Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n.s.)
543.
circumstances were such that the peace could not be preserved otherwise than by preventing the meeting.24 But neither the government nor the magistrates can, it is submitted, solely on the ground that a public meeting may provoke wrongdoers to a breach of the peace, prevent loyal citizens from meeting together peaceably and for a lawful purpose. Of the policy or of the impolicy of denying to the highest authority in the state very wide power to take in their discretion precautionary measures against the evils which may flow from the injudicious exercise of legal rights, it is unnecessary here to say anything. The matter which is worth notice is the way in which the rules as to the right of public meeting illustrate both the legal spirit of our institutions and the process by which the decisions of the courts as to the rights of individuals have in effect made the right of public meeting a part of the law of the constitution.
24 See pp. 171-172, ante, and compare O'Kelly v. Harvey, 14 L. R. Ir. 105, with Reg. v. Justices of Londonderry, 28 L. R. Ir. 440, and Wise v. Dunning [1902], i K. B. 167, with Beatty v. Citibanks, 9 Q. B. D. 308. And the magistrates might probably bind over the conveners of the meeting to find sureties for their good behaviour. The law on this point may, it appears, be thus summed up: "Even a person who has not actually committed any offence at all may be required to find sureties for good behaviour, or to keep the peace, if there be reasonable grounds to fear that he may commit some offence, or may incite others to do so, or even that he may act in some manner which would naturally tend to induce other people (against his desire) to commit one." — Kenny, Outlines of Criminal Law, p. 486.
Chapter VIII
MARTIAL LAW
towards the executive, they are part, and a most important part, of the law of the constitution.
Now the noticeable point is that in England the rights of citizens as against each other are (speaking generally) the same as the rights of citizens against any servant of the Crown. This is the significance of the assertion that in this country the law of the constitution is part of the ordinary law of the land. The fact that a Secretary of State cannot at his discretion and for reasons of state arrest, imprison, or punish any man, except, of course, where special powers are conferred upon him by statute, as by an Alien Act or by an Extradition Act, is simply a result of the principle that a Secretary of State is governed in his official as in his private conduct by the ordinary law of the realm. Were the Home Secretary to assault the leader of the Opposition in a fit of anger, or were the Home Secretary to arrest him because he thought his political opponent's freedom dangerous to the state, the Secretary of State would in either case be liable to an action, and all other penalties to which a person exposes himself by committing an assault. The fact that the arrest of an influential politician whose speeches might excite disturbance was a strictly administrative act would afford no defence to the Minister or to the constables who obeyed his orders.
The subjects treated of in this chapter and in the next three chapters dearly belong to the field of constitutional law, and no one would think of objecting to their treatment in a work on the law of the constitution that they are really part of private law. Yet, if the matter be looked at carefully, it will be found that, just as rules which at first sight seem to belong to the domain of private law are in reality the foundation of constitutional principles, so topics which appear to belong manif estiy to the law of constitution depend with us at bottom on the principles of private or of criminal law. Thus the position of a soldier is in England governed, as we shall see, by the principle, that though a soldier is subject to special liabilities in his military capacity, he remains while in the ranks, as he was when out of them, subject to all the liabilities of an ordinary citizen. So, from a legal point of view, ministerial responsibility is simply one application of the doctrine
The rights already treated of in the foregoing chapter, as for example the right to personal freedom or the right to free expression of opinion, do not, it maybe suggested, properly belong to the province of constitutional law at all, but form part either of private law strictly so called, or of the ordinary criminal law. Thus A's right to personal freedom is, it may be said, only the right of A not to be assaulted, or imprisoned, by X, or (to look at the same thing from another point of view) is nothing else than the right of A, if assaulted by X, to bring an action against X, or to have X punished as a criminal for the assault. Now in this suggestion there lies an element of important truth, yet it is also undoubted that the right to personal freedom, the right to free discussion, and the like, appear in the forefront of many written constitutions, and are in fact the chief advantages which citizens hope to gain by the change from a despotic to a constitutional form of government.
The truth is that these rights may be looked upon from two points of view. They may be considered simply parts of private or, it may be, of criminal law; thus the right to personal freedom may, as already pointed out, be looked at as the right of A not to have the control of his body interfered with by X. But in so far as these rights hold good against the governing body in the state, or in other words, in so far as these rights determine the relation of individual citizens
which pervades English law,1 that no one can plead the command of a superior, were it the order of the Crown itself, in defence of conduct otherwise not justified by law.
Turn the matter which way you will, you come back to the all-important consideration on which we have already dwelt, that whereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result, not the source of the rights of individuals. It becomes, too, more and more apparent that the means by which the Courts have maintained the law of the constitution have been the strict insistence upon the two principles, first of "equality before the law," which negatives exemption from the liabilities of ordinary citizens or from the jurisdiction of the ordinary Courts, and, secondly, of "personal responsibility of wrongdoers," which excludes the notion mat any breach of law on the part of a subordinate can be justified by the orders of his superiors; the legal dogma, as old at least as the time of Edward the Fourth, that, if any man arrest another without lawful warrant, even by the King's command, he shall not be excused, but shall be liable to an action for false imprisonment, is not a special limitation imposed upon the royal prerogative, but the application to acts done under royal orders of that principle of individual responsibility which runs through the whole law of torts.2
"Martial law,"3 in the proper sense of that term, in which it means the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals, is unknown to the law of England.4 We have nothing equivalent to what is called in France the
1 See Mommsen, Romische Staatsrecht, p. 672, for the existence of what seems to have been a similar principle in early Roman law.
2 SeeHearn, Government of England (2nd ed.), chap, iv.; and compare Gardiner, History, x. pp. 144, 145.
3 SeeForsyth, Opinions, pp. 188-216,481-563; Stephen, History of the Criminal Law, i. pp. 201-216; Rex v. Pinney, 5 C. & P. 254; 3 St. Tr. (n. s.) 11; Reg. v. Vincent, 9 C. & P. 91; 3 St. Tr. (n. s.) 1037; Reg. v. Neale, 9 C. & P. 431.
4 This statement has no reference to the law of any other country than England, even though such country may form part of the British Empire. With regard to England in time of peace the statement is certainly true. As to how far, if at all, it ought to be qualified with
In what sense martial law recognised by English law.
"Declaration of the State of Siege,"5 under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution.
The assertion, however, that no such thing as martial law exists under our system of government, though perfectly true, will mislead any one who does not attend carefully to the distinction between two utterly different senses in which the term "martial law" is used by English writers.
Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognised in the most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called a "servant of the government," such for example as a policeman, or a person in no way connected with the administration, not only has the right, but is, as a matter of legal duty,6 bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is dear that all loyal subjects are bound to take their part in the suppression of riots.
It is also dear that a soldier has, as such, no exemption from liability to the law for his conduct in restoring order. Officers, magistrates,
regard to a state of war, see Appendix, Note X., Martial Law in England during Time of War or Insurrection.
5 See Lot sur I'etat de siege, yAout 1849, Roger etSorel, Codes el Lois, p. 436; Loi ^AvriltSrJB, art. i, and generally Duguit, Manuel de Droit Constitutionnel, s. 76, pp. 510-513, 926. See p. i86,pos(.
6 Compare Miller v. Knox, 6 Scott i. See statement of Commissioners including Bowen, L. J., andR. B. Haldane, Q. C., for Inquiring into the Disturbances at Featherstone in 1893 [C. 7234], and see Appendix, Note VI., Duty of Soldiers called upon to disperse Unlawful Assembly.
soldiers, policemen, ordinary citizens, all occupy in the eye of the law the same position; they are, each and all of them, bound to withstand and put down breaches of the peace, such as riots and other disturbances; they are, each and all of them authorised to employ so much force, even to the taking of life, as may be necessary for that purpose, and they are none of them entitled to use more; they are, each and all of them, liable to be called to account before a jury for the use of excessive, that is, of unnecessary force; they are each, it must be added — for this is often forgotten — liable, in theory at least, to be called to account before the Courts for non-performance of their duty as citizens in putting down riots, though of course the degree and kind of energy which each is reasonably bound to exert in the maintenance of order may depend upon and differ with his position as officer, magistrate, soldier, or ordinary civilian. Whoever doubts these propositions should study the leading case of Rex v. Pinney,7 in which was fully considered the duty of the Mayor of Bristol in reference to the Reform Riots of 1831.
So accustomed have people become to fancy that the maintenance of the peace is the duty solely of soldiers or policemen, that many students will probably feel surprise on discovering, from the doctrine laid down in Rex v. Pinney, how stringent are the obligations of a magistrate in time of tumult, and how unlimited is the amount of force which he is bound to employ in support of the law. A student, further, must be on his guard against being misled, as he well might be, by the language of the Riot Act.8 That statute provides, in substance, that if twelve rioters continue together for an hour after a magistrate has made a proclamation to them in the terms of the Act (which proclamation is absurdly enough called reading the Riot Act) ordering them to disperse, he may command the troops to fire upon the rioters or charge them sword in hand.9 This, of course, is not the language, but it is the effect of the enactment. Now the error into which an uninstructed reader is likely to fall, and into which magis-
7 5 C. & P. 254; 3 St. Tr. (n. s.) 11.
8 i Geo. I. stat. 2, c. 5.
9 See Stephen, History of the Criminal Law, i. pp. 202-205.
In what sense martial law not recognised by English law.
trates and officers have from time to time (and notably during the Gordon riots of 1780) in fact fallen, is to suppose that the effect of the Riot Act is negative as well as positive, and that, therefore, the military cannot be employed without the fulfilment of the conditions imposed by the statute. This notion is now known to be erroneous; the occasion on which force can be employed, and the kind and degree of force which it is lawful to use in order to put down a riot, is determined by nothing else than the necessity of the case.
If, then, by martial law be meant the power of the government or of loyal citizens to maintain public order, at whatever cost of blood or property may be necessary, martial law is assuredly part of the law of England. Even, however, as to this kind of martial law one should always bear in mind that the question whether the force employed was necessary or excessive will, especially where death has ensued, be ultimately determined by a judge and jury,10 and that the estimate of what constitutes necessary force formed by a judge and jury, sitting in quiet and safety after the suppression of a riot, may differ considerably from the judgment formed by a general or magistrate, who is surrounded by armed rioters, and knows that at any moment a riot may become a formidable rebellion, and the rebellion if unchecked become a successful revolution.
Martial law is, however, more often used as the name for the government of a country or a district by military tribunals, which more or less supersede the jurisdiction of the Courts. The proclamation of martial law in this sense of the term is, as has been already pointed out,11 nearly equivalent to the state of things which in France and many other foreign countries is known as the declaration of a
10 This statement does not contradict anything decided by Ex parte D. F. Marais [1902], A. C. 109, nor is it inconsistent with the language used in the judgment of the Privy Council, if that language be strictly construed, as it ought to be, in accordance with the important principles that, first, "a case is only an authority for what it actually decides" (Quinn v. Leathern [1901], A. C. 506, judgment of Halsbury, L. C.), and, secondly, "every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found" (ibid.).
11 Seep. 182, ante.
•ench jw as to ate of ege.
"state of siege," and is in effect the temporary and recognised government of a country by military force. The legal aspect of this condition of affairs in states which recognise the existence of this kind of martial law can hardly be better given than by citing some of the provisions of the law which at the present day regulates the state of siege in France:
7. Aussitot I'etat de siege declare, les pouvoirs dont I'autorite civile etait revetue pour le maintien de I'ordre et de la police passent tout entiers a I'autorite militaire. — L'autorite civile continue neanmoins a exercer ceux de ces pouvoirs dont I'autorite militaire ne I'a pas dessaisie.
8. Lest ribunaux militaires peuvent etre saisis de la connaissance des crimes et delits contre la siirete de la Republique, contre la constitution, centre I'ordre et la paix publique, quelle que soit la qualite des auteurs principaux et des complices.
9. L'autorite militaire a le droit, — 1° De faire des perquisitions, dejour et de nuit, dans le domicile des titoyens; — 2° D'eloigner les repris de justice et les individus qui n'ontpas leur domicile dans les lieux, soumis a I'etat de siege; — 3° D'ordonner la remise des armes et munitions, et de proceder a leur recherche eta leur enlevement; — 4° D'interdire les publications et les reunions qu'ellejuge de nature a exciter ou a entretenir le desordre.12
We may reasonably, however, conjecture that the terms of the law give but a faint conception of the real condition of affairs when, in consequence of tumult or insurrection, Paris, or some other part of France, is declared in a state of siege, and, to use a significant expression known to some continental countries, "the constitutional guarantees are suspended." We shall hardly go far wrong if we assume that, during this suspension of ordinary law, any man whatever is liable to arrest, imprisonment, or execution at the will of a military tribunal consisting of a few officers who are excited by the passions natural to civil war. However this may be, it is dear that in France, even under the present Republican government, the suspension of law involved in the proclamation of a state of siege is a thing fully recognised by the constitution, and (strange though the fact may appear) the authority of military Courts during a state of siege is greater under the Republic than it was under the monarchy of Louis Philippe.13
12 Roger et Sorel, Codes et Lois, pp. 436, 437.
13 See Geoffroy's Case, 24 Journal du Palais, p. 1218, cited by Forsyth, Opinions, p. 483. Conf.,
Now, this kind of martial law is in England utterly unknown to the constitution. Soldiers may suppress a riot as they may resist an invasion, they may fight rebels just as they may fight foreign enemies, but they have no right under the law to inflict punishment for riot or rebellion. During the effort to restore peace, rebels may be lawfully killed just as enemies may be lawfully slaughtered in battle, or prisoners may be shot to prevent their escape, but any execution (independently of military law) inflicted by a Court-martial is illegal, and technically murder. Nothing better illustrates the noble energy with which judges have maintained the rule of regular law, even at periods of revolutionary violence, than Wolfe Tone's Case.14 In 1798, Wolfe Tone, an Irish rebel, took part in a French invasion of Ireland. The man-of-war in which he sailed was captured, and Wolfe Tone was brought to trial before a Court-martial in Dublin. He was thereupon sentenced to be hanged. He held, however, no commission as an English officer, his only commission being one from the French Republic. On the morning when his execution was about to take place application was made to the Irish King's Bench for a writ of habeas corpus. The ground taken was that Wolfe Tone, not being a military person, was not subject to punishment by a Court-martial, or, in effect, that the officers who tried him were attempting illegally to enforce martial law. The Court of King's Bench at once granted the writ. When it is remembered that Wolfe Tone's substantial guilt was admitted, that the Court was made up of judges who detested the rebels, and that in 1798 Ireland was in the midst of a revolutionary crisis, it will be admitted that no more splendid assertion of the supremacy of the law can be found than the protection of Wolfe Tone by the Irish Bench.
however, for statement of limits imposed by French law on action of military authorities during state of siege, Duguit, Manuel de Droit Constitutionnel, pp. 512, 513. 14 27 St. Tr. 614.
Chapter IX
THE ARMY'
Th ;
The English army may for the purposes of this treatise be treated as consisting of the Standing Army or, in technical language, the Regular Forces2 and of the Territorial Force,3 which, like the Militia,4 is a territorial army for the defence of the United Kingdom. Each of these forces has been rendered subordinate to the law of the land. My object is not to give even an outline of the enactments affecting the army, but simply to explain the legal principles on which this supremacy of the law throughout the army has been secured.
1 See Stephen, Commentaries, ii. bookiv. chap, viii.; Gneist, Das Englische Verwaltungsrecht, ii. 952-966; Manual of Military Law.
As to Standing Army, i Will. & Mary, c. 5; see the Army Discipline and Regulation Act, 1879, 42 & 43 Viet. c. 33; the Army Act, i.e. the Army Act, 1881, 44 & 45 Viet. c. 58, with the amendments made up to 1907.
2 "The expressions 'regular forces' and 'His Majesty's regular forces' mean officers and soldiers who by their commission, terms of enlistment, or otherwise, are liable to render continuously for a term military service to His Majesty in any part of the world, including, subject to the modifications in this Act mentioned, the Royal Marines and His Majesty's Indian forces and the Royal Malta Artillery, and subject to this qualification, that when the reserve forces are subject to military law such forces become during the period of their being so subject part of the regular forces" (Army Act, s. 190 (8)).
3 See the Territorial and Reserve Forces Act, 1907 (7 Edw. VII. c. 9), especially s. 6, s. i, sub-s. (6), and the Army Act.
4 Tlie Militia — the Territorial and Reserve Forces Act, 1907, does not repeal the various Militia Acts. Until these Acts are repealed the statutory power of raising the militia, either regular or local, and of forming thereof regiments and corps will continue to exist. (For the law regulating the militia see 13 Car. II. stat. i. c. 6; 14 Car. II. c. 3; 15 Car. II. c. 4; the Militia
Standing Army. Its existence reconciled with Parliamentary government by the annual Mutiny Acts.
It will be convenient in considering this matter to reverse the order pursued in the common text-books; these contain a great deal about the militia, the territorial force of its day, and comparatively little about the regular forces, or what we now call the "army." The reason of this is that historically the militia is an older institution than the permanent army, and the existence of a standing army is historically, and according to constitutional theories, an anomaly. Hence the standing army has often been treated by writers of authority as a sort of exceptional or subordinate topic, a kind of excrescence, so to speak, on the national and constitutional force known as the militia.5 As a matter of fact, of course, the standing army is now the real national force, and the territorial force is a body of secondary importance.
THE STANDING ARMY
A permanent army of paid soldiers, whose main duty is one of absolute obedience to commands, appears at first sight to be an institution inconsistent with that rule of law or submission to the civil authorities, and especially to the judges, which is essential to popular
Act, 1802, 42 Geo. III. c. 90; Militia Act, 1882,45 & 46 Viet. c. 49; and Regulation of the Forces Act, 1881,44 & 45 Viet. c. 57.) The militia as long as it exists is in theory a local force levied by conscription, but the power of raising it by ballot has been for a considerable time suspended, and the militia has been in fact recruited by voluntary enlistment. Embodiment converts the militia into a regular army, but an army which cannot be called upon to serve abroad. Embodiment can lawfully take place only in case "of imminent national danger or of great emergency," the occasion being first communicated to Parliament if sitting, or if not sitting, proclaimed by Order in Council (Militia Act, 1882, s. 18; 2 Steph. Comm. (1401 ed.) p. 469). The maintenance of discipline among the members of the militia when embodied depends on the passing of the Army (Annual) Act, or in popular language, on the continuance of the Mutiny Act (see p. 232, post).
The position of the militia, however, is affected by the Territorial and Reserve Forces Act, 1907, in two ways:
(1) All the units of the general (or regular) militia may, and will, it is said, in a short time have either been transferred to the Army Reserve (under s. 34) or have been disbanded.
(2) The personnel of the regular militia will shortly, it is said, cease to exist as such.
The actual position of the militia, however, until the Acts on which its existence depends have been repealed, is worth noting, as it is conceivable that Parliament may think it worth while to keep alive the historical right of the Crown to raise the militia. 5 In the seventeenth century Parliament apparently meant to rely for the defence of England upon this national army raised from the counties and placed under the guidance of country gentlemen. See 14 Car. II. c. 3.
or Parliamentary government; and in truth the existence of permanent paid forces has often in most countries and at times in England — notably under the Commonwealth — been found inconsistent with the existence of what, by a lax though intelligible mode of speech, is called a free government.6 The belief, indeed, of our statesmen down to a time considerably later than the Revolution of 1689 was that a standing army must be fatal to English freedom, yet very soon after the Revolution it became apparent that the existence of a body of paid soldiers was necessary to the safety of the nation. Englishmen, therefore, at the end of the seventeenth and the beginning of the eighteenth centuries, found themselves placed in this dilemma. With a standing army the country could not, they feared, escape from despotism; without a standing army the country could not, they were sure, avert invasion; the maintenance of national liberty appeared to involve the sacrifice of national independence. Yet English statesmanship found almost by accident a practical escape from this theoretical dilemma, and the Mutiny Act, though an enactment passed in a hurry to meet an immediate peril, contains the solution of an apparently insolvable problem.
In this instance, as in others, of success achieved by what is called the practical good sense, the political instinct, or the statesmanlike tact of Englishmen, we ought to be on our guard against two errors.
We ought not, on the one hand, to fancy that English statesmen acted with some profound sagacity or foresight peculiar to themselves, and not to be found among the politicians of other countries. Still less ought we, on the other, to imagine that luck or chance helps Englishmen out of difficulties with which the inhabitants of other countries cannot cope. Political common sense, or political instinct, means little more than habitual training in the conduct of affairs; this
6 See, e.g. Macaulay, History, iii. pp. 42-47. "Throughout the period [of the Civil War and the Interregnum] the military authorities maintained with great strictness their exclusive jurisdiction over offences committed both by officers and soldiers. More than once conflicts took place between the civil magistrates and the commanders of the army over this question." — Firth, Cromwell's Army, p. 310, Mr. Firth gives several examples (pp. 310-312) of the assertion or attempted assertion of the authority of the civil power even during a period of military predominance.
practical acquaintance with public business was enjoyed by educated Englishmen a century or two earlier than by educated Frenchmen or Germans; hence the early prevalence in England of sounder principles of government than have till recently prevailed in other lands. The statesmen of the Revolution succeeded in dealing with difficult problems, not because they struck out new and brilliant ideas, or because of luck, but because the notions of law and government which had grown up in England were in many points sound, and because the statesmen of 1689 applied to the difficulties of their time the notions which were habitual to the more thoughtful Englishmen of the day. The position of the army, in fact, was determined by an adherence on the part of the authors of the first Mutiny Act to the fundamental principle of English law, that a soldier may, like a clergyman, incur special obligations in his official character, but is not thereby exempted from the ordinary liabilities of citizenship.
The object and principles of the first Mutiny Act7 of 1689 are exactly the same as the object and principles of the Army Act,8 under which the English army is in substance now governed. A comparison of the two statutes shows at a glance what are the means by which the maintenance of military discipline has been reconciled with the maintenance of freedom, or, to use a more accurate expression, with the supremacy of the law of the land.
The preamble to the first Mutiny Act has reappeared with slight alterations in every subsequent Mutiny Act, and recites that
Whereas no man may be forejudged of life or limb, or subjected to any kind of punishment by martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of this realm; yet, nevertheless, it [is] requisite for retaining such forces as are, or shall be, raised during this exigence of affairs, in their duty an exact discipline be observed; and that soldiers who shall mutiny or stir up sedition, or shall desert their majesties' service, be brought to a more exemplary and speedy punishment than the usual forms of law will allow.9
7 i Will. & Mary, c. 5.
8 Combined with the Army (Annual) Act, passed each year.
9 See Clode, Military Forces of the Crown, i. p. 499. Compare 47 Viet. c. 8. The variations in the modern Acts, though slight, are instructive.
This recital states the precise difficulty which perplexed the statesmen in 1689. Now let us observe the way in which it has been met.
A soldier, whether an officer or a private, in a standing army, or (to use the wider expression of modern Acts) "a person subject to military law,"10 stands in a two-fold relation: the one is his relation towards his fellow-citizens outside the army; the other is his relation towards the members of the army, and especially towards his military superiors; any man, in short, subject to military law has duties and rights as a citizen as well as duties and rights as a soldier. His position is each respect is under English law governed by definite principles.
A SOLDIER'S POSITION AS A CITIZEN
The fixed doctrine of English law is that a soldier, though a member of a standing army, is in England subject to all the duties and liabilities of an ordinary citizen. "Nothing in this Act contained" (so runs the first Mutiny Act) "shall extend or be construed to exempt any officer or soldier whatsoever from the ordinary process of law."11 These words contain the due to all our legislation with regard to the standing army whilst employed in the United Kingdom. A soldier by his contract of enlistment undertakes many obligations in addition to the duties incumbent upon a civilian. But he does not escape from any of the duties of an ordinary British subject.
The results of this principle are traceable throughout the Mutiny Acts.
10 Part V. of the Army Act points out who under English law are "persons subject to military law," that is to say, who are liable to be tried and punished by Court-martial for military, and in some circumstances for civil, offences under the provisions of the Act.
For our present purpose such persons (speaking broadly at any rate) appear to come within three descriptions: — first, persons belonging to the regular forces, or, in popular language, the standing army (see Army Act, ss. 175 (i), 190 (8)); secondly, persons belonging to the territorial force, in certain circumstances, viz. when they are being trained, when acting with any regular forces, when embodied, and when called out for actual military service for purposes of defence (Army Act, ss. 176, 190 (6) (a)); thirdly, persons not belonging to the regular forces or to the auxiliary forces who are either employed by, or followers of, the army on active service beyond the seas (ibid. s. 176 (9) (10)). The regular forces include the Royal Marines when on shore and the reserve forces when called out. See Army Act, secs. 175, 176; conf. Marks v. Frogley [1898], i Q. B. (C. A.) 888.
11 Will. & Mary, c. 5, s. 6; see Clode, Military Forces of the Crown, i. p. 500.
Criminal liability.
Civil liability.
Order of superiors no defence to charge of crime.
A soldier is subject to the same criminal liability as a civilian.12 He may when in the British dominions be put on trial before any competent "civil" (i.e. non-military) Court for any offence for which he would be triable if he were not subject to military law, and there are certain offences, such as murder, for which he must in general be tried by a civil tribunal.13 Thus, if a soldier murders a companion or robs a traveller whilst quartered in England or in Van Diemen's Land, his military character will not save him from standing in the dock on the charge of murder or theft.
A soldier cannot escape from civil liabilities, as, for example, responsibility for debts; the only exemption which he can claim is that he cannot be forced to appear in Court, and could not, when arrest for debt was allowable, be arrested for any debt not exceeding £30.14
No one who has entered into the spirit of continental legislation can believe that (say in France or Prussia) the rights of a private individual would thus have been allowed to override the claims of the public service.
In all conflicts of jurisdiction between a military and a civil Court the authority of the civil Court prevails. Thus, if a soldier is acquitted or convicted of an offence by a competent civil Court, he cannot be tried for the same offence by a Court-martial;15 but an acquittal or conviction by a Court-martial, say for manslaughter or robbery, is no plea to an indictment for the same offence at the Assizes.16
When a soldier is put on trial on a charge of crime, obedience to superior orders is not of itself a defence.17
12 Compare Army Act, secs. 41, 144, 162.
13 Compare, however, the Jurisdiction in Homicide Act, 1862, 25 & 26 Viet. c. 65, and Clode, Military Forces of the Crown, i. pp. 206, 207.
14 See Army Act, s. 144. Compare Clode, Military Forces of the Crown, i.pp. 207, 208, and Thurston v. Mills, 16 East, 254.
15 Army Act, s. 162, sub-ss. 1-6.
16 Ibid. Contrast the position of the army in relation to the law of the land in France. The fundamental principle of French law is, as it apparently always has been, that every kind of crime or offence committed by a soldier or person subject to military law must be tried by a military tribunal. See Code de Justice Militaire, arts. 55, 56, 76, 77, andLeFaure, LesLois Militaires, pp. 167, 173.
17 Stephen, History of the Criminal Law, i. pp. 204-206, and compare Clode, Military Forces of the Crown, ii. pp. 125-155. The position of a soldier is curiously illustrated by the following
This is a matter which requires explanation.
A soldier is bound to obey any lawful order which he receives from his military superior. But a soldier cannot any more than a civilian avoid responsibility for breach of the law by pleading that he broke the law in bona fide obedience to the orders (say) of the commander-in-chief. Hence the position of a soldier is in theory and may be in practice a difficult one. He may, as it has been well said, be liable to be shot by a Court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it. His situation and the line of his duty may be seen by considering how soldiers ought to act in the following cases.
During a riot an officer orders his soldiers to fire upon rioters. The command to fire is justified by the fact that no less energetic course of action would be sufficient to put down the disturbance. The soldiers are, under these circumstances, dearly bound from a legal, as well as from a military, point of view to obey the command of their officer. It is a lawful order, and the men who carry it out are performing their duty both as soldiers and as citizens.
An officer orders his soldiers in a time of political excitement then and there to arrest and shoot without trial a popular leader against whom no crime has been proved, but who is suspected of treasonable designs. In such a case there is (it is conceived) no doubt that the
case. X was a sentinel on board the Achille when she was paying off. "The orders to him from the preceding sentinel were, to keep off all boats, unless they had officers with uniforms in them, or unless the officer on deck allowed them to approach; and he received a musket, three blank cartridges, and three balls. The boats pressed; upon which he called repeatedly to them to keep off; but one of them persisted and came dose under the ship; and he then fired at a man who was in the boat, and killed him. It was put to the jury to find, whether the sentinel did not fire under the mistaken impression that it was his duty; and they found that he did. But a case being reserved, the judges were unanimous that it was, nevertheless, murder. They thought it, however, a proper case for a pardon; and further, they were of opinion, that if the act had been necessary for the preservation of the ship, as if the deceased had been stirring up a mutiny, the sentinel would have been justified." — Russell,Crimes and Misdemeanors (4th ed.), i. p. 823, on the authority of Rex v. Thomas, East, T., 1816, MS., Bayley, J. The date of the decision is worth noticing; no one can suppose that the judges of 1816 were disposed to underrate the rights of the Crown and its servants. The judgment of the Court rests upon and illustrates the incontrovertible principle of the common la w that the fact of a person being a soldier and of his acting strictly under orders, does not of itself exempt him from criminal liability for acts which would be crimes if done by a civilian.
soldiers who obey, no less than the officer who gives the command, are guilty of murder, and liable to be hanged for it when convicted in due course of law. In such an extreme instance as this the duty of soldiers is, even at the risk of disobeying their superior, to obey the law of the land.
An officer orders his men to fire on a crowd who he thinks could not be dispersed without the use of firearms. As a matter of fact the amount of force which he wishes to employ is excessive, and order could be kept by the mere threat that force would be used. The order, therefore, to fire is not in itself a lawful order, that is, the colonel, or other officer, who gives it is not legally justified in giving it, and will himself be held criminally responsible for the death of any person killed by the discharge of firearms. What is, from a legal point of view, the duty of the soldiers? The matter is one which has never been absolutely decided; the following answer, given by Mr. Justice Stephen, is, it may fairly be assumed, as nearly correct a reply as the state of the authorities makes it possible to provide:
I do not think, however, that the question how far superior orders would justify soldiers or sailors in making an attack upon civilians has ever been brought before the Courts of law in such a manner as to be fully considered and determined. Probably upon such an argument it would be found that the order of a military superior would justify his inferiors in executing any orders for giving which they might fairly suppose their superior officer to have good reasons. Soldiers might reasonably think that their officer had good grounds for ordering them to fire into a disorderly crowd which to them might not appear to be at that moment engaged in acts of dangerous violence, but soldiers could hardly suppose that their officer could have any good grounds for ordering them to fire a volley down a crowded street when no disturbance of any kind was either in progress or apprehended. The doctrine that a soldier is bound under all circumstances whatever to obey his superior officer would be fatal to military discipline itself, for it would justify the private in shooting the colonel by the orders of the captain, or in deserting to the enemy on the field of battle on the order of his immediate superior. I think it is not less monstrous to suppose that superior orders would justify a soldier in the massacre of unoffending civilians in time of peace, or in the exercise of inhuman cruelties, such as the slaughter of women and children, during a rebellion. The only line that presents itself to my mind is that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds. The inconvenience of being subject to two jurisdictions, the sympathies of which are not unlikely to be opposed to each
iier's ition as nber of
y-
other, is an inevitable consequence of the double necessity of preserving on the one hand the supremacy of the law, and on the other the discipline of the army.18
The hardship of a soldier's position resulting from this inconvenience is much diminished by the power of the Crown to nullify the effect of an unjust conviction by means of a pardon.19 While, however, a soldier runs no substantial risk of punishment for obedience to orders which a man of common sense may honestly believe to involve no breach of law, he can under no circumstances escape the chance of his military conduct becoming the subject of inquiry before a civil tribunal, and cannot avoid liability on the ground of obedience to superior orders for any act which a man of ordinary sense must have known to be a crime.20
A SOLDIER'S POSITION AS A MEMBER OF THE ARMY
A citizen on entering the army becomes liable to special duties as being "a person subject to military law." Hence acts which if done by a civilian would be either no offence at all or only slight misdemeanours, e.g. an insult or a blow offered to an officer, may when done by a soldier become serious crimes and expose the person guilty of them to grave punishment. A soldier's offences, moreover, can be tried and punished by a Court-martial. He therefore in his military character of a soldier occupies a position totally different from that of a civilian; he has not the same freedom, and in addition to his duties as
18 Stephen, History of the Criminal Law of England, i. pp. 205, 206. Compare language of Willes,}., in Keighly v. Bell, 4 F. & F. 763. See also opinion of Lord Bowen, cited in Appendix, Note VI., Duty of Soldiers called upon to disperse an Unlawful Assembly.
19 As also by the right of the Attorney-General as representing the Crown to enter a nolle prosequi. See Stephen, History of the Criminal Law, i. p. 496, and Archbold, Pleading in Criminal Cases (22nd ed.), p. 125.
20 Buron v. Denman, 2 Ex. 167, is sometimes cited as showing that obedience to the orders of the Crown is a legal justification to an officer for committing a breach of law, but the decision in that case does not, in any way, support the doctrine erroneously grounded upon it. What the judgment in Buron v. Denman shows is, that an act done by an English military or naval officer in a foreign country to a foreigner, in discharge of orders received from the Crown, may be an act of war, but does not constitute any breach of law for which an action can be brought against the officer in an English Court. Compare Feather v. The Queen, 6B. &S. 257, 295, perCuriam.
a citizen is subject to all the liabilities imposed by military law; but though this is so, it is not to be supposed that, even as regards a soldier's own position as a military man, the rule of the ordinary law is, at any rate in time of peace, excluded from the army.
The general principle on this subject is that the Courts of law have jurisdiction to determine who are the persons subject to military law, and whether a given proceeding, alleged to depend upon military law, is really justified by the rules of law which govern the army.
Hence flow the following (among other) consequences.
The civil Courts determine21 whether a given person is or is not "a person subject to military law."22
Enlistment, which constitutes the contract23 by which a person becomes subject to military law, is a civil proceeding, and a civil Court may sometimes have to inquire whether a man has been duly enlisted, or whether he is or is not entitled to his discharge.24
If a Court-martial exceeds its jurisdiction, or an officer, whether acting as a member of a Court-martial or not, does any act not authorised by law, the action of the Court, or of the officer, is subject to the supervision of the Courts.
The proceedings by which the Courts of law supervise the acts of Courts-martial and of officers may be criminal or civil. Criminal proceedings take the form of an indictment for assault, false imprisonment, manslaughter, or
21 See Wolfe Tone's Case, 27 St. Tr. 614; Douglas's Case, 3 Q. B. 825; Fry v. Ogle, cited Manual of Military Law, chap. vii. s. 41.
22 See Army Act, ss. 175-184.
23 "The enlistment of the soldier is a species of contract between the sovereign and the soldier, and under the ordinary principles of law cannot be altered without the consent of both parties. The result is that the conditions laid down in the Act under which a man was enlisted cannot be varied without his consent." — Manual of Military Law, chap. x. s. 18.
24 See Army Act, s. 96, for special provisions as to the delivering to a master of an apprentice who, being under twenty-one, has enlisted as a soldier. Under the present law, at any rate, it can very rarely happen that a Court should be called upon to consider whether a person is improperly detained in military custody as a soldier. See Army Act, s. 100, sub-ss. 2, 3. The Courts used to interfere, when soldiers were impressed, in cases of improper impressment. See Clode, Military Forces, ii. pp. 8, 587.
A civil Court may also be called upon to determine whether a person subject to military law has, or has not, a right to resign his commission, Hearson v. Churchill [1892], 2 Q. B. (C. A.) 144.
even murder. Civil proceedings may either be preventive, i.e. to restrain the commission or continuance of an injury; or remedial, i.e. to afford a remedy for injury actually suffered. Broadly speaking, the civil jurisdiction of the Courts of law is exercised as against the tribunal of a Court-martial by writs of prohibition or certiorari; and as against individual officers by actions for damages. A writ of habeas corpus also may be directed to any officer, governor of a prison, or other, who has in his custody any person alleged to be improperly detained under colour of military law.25
Lastly, the whole existence and discipline of the standing army, at any rate in time of peace, depends upon the passing of what is known as an annual Mutiny Act,26 or in strict correctness of the Army (Annual) Act. If this Act were not in force a soldier would not be bound by military law. Desertion would be at most only a breach of contract, and striking an officer would be no more than an assault.
THE TERRITORIAL FORCE
This force in many respects represents the militia and the volunteers. It is, as was in fact the militia in later times, raised by voluntary enlistment. It cannot be compelled to serve outside the United Kingdom. It is from its nature, in this too like the militia, a body hardly capable of being used for the overthrow of Parliamentary government. But even with regard to the territorial force, care has been taken to ensure that it shall be subject to the rule of law. The members of this local army are (speaking in general terms) subject to military law only when in training or when the force is embodied.27 Embodi-
25 Manual of Military Law, chap. viii. s. 8. It should, however, be noted that the Courts of law will not, in general at any rate, deal with rights dependent on military status and military regulations.
26 The case stands thus: The discipline of the standing army depends on the Army Act, 1881, 44 & 45 Viet. c. 58, which by s. 2 continues in force only for such time as may be specified in an annual Act, which is passed yearly, and called the Army (Annual) Act. This Act keeps in existence the standing army and continues the Army Act in force. It is therefore, in strictness, upon the passing of the Army (Annual) Act that depends the existence and the discipline of the standing army.
27 But in one case at least, i.e. failure to attend on embodiment, a man of the territorial force may be liable to be tried by Court-martial, though not otherwise subject to military law. (Territorial and Reserve Forces Act, 1907, s. 20; see also as to cases of concurrent jurisdiction of a Court-martial and a Court of summary jurisdiction, ibid. ss. 24, 25.)
ment indeed converts the territorial force into a territorial army, though an army which cannot be required to serve abroad.
But the embodiment can lawfully take place only in case of imminent national danger or great emergency, or unless the emergency requires it, until Parliament has had an opportunity of presenting an address against the embodiment of the territorial force. The general effect of the enactments on the subject is that, at any rate when there is a Parliament in existence, the embodiment of the territorial force cannot, except under the pressure of urgent necessity, be carried out without the sanction of Parliament.28 Add to this, that the maintenance of discipline among the members of the territorial force when it is embodied depends on the continuance in force of the Army Act and of the Army (Annual) Act.29
28 Compare the Territorial and Reserve Forces Act, 1907, s. 7, the Reserve Forces Act, 1882, ss. 12, 13, and the Militia Act, 1882, s. 18, and see note 4, p. 188, ante.
29 There exists an instructive analogy between the position of persons subject to military law, and the position of the clergy of the Established Church.
A clergyman of the National Church, like a soldier of the National Army, is subject to duties and to Courts to which other Englishmen are not subject. He is bound by restrictions, as he enjoys privileges peculiar to his class, but the clergy are no more than soldiers exempt from the law of the land. Any deed which would be a crime or a wrong when done by a layman, is a crime or a wrong when done by a clergyman, and is in either case dealt with by the ordinary tribunals.
Moreover, as the Common Law Courts determine the legal limits to the jurisdiction of Courts-martial, so the same Courts in reality determine (subject, of course, to Acts of Parliament) what are the limits to the jurisdiction of ecclesiastical Courts.
The original difficulty, again, of putting the clergy on the same footing as laymen, was at least as great as that of establishing the supremacy of the civil power in all matters regarding the army. Each of these difficulties was met at an earlier date and had been overcome with more completeness in England than in some other countries. We may plausibly conjecture that this triumph of law was due to the acknowledged supremacy of the King in Parliament, which itself was due to the mode in which the King, acting together with the two Houses, manifestly represented the nation, and therefore was able to wield the whole moral authority of the state.
Chapter X
THE REVENUE1
A
Js in treating of the army my aim was simply to point out what were the principles determining the relation of the armed forces of the country to the law on the land, so in treating of the revenue my aim is not to give even a sketch of the matters connected with the raising, the collection, and the expenditure of the national income, but simply to show that the collection and expenditure of the revenue, and all things appertaining thereto, are governed by strict rules of law. Attention should be fixed upon three points, — the source of the public revenue — the authority for expending the public revenue — and the securities provided by law for the due appropriation of the public revenue, that is, for its being expended in the exact manner which the law directs.
SOURCE OF PUBLIC REVENUE
It is laid down by Blackstone and other authorities that the revenue consists of the hereditary or "ordinary" revenue of the Crown and of the "extraordinary" revenue depending upon taxes imposed by Parliament. Historically this distinction is of interest. But for our purpose we need hardly trouble ourselves at all with the hereditary revenue of the Crown, arising from Crown lands, droits of admiralty, and the
i Stephen, Commentaries, ii. bk. iv. chap, vii.; Hearn, Government of England (2nd ed.), c. 13, pp. 351-388; May, Parliamentary Practice, chap, xxi.; see Exchequer and Audit Act, 1866, 29 & 30 Viet. c. 39, and i& 2 Viet. c. 2, s. 2.
like. It forms an insignificant portion of the national resources, amounting to not much more than £500,000 a year. It does not, moreover, at the present moment belong specially to the Crown, for it was commuted at the beginning of the reign of the present King,2 as it was at the beginning of the reign of William IV. and of the reign of Queen Victoria, for a fixed "civil list,"3 or sum payable yearly for the support of the dignity of the Crown. The whole then of the hereditary revenue is now paid into the national exchequer and forms part of the income of the nation. We may, therefore, putting the hereditary revenue out of our minds, direct our whole attention to what is oddly enough called the "extraordinary," but is in reality the ordinary, or Parliamentary, revenue of the nation.
The whole of the national revenue had come to amount in a normal year to somewhere about £i44,ooo,ooo.4 It is (if we put out of sight the small hereditary revenue of the Crown) raised wholly by taxes imposed by law. The national revenue, therefore, depends wholly upon law and upon statute-law; it is the creation of Acts of Parliament.
While no one can nowadays fancy that taxes can be raised otherwise than in virtue of an Act of Parliament, there prevails, it may be suspected, with many of us a good deal of confusion of mind as to the exact relation between the raising of the revenue and the sitting of Parliament. People often talk as though, if Parliament did not meet, no taxes would be legally payable, and the assembling of Parliament were therefore secured by the necessity of filling the national exchequer. This idea is encouraged by the study of periods, such as the reign of Charles I., during which the Crown could not legally obtain necessary supplies without the constant intervention of Parliament. But the notion that at the present day no money could legally be levied if Parliament ceased to meet is unfounded. Millions of money would come into the Exchequer even though Parliament did not sit at
2 Civil List Act, 1901, i Ed. VII. c. 4.
3 See as to civil list, May, Constitutional Hist. i. chap. iv.
4 The Chancellor of the Exchequer, in his Budget speech of i8th April 1907 (172 Hansard (4th ser.), col. 1180), gave the total revenue for the year (Exchequer receipts) 1906-7 at £144,814,060. [See as to the burden of taxes and rates in later years, Law and Opinion (2nd ed.), pp. lxxxiv.-lxxxvii.]
all. For though all taxation depends upon Act of Parliament, it is far from being the case that all taxation now depends upon annual or temporary Acts.
Taxes are made payable in two different ways, i.e. either by permanent or by yearly Acts.
Taxes, the proceeds of which amounted in the year 1906-7 to at least three-fourths of the whole yearly revenue, are imposed by permanent Acts; such taxes are the land tax,5 the excise,6 the stamp duties,7 and by far the greater number of existing taxes. These taxes would continue to be payable even though Parliament should not be convened for years. We should all, to take an example which comes home to every one, be legally compellable to buy the stamps for our letters even though Parliament did not meet again till (say) A.D. 1910.
Other taxes — and notably the income tax — the proceeds of which make up the remainder of the national income, are imposed by yearly Acts.8 If by any chance Parliament should not be convened for a year, no one would be under any legal obligation to pay income tax.
This distinction between revenue depending upon permanent Acts and revenue depending upon temporary Acts is worth attention, but the main point, of course, to be borne in mind is that all taxes are imposed by statute, and that no one can be forced to pay a single shilling by way of taxation which cannot be shown to the satisfaction of the judges to be due from him under Act of Parliament.
AUTHORITY FOR EXPENDING REVENUE
At one time revenue once raised by taxation was in truth and in reality a grant or gift by the Houses of Parliament to the Crown. Such grants as were made to Charles the First or James the First were
^ 38 George III. c. 5.
6 See Stephen, Commentaries, ii. pp. 552, 553.
7 Stamp Act, 1891, 54 & 55 Viet. c. 39.
8 The only taxes imposed annually or by yearly Acts are the customs duty on tea, which for the year ending 3ist March 1907 amounted to £5,888,288, and the income tax, which for the same year amounted to £31,891,949, giving a total of annual taxation raised by annual grant of £37,780,237.
moneys truly given to the King. He was, as a matter of moral duty, bound, out of the grants made to him, as out of the hereditary revenue, to defray the expenses of government; and the gifts made to the King by Parliament were never intended to be "money to put into his own pocket," as the expression goes. Still it was in truth money of which the King or his Ministers could and did regulate the distribution. One of the singularities which mark the English constitution is the survival of mediaeval notions, which more or less identified the Kings's property with the national revenue, after the passing away of the state of society to which such ideas naturally belonged; in the time of George the Third many public expenses, as, for example, the salaries of the judges, were charged upon the civil list, and thus were mixed up with the King's private expenditure. At the present day, however, the whole public revenue is treated, not as the King's property, but as public income; and as to this two matters deserve special observation.
First, the whole revenue of the nation is paid into the Bank of England9 to the "account of his Majesty's Exchequer,"10 mainly through the Inland Revenue Office. That office is a mere place for the receipt of taxes; it is a huge money-box into which day by day moneys paid as taxes are dropped, and whence such moneys are taken daily to the Bank. What, I am told, takes place is this. Each day large amounts are received at the Inland Revenue Office; two gentlemen come there each afternoon in a cab from the Bank; they go through the accounts for the day with the proper officials; they do not leave till every item is made perfectly dear; they then take all the money received, and drive off with it and pay it into the Bank of England.
Secondly, not a penny of revenue can be legally expended except under the authority of some Act of Parliament.
9 Or into the Bank of Ireland. See Exchequer and Audit Departments Act, 1866 (29 & 30 Viet. c. 39), s. 10.
10 Ibid, and Control and Audit of Public Receipts and Expenditure, pp. 7, 8. But a system of appropriations in aid has been introduced during the last few years under which certain moneys which before were treated as extra receipts, and paid into the Exchequer, are not paid into the Exchequer, but are applied by the department where they are received in reduction of the money voted by Parliament.
This authority may be given by a permanent Act, as, for example, by the Qvil List Act, i & 2 Viet. c. 2, or by the National Debt and Local Loans Act, 1887; or it may be given by the Appropriation Act, that is, the annual Act by which Parliament "appropriates" or fixes the sums payable to objects (the chief of which is the support of the army and navy) which are not provided for, as is the payment of the National Debt, by permanent Acts of Parliament.
The whole thing, to express it in general terms, stands thus.
There is paid into the Bank of England in a normal year11 a national income raised by different taxes amounting to nearly £144,000,000 per annum. This £144,000,000 constitutes the revenue or "consolidated fund."
Every penny of it is, unless the law is broken, paid away in accordance with Act of Parliament. The authority to make payments from it is given in many cases by permanent Acts; thus the whole of the interest on the National Debt is payable out of the Consolidated Fund under the National Debt and Local Loans Act, 1887. The order or authority to make payments out of it is in other cases given by a yearly Act, namely, the Appropriation Act, which determines the mode in which the supplies granted by Parliament (and not otherwise appropriated by permanent Acts) are to be spent. In either case, and this is the point to bear in mind, payments made out of the national revenue are made by and under the authority of the law, namely, under the directions of some special Act of Parliament.
The details of the method according to which supplies are annually voted and appropriated by Parliament are amply treated of in works which deal with Parliamentary practice.12 The matter which requires our attention is the fact that each item of expenditure (such, for example, as the wages paid to the army and navy) which is not directed and authorised by some permanent Act is ultimately authorised by the Appropriation Act for the year, or by special Acts which for convenience are passed prior to the Appropriation Act and
11 Seep. 201,anted).
12 See especially May, Parliamentary Practice, chap. xxi.
Security for proper expenditure.
are enumerated therein. The expenditure, therefore, no less than the raising of taxation, depends wholly and solely upon Parliamentary enactment.
SECURITY FOR THE PROPER APPROPRIATION OF THE REVENUE
What, it may be asked, is the real security that moneys paid by the taxpayers are expended by the government in accordance with the intention of Parliament?
The answer is that this security is provided by an elaborate scheme of control and audit. Under this system not a penny of public money can be obtained by the government without the authority or sanction of persons (quite independent, be it remarked, of the Cabinet) whose duty it is to see that no money is paid out of the Exchequer except under legal authority. To the same official ultimately comes the knowledge of the way in which money thus paid out is actually expended, and they are bound to report to Parliament upon any expenditure which is or may appear to be not authorised by law.
The centre of this system of Parliamentary control is the Comptroller and Auditor General.13
He is a high official, absolutely independent of the Cabinet; he can take no part in politics, for he cannot be either a member of the House of Commons, or a peer of Parliament. He in common with his subordinate — the Assistant Comptroller and Auditor General — is appointed by a patent under the Great Seal, holds his office during good behaviour, and can be removed only on an address from both Houses of Parliament.14 He is head of the Exchequer and Audit Department. He thus combines in his own person two characters which formerly belonged to different officials. He is controller of the issue of public money; he is auditor of public accounts. He is called upon, therefore, to perform two different functions, which the reader ought, in his own mind, to keep carefully distinct from each other.
13 Control and Audit of Public Receipts and Expenditure, 1885.
14 The Exchequer and Audit Departments Act, 1886 (29 & 30 Viet. c. 39), sec. 3.
In exercise of his duty of control the Comptroller General is bound, with the aid of the officials under him, to see that the whole of the national revenue, which, it will be remembered, is lodged in the Bank of England to the account of the Exchequer, is paid out under legal authority, that is, under the provisions of some Act of Parliament.
The Comptroller General is enabled to do this because, whenever the Treasury (through which office alone the public moneys are drawn out from the Bank) needs to draw out money for the public service, the Treasury must make a requisition to the Comptroller General authorising the payment from the public moneys at the Bank of the definite sum required.1S
The payments made by the Treasury are, as already pointed out, made either under some permanent Act, for what are technically called "Consolidated Fund services," as, for example, to meet the interest on the National Debt, or under the yearly Appropriation Act, for what are technically called "supply services," as, for example, to meet the expenses of the army or the navy.
In either case the Comptroller General must, before granting the necessary credit, satisfy himself that he is authorised in doing so by the terms of the Act under which it is demanded. He must also satisfy himself that every legal formality, necessary for obtaining public money from the Bank, has been duly complied with. Unless, and until, he is satisfied he ought not to grant, and will not grant, a credit for the amount required; and until this credit is obtained, the money required cannot be drawn out of the Bank.
The obtaining from the Comptroller General of a grant of credit may appear to many readers a mere formality, and we may suppose that it is in most cases given as a matter of course. It is, however, a formality which gives an opportunity to an official, who has no interest in deviating from the law, for preventing the least irregularity on the part of the government in the drawing out of public money.
The Comptroller's power of putting a check on government expenditure has, oddly enough, been pushed to its extreme length in
15 See Control and Audit of Public Receipts and Expenditure, 1885, pp. 61-64, and Forms, No. 8 to No. 12.
comparatively modern times. In 1811 England was in the midst of the great war with France; the King was a lunatic, a Regency Bill was not yet passed, and a million pounds were required for the payment of the navy. Lord Grenville, the then Auditor of the Exchequer, whose office corresponded to a certain extent with that of the present Comptroller and Auditor General, refused to draw the necessary order on the Bank, and thus prevented the million, though granted by Parliament, from being drawn out. The ground of his lordship's refusal was that he had received no authority under the Great Seal or the Privy Seal, and the reason why there was no authority under the Privy Seal was that the King was incapable of affixing the Sign Manual, and that the Sign Manual not being affixed, the clerks of the Privy Seal felt, or said they felt, that they could not consistently with their oaths allow the issue of letters of Privy Seal upon which the warrant under the Privy Seal was then prepared. All the world knew the true state of the case. The money was granted by Parliament, and the irregularity in the issue of the warrants was purely technical, yet the law officers — members themselves of the Ministry — advised that Lord Grenville and the clerks of the Privy Seal were in the right. This inconvenient and, as it seems to modern readers, unreasonable display of legal scrupulosity masked, it may be suspected, a good deal of political byplay. If Lord Grenville and his friends had not been anxious that me Ministry should press on the Regency Bill, the officials of the Exchequer would perhaps have seen their way through the technical difficulties which, as it was, appeared insurmountable, and it is impossible not to suspect that Lord Grenville acted rather as a party leader than as Auditor of the Exchequer. But be this as it may, the debates of i8ii16 prove to demonstration that a Comptroller General can, if he chooses, put an immediate check on any irregular dealings with public moneys.
In exercise of his duty as Auditor the Comptroller General audits all the public accounts;17 he reports annually to Parliament upon the
16 Cobbett'sParl. Debates, xviii. pp. 678, 734, 787.
17 In auditing the accounts he inquires into the legality of the purposes for which public money has been spent, and in his report to Parliament calls attention to any expenditure of doubtful legality.
accounts of the past year. Accounts of the expenditure under the Appropriation Act are submitted by him at the beginning of every session to the Public Accounts Committee of the House of Commons — a Committee appointed for the examination of the accounts — showing the appropriation of the sums granted by Parliament to meet the public expenditure. This examination is no mere formal or perfunctory supervision; a glance at the reports of the Committee shows that the smallest expenses which bear the least appearance of irregularity, even if amounting only to a pound or two, are gone into and discussed by the Committee. The results of their discussions are published in reports submitted to Parliament.
The general result of this system of control and audit is, that in England we possess accounts of the national expenditure of an accuracy which cannot be rivalled by the public accounts of other countries, and that every penny of the national income is expended under the authority and in accordance with the provisions of some Act of Parliament.18
How, a foreign critic might ask, is the authority of the Comptroller General compatible with the orderly transaction of public business; how, in short, does it happen that difficulties like those which arose in 1811 are not of constant recurrence?
18 The main features of the system for the control and audit of national expenditure have been authoritatively summarised as follows:
"The gross revenue collected is paid into the Exchequer.
"Issues from the Exchequer can only be made to meet expenditure which has been sanctioned by Parliament, and to an amount not exceeding the sums authorised.
"The issues from the Exchequer and the audit of Accounts are under the control of the Comptroller and Auditor General, who is an independent officer responsible to the House of Commons, and who can only be removed by vote of both Houses of Parliament.
"Such payments only can be charged against the vote of a year as actually came in course of payment within the year.
"The correct appropriation of each item of Receipt and Expenditure is ensured.
"All unexpended balances of the grants of a year are surrendered to the Exchequer, as also are all extra Receipts and the amount of Appropriations-in-Aid received in excess of the sum estimated to be taken in aid of the vote.
"The accounts of each year are finally reviewed by the House of Commons, through the Committee of Public Accounts, and any excess of expenditure over the amount voted by Parliament for any service must receive legislative sanction." — Control and Audit of Public Receipts and Expenditure, 1885, pp. 24, 25.
The general answer of course is, that high English officials, and especially officials removed from the sphere of politics, have no wish or temptation to hinder the progress of public business; the Auditor of the Exchequer was in 1811, be it noted, a peer and a statesman. The more technical reply is, that the law provides two means of overcoming the perversity or factiousness of any Comptroller who should without due reason refuse his sanction to the issue of public money. He can be removed from office on an address of the two Houses, and he probably might, it has been suggested, be coerced into the proper fulfilment of his duties by a mandamus19 from the High Court of Justice. The worth of this suggestion, made by a competent lawyer, has never been, and probably never will be tested. But the possibility that the executive might have to seek the aid of the Courts in order to get hold of moneys granted by Parliament, is itself a curious proof of the extent to which the expenditure of the revenue is governed by law, or, what is the same thing, may become dependent on the decision of the judges upon the meaning of an Act of Parliament.
19 See Bowyer, Commentaries on Constitutional Law, p. 210; Hearn, Government of England (and ed.), p. 375.
Chapter XI
THE RESPONSIBILITY OF MINISTERS
Ministerial responsibility means two utterly different things. It means in ordinary parlance the responsiblity of Ministers to Parliament, or, the liability of Ministers to lose their offices if they cannot retain the confidence of the House of Commons.
This is a matter depending on the conventions of the constitution with which law has no direct concern.
It means, when used in its strict sense, the legal responsibility of every Minister for every act of the Crown in which he takes part.
This responsibility, which is a matter of law, rests on the following foundation. There is not to be found in the law of England, as there is found in most foreign constitutions, an explicit statement that the acts of the monarch must always be done through a Minister, and that all orders given by the Crown must, when expressed in writing, as they generally are, be countersigned by a Minister. Practically, however, the rule exists.
In order that an act of the Crown may be recognised as an expression of the Royal will and have any legal effect whatever, it must in general be done with the assent of, or through some Minister or Ministers who will be held responsible for it. For the Royal will can, speaking generally, be expressed only in one of three different ways, viz. (i) by order in Council; (2) by order, commission, or warrant under the sign-manual; (3) by proclamations, writs, patents, letters, or other documents under the Great Seal.
An order in Council is made by the King "by and with the advice of his Privy Council"; and those persons who are present at the meeting of the Council at which the order was made, bear the responsibility for what was there done. The sign-manual warrant, or other document to which the sign-manual is affixed, bears in general the coun-tersignature of one responsible Minister or of more than one; though it is not unfrequently authenticated by some one of the seals for the use of which a Secretary of State is responsible. The Great Seal is affixed to a document on the responsibility of the Chancellor, and there may be other persons also, who, as well as the Chancellor, are made responsible for its being affixed. The result is that at least one Minister and often more must take part in, and therefore be responsible for, any act of the Crown which has any legal effect, e.g. the making of a grant, the giving of an order, or the signing of a treaty.1
The Minister or servant of the Crown who thus takes part in giving expression to the Royal will is legally responsible for the act in which he is concerned, and he cannot get rid of his liability by pleading that he acted in obedience to royal orders. Now supposing that the act done is illegal, the Minister concerned in it becomes at once liable to criminal or civil proceedings in a Court of Law. In some instances, it is true, the only legal mode in which his offence could be reached may be an impeachment. But an impeachment itself is a regular though unusual mode of legal procedure before a recognised tribunal, namely, the High Court of Parliament. Impeachments indeed may, though one took place as late as 1805, be thought now obsolete, but the cause why this mode of enforcing Ministerial responsibility is almost out of date is partly that Ministers are now rarely in a position where there is even a temptation to commit the sort of crimes for which impeachment is an appropriate remedy, and partly that the result aimed at by impeachment could now in many cases be better obtained by proceedings before an ordinary Court. The point,
i On the whole of this subject the reader should consult Anson, Law and Custom of the Constitution, vol. ii., The Crown (3rd ed.), App. to ch. i. pp. 50-59. Anson gives by far the best and fullest account with which I am acquainted of the forms for the expression of the Royal pleasure and of the effect of these forms in enforcing the legal responsibility of Ministers. See also Clode, Military Forces of the Crown, ii. pp. 320, 321; Huron v.Denman, 2 Ex. 167, 189, and the Great Seal Act, 1884, 47 & 48 Viet. c. 30.
however, which should never be forgotten is this: it is now well-established law that the Crown can act only through Ministers and according to certain prescribed forms which absolutely require the co-operation of some Minister, such as a Secretary of State or the Lord Chancellor, who thereby becomes not only morally but legally responsible for the legality of the act in which he takes part. Hence, indirectly but surely, the action of every servant of the Crown, and therefore in effect of the Crown itself, is brought under the supremacy of the law of the land. Behind Parliamentary responsibility lies legal liability, and the acts of Ministers no less than the acts of subordinate officials are made subject to the rule of law.
Introduction.
Chapter XII
RULE OF LAW COMPARED WITH DROIT ADMINISTRATE?'
/;
"n many continental countries, and notably in France, there exists a scheme of administrative law2 — known to Frenchmen as droit administmtif — which rests on ideas foreign to the fundamental assumptions of our English common law, and especially to what we have termed the rule of law. This opposition is specially apparent in the protection given in foreign countries to servants of the State, or, as we say in England, of the Crown, who, whilst acting in pursuance
1 On droit administratif see Aucoc, Conferences sur iadministration et le droit administratif (yd ed.); Berthelemy, Traite Elementaire de Droit Administratif ($th ed. 1908); Chardon, L'Administration de la France, Les Fonctionnaires (1908); Duguit, Manuel de Droit Constitutionnel (1907); Duguit, Traite de Droit Constitutionnel (1911); Duguit, L'Etat, lesgouvernants et les agents (1903); Esmein, Elements de Droit Constitutionnel (1896); Hauriou, Precis de Droit Administratif; Jac-quelin, La Juridiction Administrative (1891); Jacquelin, Les Principes Dominants du Contentieux Administratif (1899); Jeze, Les Principes Generaux du Droit Administratif (1904); Laferriere. Traite de la Juridiction Administrative, 2 vols. (2nd ed. 1896); Teissier, La Responsabilite de la Puissance Publique(i<)o6).
It is not my aim in this chapter to give a general account of droit administratif. My object is to treat of droit administratif in so far as its fundamental principles conflict with modern English ideas of the rule of law, and especially to show how it always has given, and still does give, special protection or privileges to the servants of the state. I cannot, however, avoid mentioning some other aspects of a noteworthy legal system or omit some notice of the mode in which the administrative law of France, based as it originally was on the prerogatives of the Crown under the ancien regime, has of recent years, by the genius of French legists, been more or less "judirialised" — if so I may render the French term "juridictionnaliser" — and incorporated with the law of the land.
2 Known in different countries by different names, e.g. in Germany as Verwaltungsrecht. The administrative law of France comes nearer than does the Verwaltungsrecht of Germany
of official orders, or in the bona fide attempt to discharge official duties, are guilty of acts which in themselves are wrongful or unlawful. The extent of this protection has in France — with which country we are for the most part concerned — varied from time to time. It was once all but complete; it is now far less extensive than it was thirty-six years ago.3 It forms only one portion of the whole system of droit administratif, but it is the part of French law to which in this chapter I wish to direct particularly the attention of students. I must, however, impress upon them that the whole body of droit administratif is well worth their study. It has been imitated in most of the countries of continental Europe. It illustrates, by way of contrast, the full meaning of that absolute supremacy of the ordinary law of the land — a foreign critic might say of that intense legalism — which we have found to be a salient feature of English institutions. It also illustrates, by way of analogy rather than of contrast, some phases in the constitutional history of England. For droit administratif has, of recent years, been so developed as to meet the requirements of a modern and a democratic society, and thus throws light upon one stage at least in the growth of English constitutional law.4
Our subject falls under two main heads. The one head embraces the nature and the historical growth of droit administratif, and especially of that part thereof with which we are chiefly concerned. The other head covers a comparison between the English rule of law and the droit administratif of France.
For the term droit administratif English legal phraseology supplies no proper equivalent. The words "administrative law," which are its most natural rendering, are unknown to English judges and counsel, and are in themselves hardly intelligible without further explanation.
(conf. Otto Mayer, Le Droit Administratif Allemand, i. (French translation), p. 293 s. 17), to the rule of law as understood by Englishmen. Here, as elsewhere, it is the similarity as much as the dissimilarity between France and England which prompts comparison. The historical glories of French arms conceal the important fact that among the great States of Europe, France and England have the most constantly attempted, though with unequal success, to maintain the supremacy of the civil power against any class which defies the legitimate sovereignty of the nation.
3 Or than it still is throughout the German Empire. See Duguit, L'Etat, p. 624, note i.
4 See pp. 246-251, post.
This absence from our language of any satisfactory equivalent for the expression droit administratif is significant; the want of a name arises at bottom from our non-recognition of the thing itself. In England, and in countries which, like the United States, derive their civilisation from English sources, the system of administrative law and the very principles on which it rests are in truth unknown. This absence from the institutions of the American Commonwealth of anything answering to droit administratif arrested the observation of Tocqueville from the first moment when he began his investigations into the characteristics of American democracy. In 1831 he writes to an experienced French judge (magistral), Monsieur De Blosseville, to ask both for an explanation of the contrast in this matter between French and American institutions, and also for an authoritative explanation of the general ideas (notions generales) governing the droit administratif of his country.5 He grounds his request for information on his own ignorance6 about this special branch of French jurisprudence, and dearly implies that this want of knowledge is not uncommon among French lawyers.
When we know that a legist of Tocqueville's genius found it necessary to ask for instruction in the "general ideas" of administrative law, we may safely assume that the topic was one which, even in the eyes of a French lawyer, bore an exceptional character, and need not wonder that Englishmen find it difficult to appreciate the nature of rules which are, admittedly, foreign to the spirit and traditions of our
5 Tocqueville's language is so remarkable and bears so closely on our topic that it deserves quotation: "Ce qui m'empeche le plus, je vons avoue, de savoir ce qui sefait sur ces differents points en Amerique, c'est d'ignorer, a peu pres completement, ce qui existe en France. Vous savez que, chez nous, le droit administratif et le droit civil forment comme deux mondes separes, qui ne vivent point toujours en paix, mais qui ne sont ni assez amis ni assez ennemis pour se bien connaitre. }'ai toujours vecu dans I'un et suis fort ignorant de ce qui se passe dans I'autre. En meme temps quej'ai senti le besoin d'aajuerir les notions generales qui me manquent a eel egard, j'ai pense queje ne pouvais mieux fairequedem'adresser a vous." — Tocqueville, CEuvres Completes, vii. pp. 67, 68.
6 This want of knowledge is explainable, if not justifiable. In 1831 Tocqueville was a youth of not more than twenty-six years of age. There were at that date already to be found books on droit administratif written to meet the wants of legal practitioners. But the mass of interesting constitutional literature represented by the writings of Laferriere, Hauriou, Duguit, Jeze, or Berthelemy which now elucidates the theory, and traces the history of a particular and most curious branch of French law, had not come into existence.
institutions. It is, however, this very contrast between administrative law as it exists in France, and still more as it existed during by far the greater part of the nineteenth century, and the notions of equality before the law of the land which are firmly established in modern England, that mainly makes it worth while to study, not of course the details, but what Tocqueville calls the notions generates of French droit administmtif. Our aim should be to seize the general nature of administrative law and the principles on which the whole system of droit administratif depends, to note the salient characteristics by which this system is marked, and, lastly, to make dear to ourselves how it is that the existence of a scheme of administrative law makes the legal situation of every government official in France different from the legal situation of servants of the State in England, and in fact establishes a condition of things fundamentally inconsistent with what Englishmen regard as the due supremacy of the ordinary law of the land.
Droit administratif, or "administrative law," has been defined by French authorities in general terms as "the body of rules which regulate the relations of the administration or of the administrative authority towards private citizens";7 and Aucoc in his work on droit administratif describes his topic in this very general language:8
Administrative law determines (i) the constitution and the relations of those organs of society which are charged with the care of those social interests (interets collectifs) which are the object of public administration, by which term is meant the different representatives of society among which the State is the most important, and (2) the relation of the administrative authorities toward the citizens of the State.
These definitions are wanting in precision, and their vagueness is not without significance. As far, however, as an Englishman may venture to deduce the meaning of droit administratif from foreign treatises, it may, for our present purpose, be best described as that
7 "On le definit ordinairement I'ensemble des regies qui regissent les rapports de I'administration ou de I'autoriteadministrativeavec les citoyens." — Aucoc, Droit Administratif, i. s. 6.
8 "Nous prefererions dire, pour notrepart: Le droit administratif determine: i°la constitution et les rapports des organes de la societe charges du soin des interets collectifs qui font I'objet de I'adminis-tration publique, c'est-a-dire des differentes personnifications de la societe, dont I'ttat est la plus importante; 2° les rapports des autorites administratives avec les dtoyens." — Ibid.
W Historica/ development.
portion of French law which determines, (i.) the position and liabilities of all State officials, (ii.) the civil rights and liabilities of private individuals in their dealings with officials as representatives of the State, and (iii.) the procedure by which these rights and liabilities are enforced.
An English student will never, it should particularly be noticed, understand this branch of French law unless he keeps his eye firmly fixed upon its historical aspect, and carefully notes the changes, almost amounting to the transformation, which droit administratif has undergone between 1800 and 1908, and above all during the last thirty or forty years. The fundamental ideas which underlie this department of French law are, as he will discover, permanent, but they have at various times been developed in different degrees and in different directions. Hence any attempt to compare the administrative law of France with our English rule of law will be deceptive unless we note carefully what are the stages in the law of each country which we bring into comparison. If, for instance, we compare the law of England and the law of France as they stand in 1908, we are likely to fancy (in my judgment erroneously) that, e.g. in regard to the position or privileges of the State and its servants when dealing with private citizens, there may be little essential difference between the laws of the two countries. It is only when we examine the administrative law of France at some earlier date, say between 1800 and 1815, or between the accession to the throne of Louis Philippe (1830) and the fall of the Second Empire (1870), that we can rightly appreciate the essential opposition between our existing English rule of law and the fundamental ideas which lie at the basis of administrative law not only in France but in any country where this scheme of State or official law has obtained recognition.
The modern administrative law of France has grown up, or at any rate taken its existing form, during the nineteenth century; it is the outcome of more than a hundred years of revolutionary and constitutional conflict.9 Its development may conveniently be divided into three periods, marked by the names of the Napoleonic Empire and
9 For the history of droit administratif see especially Laferriere, i. (2nded.),bk. i. c. i.-iv. pp. 137-301. The Second Republic (1848-1851) produced little permanent effect on French administrative law. I have included it in the second of our three periods.
the Restoration (1800-1830), the Orleanist Monarchy and the Second Empire (1830-1870), the Third Republic (1870-1908).
FIRST PERIOD: NAPOLEON AND THE RESTORATION, 1800-1830
In the opinion of French men true droit administratif owes its origin to the consular constitution of the Year VOX (1800) created by Bonaparte after the coup d'etat of the i8th of Brumaire. But legists,10 no less than historians, admit that the ideas on which droit administratif rests, may be rightly traced back, as they have been by Tocqueville,u to the ancien regime; every feature of Bonaparte's governmental fabric recalls some characteristic of the ancient monarchy; his Conseil d'Etat revives the Conseil du Roi, his Prefects are copies of the royal Intendants. Yet in this instance public opinion has come to a right conclusion. It was from Bonaparte that modern droit administratif received its form. If he was the restorer of the ancien regime, he was also the preserver of the Revolution. Whatever he borrowed from the traditions of old France he adapted to the changed conditions of the new France of 1800. At his touch ancient ideas received a new character and a new life. He fused together what was strongest in the despotic traditions of the monarchy with what was strongest in the equally despotic creed of Jacobinism. Nowhere is this fusion more dearly visible than in the methods by which Bonaparte's legislation and policy gave full ex-
10 "Aussi haut que I'on remonte dans notre histoire, depuis que des juridictions regulieres ont etc instituees, on ne trouve p charges d'epoque ou les corps judiciaires charges d'appliquer les lois civiles et criminelles aient ete en meme temps appeles it statuer sur les difficultes en matiere d'administration publiaue." — Laferriere, i. p. 139, and compare ibid. p. 640.
11 "Ce qui apparait.. . quand on etudie les paperasses administrates, c'est I intervention continuelle du pouvoir administratif dans la sphere judidaire. Les legistes administratifs nous disent sans cesse, que leplus grand vice du gouvemement interieur de I'ancien regime etait que lesjuges administraient. On pourrait se plaindre avec autant de raison de ce que les administrateurs jugeaient. La seule difference est que nous avons corrige I 'ancien regime sur le premier point, et I'avons imite sur le second. J'avais eu jusqu 'a present la simplicite de croire que ce que nous appelons la justice administrative etait une creation de Napoleon. C'est du pur ancien regime conserve; et le principe que lors meme qu 'il s'agit de contrat, c'est-a-dire d'un engagementformel et reguilierement pris entre un particulier et I'Etat, c'est a I'Etat a juger la cause, cet axiome, inconnu chez la plupart des nations modemes, etait tenu pouraussi sacrepar un intendant de I'ancien regime, qu'il pourrait I'etre de nos jours par lepersonnage qui ressemble leplus a celui-la, je veux dire un prefet." — Tocqueville, CEuvres Completes, vi. pp. 221, 222.
Droit administratif — its two leading principles.
Privileges of the State.
Separation of powers.
pression to the ideas or conceptions of royal prerogative underlying the administrative practice of the ancien regime, and emphasised the jealousy felt in 1800 by every Frenchman of the least interference by the law Courts with the free action of the government. This jealousy itself, though theoretically justified by revolutionary dogma, was inherited by the Revolution from the statecraft of the monarchy.
Any one who considers with care the nature of the droit administratif of France, or the topics to which it applies, will soon discover that it rests, and always has rested, at bottom on two leading ideas alien to the conceptions of modern Englishmen.
The first of these ideas is that the government, and every servant of the government, possesses, as representative of the nation, a whole body of special rights, privileges, or prerogatives as against private citizens, and that the extent of these rights, privileges, or prerogatives is to be determined on principles different from the considerations which fix the legal rights and duties of one citizen towards another. An individual in his dealings with the State does not, according to French ideas, stand on anything like the same footing as that on which he stands in dealings with his neighbour.12
The second of these general ideas is the necessity of maintaining the so-called "separation of powers" (separation des pouvoirs), or, in other words, of preventing the government, the legislature, and the Courts from encroaching upon one another's province. The expression, however, separation of powers, as applied by Frenchmen to the relations of the executive and the Courts, with which alone we are here concerned, may easily mislead. It means, in the mouth of a
12 "Un particulier qui n'execute pas un marche doit a I'entrepreneur une indemnite proportionnee au gain dont il le prive; le Code civil I'etablit ainsi. L'administration qui rompt un tel marche ne doit d'indemnite qu'en raison de la perte eprouvee. C'est la regie de la jurisprudence administrative. A mains que le droit ne s'y oppose, elle tient que I'Etat, c'est-a-dire la collection de tous les citoyens, et le tresor public, c'est-a-dire Vensemble de tous les contribuables, doivent passer avant le citoyen ou le contribuable isoles, defendant un interet individuel." — Vivien, Etudes Administratives, i. pp. 141-142. This was the language of a French lawyer of high authority writing in 1853. The particular doctrine which it contains is now repudiated by French lawyers. Vivien's teaching, however, even though it be no longer upheld, illustrates the general view taken in France of the relation between the individual and the state. That Vivien's application of this view is now repudiated, illustrates the change which French droit administratif and the opinion of Frenchmen has undergone during the last fifty-five years.
French statesman or lawyer, something different from what we mean in England by the "independence of the judges," or the like expressions. As interpreted by French history, by French legislation, and by the decisions of French tribunals, it means neither more nor less than the maintenance of the principle that while the ordinary judges ought to be irremovable and thus independent of the executive, the government and its officials ought (whilst acting officially) to be independent of and to a great extent free from the jurisdiction of the ordinary Courts.13 It were curious to follow out the historical growth of the whole theory as to the "separation of powers." It rests apparently upon Montesquieu's Esprit des Lois, Book XI. c. 6, and is in some sort the offspring of a double misconception; Montesquieu misunderstood on this point the principles and practice of the English constitution, and his doctrine was in turn, if not misunderstood, exaggerated, and misapplied by the French statesmen of the Revolution. Their judgment was biassed, at once by knowledge of the inconveniences and indeed the gross evils which had resulted from the interference of the French "parliaments" in matters of State and by the belief that these Courts would offer opposition, as they had done before, to fundamental and urgently needed reforms. Nor were the leaders of French opinion uninfluenced by the traditional desire, felt as strongly by despotic democrats as by despotic kings, to increase the power of the central government by curbing the authority of the law Courts. The investigation, however, into the varying fate of a dogma which has undergone a different development on each side of the Atlantic would lead us too far from our immediate topic. All that we need note is the extraordinary influence exerted in France, and in all countries which have followed French examples, by this part of Montesquieu's teaching, and the extent to which it still underlies the political and legal institutions of the French Republic.
To the combination of these two general ideas may be traced four distinguishing characteristics of French administrative law.
The first of these characteristics is, as the reader will at once perceive, that the relation of the government and its officials towards
13 See Aucoc, Droit Administratif, ss. 20, 24.
(2) Law Courts without jurisdiction in matters concerning the State and administrative liti-tation to be etermined by administrative Courts.
private citizens must be regulated by a body of rules which are in reality laws, but which may differ considerably from the laws which govern the relation of one private person to another. This distinction between ordinary law and administrative law is one which since 1800 has been fully recognised in France, and forms an essential part of French public law, as it must form a part of the public law of any country where administrative law in the true sense exists.14
The second of these characteristics is that the ordinary judicial tribunals which determine ordinary questions, whether they be civil or criminal, between man and man, must, speaking generally, have no concern whatever with matters at issue between a private person and the State, i.e. with questions of administrative law, but that such questions, in so far as they form at all matter of litigation (contentieux administratif), must be determined by administrative Courts in some way connected with the government or the administration.
No part of revolutionary policy or sentiment was more heartily accepted by Napoleon than the conviction that the judges must never be allowed to hamper the action of the government. He gave effect to this conviction in two different ways.
In the first place, he constituted, or reconstituted, two classes of Courts. The one class consisted of "judicial" or, as we should say, "common law" Courts. They performed, speaking generally, but two functions. The one function was the decision of disputes in strictness between private persons; this duty was discharged by such Courts as the Courts of First Instance and the Courts of Appeal. The other function was the trial of all criminal cases; this duty was discharged by such Courts as the Correctional Courts (Tribunaux Correctionnels) or the Courts of Assize15 (Cours d'Assises). At the head of all these judicial tribunals was placed, and still stands, the Court of Cassation (Cour de Cassation), whereof it is the duty to correct the errors in law of the inferior judicial Courts.16 The other class of so-called Courts were and are the administrative Courts, such as the Courts of the Prefects
14 Of course it is possible that rules of administrative law may exist in a country, e.g. in Belgium, where these rules are enforced only by the ordinary Courts.
15 The Courts of Assize are the only Courts in France where there is trial by jury.
16 The Cour de Cassation is not in strictness a Court of Appeal.
circumstances were such that the peace could not be preserved otherwise than by preventing the meeting.24 But neither the government nor the magistrates can, it is submitted, solely on the ground that a public meeting may provoke wrongdoers to a breach of the peace, prevent loyal citizens from meeting together peaceably and for a lawful purpose. Of the policy or of the impolicy of denying to the highest authority in the state very wide power to take in their discretion precautionary measures against the evils which may flow from the injudicious exercise of legal rights, it is unnecessary here to say anything. The matter which is worth notice is the way in which the rules as to the right of public meeting illustrate both the legal spirit of our institutions and the process by which the decisions of the courts as to the rights of individuals have in effect made the right of public meeting a part of the law of the constitution.
24 See pp. 171-172, ante, and compare O'Kelly v. Harvey, 14 L. R. Ir. 105, with Reg. v. Justices of Londonderry, 28 L. R. Ir. 440, and Wise v. Dunning [1902], i K. B. 167, with Beatty v. Citibanks, 9 Q. B. D. 308. And the magistrates might probably bind over the conveners of the meeting to find sureties for their good behaviour. The law on this point may, it appears, be thus summed up: "Even a person who has not actually committed any offence at all may be required to find sureties for good behaviour, or to keep the peace, if there be reasonable grounds to fear that he may commit some offence, or may incite others to do so, or even that he may act in some manner which would naturally tend to induce other people (against his desire) to commit one." — Kenny, Outlines of Criminal Law, p. 486.
Chapter VIII
MARTIAL LAW
towards the executive, they are part, and a most important part, of the law of the constitution.
Now the noticeable point is that in England the rights of citizens as against each other are (speaking generally) the same as the rights of citizens against any servant of the Crown. This is the significance of the assertion that in this country the law of the constitution is part of the ordinary law of the land. The fact that a Secretary of State cannot at his discretion and for reasons of state arrest, imprison, or punish any man, except, of course, where special powers are conferred upon him by statute, as by an Alien Act or by an Extradition Act, is simply a result of the principle that a Secretary of State is governed in his official as in his private conduct by the ordinary law of the realm. Were the Home Secretary to assault the leader of the Opposition in a fit of anger, or were the Home Secretary to arrest him because he thought his political opponent's freedom dangerous to the state, the Secretary of State would in either case be liable to an action, and all other penalties to which a person exposes himself by committing an assault. The fact that the arrest of an influential politician whose speeches might excite disturbance was a strictly administrative act would afford no defence to the Minister or to the constables who obeyed his orders.
The subjects treated of in this chapter and in the next three chapters dearly belong to the field of constitutional law, and no one would think of objecting to their treatment in a work on the law of the constitution that they are really part of private law. Yet, if the matter be looked at carefully, it will be found that, just as rules which at first sight seem to belong to the domain of private law are in reality the foundation of constitutional principles, so topics which appear to belong manif estiy to the law of constitution depend with us at bottom on the principles of private or of criminal law. Thus the position of a soldier is in England governed, as we shall see, by the principle, that though a soldier is subject to special liabilities in his military capacity, he remains while in the ranks, as he was when out of them, subject to all the liabilities of an ordinary citizen. So, from a legal point of view, ministerial responsibility is simply one application of the doctrine
The rights already treated of in the foregoing chapter, as for example the right to personal freedom or the right to free expression of opinion, do not, it maybe suggested, properly belong to the province of constitutional law at all, but form part either of private law strictly so called, or of the ordinary criminal law. Thus A's right to personal freedom is, it may be said, only the right of A not to be assaulted, or imprisoned, by X, or (to look at the same thing from another point of view) is nothing else than the right of A, if assaulted by X, to bring an action against X, or to have X punished as a criminal for the assault. Now in this suggestion there lies an element of important truth, yet it is also undoubted that the right to personal freedom, the right to free discussion, and the like, appear in the forefront of many written constitutions, and are in fact the chief advantages which citizens hope to gain by the change from a despotic to a constitutional form of government.
The truth is that these rights may be looked upon from two points of view. They may be considered simply parts of private or, it may be, of criminal law; thus the right to personal freedom may, as already pointed out, be looked at as the right of A not to have the control of his body interfered with by X. But in so far as these rights hold good against the governing body in the state, or in other words, in so far as these rights determine the relation of individual citizens
which pervades English law,1 that no one can plead the command of a superior, were it the order of the Crown itself, in defence of conduct otherwise not justified by law.
Turn the matter which way you will, you come back to the all-important consideration on which we have already dwelt, that whereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result, not the source of the rights of individuals. It becomes, too, more and more apparent that the means by which the Courts have maintained the law of the constitution have been the strict insistence upon the two principles, first of "equality before the law," which negatives exemption from the liabilities of ordinary citizens or from the jurisdiction of the ordinary Courts, and, secondly, of "personal responsibility of wrongdoers," which excludes the notion mat any breach of law on the part of a subordinate can be justified by the orders of his superiors; the legal dogma, as old at least as the time of Edward the Fourth, that, if any man arrest another without lawful warrant, even by the King's command, he shall not be excused, but shall be liable to an action for false imprisonment, is not a special limitation imposed upon the royal prerogative, but the application to acts done under royal orders of that principle of individual responsibility which runs through the whole law of torts.2
"Martial law,"3 in the proper sense of that term, in which it means the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals, is unknown to the law of England.4 We have nothing equivalent to what is called in France the
1 See Mommsen, Romische Staatsrecht, p. 672, for the existence of what seems to have been a similar principle in early Roman law.
2 SeeHearn, Government of England (2nd ed.), chap, iv.; and compare Gardiner, History, x. pp. 144, 145.
3 SeeForsyth, Opinions, pp. 188-216,481-563; Stephen, History of the Criminal Law, i. pp. 201-216; Rex v. Pinney, 5 C. & P. 254; 3 St. Tr. (n. s.) 11; Reg. v. Vincent, 9 C. & P. 91; 3 St. Tr. (n. s.) 1037; Reg. v. Neale, 9 C. & P. 431.
4 This statement has no reference to the law of any other country than England, even though such country may form part of the British Empire. With regard to England in time of peace the statement is certainly true. As to how far, if at all, it ought to be qualified with
In what sense martial law recognised by English law.
"Declaration of the State of Siege,"5 under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution.
The assertion, however, that no such thing as martial law exists under our system of government, though perfectly true, will mislead any one who does not attend carefully to the distinction between two utterly different senses in which the term "martial law" is used by English writers.
Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognised in the most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called a "servant of the government," such for example as a policeman, or a person in no way connected with the administration, not only has the right, but is, as a matter of legal duty,6 bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is dear that all loyal subjects are bound to take their part in the suppression of riots.
It is also dear that a soldier has, as such, no exemption from liability to the law for his conduct in restoring order. Officers, magistrates,
regard to a state of war, see Appendix, Note X., Martial Law in England during Time of War or Insurrection.
5 See Lot sur I'etat de siege, yAout 1849, Roger etSorel, Codes el Lois, p. 436; Loi ^AvriltSrJB, art. i, and generally Duguit, Manuel de Droit Constitutionnel, s. 76, pp. 510-513, 926. See p. i86,pos(.
6 Compare Miller v. Knox, 6 Scott i. See statement of Commissioners including Bowen, L. J., andR. B. Haldane, Q. C., for Inquiring into the Disturbances at Featherstone in 1893 [C. 7234], and see Appendix, Note VI., Duty of Soldiers called upon to disperse Unlawful Assembly.
soldiers, policemen, ordinary citizens, all occupy in the eye of the law the same position; they are, each and all of them, bound to withstand and put down breaches of the peace, such as riots and other disturbances; they are, each and all of them authorised to employ so much force, even to the taking of life, as may be necessary for that purpose, and they are none of them entitled to use more; they are, each and all of them, liable to be called to account before a jury for the use of excessive, that is, of unnecessary force; they are each, it must be added — for this is often forgotten — liable, in theory at least, to be called to account before the Courts for non-performance of their duty as citizens in putting down riots, though of course the degree and kind of energy which each is reasonably bound to exert in the maintenance of order may depend upon and differ with his position as officer, magistrate, soldier, or ordinary civilian. Whoever doubts these propositions should study the leading case of Rex v. Pinney,7 in which was fully considered the duty of the Mayor of Bristol in reference to the Reform Riots of 1831.
So accustomed have people become to fancy that the maintenance of the peace is the duty solely of soldiers or policemen, that many students will probably feel surprise on discovering, from the doctrine laid down in Rex v. Pinney, how stringent are the obligations of a magistrate in time of tumult, and how unlimited is the amount of force which he is bound to employ in support of the law. A student, further, must be on his guard against being misled, as he well might be, by the language of the Riot Act.8 That statute provides, in substance, that if twelve rioters continue together for an hour after a magistrate has made a proclamation to them in the terms of the Act (which proclamation is absurdly enough called reading the Riot Act) ordering them to disperse, he may command the troops to fire upon the rioters or charge them sword in hand.9 This, of course, is not the language, but it is the effect of the enactment. Now the error into which an uninstructed reader is likely to fall, and into which magis-
7 5 C. & P. 254; 3 St. Tr. (n. s.) 11.
8 i Geo. I. stat. 2, c. 5.
9 See Stephen, History of the Criminal Law, i. pp. 202-205.
In what sense martial law not recognised by English law.
trates and officers have from time to time (and notably during the Gordon riots of 1780) in fact fallen, is to suppose that the effect of the Riot Act is negative as well as positive, and that, therefore, the military cannot be employed without the fulfilment of the conditions imposed by the statute. This notion is now known to be erroneous; the occasion on which force can be employed, and the kind and degree of force which it is lawful to use in order to put down a riot, is determined by nothing else than the necessity of the case.
If, then, by martial law be meant the power of the government or of loyal citizens to maintain public order, at whatever cost of blood or property may be necessary, martial law is assuredly part of the law of England. Even, however, as to this kind of martial law one should always bear in mind that the question whether the force employed was necessary or excessive will, especially where death has ensued, be ultimately determined by a judge and jury,10 and that the estimate of what constitutes necessary force formed by a judge and jury, sitting in quiet and safety after the suppression of a riot, may differ considerably from the judgment formed by a general or magistrate, who is surrounded by armed rioters, and knows that at any moment a riot may become a formidable rebellion, and the rebellion if unchecked become a successful revolution.
Martial law is, however, more often used as the name for the government of a country or a district by military tribunals, which more or less supersede the jurisdiction of the Courts. The proclamation of martial law in this sense of the term is, as has been already pointed out,11 nearly equivalent to the state of things which in France and many other foreign countries is known as the declaration of a
10 This statement does not contradict anything decided by Ex parte D. F. Marais [1902], A. C. 109, nor is it inconsistent with the language used in the judgment of the Privy Council, if that language be strictly construed, as it ought to be, in accordance with the important principles that, first, "a case is only an authority for what it actually decides" (Quinn v. Leathern [1901], A. C. 506, judgment of Halsbury, L. C.), and, secondly, "every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found" (ibid.).
11 Seep. 182, ante.
•ench jw as to ate of ege.
"state of siege," and is in effect the temporary and recognised government of a country by military force. The legal aspect of this condition of affairs in states which recognise the existence of this kind of martial law can hardly be better given than by citing some of the provisions of the law which at the present day regulates the state of siege in France:
7. Aussitot I'etat de siege declare, les pouvoirs dont I'autorite civile etait revetue pour le maintien de I'ordre et de la police passent tout entiers a I'autorite militaire. — L'autorite civile continue neanmoins a exercer ceux de ces pouvoirs dont I'autorite militaire ne I'a pas dessaisie.
8. Lest ribunaux militaires peuvent etre saisis de la connaissance des crimes et delits contre la siirete de la Republique, contre la constitution, centre I'ordre et la paix publique, quelle que soit la qualite des auteurs principaux et des complices.
9. L'autorite militaire a le droit, — 1° De faire des perquisitions, dejour et de nuit, dans le domicile des titoyens; — 2° D'eloigner les repris de justice et les individus qui n'ontpas leur domicile dans les lieux, soumis a I'etat de siege; — 3° D'ordonner la remise des armes et munitions, et de proceder a leur recherche eta leur enlevement; — 4° D'interdire les publications et les reunions qu'ellejuge de nature a exciter ou a entretenir le desordre.12
We may reasonably, however, conjecture that the terms of the law give but a faint conception of the real condition of affairs when, in consequence of tumult or insurrection, Paris, or some other part of France, is declared in a state of siege, and, to use a significant expression known to some continental countries, "the constitutional guarantees are suspended." We shall hardly go far wrong if we assume that, during this suspension of ordinary law, any man whatever is liable to arrest, imprisonment, or execution at the will of a military tribunal consisting of a few officers who are excited by the passions natural to civil war. However this may be, it is dear that in France, even under the present Republican government, the suspension of law involved in the proclamation of a state of siege is a thing fully recognised by the constitution, and (strange though the fact may appear) the authority of military Courts during a state of siege is greater under the Republic than it was under the monarchy of Louis Philippe.13
12 Roger et Sorel, Codes et Lois, pp. 436, 437.
13 See Geoffroy's Case, 24 Journal du Palais, p. 1218, cited by Forsyth, Opinions, p. 483. Conf.,
Now, this kind of martial law is in England utterly unknown to the constitution. Soldiers may suppress a riot as they may resist an invasion, they may fight rebels just as they may fight foreign enemies, but they have no right under the law to inflict punishment for riot or rebellion. During the effort to restore peace, rebels may be lawfully killed just as enemies may be lawfully slaughtered in battle, or prisoners may be shot to prevent their escape, but any execution (independently of military law) inflicted by a Court-martial is illegal, and technically murder. Nothing better illustrates the noble energy with which judges have maintained the rule of regular law, even at periods of revolutionary violence, than Wolfe Tone's Case.14 In 1798, Wolfe Tone, an Irish rebel, took part in a French invasion of Ireland. The man-of-war in which he sailed was captured, and Wolfe Tone was brought to trial before a Court-martial in Dublin. He was thereupon sentenced to be hanged. He held, however, no commission as an English officer, his only commission being one from the French Republic. On the morning when his execution was about to take place application was made to the Irish King's Bench for a writ of habeas corpus. The ground taken was that Wolfe Tone, not being a military person, was not subject to punishment by a Court-martial, or, in effect, that the officers who tried him were attempting illegally to enforce martial law. The Court of King's Bench at once granted the writ. When it is remembered that Wolfe Tone's substantial guilt was admitted, that the Court was made up of judges who detested the rebels, and that in 1798 Ireland was in the midst of a revolutionary crisis, it will be admitted that no more splendid assertion of the supremacy of the law can be found than the protection of Wolfe Tone by the Irish Bench.
however, for statement of limits imposed by French law on action of military authorities during state of siege, Duguit, Manuel de Droit Constitutionnel, pp. 512, 513. 14 27 St. Tr. 614.
Chapter IX
THE ARMY'
Th ;
The English army may for the purposes of this treatise be treated as consisting of the Standing Army or, in technical language, the Regular Forces2 and of the Territorial Force,3 which, like the Militia,4 is a territorial army for the defence of the United Kingdom. Each of these forces has been rendered subordinate to the law of the land. My object is not to give even an outline of the enactments affecting the army, but simply to explain the legal principles on which this supremacy of the law throughout the army has been secured.
1 See Stephen, Commentaries, ii. bookiv. chap, viii.; Gneist, Das Englische Verwaltungsrecht, ii. 952-966; Manual of Military Law.
As to Standing Army, i Will. & Mary, c. 5; see the Army Discipline and Regulation Act, 1879, 42 & 43 Viet. c. 33; the Army Act, i.e. the Army Act, 1881, 44 & 45 Viet. c. 58, with the amendments made up to 1907.
2 "The expressions 'regular forces' and 'His Majesty's regular forces' mean officers and soldiers who by their commission, terms of enlistment, or otherwise, are liable to render continuously for a term military service to His Majesty in any part of the world, including, subject to the modifications in this Act mentioned, the Royal Marines and His Majesty's Indian forces and the Royal Malta Artillery, and subject to this qualification, that when the reserve forces are subject to military law such forces become during the period of their being so subject part of the regular forces" (Army Act, s. 190 (8)).
3 See the Territorial and Reserve Forces Act, 1907 (7 Edw. VII. c. 9), especially s. 6, s. i, sub-s. (6), and the Army Act.
4 Tlie Militia — the Territorial and Reserve Forces Act, 1907, does not repeal the various Militia Acts. Until these Acts are repealed the statutory power of raising the militia, either regular or local, and of forming thereof regiments and corps will continue to exist. (For the law regulating the militia see 13 Car. II. stat. i. c. 6; 14 Car. II. c. 3; 15 Car. II. c. 4; the Militia
Standing Army. Its existence reconciled with Parliamentary government by the annual Mutiny Acts.
It will be convenient in considering this matter to reverse the order pursued in the common text-books; these contain a great deal about the militia, the territorial force of its day, and comparatively little about the regular forces, or what we now call the "army." The reason of this is that historically the militia is an older institution than the permanent army, and the existence of a standing army is historically, and according to constitutional theories, an anomaly. Hence the standing army has often been treated by writers of authority as a sort of exceptional or subordinate topic, a kind of excrescence, so to speak, on the national and constitutional force known as the militia.5 As a matter of fact, of course, the standing army is now the real national force, and the territorial force is a body of secondary importance.
THE STANDING ARMY
A permanent army of paid soldiers, whose main duty is one of absolute obedience to commands, appears at first sight to be an institution inconsistent with that rule of law or submission to the civil authorities, and especially to the judges, which is essential to popular
Act, 1802, 42 Geo. III. c. 90; Militia Act, 1882,45 & 46 Viet. c. 49; and Regulation of the Forces Act, 1881,44 & 45 Viet. c. 57.) The militia as long as it exists is in theory a local force levied by conscription, but the power of raising it by ballot has been for a considerable time suspended, and the militia has been in fact recruited by voluntary enlistment. Embodiment converts the militia into a regular army, but an army which cannot be called upon to serve abroad. Embodiment can lawfully take place only in case "of imminent national danger or of great emergency," the occasion being first communicated to Parliament if sitting, or if not sitting, proclaimed by Order in Council (Militia Act, 1882, s. 18; 2 Steph. Comm. (1401 ed.) p. 469). The maintenance of discipline among the members of the militia when embodied depends on the passing of the Army (Annual) Act, or in popular language, on the continuance of the Mutiny Act (see p. 232, post).
The position of the militia, however, is affected by the Territorial and Reserve Forces Act, 1907, in two ways:
(1) All the units of the general (or regular) militia may, and will, it is said, in a short time have either been transferred to the Army Reserve (under s. 34) or have been disbanded.
(2) The personnel of the regular militia will shortly, it is said, cease to exist as such.
The actual position of the militia, however, until the Acts on which its existence depends have been repealed, is worth noting, as it is conceivable that Parliament may think it worth while to keep alive the historical right of the Crown to raise the militia. 5 In the seventeenth century Parliament apparently meant to rely for the defence of England upon this national army raised from the counties and placed under the guidance of country gentlemen. See 14 Car. II. c. 3.
or Parliamentary government; and in truth the existence of permanent paid forces has often in most countries and at times in England — notably under the Commonwealth — been found inconsistent with the existence of what, by a lax though intelligible mode of speech, is called a free government.6 The belief, indeed, of our statesmen down to a time considerably later than the Revolution of 1689 was that a standing army must be fatal to English freedom, yet very soon after the Revolution it became apparent that the existence of a body of paid soldiers was necessary to the safety of the nation. Englishmen, therefore, at the end of the seventeenth and the beginning of the eighteenth centuries, found themselves placed in this dilemma. With a standing army the country could not, they feared, escape from despotism; without a standing army the country could not, they were sure, avert invasion; the maintenance of national liberty appeared to involve the sacrifice of national independence. Yet English statesmanship found almost by accident a practical escape from this theoretical dilemma, and the Mutiny Act, though an enactment passed in a hurry to meet an immediate peril, contains the solution of an apparently insolvable problem.
In this instance, as in others, of success achieved by what is called the practical good sense, the political instinct, or the statesmanlike tact of Englishmen, we ought to be on our guard against two errors.
We ought not, on the one hand, to fancy that English statesmen acted with some profound sagacity or foresight peculiar to themselves, and not to be found among the politicians of other countries. Still less ought we, on the other, to imagine that luck or chance helps Englishmen out of difficulties with which the inhabitants of other countries cannot cope. Political common sense, or political instinct, means little more than habitual training in the conduct of affairs; this
6 See, e.g. Macaulay, History, iii. pp. 42-47. "Throughout the period [of the Civil War and the Interregnum] the military authorities maintained with great strictness their exclusive jurisdiction over offences committed both by officers and soldiers. More than once conflicts took place between the civil magistrates and the commanders of the army over this question." — Firth, Cromwell's Army, p. 310, Mr. Firth gives several examples (pp. 310-312) of the assertion or attempted assertion of the authority of the civil power even during a period of military predominance.
practical acquaintance with public business was enjoyed by educated Englishmen a century or two earlier than by educated Frenchmen or Germans; hence the early prevalence in England of sounder principles of government than have till recently prevailed in other lands. The statesmen of the Revolution succeeded in dealing with difficult problems, not because they struck out new and brilliant ideas, or because of luck, but because the notions of law and government which had grown up in England were in many points sound, and because the statesmen of 1689 applied to the difficulties of their time the notions which were habitual to the more thoughtful Englishmen of the day. The position of the army, in fact, was determined by an adherence on the part of the authors of the first Mutiny Act to the fundamental principle of English law, that a soldier may, like a clergyman, incur special obligations in his official character, but is not thereby exempted from the ordinary liabilities of citizenship.
The object and principles of the first Mutiny Act7 of 1689 are exactly the same as the object and principles of the Army Act,8 under which the English army is in substance now governed. A comparison of the two statutes shows at a glance what are the means by which the maintenance of military discipline has been reconciled with the maintenance of freedom, or, to use a more accurate expression, with the supremacy of the law of the land.
The preamble to the first Mutiny Act has reappeared with slight alterations in every subsequent Mutiny Act, and recites that
Whereas no man may be forejudged of life or limb, or subjected to any kind of punishment by martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of this realm; yet, nevertheless, it [is] requisite for retaining such forces as are, or shall be, raised during this exigence of affairs, in their duty an exact discipline be observed; and that soldiers who shall mutiny or stir up sedition, or shall desert their majesties' service, be brought to a more exemplary and speedy punishment than the usual forms of law will allow.9
7 i Will. & Mary, c. 5.
8 Combined with the Army (Annual) Act, passed each year.
9 See Clode, Military Forces of the Crown, i. p. 499. Compare 47 Viet. c. 8. The variations in the modern Acts, though slight, are instructive.
This recital states the precise difficulty which perplexed the statesmen in 1689. Now let us observe the way in which it has been met.
A soldier, whether an officer or a private, in a standing army, or (to use the wider expression of modern Acts) "a person subject to military law,"10 stands in a two-fold relation: the one is his relation towards his fellow-citizens outside the army; the other is his relation towards the members of the army, and especially towards his military superiors; any man, in short, subject to military law has duties and rights as a citizen as well as duties and rights as a soldier. His position is each respect is under English law governed by definite principles.
A SOLDIER'S POSITION AS A CITIZEN
The fixed doctrine of English law is that a soldier, though a member of a standing army, is in England subject to all the duties and liabilities of an ordinary citizen. "Nothing in this Act contained" (so runs the first Mutiny Act) "shall extend or be construed to exempt any officer or soldier whatsoever from the ordinary process of law."11 These words contain the due to all our legislation with regard to the standing army whilst employed in the United Kingdom. A soldier by his contract of enlistment undertakes many obligations in addition to the duties incumbent upon a civilian. But he does not escape from any of the duties of an ordinary British subject.
The results of this principle are traceable throughout the Mutiny Acts.
10 Part V. of the Army Act points out who under English law are "persons subject to military law," that is to say, who are liable to be tried and punished by Court-martial for military, and in some circumstances for civil, offences under the provisions of the Act.
For our present purpose such persons (speaking broadly at any rate) appear to come within three descriptions: — first, persons belonging to the regular forces, or, in popular language, the standing army (see Army Act, ss. 175 (i), 190 (8)); secondly, persons belonging to the territorial force, in certain circumstances, viz. when they are being trained, when acting with any regular forces, when embodied, and when called out for actual military service for purposes of defence (Army Act, ss. 176, 190 (6) (a)); thirdly, persons not belonging to the regular forces or to the auxiliary forces who are either employed by, or followers of, the army on active service beyond the seas (ibid. s. 176 (9) (10)). The regular forces include the Royal Marines when on shore and the reserve forces when called out. See Army Act, secs. 175, 176; conf. Marks v. Frogley [1898], i Q. B. (C. A.) 888.
11 Will. & Mary, c. 5, s. 6; see Clode, Military Forces of the Crown, i. p. 500.
Criminal liability.
Civil liability.
Order of superiors no defence to charge of crime.
A soldier is subject to the same criminal liability as a civilian.12 He may when in the British dominions be put on trial before any competent "civil" (i.e. non-military) Court for any offence for which he would be triable if he were not subject to military law, and there are certain offences, such as murder, for which he must in general be tried by a civil tribunal.13 Thus, if a soldier murders a companion or robs a traveller whilst quartered in England or in Van Diemen's Land, his military character will not save him from standing in the dock on the charge of murder or theft.
A soldier cannot escape from civil liabilities, as, for example, responsibility for debts; the only exemption which he can claim is that he cannot be forced to appear in Court, and could not, when arrest for debt was allowable, be arrested for any debt not exceeding £30.14
No one who has entered into the spirit of continental legislation can believe that (say in France or Prussia) the rights of a private individual would thus have been allowed to override the claims of the public service.
In all conflicts of jurisdiction between a military and a civil Court the authority of the civil Court prevails. Thus, if a soldier is acquitted or convicted of an offence by a competent civil Court, he cannot be tried for the same offence by a Court-martial;15 but an acquittal or conviction by a Court-martial, say for manslaughter or robbery, is no plea to an indictment for the same offence at the Assizes.16
When a soldier is put on trial on a charge of crime, obedience to superior orders is not of itself a defence.17
12 Compare Army Act, secs. 41, 144, 162.
13 Compare, however, the Jurisdiction in Homicide Act, 1862, 25 & 26 Viet. c. 65, and Clode, Military Forces of the Crown, i. pp. 206, 207.
14 See Army Act, s. 144. Compare Clode, Military Forces of the Crown, i.pp. 207, 208, and Thurston v. Mills, 16 East, 254.
15 Army Act, s. 162, sub-ss. 1-6.
16 Ibid. Contrast the position of the army in relation to the law of the land in France. The fundamental principle of French law is, as it apparently always has been, that every kind of crime or offence committed by a soldier or person subject to military law must be tried by a military tribunal. See Code de Justice Militaire, arts. 55, 56, 76, 77, andLeFaure, LesLois Militaires, pp. 167, 173.
17 Stephen, History of the Criminal Law, i. pp. 204-206, and compare Clode, Military Forces of the Crown, ii. pp. 125-155. The position of a soldier is curiously illustrated by the following
This is a matter which requires explanation.
A soldier is bound to obey any lawful order which he receives from his military superior. But a soldier cannot any more than a civilian avoid responsibility for breach of the law by pleading that he broke the law in bona fide obedience to the orders (say) of the commander-in-chief. Hence the position of a soldier is in theory and may be in practice a difficult one. He may, as it has been well said, be liable to be shot by a Court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it. His situation and the line of his duty may be seen by considering how soldiers ought to act in the following cases.
During a riot an officer orders his soldiers to fire upon rioters. The command to fire is justified by the fact that no less energetic course of action would be sufficient to put down the disturbance. The soldiers are, under these circumstances, dearly bound from a legal, as well as from a military, point of view to obey the command of their officer. It is a lawful order, and the men who carry it out are performing their duty both as soldiers and as citizens.
An officer orders his soldiers in a time of political excitement then and there to arrest and shoot without trial a popular leader against whom no crime has been proved, but who is suspected of treasonable designs. In such a case there is (it is conceived) no doubt that the
case. X was a sentinel on board the Achille when she was paying off. "The orders to him from the preceding sentinel were, to keep off all boats, unless they had officers with uniforms in them, or unless the officer on deck allowed them to approach; and he received a musket, three blank cartridges, and three balls. The boats pressed; upon which he called repeatedly to them to keep off; but one of them persisted and came dose under the ship; and he then fired at a man who was in the boat, and killed him. It was put to the jury to find, whether the sentinel did not fire under the mistaken impression that it was his duty; and they found that he did. But a case being reserved, the judges were unanimous that it was, nevertheless, murder. They thought it, however, a proper case for a pardon; and further, they were of opinion, that if the act had been necessary for the preservation of the ship, as if the deceased had been stirring up a mutiny, the sentinel would have been justified." — Russell,Crimes and Misdemeanors (4th ed.), i. p. 823, on the authority of Rex v. Thomas, East, T., 1816, MS., Bayley, J. The date of the decision is worth noticing; no one can suppose that the judges of 1816 were disposed to underrate the rights of the Crown and its servants. The judgment of the Court rests upon and illustrates the incontrovertible principle of the common la w that the fact of a person being a soldier and of his acting strictly under orders, does not of itself exempt him from criminal liability for acts which would be crimes if done by a civilian.
soldiers who obey, no less than the officer who gives the command, are guilty of murder, and liable to be hanged for it when convicted in due course of law. In such an extreme instance as this the duty of soldiers is, even at the risk of disobeying their superior, to obey the law of the land.
An officer orders his men to fire on a crowd who he thinks could not be dispersed without the use of firearms. As a matter of fact the amount of force which he wishes to employ is excessive, and order could be kept by the mere threat that force would be used. The order, therefore, to fire is not in itself a lawful order, that is, the colonel, or other officer, who gives it is not legally justified in giving it, and will himself be held criminally responsible for the death of any person killed by the discharge of firearms. What is, from a legal point of view, the duty of the soldiers? The matter is one which has never been absolutely decided; the following answer, given by Mr. Justice Stephen, is, it may fairly be assumed, as nearly correct a reply as the state of the authorities makes it possible to provide:
I do not think, however, that the question how far superior orders would justify soldiers or sailors in making an attack upon civilians has ever been brought before the Courts of law in such a manner as to be fully considered and determined. Probably upon such an argument it would be found that the order of a military superior would justify his inferiors in executing any orders for giving which they might fairly suppose their superior officer to have good reasons. Soldiers might reasonably think that their officer had good grounds for ordering them to fire into a disorderly crowd which to them might not appear to be at that moment engaged in acts of dangerous violence, but soldiers could hardly suppose that their officer could have any good grounds for ordering them to fire a volley down a crowded street when no disturbance of any kind was either in progress or apprehended. The doctrine that a soldier is bound under all circumstances whatever to obey his superior officer would be fatal to military discipline itself, for it would justify the private in shooting the colonel by the orders of the captain, or in deserting to the enemy on the field of battle on the order of his immediate superior. I think it is not less monstrous to suppose that superior orders would justify a soldier in the massacre of unoffending civilians in time of peace, or in the exercise of inhuman cruelties, such as the slaughter of women and children, during a rebellion. The only line that presents itself to my mind is that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds. The inconvenience of being subject to two jurisdictions, the sympathies of which are not unlikely to be opposed to each
iier's ition as nber of
y-
other, is an inevitable consequence of the double necessity of preserving on the one hand the supremacy of the law, and on the other the discipline of the army.18
The hardship of a soldier's position resulting from this inconvenience is much diminished by the power of the Crown to nullify the effect of an unjust conviction by means of a pardon.19 While, however, a soldier runs no substantial risk of punishment for obedience to orders which a man of common sense may honestly believe to involve no breach of law, he can under no circumstances escape the chance of his military conduct becoming the subject of inquiry before a civil tribunal, and cannot avoid liability on the ground of obedience to superior orders for any act which a man of ordinary sense must have known to be a crime.20
A SOLDIER'S POSITION AS A MEMBER OF THE ARMY
A citizen on entering the army becomes liable to special duties as being "a person subject to military law." Hence acts which if done by a civilian would be either no offence at all or only slight misdemeanours, e.g. an insult or a blow offered to an officer, may when done by a soldier become serious crimes and expose the person guilty of them to grave punishment. A soldier's offences, moreover, can be tried and punished by a Court-martial. He therefore in his military character of a soldier occupies a position totally different from that of a civilian; he has not the same freedom, and in addition to his duties as
18 Stephen, History of the Criminal Law of England, i. pp. 205, 206. Compare language of Willes,}., in Keighly v. Bell, 4 F. & F. 763. See also opinion of Lord Bowen, cited in Appendix, Note VI., Duty of Soldiers called upon to disperse an Unlawful Assembly.
19 As also by the right of the Attorney-General as representing the Crown to enter a nolle prosequi. See Stephen, History of the Criminal Law, i. p. 496, and Archbold, Pleading in Criminal Cases (22nd ed.), p. 125.
20 Buron v. Denman, 2 Ex. 167, is sometimes cited as showing that obedience to the orders of the Crown is a legal justification to an officer for committing a breach of law, but the decision in that case does not, in any way, support the doctrine erroneously grounded upon it. What the judgment in Buron v. Denman shows is, that an act done by an English military or naval officer in a foreign country to a foreigner, in discharge of orders received from the Crown, may be an act of war, but does not constitute any breach of law for which an action can be brought against the officer in an English Court. Compare Feather v. The Queen, 6B. &S. 257, 295, perCuriam.
a citizen is subject to all the liabilities imposed by military law; but though this is so, it is not to be supposed that, even as regards a soldier's own position as a military man, the rule of the ordinary law is, at any rate in time of peace, excluded from the army.
The general principle on this subject is that the Courts of law have jurisdiction to determine who are the persons subject to military law, and whether a given proceeding, alleged to depend upon military law, is really justified by the rules of law which govern the army.
Hence flow the following (among other) consequences.
The civil Courts determine21 whether a given person is or is not "a person subject to military law."22
Enlistment, which constitutes the contract23 by which a person becomes subject to military law, is a civil proceeding, and a civil Court may sometimes have to inquire whether a man has been duly enlisted, or whether he is or is not entitled to his discharge.24
If a Court-martial exceeds its jurisdiction, or an officer, whether acting as a member of a Court-martial or not, does any act not authorised by law, the action of the Court, or of the officer, is subject to the supervision of the Courts.
The proceedings by which the Courts of law supervise the acts of Courts-martial and of officers may be criminal or civil. Criminal proceedings take the form of an indictment for assault, false imprisonment, manslaughter, or
21 See Wolfe Tone's Case, 27 St. Tr. 614; Douglas's Case, 3 Q. B. 825; Fry v. Ogle, cited Manual of Military Law, chap. vii. s. 41.
22 See Army Act, ss. 175-184.
23 "The enlistment of the soldier is a species of contract between the sovereign and the soldier, and under the ordinary principles of law cannot be altered without the consent of both parties. The result is that the conditions laid down in the Act under which a man was enlisted cannot be varied without his consent." — Manual of Military Law, chap. x. s. 18.
24 See Army Act, s. 96, for special provisions as to the delivering to a master of an apprentice who, being under twenty-one, has enlisted as a soldier. Under the present law, at any rate, it can very rarely happen that a Court should be called upon to consider whether a person is improperly detained in military custody as a soldier. See Army Act, s. 100, sub-ss. 2, 3. The Courts used to interfere, when soldiers were impressed, in cases of improper impressment. See Clode, Military Forces, ii. pp. 8, 587.
A civil Court may also be called upon to determine whether a person subject to military law has, or has not, a right to resign his commission, Hearson v. Churchill [1892], 2 Q. B. (C. A.) 144.
even murder. Civil proceedings may either be preventive, i.e. to restrain the commission or continuance of an injury; or remedial, i.e. to afford a remedy for injury actually suffered. Broadly speaking, the civil jurisdiction of the Courts of law is exercised as against the tribunal of a Court-martial by writs of prohibition or certiorari; and as against individual officers by actions for damages. A writ of habeas corpus also may be directed to any officer, governor of a prison, or other, who has in his custody any person alleged to be improperly detained under colour of military law.25
Lastly, the whole existence and discipline of the standing army, at any rate in time of peace, depends upon the passing of what is known as an annual Mutiny Act,26 or in strict correctness of the Army (Annual) Act. If this Act were not in force a soldier would not be bound by military law. Desertion would be at most only a breach of contract, and striking an officer would be no more than an assault.
THE TERRITORIAL FORCE
This force in many respects represents the militia and the volunteers. It is, as was in fact the militia in later times, raised by voluntary enlistment. It cannot be compelled to serve outside the United Kingdom. It is from its nature, in this too like the militia, a body hardly capable of being used for the overthrow of Parliamentary government. But even with regard to the territorial force, care has been taken to ensure that it shall be subject to the rule of law. The members of this local army are (speaking in general terms) subject to military law only when in training or when the force is embodied.27 Embodi-
25 Manual of Military Law, chap. viii. s. 8. It should, however, be noted that the Courts of law will not, in general at any rate, deal with rights dependent on military status and military regulations.
26 The case stands thus: The discipline of the standing army depends on the Army Act, 1881, 44 & 45 Viet. c. 58, which by s. 2 continues in force only for such time as may be specified in an annual Act, which is passed yearly, and called the Army (Annual) Act. This Act keeps in existence the standing army and continues the Army Act in force. It is therefore, in strictness, upon the passing of the Army (Annual) Act that depends the existence and the discipline of the standing army.
27 But in one case at least, i.e. failure to attend on embodiment, a man of the territorial force may be liable to be tried by Court-martial, though not otherwise subject to military law. (Territorial and Reserve Forces Act, 1907, s. 20; see also as to cases of concurrent jurisdiction of a Court-martial and a Court of summary jurisdiction, ibid. ss. 24, 25.)
ment indeed converts the territorial force into a territorial army, though an army which cannot be required to serve abroad.
But the embodiment can lawfully take place only in case of imminent national danger or great emergency, or unless the emergency requires it, until Parliament has had an opportunity of presenting an address against the embodiment of the territorial force. The general effect of the enactments on the subject is that, at any rate when there is a Parliament in existence, the embodiment of the territorial force cannot, except under the pressure of urgent necessity, be carried out without the sanction of Parliament.28 Add to this, that the maintenance of discipline among the members of the territorial force when it is embodied depends on the continuance in force of the Army Act and of the Army (Annual) Act.29
28 Compare the Territorial and Reserve Forces Act, 1907, s. 7, the Reserve Forces Act, 1882, ss. 12, 13, and the Militia Act, 1882, s. 18, and see note 4, p. 188, ante.
29 There exists an instructive analogy between the position of persons subject to military law, and the position of the clergy of the Established Church.
A clergyman of the National Church, like a soldier of the National Army, is subject to duties and to Courts to which other Englishmen are not subject. He is bound by restrictions, as he enjoys privileges peculiar to his class, but the clergy are no more than soldiers exempt from the law of the land. Any deed which would be a crime or a wrong when done by a layman, is a crime or a wrong when done by a clergyman, and is in either case dealt with by the ordinary tribunals.
Moreover, as the Common Law Courts determine the legal limits to the jurisdiction of Courts-martial, so the same Courts in reality determine (subject, of course, to Acts of Parliament) what are the limits to the jurisdiction of ecclesiastical Courts.
The original difficulty, again, of putting the clergy on the same footing as laymen, was at least as great as that of establishing the supremacy of the civil power in all matters regarding the army. Each of these difficulties was met at an earlier date and had been overcome with more completeness in England than in some other countries. We may plausibly conjecture that this triumph of law was due to the acknowledged supremacy of the King in Parliament, which itself was due to the mode in which the King, acting together with the two Houses, manifestly represented the nation, and therefore was able to wield the whole moral authority of the state.
Chapter X
THE REVENUE1
A
Js in treating of the army my aim was simply to point out what were the principles determining the relation of the armed forces of the country to the law on the land, so in treating of the revenue my aim is not to give even a sketch of the matters connected with the raising, the collection, and the expenditure of the national income, but simply to show that the collection and expenditure of the revenue, and all things appertaining thereto, are governed by strict rules of law. Attention should be fixed upon three points, — the source of the public revenue — the authority for expending the public revenue — and the securities provided by law for the due appropriation of the public revenue, that is, for its being expended in the exact manner which the law directs.
SOURCE OF PUBLIC REVENUE
It is laid down by Blackstone and other authorities that the revenue consists of the hereditary or "ordinary" revenue of the Crown and of the "extraordinary" revenue depending upon taxes imposed by Parliament. Historically this distinction is of interest. But for our purpose we need hardly trouble ourselves at all with the hereditary revenue of the Crown, arising from Crown lands, droits of admiralty, and the
i Stephen, Commentaries, ii. bk. iv. chap, vii.; Hearn, Government of England (2nd ed.), c. 13, pp. 351-388; May, Parliamentary Practice, chap, xxi.; see Exchequer and Audit Act, 1866, 29 & 30 Viet. c. 39, and i& 2 Viet. c. 2, s. 2.
like. It forms an insignificant portion of the national resources, amounting to not much more than £500,000 a year. It does not, moreover, at the present moment belong specially to the Crown, for it was commuted at the beginning of the reign of the present King,2 as it was at the beginning of the reign of William IV. and of the reign of Queen Victoria, for a fixed "civil list,"3 or sum payable yearly for the support of the dignity of the Crown. The whole then of the hereditary revenue is now paid into the national exchequer and forms part of the income of the nation. We may, therefore, putting the hereditary revenue out of our minds, direct our whole attention to what is oddly enough called the "extraordinary," but is in reality the ordinary, or Parliamentary, revenue of the nation.
The whole of the national revenue had come to amount in a normal year to somewhere about £i44,ooo,ooo.4 It is (if we put out of sight the small hereditary revenue of the Crown) raised wholly by taxes imposed by law. The national revenue, therefore, depends wholly upon law and upon statute-law; it is the creation of Acts of Parliament.
While no one can nowadays fancy that taxes can be raised otherwise than in virtue of an Act of Parliament, there prevails, it may be suspected, with many of us a good deal of confusion of mind as to the exact relation between the raising of the revenue and the sitting of Parliament. People often talk as though, if Parliament did not meet, no taxes would be legally payable, and the assembling of Parliament were therefore secured by the necessity of filling the national exchequer. This idea is encouraged by the study of periods, such as the reign of Charles I., during which the Crown could not legally obtain necessary supplies without the constant intervention of Parliament. But the notion that at the present day no money could legally be levied if Parliament ceased to meet is unfounded. Millions of money would come into the Exchequer even though Parliament did not sit at
2 Civil List Act, 1901, i Ed. VII. c. 4.
3 See as to civil list, May, Constitutional Hist. i. chap. iv.
4 The Chancellor of the Exchequer, in his Budget speech of i8th April 1907 (172 Hansard (4th ser.), col. 1180), gave the total revenue for the year (Exchequer receipts) 1906-7 at £144,814,060. [See as to the burden of taxes and rates in later years, Law and Opinion (2nd ed.), pp. lxxxiv.-lxxxvii.]
all. For though all taxation depends upon Act of Parliament, it is far from being the case that all taxation now depends upon annual or temporary Acts.
Taxes are made payable in two different ways, i.e. either by permanent or by yearly Acts.
Taxes, the proceeds of which amounted in the year 1906-7 to at least three-fourths of the whole yearly revenue, are imposed by permanent Acts; such taxes are the land tax,5 the excise,6 the stamp duties,7 and by far the greater number of existing taxes. These taxes would continue to be payable even though Parliament should not be convened for years. We should all, to take an example which comes home to every one, be legally compellable to buy the stamps for our letters even though Parliament did not meet again till (say) A.D. 1910.
Other taxes — and notably the income tax — the proceeds of which make up the remainder of the national income, are imposed by yearly Acts.8 If by any chance Parliament should not be convened for a year, no one would be under any legal obligation to pay income tax.
This distinction between revenue depending upon permanent Acts and revenue depending upon temporary Acts is worth attention, but the main point, of course, to be borne in mind is that all taxes are imposed by statute, and that no one can be forced to pay a single shilling by way of taxation which cannot be shown to the satisfaction of the judges to be due from him under Act of Parliament.
AUTHORITY FOR EXPENDING REVENUE
At one time revenue once raised by taxation was in truth and in reality a grant or gift by the Houses of Parliament to the Crown. Such grants as were made to Charles the First or James the First were
^ 38 George III. c. 5.
6 See Stephen, Commentaries, ii. pp. 552, 553.
7 Stamp Act, 1891, 54 & 55 Viet. c. 39.
8 The only taxes imposed annually or by yearly Acts are the customs duty on tea, which for the year ending 3ist March 1907 amounted to £5,888,288, and the income tax, which for the same year amounted to £31,891,949, giving a total of annual taxation raised by annual grant of £37,780,237.
moneys truly given to the King. He was, as a matter of moral duty, bound, out of the grants made to him, as out of the hereditary revenue, to defray the expenses of government; and the gifts made to the King by Parliament were never intended to be "money to put into his own pocket," as the expression goes. Still it was in truth money of which the King or his Ministers could and did regulate the distribution. One of the singularities which mark the English constitution is the survival of mediaeval notions, which more or less identified the Kings's property with the national revenue, after the passing away of the state of society to which such ideas naturally belonged; in the time of George the Third many public expenses, as, for example, the salaries of the judges, were charged upon the civil list, and thus were mixed up with the King's private expenditure. At the present day, however, the whole public revenue is treated, not as the King's property, but as public income; and as to this two matters deserve special observation.
First, the whole revenue of the nation is paid into the Bank of England9 to the "account of his Majesty's Exchequer,"10 mainly through the Inland Revenue Office. That office is a mere place for the receipt of taxes; it is a huge money-box into which day by day moneys paid as taxes are dropped, and whence such moneys are taken daily to the Bank. What, I am told, takes place is this. Each day large amounts are received at the Inland Revenue Office; two gentlemen come there each afternoon in a cab from the Bank; they go through the accounts for the day with the proper officials; they do not leave till every item is made perfectly dear; they then take all the money received, and drive off with it and pay it into the Bank of England.
Secondly, not a penny of revenue can be legally expended except under the authority of some Act of Parliament.
9 Or into the Bank of Ireland. See Exchequer and Audit Departments Act, 1866 (29 & 30 Viet. c. 39), s. 10.
10 Ibid, and Control and Audit of Public Receipts and Expenditure, pp. 7, 8. But a system of appropriations in aid has been introduced during the last few years under which certain moneys which before were treated as extra receipts, and paid into the Exchequer, are not paid into the Exchequer, but are applied by the department where they are received in reduction of the money voted by Parliament.
This authority may be given by a permanent Act, as, for example, by the Qvil List Act, i & 2 Viet. c. 2, or by the National Debt and Local Loans Act, 1887; or it may be given by the Appropriation Act, that is, the annual Act by which Parliament "appropriates" or fixes the sums payable to objects (the chief of which is the support of the army and navy) which are not provided for, as is the payment of the National Debt, by permanent Acts of Parliament.
The whole thing, to express it in general terms, stands thus.
There is paid into the Bank of England in a normal year11 a national income raised by different taxes amounting to nearly £144,000,000 per annum. This £144,000,000 constitutes the revenue or "consolidated fund."
Every penny of it is, unless the law is broken, paid away in accordance with Act of Parliament. The authority to make payments from it is given in many cases by permanent Acts; thus the whole of the interest on the National Debt is payable out of the Consolidated Fund under the National Debt and Local Loans Act, 1887. The order or authority to make payments out of it is in other cases given by a yearly Act, namely, the Appropriation Act, which determines the mode in which the supplies granted by Parliament (and not otherwise appropriated by permanent Acts) are to be spent. In either case, and this is the point to bear in mind, payments made out of the national revenue are made by and under the authority of the law, namely, under the directions of some special Act of Parliament.
The details of the method according to which supplies are annually voted and appropriated by Parliament are amply treated of in works which deal with Parliamentary practice.12 The matter which requires our attention is the fact that each item of expenditure (such, for example, as the wages paid to the army and navy) which is not directed and authorised by some permanent Act is ultimately authorised by the Appropriation Act for the year, or by special Acts which for convenience are passed prior to the Appropriation Act and
11 Seep. 201,anted).
12 See especially May, Parliamentary Practice, chap. xxi.
Security for proper expenditure.
are enumerated therein. The expenditure, therefore, no less than the raising of taxation, depends wholly and solely upon Parliamentary enactment.
SECURITY FOR THE PROPER APPROPRIATION OF THE REVENUE
What, it may be asked, is the real security that moneys paid by the taxpayers are expended by the government in accordance with the intention of Parliament?
The answer is that this security is provided by an elaborate scheme of control and audit. Under this system not a penny of public money can be obtained by the government without the authority or sanction of persons (quite independent, be it remarked, of the Cabinet) whose duty it is to see that no money is paid out of the Exchequer except under legal authority. To the same official ultimately comes the knowledge of the way in which money thus paid out is actually expended, and they are bound to report to Parliament upon any expenditure which is or may appear to be not authorised by law.
The centre of this system of Parliamentary control is the Comptroller and Auditor General.13
He is a high official, absolutely independent of the Cabinet; he can take no part in politics, for he cannot be either a member of the House of Commons, or a peer of Parliament. He in common with his subordinate — the Assistant Comptroller and Auditor General — is appointed by a patent under the Great Seal, holds his office during good behaviour, and can be removed only on an address from both Houses of Parliament.14 He is head of the Exchequer and Audit Department. He thus combines in his own person two characters which formerly belonged to different officials. He is controller of the issue of public money; he is auditor of public accounts. He is called upon, therefore, to perform two different functions, which the reader ought, in his own mind, to keep carefully distinct from each other.
13 Control and Audit of Public Receipts and Expenditure, 1885.
14 The Exchequer and Audit Departments Act, 1886 (29 & 30 Viet. c. 39), sec. 3.
In exercise of his duty of control the Comptroller General is bound, with the aid of the officials under him, to see that the whole of the national revenue, which, it will be remembered, is lodged in the Bank of England to the account of the Exchequer, is paid out under legal authority, that is, under the provisions of some Act of Parliament.
The Comptroller General is enabled to do this because, whenever the Treasury (through which office alone the public moneys are drawn out from the Bank) needs to draw out money for the public service, the Treasury must make a requisition to the Comptroller General authorising the payment from the public moneys at the Bank of the definite sum required.1S
The payments made by the Treasury are, as already pointed out, made either under some permanent Act, for what are technically called "Consolidated Fund services," as, for example, to meet the interest on the National Debt, or under the yearly Appropriation Act, for what are technically called "supply services," as, for example, to meet the expenses of the army or the navy.
In either case the Comptroller General must, before granting the necessary credit, satisfy himself that he is authorised in doing so by the terms of the Act under which it is demanded. He must also satisfy himself that every legal formality, necessary for obtaining public money from the Bank, has been duly complied with. Unless, and until, he is satisfied he ought not to grant, and will not grant, a credit for the amount required; and until this credit is obtained, the money required cannot be drawn out of the Bank.
The obtaining from the Comptroller General of a grant of credit may appear to many readers a mere formality, and we may suppose that it is in most cases given as a matter of course. It is, however, a formality which gives an opportunity to an official, who has no interest in deviating from the law, for preventing the least irregularity on the part of the government in the drawing out of public money.
The Comptroller's power of putting a check on government expenditure has, oddly enough, been pushed to its extreme length in
15 See Control and Audit of Public Receipts and Expenditure, 1885, pp. 61-64, and Forms, No. 8 to No. 12.
comparatively modern times. In 1811 England was in the midst of the great war with France; the King was a lunatic, a Regency Bill was not yet passed, and a million pounds were required for the payment of the navy. Lord Grenville, the then Auditor of the Exchequer, whose office corresponded to a certain extent with that of the present Comptroller and Auditor General, refused to draw the necessary order on the Bank, and thus prevented the million, though granted by Parliament, from being drawn out. The ground of his lordship's refusal was that he had received no authority under the Great Seal or the Privy Seal, and the reason why there was no authority under the Privy Seal was that the King was incapable of affixing the Sign Manual, and that the Sign Manual not being affixed, the clerks of the Privy Seal felt, or said they felt, that they could not consistently with their oaths allow the issue of letters of Privy Seal upon which the warrant under the Privy Seal was then prepared. All the world knew the true state of the case. The money was granted by Parliament, and the irregularity in the issue of the warrants was purely technical, yet the law officers — members themselves of the Ministry — advised that Lord Grenville and the clerks of the Privy Seal were in the right. This inconvenient and, as it seems to modern readers, unreasonable display of legal scrupulosity masked, it may be suspected, a good deal of political byplay. If Lord Grenville and his friends had not been anxious that me Ministry should press on the Regency Bill, the officials of the Exchequer would perhaps have seen their way through the technical difficulties which, as it was, appeared insurmountable, and it is impossible not to suspect that Lord Grenville acted rather as a party leader than as Auditor of the Exchequer. But be this as it may, the debates of i8ii16 prove to demonstration that a Comptroller General can, if he chooses, put an immediate check on any irregular dealings with public moneys.
In exercise of his duty as Auditor the Comptroller General audits all the public accounts;17 he reports annually to Parliament upon the
16 Cobbett'sParl. Debates, xviii. pp. 678, 734, 787.
17 In auditing the accounts he inquires into the legality of the purposes for which public money has been spent, and in his report to Parliament calls attention to any expenditure of doubtful legality.
accounts of the past year. Accounts of the expenditure under the Appropriation Act are submitted by him at the beginning of every session to the Public Accounts Committee of the House of Commons — a Committee appointed for the examination of the accounts — showing the appropriation of the sums granted by Parliament to meet the public expenditure. This examination is no mere formal or perfunctory supervision; a glance at the reports of the Committee shows that the smallest expenses which bear the least appearance of irregularity, even if amounting only to a pound or two, are gone into and discussed by the Committee. The results of their discussions are published in reports submitted to Parliament.
The general result of this system of control and audit is, that in England we possess accounts of the national expenditure of an accuracy which cannot be rivalled by the public accounts of other countries, and that every penny of the national income is expended under the authority and in accordance with the provisions of some Act of Parliament.18
How, a foreign critic might ask, is the authority of the Comptroller General compatible with the orderly transaction of public business; how, in short, does it happen that difficulties like those which arose in 1811 are not of constant recurrence?
18 The main features of the system for the control and audit of national expenditure have been authoritatively summarised as follows:
"The gross revenue collected is paid into the Exchequer.
"Issues from the Exchequer can only be made to meet expenditure which has been sanctioned by Parliament, and to an amount not exceeding the sums authorised.
"The issues from the Exchequer and the audit of Accounts are under the control of the Comptroller and Auditor General, who is an independent officer responsible to the House of Commons, and who can only be removed by vote of both Houses of Parliament.
"Such payments only can be charged against the vote of a year as actually came in course of payment within the year.
"The correct appropriation of each item of Receipt and Expenditure is ensured.
"All unexpended balances of the grants of a year are surrendered to the Exchequer, as also are all extra Receipts and the amount of Appropriations-in-Aid received in excess of the sum estimated to be taken in aid of the vote.
"The accounts of each year are finally reviewed by the House of Commons, through the Committee of Public Accounts, and any excess of expenditure over the amount voted by Parliament for any service must receive legislative sanction." — Control and Audit of Public Receipts and Expenditure, 1885, pp. 24, 25.
The general answer of course is, that high English officials, and especially officials removed from the sphere of politics, have no wish or temptation to hinder the progress of public business; the Auditor of the Exchequer was in 1811, be it noted, a peer and a statesman. The more technical reply is, that the law provides two means of overcoming the perversity or factiousness of any Comptroller who should without due reason refuse his sanction to the issue of public money. He can be removed from office on an address of the two Houses, and he probably might, it has been suggested, be coerced into the proper fulfilment of his duties by a mandamus19 from the High Court of Justice. The worth of this suggestion, made by a competent lawyer, has never been, and probably never will be tested. But the possibility that the executive might have to seek the aid of the Courts in order to get hold of moneys granted by Parliament, is itself a curious proof of the extent to which the expenditure of the revenue is governed by law, or, what is the same thing, may become dependent on the decision of the judges upon the meaning of an Act of Parliament.
19 See Bowyer, Commentaries on Constitutional Law, p. 210; Hearn, Government of England (and ed.), p. 375.
Chapter XI
THE RESPONSIBILITY OF MINISTERS
Ministerial responsibility means two utterly different things. It means in ordinary parlance the responsiblity of Ministers to Parliament, or, the liability of Ministers to lose their offices if they cannot retain the confidence of the House of Commons.
This is a matter depending on the conventions of the constitution with which law has no direct concern.
It means, when used in its strict sense, the legal responsibility of every Minister for every act of the Crown in which he takes part.
This responsibility, which is a matter of law, rests on the following foundation. There is not to be found in the law of England, as there is found in most foreign constitutions, an explicit statement that the acts of the monarch must always be done through a Minister, and that all orders given by the Crown must, when expressed in writing, as they generally are, be countersigned by a Minister. Practically, however, the rule exists.
In order that an act of the Crown may be recognised as an expression of the Royal will and have any legal effect whatever, it must in general be done with the assent of, or through some Minister or Ministers who will be held responsible for it. For the Royal will can, speaking generally, be expressed only in one of three different ways, viz. (i) by order in Council; (2) by order, commission, or warrant under the sign-manual; (3) by proclamations, writs, patents, letters, or other documents under the Great Seal.
An order in Council is made by the King "by and with the advice of his Privy Council"; and those persons who are present at the meeting of the Council at which the order was made, bear the responsibility for what was there done. The sign-manual warrant, or other document to which the sign-manual is affixed, bears in general the coun-tersignature of one responsible Minister or of more than one; though it is not unfrequently authenticated by some one of the seals for the use of which a Secretary of State is responsible. The Great Seal is affixed to a document on the responsibility of the Chancellor, and there may be other persons also, who, as well as the Chancellor, are made responsible for its being affixed. The result is that at least one Minister and often more must take part in, and therefore be responsible for, any act of the Crown which has any legal effect, e.g. the making of a grant, the giving of an order, or the signing of a treaty.1
The Minister or servant of the Crown who thus takes part in giving expression to the Royal will is legally responsible for the act in which he is concerned, and he cannot get rid of his liability by pleading that he acted in obedience to royal orders. Now supposing that the act done is illegal, the Minister concerned in it becomes at once liable to criminal or civil proceedings in a Court of Law. In some instances, it is true, the only legal mode in which his offence could be reached may be an impeachment. But an impeachment itself is a regular though unusual mode of legal procedure before a recognised tribunal, namely, the High Court of Parliament. Impeachments indeed may, though one took place as late as 1805, be thought now obsolete, but the cause why this mode of enforcing Ministerial responsibility is almost out of date is partly that Ministers are now rarely in a position where there is even a temptation to commit the sort of crimes for which impeachment is an appropriate remedy, and partly that the result aimed at by impeachment could now in many cases be better obtained by proceedings before an ordinary Court. The point,
i On the whole of this subject the reader should consult Anson, Law and Custom of the Constitution, vol. ii., The Crown (3rd ed.), App. to ch. i. pp. 50-59. Anson gives by far the best and fullest account with which I am acquainted of the forms for the expression of the Royal pleasure and of the effect of these forms in enforcing the legal responsibility of Ministers. See also Clode, Military Forces of the Crown, ii. pp. 320, 321; Huron v.Denman, 2 Ex. 167, 189, and the Great Seal Act, 1884, 47 & 48 Viet. c. 30.
however, which should never be forgotten is this: it is now well-established law that the Crown can act only through Ministers and according to certain prescribed forms which absolutely require the co-operation of some Minister, such as a Secretary of State or the Lord Chancellor, who thereby becomes not only morally but legally responsible for the legality of the act in which he takes part. Hence, indirectly but surely, the action of every servant of the Crown, and therefore in effect of the Crown itself, is brought under the supremacy of the law of the land. Behind Parliamentary responsibility lies legal liability, and the acts of Ministers no less than the acts of subordinate officials are made subject to the rule of law.
Introduction.
Chapter XII
RULE OF LAW COMPARED WITH DROIT ADMINISTRATE?'
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"n many continental countries, and notably in France, there exists a scheme of administrative law2 — known to Frenchmen as droit administmtif — which rests on ideas foreign to the fundamental assumptions of our English common law, and especially to what we have termed the rule of law. This opposition is specially apparent in the protection given in foreign countries to servants of the State, or, as we say in England, of the Crown, who, whilst acting in pursuance
1 On droit administratif see Aucoc, Conferences sur iadministration et le droit administratif (yd ed.); Berthelemy, Traite Elementaire de Droit Administratif ($th ed. 1908); Chardon, L'Administration de la France, Les Fonctionnaires (1908); Duguit, Manuel de Droit Constitutionnel (1907); Duguit, Traite de Droit Constitutionnel (1911); Duguit, L'Etat, lesgouvernants et les agents (1903); Esmein, Elements de Droit Constitutionnel (1896); Hauriou, Precis de Droit Administratif; Jac-quelin, La Juridiction Administrative (1891); Jacquelin, Les Principes Dominants du Contentieux Administratif (1899); Jeze, Les Principes Generaux du Droit Administratif (1904); Laferriere. Traite de la Juridiction Administrative, 2 vols. (2nd ed. 1896); Teissier, La Responsabilite de la Puissance Publique(i<)o6).
It is not my aim in this chapter to give a general account of droit administratif. My object is to treat of droit administratif in so far as its fundamental principles conflict with modern English ideas of the rule of law, and especially to show how it always has given, and still does give, special protection or privileges to the servants of the state. I cannot, however, avoid mentioning some other aspects of a noteworthy legal system or omit some notice of the mode in which the administrative law of France, based as it originally was on the prerogatives of the Crown under the ancien regime, has of recent years, by the genius of French legists, been more or less "judirialised" — if so I may render the French term "juridictionnaliser" — and incorporated with the law of the land.
2 Known in different countries by different names, e.g. in Germany as Verwaltungsrecht. The administrative law of France comes nearer than does the Verwaltungsrecht of Germany
of official orders, or in the bona fide attempt to discharge official duties, are guilty of acts which in themselves are wrongful or unlawful. The extent of this protection has in France — with which country we are for the most part concerned — varied from time to time. It was once all but complete; it is now far less extensive than it was thirty-six years ago.3 It forms only one portion of the whole system of droit administratif, but it is the part of French law to which in this chapter I wish to direct particularly the attention of students. I must, however, impress upon them that the whole body of droit administratif is well worth their study. It has been imitated in most of the countries of continental Europe. It illustrates, by way of contrast, the full meaning of that absolute supremacy of the ordinary law of the land — a foreign critic might say of that intense legalism — which we have found to be a salient feature of English institutions. It also illustrates, by way of analogy rather than of contrast, some phases in the constitutional history of England. For droit administratif has, of recent years, been so developed as to meet the requirements of a modern and a democratic society, and thus throws light upon one stage at least in the growth of English constitutional law.4
Our subject falls under two main heads. The one head embraces the nature and the historical growth of droit administratif, and especially of that part thereof with which we are chiefly concerned. The other head covers a comparison between the English rule of law and the droit administratif of France.
For the term droit administratif English legal phraseology supplies no proper equivalent. The words "administrative law," which are its most natural rendering, are unknown to English judges and counsel, and are in themselves hardly intelligible without further explanation.
(conf. Otto Mayer, Le Droit Administratif Allemand, i. (French translation), p. 293 s. 17), to the rule of law as understood by Englishmen. Here, as elsewhere, it is the similarity as much as the dissimilarity between France and England which prompts comparison. The historical glories of French arms conceal the important fact that among the great States of Europe, France and England have the most constantly attempted, though with unequal success, to maintain the supremacy of the civil power against any class which defies the legitimate sovereignty of the nation.
3 Or than it still is throughout the German Empire. See Duguit, L'Etat, p. 624, note i.
4 See pp. 246-251, post.
This absence from our language of any satisfactory equivalent for the expression droit administratif is significant; the want of a name arises at bottom from our non-recognition of the thing itself. In England, and in countries which, like the United States, derive their civilisation from English sources, the system of administrative law and the very principles on which it rests are in truth unknown. This absence from the institutions of the American Commonwealth of anything answering to droit administratif arrested the observation of Tocqueville from the first moment when he began his investigations into the characteristics of American democracy. In 1831 he writes to an experienced French judge (magistral), Monsieur De Blosseville, to ask both for an explanation of the contrast in this matter between French and American institutions, and also for an authoritative explanation of the general ideas (notions generales) governing the droit administratif of his country.5 He grounds his request for information on his own ignorance6 about this special branch of French jurisprudence, and dearly implies that this want of knowledge is not uncommon among French lawyers.
When we know that a legist of Tocqueville's genius found it necessary to ask for instruction in the "general ideas" of administrative law, we may safely assume that the topic was one which, even in the eyes of a French lawyer, bore an exceptional character, and need not wonder that Englishmen find it difficult to appreciate the nature of rules which are, admittedly, foreign to the spirit and traditions of our
5 Tocqueville's language is so remarkable and bears so closely on our topic that it deserves quotation: "Ce qui m'empeche le plus, je vons avoue, de savoir ce qui sefait sur ces differents points en Amerique, c'est d'ignorer, a peu pres completement, ce qui existe en France. Vous savez que, chez nous, le droit administratif et le droit civil forment comme deux mondes separes, qui ne vivent point toujours en paix, mais qui ne sont ni assez amis ni assez ennemis pour se bien connaitre. }'ai toujours vecu dans I'un et suis fort ignorant de ce qui se passe dans I'autre. En meme temps quej'ai senti le besoin d'aajuerir les notions generales qui me manquent a eel egard, j'ai pense queje ne pouvais mieux fairequedem'adresser a vous." — Tocqueville, CEuvres Completes, vii. pp. 67, 68.
6 This want of knowledge is explainable, if not justifiable. In 1831 Tocqueville was a youth of not more than twenty-six years of age. There were at that date already to be found books on droit administratif written to meet the wants of legal practitioners. But the mass of interesting constitutional literature represented by the writings of Laferriere, Hauriou, Duguit, Jeze, or Berthelemy which now elucidates the theory, and traces the history of a particular and most curious branch of French law, had not come into existence.
institutions. It is, however, this very contrast between administrative law as it exists in France, and still more as it existed during by far the greater part of the nineteenth century, and the notions of equality before the law of the land which are firmly established in modern England, that mainly makes it worth while to study, not of course the details, but what Tocqueville calls the notions generates of French droit administmtif. Our aim should be to seize the general nature of administrative law and the principles on which the whole system of droit administratif depends, to note the salient characteristics by which this system is marked, and, lastly, to make dear to ourselves how it is that the existence of a scheme of administrative law makes the legal situation of every government official in France different from the legal situation of servants of the State in England, and in fact establishes a condition of things fundamentally inconsistent with what Englishmen regard as the due supremacy of the ordinary law of the land.
Droit administratif, or "administrative law," has been defined by French authorities in general terms as "the body of rules which regulate the relations of the administration or of the administrative authority towards private citizens";7 and Aucoc in his work on droit administratif describes his topic in this very general language:8
Administrative law determines (i) the constitution and the relations of those organs of society which are charged with the care of those social interests (interets collectifs) which are the object of public administration, by which term is meant the different representatives of society among which the State is the most important, and (2) the relation of the administrative authorities toward the citizens of the State.
These definitions are wanting in precision, and their vagueness is not without significance. As far, however, as an Englishman may venture to deduce the meaning of droit administratif from foreign treatises, it may, for our present purpose, be best described as that
7 "On le definit ordinairement I'ensemble des regies qui regissent les rapports de I'administration ou de I'autoriteadministrativeavec les citoyens." — Aucoc, Droit Administratif, i. s. 6.
8 "Nous prefererions dire, pour notrepart: Le droit administratif determine: i°la constitution et les rapports des organes de la societe charges du soin des interets collectifs qui font I'objet de I'adminis-tration publique, c'est-a-dire des differentes personnifications de la societe, dont I'ttat est la plus importante; 2° les rapports des autorites administratives avec les dtoyens." — Ibid.
W Historica/ development.
portion of French law which determines, (i.) the position and liabilities of all State officials, (ii.) the civil rights and liabilities of private individuals in their dealings with officials as representatives of the State, and (iii.) the procedure by which these rights and liabilities are enforced.
An English student will never, it should particularly be noticed, understand this branch of French law unless he keeps his eye firmly fixed upon its historical aspect, and carefully notes the changes, almost amounting to the transformation, which droit administratif has undergone between 1800 and 1908, and above all during the last thirty or forty years. The fundamental ideas which underlie this department of French law are, as he will discover, permanent, but they have at various times been developed in different degrees and in different directions. Hence any attempt to compare the administrative law of France with our English rule of law will be deceptive unless we note carefully what are the stages in the law of each country which we bring into comparison. If, for instance, we compare the law of England and the law of France as they stand in 1908, we are likely to fancy (in my judgment erroneously) that, e.g. in regard to the position or privileges of the State and its servants when dealing with private citizens, there may be little essential difference between the laws of the two countries. It is only when we examine the administrative law of France at some earlier date, say between 1800 and 1815, or between the accession to the throne of Louis Philippe (1830) and the fall of the Second Empire (1870), that we can rightly appreciate the essential opposition between our existing English rule of law and the fundamental ideas which lie at the basis of administrative law not only in France but in any country where this scheme of State or official law has obtained recognition.
The modern administrative law of France has grown up, or at any rate taken its existing form, during the nineteenth century; it is the outcome of more than a hundred years of revolutionary and constitutional conflict.9 Its development may conveniently be divided into three periods, marked by the names of the Napoleonic Empire and
9 For the history of droit administratif see especially Laferriere, i. (2nded.),bk. i. c. i.-iv. pp. 137-301. The Second Republic (1848-1851) produced little permanent effect on French administrative law. I have included it in the second of our three periods.
the Restoration (1800-1830), the Orleanist Monarchy and the Second Empire (1830-1870), the Third Republic (1870-1908).
FIRST PERIOD: NAPOLEON AND THE RESTORATION, 1800-1830
In the opinion of French men true droit administratif owes its origin to the consular constitution of the Year VOX (1800) created by Bonaparte after the coup d'etat of the i8th of Brumaire. But legists,10 no less than historians, admit that the ideas on which droit administratif rests, may be rightly traced back, as they have been by Tocqueville,u to the ancien regime; every feature of Bonaparte's governmental fabric recalls some characteristic of the ancient monarchy; his Conseil d'Etat revives the Conseil du Roi, his Prefects are copies of the royal Intendants. Yet in this instance public opinion has come to a right conclusion. It was from Bonaparte that modern droit administratif received its form. If he was the restorer of the ancien regime, he was also the preserver of the Revolution. Whatever he borrowed from the traditions of old France he adapted to the changed conditions of the new France of 1800. At his touch ancient ideas received a new character and a new life. He fused together what was strongest in the despotic traditions of the monarchy with what was strongest in the equally despotic creed of Jacobinism. Nowhere is this fusion more dearly visible than in the methods by which Bonaparte's legislation and policy gave full ex-
10 "Aussi haut que I'on remonte dans notre histoire, depuis que des juridictions regulieres ont etc instituees, on ne trouve p charges d'epoque ou les corps judiciaires charges d'appliquer les lois civiles et criminelles aient ete en meme temps appeles it statuer sur les difficultes en matiere d'administration publiaue." — Laferriere, i. p. 139, and compare ibid. p. 640.
11 "Ce qui apparait.. . quand on etudie les paperasses administrates, c'est I intervention continuelle du pouvoir administratif dans la sphere judidaire. Les legistes administratifs nous disent sans cesse, que leplus grand vice du gouvemement interieur de I'ancien regime etait que lesjuges administraient. On pourrait se plaindre avec autant de raison de ce que les administrateurs jugeaient. La seule difference est que nous avons corrige I 'ancien regime sur le premier point, et I'avons imite sur le second. J'avais eu jusqu 'a present la simplicite de croire que ce que nous appelons la justice administrative etait une creation de Napoleon. C'est du pur ancien regime conserve; et le principe que lors meme qu 'il s'agit de contrat, c'est-a-dire d'un engagementformel et reguilierement pris entre un particulier et I'Etat, c'est a I'Etat a juger la cause, cet axiome, inconnu chez la plupart des nations modemes, etait tenu pouraussi sacrepar un intendant de I'ancien regime, qu'il pourrait I'etre de nos jours par lepersonnage qui ressemble leplus a celui-la, je veux dire un prefet." — Tocqueville, CEuvres Completes, vi. pp. 221, 222.
Droit administratif — its two leading principles.
Privileges of the State.
Separation of powers.
pression to the ideas or conceptions of royal prerogative underlying the administrative practice of the ancien regime, and emphasised the jealousy felt in 1800 by every Frenchman of the least interference by the law Courts with the free action of the government. This jealousy itself, though theoretically justified by revolutionary dogma, was inherited by the Revolution from the statecraft of the monarchy.
Any one who considers with care the nature of the droit administratif of France, or the topics to which it applies, will soon discover that it rests, and always has rested, at bottom on two leading ideas alien to the conceptions of modern Englishmen.
The first of these ideas is that the government, and every servant of the government, possesses, as representative of the nation, a whole body of special rights, privileges, or prerogatives as against private citizens, and that the extent of these rights, privileges, or prerogatives is to be determined on principles different from the considerations which fix the legal rights and duties of one citizen towards another. An individual in his dealings with the State does not, according to French ideas, stand on anything like the same footing as that on which he stands in dealings with his neighbour.12
The second of these general ideas is the necessity of maintaining the so-called "separation of powers" (separation des pouvoirs), or, in other words, of preventing the government, the legislature, and the Courts from encroaching upon one another's province. The expression, however, separation of powers, as applied by Frenchmen to the relations of the executive and the Courts, with which alone we are here concerned, may easily mislead. It means, in the mouth of a
12 "Un particulier qui n'execute pas un marche doit a I'entrepreneur une indemnite proportionnee au gain dont il le prive; le Code civil I'etablit ainsi. L'administration qui rompt un tel marche ne doit d'indemnite qu'en raison de la perte eprouvee. C'est la regie de la jurisprudence administrative. A mains que le droit ne s'y oppose, elle tient que I'Etat, c'est-a-dire la collection de tous les citoyens, et le tresor public, c'est-a-dire Vensemble de tous les contribuables, doivent passer avant le citoyen ou le contribuable isoles, defendant un interet individuel." — Vivien, Etudes Administratives, i. pp. 141-142. This was the language of a French lawyer of high authority writing in 1853. The particular doctrine which it contains is now repudiated by French lawyers. Vivien's teaching, however, even though it be no longer upheld, illustrates the general view taken in France of the relation between the individual and the state. That Vivien's application of this view is now repudiated, illustrates the change which French droit administratif and the opinion of Frenchmen has undergone during the last fifty-five years.
French statesman or lawyer, something different from what we mean in England by the "independence of the judges," or the like expressions. As interpreted by French history, by French legislation, and by the decisions of French tribunals, it means neither more nor less than the maintenance of the principle that while the ordinary judges ought to be irremovable and thus independent of the executive, the government and its officials ought (whilst acting officially) to be independent of and to a great extent free from the jurisdiction of the ordinary Courts.13 It were curious to follow out the historical growth of the whole theory as to the "separation of powers." It rests apparently upon Montesquieu's Esprit des Lois, Book XI. c. 6, and is in some sort the offspring of a double misconception; Montesquieu misunderstood on this point the principles and practice of the English constitution, and his doctrine was in turn, if not misunderstood, exaggerated, and misapplied by the French statesmen of the Revolution. Their judgment was biassed, at once by knowledge of the inconveniences and indeed the gross evils which had resulted from the interference of the French "parliaments" in matters of State and by the belief that these Courts would offer opposition, as they had done before, to fundamental and urgently needed reforms. Nor were the leaders of French opinion uninfluenced by the traditional desire, felt as strongly by despotic democrats as by despotic kings, to increase the power of the central government by curbing the authority of the law Courts. The investigation, however, into the varying fate of a dogma which has undergone a different development on each side of the Atlantic would lead us too far from our immediate topic. All that we need note is the extraordinary influence exerted in France, and in all countries which have followed French examples, by this part of Montesquieu's teaching, and the extent to which it still underlies the political and legal institutions of the French Republic.
To the combination of these two general ideas may be traced four distinguishing characteristics of French administrative law.
The first of these characteristics is, as the reader will at once perceive, that the relation of the government and its officials towards
13 See Aucoc, Droit Administratif, ss. 20, 24.
(2) Law Courts without jurisdiction in matters concerning the State and administrative liti-tation to be etermined by administrative Courts.
private citizens must be regulated by a body of rules which are in reality laws, but which may differ considerably from the laws which govern the relation of one private person to another. This distinction between ordinary law and administrative law is one which since 1800 has been fully recognised in France, and forms an essential part of French public law, as it must form a part of the public law of any country where administrative law in the true sense exists.14
The second of these characteristics is that the ordinary judicial tribunals which determine ordinary questions, whether they be civil or criminal, between man and man, must, speaking generally, have no concern whatever with matters at issue between a private person and the State, i.e. with questions of administrative law, but that such questions, in so far as they form at all matter of litigation (contentieux administratif), must be determined by administrative Courts in some way connected with the government or the administration.
No part of revolutionary policy or sentiment was more heartily accepted by Napoleon than the conviction that the judges must never be allowed to hamper the action of the government. He gave effect to this conviction in two different ways.
In the first place, he constituted, or reconstituted, two classes of Courts. The one class consisted of "judicial" or, as we should say, "common law" Courts. They performed, speaking generally, but two functions. The one function was the decision of disputes in strictness between private persons; this duty was discharged by such Courts as the Courts of First Instance and the Courts of Appeal. The other function was the trial of all criminal cases; this duty was discharged by such Courts as the Correctional Courts (Tribunaux Correctionnels) or the Courts of Assize15 (Cours d'Assises). At the head of all these judicial tribunals was placed, and still stands, the Court of Cassation (Cour de Cassation), whereof it is the duty to correct the errors in law of the inferior judicial Courts.16 The other class of so-called Courts were and are the administrative Courts, such as the Courts of the Prefects
14 Of course it is possible that rules of administrative law may exist in a country, e.g. in Belgium, where these rules are enforced only by the ordinary Courts.
15 The Courts of Assize are the only Courts in France where there is trial by jury.
16 The Cour de Cassation is not in strictness a Court of Appeal.
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