PART II
THE RULE OF LAW
Chapter IV
THE RULE OF LAW: ITS NATURE AND
GENERAL APPLICATIONS
illegibleTwo features have at all times since the Norman Conquest characterised the political institutions of England.
The first of these features is the omnipotence or undisputed supremacy throughout the whole country of the central government. This authority of the state or the nation was during the earlier periods of our history represented by the power of the Crown. The King was the source of law and the maintainer of order. The maxim of the Courts, “tout fuit in luy et vient de lui al commencement,” was originally the expression of an actual and undoubted fact. This royal supremacy has now passed into that sovereignty of Parliament which has formed the main subject of the foregoing chapters.
The second of these features, which is closely connected with the first, is the rule or supremacy of law. This peculiarity of our polity is well expressed in the old saw of the Courts, “La ley est le plus haute inheritance, que le roy ad; car par la ley it même et toutes ses sujets sont rulés, et si la ley nefuit, nul roi, et nul inheritance sera.”
This supremacy of the law, or the security given under the English constitution to the rights of individuals looked at from various points of view, forms the subject of this part of this treatise.
The rule of law in England noticed by foreign observers. Foreign observers of English manners, such for example as Voltaire, De Lolme, Tocqueville, or Gneist, have been far more struck than have Englishmen themselves with the fact that England is a country governed, as is scarcely any other part of Europe, under the rule of law; and admiration or astonishment at the legality of English habits and feeling is nowhere better expressed than in a curious passage from Tocqueville's writings, which compares the Switzerland and the England of 1836 in respect of the spirit which pervades their laws and manners. He writes:
Tocqueville on the want of respect for law in Switzerland contrast with England. I am not about to compare Switzerland with the United States, but with Great Britain. notabout When you examine the two countries, or even if you only pass through them, you perceive, in my judgment, the most astonishing differences between them. Take it all in all, England seems to be much more republican than the Helvetic Republic. The principal differences are found in the institutions of the two countries, and especially in their customs (moeurs).
- 1.In almost all the Swiss Cantons liberty of the press is a very recent thing.
- 2.In almost all of them individual liberty is by no means completely guaranteed, and a man may be arrested administratively and detained in prison without much formality.
- 3.The Courts have not, generally speaking, a perfectly independent position.
- 4.In all the Cantons trial by jury is unknown.
- 5.In several Cantons the people were thirty-eight years ago entirely without political rights. Aargau, Thurgau, Tessin, Vaud, and parts of the Cantons of Zurich and Berne were in this condition.
The preceding observations apply even more strongly to customs than to institutions.
- i.In many of the Swiss Cantons the majority of the citizens are quite without the taste or desire for self-government, and have not acquired the habit of it. In any crisis they interest themselves about their affairs, but you never see in them the thirst for political rights and the craving to take part in public affairs which seem to torment Englishmen throughout their lives.
- ii.The Swiss abuse the liberty of the press on account of its being a recent form of liberty, and Swiss newspapers are much more revolutionary and much less practical than English newspapers.
- iii.The Swiss seem still to look upon associations from much the same point of view as the French, that is to say, they consider them as a means of revolution, and not as a slow and sure method for obtaining redress of wrongs. the, art of associating and of making use of the right of association is but the little understood in Switzerland.
- iv.The Swiss do not show the love of justice which is such a strong characteristic of the English. Their Courts have no place in the political arrangements of the country and exert no influence on public opinion. The love of justice, the peaceful and legal introduction of the judge into the domain of politics, are perhaps the most standing characteristics of a free people.
- v.Finally, and this really embraces all the rest, the Swiss do not show at bottom that respect for justice, that love of law, that dislike of using force, without which no free nation can exist, which strikes strangers so forcibly in England.
I sum up these impressions in a few words.
Whoever travels in the United States is involuntarily and instinctively so impressed with the fact that the spirit of liberty and the taste for it have pervaded all the habits of the American people, that he cannot conceive of them under any but a Republican government. In the same way it is impossible to think of the English as living under any but a free government. But if violence were to destroy the Republican institutions in most of the Swiss Cantons, it would be by no means certain that after rather a short state of transition the people would not grow accustomed to the loss of liberty. In the United States and in England there seems to be more liberty in the customs than in the laws of the people. In Switzerland there seems to be more liberty in the laws than in the customs of the country,
illegible Tocqueville's language has a twofold bearing on our present topic. His words point in the clearest manner to the rule, predominance, or supremacy of law, as the distinguishing characteristic of English institutions. They further direct attention to the extreme vagueness of a trait of national character which is as noticeable as it is hard to portray. Tocqueville, we see, is clearly perplexed how to define a feature of English manners of which he at once recognises the existence; he mingles or confuses together the habit of self-government, the love of order, the respect for justice and a legal turn of mind. All these sentiments are intimately allied, but they cannot without confusion be identified with each other. If, however, a critic as acute as Tocqueville found a difficulty in describing one of the most marked peculiarities of English life, we may safely conclude that we ourselves, whenever we talk of Englishmen as loving the government of law, or of the supremacy of law as being a characteristic of the English constitution, are using words which, though they possess a real significance, are nevertheless to most persons who employ them full of vagueness and ambiguity. If therefore we are ever to appreciate the full import of the idea denoted by the term “rule, supremacy, or predominance of law,” we must first determine precisely what we mean by such expressions when we apply them to the British constitution.
Three meanings of rule of law. When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions.
Absence of arbitrary power on part of the government. We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary Courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.
Contrast between England and the Continent at present day. Modern Englishmen may at first feel some surprise that the “rule of law” (in the sense in which we are now using the term) should be considered as in any way a peculiarity of English institutions, since, at the present day, it may seem to be not so much the property of any one nation as a trait common to every civilised and orderly state. Yet, even if we confine our observation to the existing condition of Europe, we shall soon be convinced that the “rule of law” even in this narrow sense is peculiar to England, or to those countries which, like the United States of America, have inherited English traditions. In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England; and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.
illegible If, however, we confined our observation to the Europe of the twentieth century, we might well say that in most European countries the rule of law is now nearly as well established as in England, and that private individuals at any rate who do not meddle in politics have little to fear, as long as they keep the law, either from the Government or from any one else; and we might therefore feel some difficulty in understanding how it ever happened that to foreigners the absence of arbitrary power on the part of the Crown, of the executive, and of every other authority in England, has always seemed a striking feature, we might almost say the essential characteristic, of the English constitution.
Our perplexity is entirely removed by carrying back our minds to the time when the English constitution began to be criticised and admired by foreign thinkers. During the eighteenth century many of the continental governments were far from oppressive, but there was no continental country where men were secure from arbitrary power. The singularity of England was not so much the goodness or the leniency as the legality of the English system of government. When Voltaire came to England—and Voltaire represented the feeling of his age—his predominant sentiment clearly was that he had passed out of the realm of despotism to a land where the laws might be harsh, but where men were ruled by law and not by caprice. He had good reason to know the difference. In 1717 Voltaire was sent to the Bastille for a poem which he had not written, of which he did not know the author, and with the sentiment of which he did not agree. What adds to the oddity, in English eyes, of the whole transaction is that the Regent treated the affair as a sort of joke, and, so to speak, “chaffed” the supposed author of the satire “I have seen” on being about to pay a visit to a prison which he “had not seen.” In 1725 Voltaire, then the literary hero of his country, was lured off from the table of a Duke, and was thrashed by lackeys in the presence of their noble master; he was unable to obtain either legal or honourable redress, and because he complained of this outrage, paid a second visit to the Bastille. This indeed was the last time in which he was lodged within the walls of a French gaol, but his whole life was a series of contests with arbitrary power, and nothing but his fame, his deftness, his infinite resource, and ultimately his wealth, saved him from penalties far more severe than temporary imprisonment. Moreover, the price at which Voltaire saved his property and his life was after all exile from France. Whoever wants to see how exceptional a phenomenon was that supremacy of law which existed in England during the eighteenth century should read such a book as Morley's Life of Diderot. The effort lasting for twenty-two years to get the Encyclopédie published was a struggle on the part of all the distinguished literary men in France to obtain utterance for their thoughts. It is hard to say whether the difficulties or the success of the contest bear the strongest witness to the wayward arbitrariness of the French Government.
Royal lawlessness was not peculiar to specially detestable monarchs such as Louis the Fifteenth: it was inherent in the French system of administration. An idea prevails that Louis the Sixteenth at least was not an arbitrary, as he assuredly was not a cruel ruler. But it is an error to suppose that up to 1789 anything like the supremacy of law existed under the French monarchy. The folly, the grievances, and the mystery of the Chevalier D'Eon made as much noise little more than a century ago as the imposture of the Claimant in our own day. The memory of these things is not in itself worth reviving. What does deserve to be kept in remembrance is that in 1778, in the days of Johnson, of Adam Smith, of Gibbon, of Cowper, of Burke, and of Mansfield, during the continuance of the American war and within eleven years of the assembling of the States General, a brave officer and a distinguished diplomatist could for some offence still unknown, without trial and without conviction, be condemned to undergo a penance and disgrace which could hardly be rivalled by the fanciful caprice of the torments inflicted by Oriental despotism. Nor let it be imagined that during the latter part of the eighteenth century the government of France was more arbitrary than that of other countries. To entertain such a supposition is to misconceive utterly the condition of the continent. In France, law and public opinion counted for a great deal more than in Spain, in the petty States of Italy, or in the Principalities of Germany. All the evils of despotism which attracted the notice of the world in a great kingdom such as France existed under worse forms in countries where, just because the evil was so much greater, it attracted the less attention. The power of the French monarch was criticised more severely than the lawlessness of a score of petty tyrants, not because the French King ruled more despotically than other crowned heads, but because the French people appeared from the eminence of the nation to have a special claim to freedom, and because the ancient kingdom of France was the typical representative of despotism. This explains the thrill of enthusiasm with which all Europe greeted the fall of the Bastille. When the fortress was taken, there were not ten prisoners within its walls; at that very moment hundreds of debtors languished in English goals. Yet all England hailed the triumph of the French populace with a fervour which to Englishmen of the twentieth century is at first sight hardly comprehensible. Reflection makes clear enough the cause of a feeling which spread through the length and breadth of the civilised world. The Bastille was the outward and visible sign of lawless power. Its fall was felt, and felt truly, to herald in for the rest of Europe that rule of law which already existed in England.
Every man subject to ordinary law administered by ordinary tribunals. We mean in the second place, when we speak of the “rule of law” as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.
In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. Officials, such for example as soldiers or clergymen of the Established Church, are, it is true, in England as elsewhere, subject to laws which do not affect the rest of the nation, and are in some instances amenable to tribunals which have no jurisdiction over their fellow-countrymen; officials, that is to say, are to a certain extent governed officials, be termed official law. But this fact is in no way inconsistent with the principle that all men are in England subject to the law of the realm; for though a soldier or a clergyman incurs from his position legal liabilities from which other men are exempt, he does not (speaking generally) escape thereby from the duties of an ordinary citizen.
contrast on respect between gland illegible An Englishman naturally imagines that rule of law (in the sense in which we are now using the term) is a trait common to all civilised societies. But this supposition is erroneous. Most European nations had indeed, by the end of the eighteenth century, passed through that stage of development (from which England emerged before the end of the sixteenth century) when nobles, priests, and others could defy the law. But it is even now far from universally tree that in continental countries all persons are subject to one and the same law, or that the Courts are supreme throughout the state. If we take France as the type of a continental state, we may assert, with substantial accuracy, that officials—under which word should be induded all persons employed in the service of the state—are, or have been, in their official capacity, to some extent exempted from the ordinary law of the land, protected from the jurisdiction of the ordinary tribunals, and subject in certain respects only to official law administered by official bodies.
illegible There remains yet a third and a different sense in which the “rule of law” or the predominance of the legal spirit may be described as a special attribute of English institutions. We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general prindples of the constitution.
This is one portion at least of the fact vaguely hinted at in the current but misguiding statement that “the constitution has not been made but has grown.” This dictum, if taken literally, is absurd.
Political institutions (however the proposition may be at times ignored) are the work of men, owe their origin and their whole existence to human will. Men did not wake up on a summer morning and find them sprung up. Neither do they resemble trees, which, once planted, are “aye growing” while men “are sleeping.” In every stage of their existence they are made what they are by human voluntary agency.
Yet, though this is so, the dogma that the form of a government is a sort of spontaneous growth so dosely bound up with the life of a people that we can hardly treat it as a product of human will and energy, does, though in a loose and inaccurate fashion, bring into view the fact that some politics, and among them the English constitution, have not been created at one stroke, and, far from being the result of legislation, in the ordinary sense of that term, are the fruit of contests carried on in the Courts on behalf of the rights of individuals. Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law.
Contrast between the English constitution and Foreign constitutions Hence flow noteworthy distinctions between the constitution of English England and the constitutions of most foreign countries.
There is in the English constitution an absence of those declarations or definitions of rights so dear to foreign constitutionalists. Such principles, moreover, as you can discover in the English constitution are, like all maxims established by judicial legislation, mere generalisations drawn either from the decisions or dicta of judges, or from statutes which, being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament. To put what is really the same thing in a somewhat different shape, the relation of the rights of individuals to the principles of the constitution is not quite the same in countries like Belgium, where the constitution is the result of a legislative act, as it is in England, where the constitution itself is based upon legal decisions. In Belgium, which may be taken as a type of countries possessing a constitution formed by a deliberate act of legislation, you may say with truth that the rights of individuals to personal liberty flow from or are secured by the constitution. In England the right to individual liberty is part of the constitution, because it is secured by the decisions of the Courts, extended or confirmed as they are by the Habeas Corpus Acts. If it be allowable to apply the formulas of logic to questions of law, the difference in this matter between the constitution of Belgium and the English constitution may be described by the statement that in Belgium individual fights are deductions drawn from the principles of the constitution, whilst in England the so-called principles of the constitution are inductions or generalisations based upon particular decisions pronounced by the Courts as to the rights of given individuals.
This is of course a merely formal difference. Liberty is as well secured in Belgium as in England, and as long as this is so it matters nothing whether we say that individuals are free from all risk of arbitrary arrest, because liberty of person is guaranteed by the constitution, or that the right to personal freedom, or in other words to protection from arbitrary arrest, forms part of the constitution because it is secured by the ordinary law of the land. But though this merely formal distinction is in itself of no moment, provided always that the rights of individuals are really secure, the question whether the fight to personal freedom or the right to freedom of worship is likely to be secure does depend a good deal upon the answer to the inquiry whether the persons who consciously or unconsciously build up the constitution of their country begin with definitions or declarations of rights, or with the contrivance of remedies by which rights may be enforced or secured. Now, most foreign constitution-makers have begun with declarations of rights. For this they have often been in nowise to blame. Their course of action has more often than not been forced upon them by the stress of circumstances, and by the consideration that to lay down general principles of law is the proper and natural function of legislators. But any knowledge of history suffices to show that foreign constitutionalists have, while occupied in defining rights, given insufficient attention to the absolute necessity for the provision of adequate remedies by which the rights they proclaimed might be enforced. The Constitution of 1791 proclaimed liberty of conscience, liberty of the press, the right of public meeting, the responsibility of government officials. But there never was a period in the recorded annals of mankind when each and all of these rights were so insecure, one might almost say so completely nonexistent, as at the height of the French Revolution. And an observer may well doubt whether a good number of these liberties or rights are even now so well protected under the French Republic as under the English Monarchy. On the other hand, there runs through the English constitution that inseparable connection between the means of enforcing a right and the right to be enforced which is the strength of judicial legislation. The saw, ubijus ibi remedium, becomes from this point of view something much more important than a mere tautologous proposition. In its bearing upon constitutional law, it means that the Englishmen whose labours gradually framed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently on providing remedies for the enforcement of particular rights or (what is merely the same thing looked at from the other side) for averting definite wrongs, than upon any declaration of the Rights of Man or of Englishmen. The Habeas Corpus Acts dedared no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty. Nor let it be supposed that this connection between rights and remedies which depends upon the spirit of law pervading English institutions is inconsistent with the existence of a written constitution, or even with the existence of constitutional declarations of rights. The Constitution of the United States and the constitutions of the separate States are embodied in written or printed documents, and contain declarations of rights. But the statesmen of America have shown unrivalled skill in providing means for giving legal security to the rights declared by American constitutions. The rule of law is as marked a feature of the United States as of England.
The fact, again, that in many foreign countries the rights of individuals, e.g. to personal freedom, depend upon the constitution, whilst in England the law of the constitution is little else than a generalisation of the rights which the Courts secure to individuals, has this important result. The general fights guaranteed by the constitution may be, and in foreign countries constantly are, suspended. They are something extraneous to and independent of the ordinary course of the law. The declaration of the Belgian constitution, that individual liberty is “guaranteed,” betrays a way of looking at the rights of individuals very different from the way in which such rights are regarded by English lawyers. We can hardly say that one right is more guaranteed than another. Freedom from arbitrary arrest, the right to express one's opinion on all matters subject to the liability to pay compensation for libellous or to suffer punishment for seditious or blasphemous statements, and the right to enjoy one's own property, seem to Englishmen all to rest upon the same basis, namely, on the law of the land. To say that the “constitution guaranteed” one class of rights more than the other would be to an Englishman an unnatural or a senseless form of speech. In the Belgian constitution the words have a definite meaning. They imply that no law invading personal freedom can be passed without a modification of the constitution made in the special way in which alone the constitution can be legally changed or amended. This, however, is not the point to which our immediate attention should be directed. The matter to be noted is, that where the right to individual freedom is a result deduced from the principles of the constitution, the idea readily occurs that the right is capable of being suspended or taken away. Where, on the other hand, the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land, the right is one which can hardly be destroyed without a thorough revolution in the institutions and manners of the nation. The so-called “suspension of the Habeas Corpus Act” bears, it is true, a certain similarity to what is called in foreign countries “suspending the constitutional guarantees.” But, after all, a statute suspending the Habeas Corpus Act fails very far short of what its popular name seems to imply; and though a serious measure enough, is not, in reality, more than a suspension of one particular remedy for the protection of personal freedom. The Habeas Corpus Act may be suspended and yet Englishmen may enjoy almost all the rights of citizens. The constitution being based on the rule of law, the suspension of the constitution, as far as such a thing can be conceived possible, would mean with us nothing less than a revolution.
Summary of meaning of Rule law That “rule of law,” then, which forms a fundamental principle of the constitution, has three meanings, or may be regarded from three different points of view.
It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else.
It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts; the “rule of law” in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really corresponding to the “administrative law” (droit administratif) or the “administrative tribunals” (tribunaux administratifs) of France. The notion which lies at the bottom of the “administrative law” known to foreign countries is, that affairs or disputes in which the government or its servants are concerned are beyond the sphere of the civil Courts and must be dealt with by special and more or less official bodies. This idea is utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs.
The “rule of law,” lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts; that, in short, the principles of private law have with us been by the action of the Courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.
illegible rule of law on illegible of constitution General propositions, however, as to the nature of the rule of law carry us but a very little way. If we want to understand what that principle different aspects and developments really means, we must try to trace its influence throughout some of the main provisions of the constitution. The best mode of doing this is to examine with care the manner in which the law of England deals with the following topics, namely, the right to personal freedom; the right to freedom of discussion; the right of public meeting; the use of martial law; the rights and duties of the army; the collection and expenditure of the public revenue; and the responsibility of Ministers. The true nature further of the rule of law as it exists in England will be illustrated by contrast with the idea of droit administratif, or administrative law, which prevails in many continental countries. These topics will each be treated of in their due order. The object, however, of this treatise, as the reader should remember, is not to provide minute and full information, e.g. as to the Habeas Corpus Acts, or other enactments protecting the liberty of the subject; but simply to show that these leading heads of constitutional law, which have been enumerated, these “articles,” so to speak, of the constitution, are both governed by, and afford illustrations of, the supremacy throughout English institutions of the law of the land. If at some future day the law of the constitution should be codified, each of the topics I have mentioned would be dealt with by the sections of the code. Many of these subjects are actually dealt with in the written constitutions of foreign countries, and notably in the articles of the Belgian constitution, which, as before noticed, makes an admirable summary of the leading maxims of English constitutionalism. It will therefore often be a convenient method of illustrating our topic to take the article of the Belgian, or it may be of some other constitution, which bears on the matter in hand, as for example the right to personal freedom, and to consider how far the principle therein embodied is recognised by the law of England; and if it be so recognised, what are the means by which it is maintained or enforced by our Courts. One reason why the law of the constitution is imperfectly understood is, that we too rarely put it side by side with the constitutional provisions of other countries. Here, as elsewhere, comparison is essential to recognition.
Chapter V
THE RIGHT TO PERSONAL FREEDOM
The seventh article of the Belgian constitution establishes in that country prindples which have long prevailed in England. The terms thereof so curiously illustrate by way of contrast some: marked features of English constitutional law as to be worth quotation.
Art 7. La liberté individuelle est garantie.
Nul ne peut être poursuivi que dans les cas préous par la loi, et clans la forme qu'elle prescrit.
Hors le cas de flagrant délit, mul ne peut êtrearrêté qu'en vertu de i ordonnance motivée du juge, qui dolt être signifiée au moment de i arrestation, ou au plus tard dans les vingt-quatre heures.
low sered in England The security which an Englishman enjoys for personal freedom does not really depend upon or originate in any general proposition contained in any written document. The nearest approach which our statute-book presents to the statement contained in the seventh article of the Belgian constitution is the celebrated thirty-ninth article of the Magna Charta:
Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae,
which should be read in combination with the declarations of the Petition of Right. And these enactments (if such they can be called) are rather records of the existence of a right than statutes which confer it. The expression again, “guaranteed,” is, as I have already pointed out, extremely significant; it suggests the notion that personal liberty is a special privilege insured to Belgians by some power above the ordinary law of the land. This is an idea utterly alien to English modes of thought, since with us freedom of person is not a special privilege but the outcome of the ordinary law of the land enforced by the Courts. Here, in short, we may observe the application to a particular case of the general principle that with us individual rights are the basis, not the result, of the law of the constitution.
The proclamation in a constitution or charter of the right to personal freedom, or indeed of any other right, gives of itself but slight security that the right has more than a nominal existence, and students who wish to know how far the right to freedom of person is in reality part of the law of the constitution must consider both what is the meaning of the right and, a matter of even more consequence, what are the legal methods by which its exerdse is secured.
The right to personal liberty as understood in England means in substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. That anybody should suffer physical restraint is in England prima facie illegal, and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it. Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law, i.e. (speaking again in very general terms indeed) under some legal warrant or authority, and, what is of far more consequence, it is secured by the provision of adequate legal means for the enforcement of this principle. These methods are twofold namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus. Let us examine the general character of each of these remedies.
REDRESS FOR ARREST
illegible If we use the term redress in a wide sense, we may say that a person who has suffered a wrong obtains redress either when he gets the wrongdoer punished or when he obtains compensation for the damage inflicted upon him by the wrong.
Each of these forms of redress is in England open to every one whose personal freedom has been in any way unlawfully interfered with. Suppose, for example, that X without legal justification assaults A, by knocking him down, or deprives A of his freedom—as the technical expression goes, “imprisons” him—whether it be for a length of time, or only for five minutes; A has two courses open to him. He can have X convicted of an assault and thus cause him to be punished for his crime, or he can bring an action of trespass against X and obtain from X such compensation for the damage which A has sustained from X's conduct as a jury think that A deserves. Suppose that in 2725 Voltaire had at the instigation of an English lord been treated in London as he was treated in Paris. He would not have needed to depend for redress upon the goodwill of his friends or upon the favour of the Ministry. He could have pursued one of two courses. He could by taking the proper steps have caused all his assailants to be brought to trial as criminals. He could, if he had preferred it, have brought an action against each and all of them: he could have sued the nobleman who caused him to be thrashed, the footmen who thrashed him, the policemen who threw him into gaol, and the gaoler or lieutenant who kept him there. Notice particularly that the action for trespass, to which Voltaire would have had recourse, can be brought, or, as the technical expression goes, “lies,” against every person throughout the realm. It can and has been brought against governors of colonies, against secretaries of state, against officers who have tried by Court-martial persons not subject to military law, against every kind of official high or low. Here then we come across another aspect of the “rule of law.” No one of Voltaire's enemies would, if he had been injured in England, have been able to escape from responsibility on the plea of acting in an official character or in obedience to his official superiors, Nor would any one of them have been able to say that the degree of his guilt could in any way whatever be determined by any more or less official Court. Voltaire, to keep to our example, would have been able in England to have brought each and all of his assailants, including the officials who kept him in prison, before an ordinary Court, and therefore before judges and jurymen who were not at all likely to think that official zeal or the orders of official superiors were either a legal or a moral excuse for breaking the law.
Before quitting the subject of the redress afforded by the Courts for the damage caused by illegal interference with any one's personal freedom, we shall do well to notice the strict adherence of the judges in this as in other cases to two maxims or principles which underlie the whole law of the constitution, and the maintenance of which has gone a great way both to ensure the supremacy of the law of the land and ultimately to curb the arbitrariness of the Crown. The first of these maxims or principles is that every wrongdoer is individually responsible for every unlawful or wrongful act in which he takes part, and, what is really the same thing looked at from another point of view, cannot, if the act be unlawful, plead in his defence that he did it under the orders of a master or superior. Voltaire, had he been arrested in England, could have treated each and all of the persons engaged in the outrage as individually responsible for the wrong done to him. Now this doctrine of individual responsibility is the real foundation of the legal dogma that the orders of the King himself are no justification for the commission of a wrongful or illegal act. The ordinary rule, therefore, that every wrongdoer is individually liable for the wrong he has committed, is the foundation great constitutional doctrine of Ministerial responsibility. The second of these noteworthy maxims is, that the Courts give a remedy for the infringement of a right whether the injury done be great or small. The assaults and imprisonment from which Voltaire suffered were serious wrongs; but it would be an error to fancy, as persons who have no experience in the practice of the Courts are apt to do, the proceedings for trespass or for false imprisonment can where personal liberty is seriously interfered with. Ninety-nine hundred actions for assault or false imprisonment have reference to injuries which in themselves are trifling. If one ruffian gives another a blow, if a policeman makes an arrest authority, if a schoolmaster keeps a scholar locked up at school for half on hour after he ought to have let the child go home, if in short X interferes unlawfully to however slight a degree with the personal liberty of A, the offender exposes himself to proceedings in A Court of, low and the sufferer, if he can enlist the sympathies of a jury, may recover heavy damages for the injury which he has or is supposed to have suffered. The law of England protects the right of personal liberty, as also every other legal right, against every kind of infringement, and gives the same kind of redress (I do not mean, of course, inflicts the same degree of punishment or penalty) for the pettiest as for the gravest invasions of personal freedom. This seems to us so much a matter of course as hardly to call for observation, but it may be suspected that few features in our legal system have done more to maintain the authority of the law than the fact that all offences great and small are dealt with on the same principles and by the same Courts. The law of England now knows nothing of exceptional offences punished by extraordinary tribunals.
The right of a person who has been wrongfully imprisoned on regaining his freedom to put his oppressor on trial as a criminal, or by means of an action to obtain pecuniary compensation for the wrong which he has endured, affords a most insufficient security for personal freedom. If X keeps A in confinement, it profits A little to know that if he could recover his freedom, which he cannot, he could punish and fine X. What A wants is to recover his liberty. Till this is done he cannot hope to punish the foe who has deprived him of it. It would have been little consolation for Voltaire to know that if he could have got out of the Bastille he could recover damages from his enemies. The possibility that he might when he got free have obtained redress for the wrong done him might, so far from being a benefit, have condemned him to lifelong incarceration. Liberty is not secure unless the law, in addition to punishing every kind of interference with a man's lawful freedom, provides adequate security that every one who without legal justification is placed in confinement shall be able to get free. This security is provided by the celebrated writ of habeas corpus and the Habeas Corpus Acts.
WRIT OF HABEAS CORPUS
writ of habeas corpus It is not within the scope of these lectures to give a history of the writ of habeas corpus or to provide the details of the legislation with regard to it. For minute information, both about the writ and about the Habeas Corpus Acts, you should consult the ordinary legal textbooks. My object is solely to explain generally the mode in which the law of England secures the right to personal freedom. I shall therefore call attention to the following points: first, the nature of the writ; secondly, the effect of the so-called Habeas Corpus Acts; thirdly, the precise effect of what is called (not quite accurately) the Suspension of the Habeas Corpus Act; and, lastly, the relation of any Act suspending the operation of the Habeas Corpus Act to an Act of Indemnity. Each of these matters has a close bearing on the law of the constitution.
Nature of Writ
illegible Legal documents constantly give the best explanation and illustration of legal principles. We shall do well therefore to examine with care the following copy of a writ of habeas corpus:
Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith,
The character of the document is patent on its face. It is an order issued, in the particular instance, by the Court of Queen's Bench calling upon a person by whom a prisoner is alleged to be kept in confinement to bring such prisoner—to “have his body,” whence the name habeas corpus-—before the Court to let the Court know on what ground the prisoner is confined, and thus to give the Court the opportunity of dealing with the prisoner as the law may require. The essence of the whole transaction is that the Court can by the writ of habeas corpus cause any person who is imprisoned to be actually brought before the Court and obtain knowledge of the reason why he is imprisoned; and then having him before the Court, either then and there set him free or else see that he is dealt with in whatever way the law requires, as, for example, brought speedily to trial.
The writ can be issued on the application either of the prisoner himself or of any person on his behalf, or (supposing the prisoner cannot act) then on the application of any person who believes him to be unlawfully imprisoned. It is issued by the High Court, or during vacation by any judge thereof; and the Court or a judge should and will always cause it to be issued on being satisfied by affidavit that there is reason to suppose a prisoner to be wrongfully deprived of his liberty. You cannot say with strictness that the writ is issued “as a matter of course,” for some ground must be shown for supposing that a case of illegal imprisonment exists. But the writ is granted “as a matter of right,—that is to say, the Court will always issue it if prima facie ground is shown for supposing that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ or order of the Court can be addressed to any person whatever, be he an official or a private individual, who has, or is supposed to have, another in his custody. Any disobedience to the writ exposes the offender to summary punishment for contempt of Court, and also in many cases to heavy penalties recoverable by the party aggrieved, To put the matter, therefore, in the most general terms, the case stands thus. The High Court of Justice possesses, as the tribunals which make up the High Court used to possess, the power by means of the writ of habeas corpus to cause any person who is alleged to be kept in unlawful confinement to be brought before the Court. The Court can then inquire into the reason why he is confined, and can, should it see fit, set him then and there at liberty. This power moreover is one which the Court always will exercise whenever ground is shown by any applicant whatever for the belief that any man in England is unlawfully deprived of his liberty.
The Habeas Corpus Acts
The Habeas Corpus Acts The right to the Writ of habeas corpus existed at common law long before the passing in 2679 of the celebrated Habeas Corpus Act, 31 Car. II. c. 2, and you may wonder how it has happened that this and the subsequent Act, 56 Geo. m. c. 100, are treated, and (for practical purposes) rightly treated, as the basis on which rests an Englishman's security for the enjoyment of his personal freedom. The explanation is, that prior to 1679 the right to the writ was often under various pleas and excuses made of no effect. The aim of the Habeas Corpus Acts has been to meet all the devices by which the effect of the writ can be evaded, either on the part of the judges, who ought to issue the same, and if necessary discharge the prisoner, or on the part of the gaoler or other person who has the prisoner in custody. The earlier Act of Charles the Second applies to persons imprisoned on a charge of crime; the later Act of George the Third applies to persons deprived of their liberty otherwise than on a criminal accusation.
Take these two dasses of persons separately.
illegible A person is imprisoned on a charge of crime. If he is imprisoned without any legal warrant for his imprisonment, he has a right to be set at liberty. If, on the other hand, he is imprisoned under a legal warrant, the object of his detention is to ensure his being brought to trial. His position in this case differs according to the nature of the offence with which he is charged. In the case of the lighter offences known as misdemeanours he has, generally the right to his liberty on giving security with proper sureties that he will in due course surrender himself to custody and appear and take his trial on such indictment as may be found against him in respect of the matter with which he is charged, or (to use technical expressions) he has the right to be admitted to bail. In the case, on the other hand, of the more serious offences, such as felonies or treasons, a person who is once committed to prison is not entitled to be let out on bail. The right of the prisoner is in this case simply the right to a speedy trial. The effect of the writ of habeas corpus would be evaded either if the Court did not examine into the validity of the warrant on which the prisoner was detained, and if the warrant were not valid release him, or if the Court, on ascertaining that he was legally imprisoned, did not cause him according to circumstances either to go out on bail or to be speedily brought to trial.
The Act provides against all these possible failures of justice. The law as to persons imprisoned under accusations of crime stands through the combined effect of the rules of the common law and of the statute in substance as follows. The gaoler who has such person in custody is bound when called upon to have the prisoner before the Court with the true cause of his commitment. If the cause is insufficient, the prisoner must of course be discharged; if the cause is suffident, the prisoner, in case he is charged with a misdemeanour, can in general insist upon being bailed till trial; in case, on the other hand, the charge is one of treason or felony, he can insist upon being tried at the first sessions after his committal, or if he is not then tried, upon being bailed, unless the witnesses for the Crown cannot appear. If he is not tried at the second sessions after his commitment, he can insist upon his release without bail. The net result, therefore, appears to be that while the Habeas Corpus Act is in force no person committed to prison on a charge of crime can be kept long in confinement, for he has the legal means of insisting upon either being let out upon bail or else of being brought to a speedy trial.
Habeas corpus Act, 1816, 56 Geo III. c.100. A person, again, who is detained in confinement but not on a charge of crime needs for his protection the means of readily obtaining a legal decision on the lawfulness of his confinement, and also of getting an immediate release if he has by law a right to his liberty. This is exactly what the writ of habeas corpus affords. Whenever any Englishman or foreigner is alleged to be wrongfully deprived of liberty, the Court will issue the writ, have the person aggrieved brought before the Court, and if he has a right to liberty set him free. Thus if a child is forcibly kept apart from his parents, if a man is wrongfully kept in confinement as a lunatic, if a nun is alleged to be prevented from leaving her convent,—if, in short, any man, woman, or child is, or is asserted on apparently good grounds to be, deprived of liberty, the Court will always issue a writ of habeas corpus to any one who has the aggrieved person in his custody to have such person brought before the Court, and if he is suffering restraint without lawful cause, set him flee. Till, however, the year 1816 (56 Geo. III.) the machinery for obtaining the writ was less perfect in the case of persons not accused of crime than in the case of those charged with criminal offences, and the effect of 56 Geo. III. c. 100, was in substance to apply to non-criminal cases the machinery of the great Habeas Corpus Act, 31 Car. II. c. 2.
At the present day, therefore, the securities for personal freedom are in England as complete as laws can make them. The right to its enjoyment is absolutely acknowledged. Any invasion of the right entails either imprisonment or fine upon the wrongdoer; and any person, whether charged with crime or not, who is even suspected to be wrongfully imprisoned, has, if there exists a single individual willing to exert himself on the victim's behalf, the certainty of having his case duly investigated, and, if he has been wronged, of recovering his freedom. Let us return for a moment to a former illustration, and suppose that Voltaire has been treated in London as he was treated in Paris. He most certainly would very rapidly have recovered his freedom. The procedure would not, it is true, have been in 1726 quite as easy as it is now under the Act of George the Third. Still, even then it would have been within the power of any one of his friends to put the law in motion. It would have been at least as easy to release Voltaire in 1726 as it was in 1772 to obtain by means of habeas corpus the freedom of the slave James Sommersett when actually confined in irons on board a ship lying in the Thames and bound for Jamaica.
The whole history of the writ of habeas corpus illustrates the predominant attention paid under the English constitution to “remedies,” that is, to modes of procedure by which to secure respect for a legal right, and by which to turn a merely nominal into an effective or real right. The Habeas Corpus Acts are essentially procedure Acts, and simply aim at improving the legal mechanism by means of which the acknowledged right to personal freedom may be enforced. They are intended, as is generally the case with legislation which proceeds under the influence of lawyers, simply to meet actual and experienced difficulties. Hence the Habeas Corpus Act of Charles the Second's reign was an imperfect or very restricted piece of legislative work, and Englishmen waited nearly a century and a half (1679–1816) before the procedure for securing the right to discharge from unlawful confinement was made complete. But this lawyer-like mode of dealing with a fundamental right had with all its defects the one great merit that legislation was directed to the right point. There is no difficulty, and there is often very little gain, in declaring the existence of a right to personal freedom. The true difficulty is to secure its enforcement. The Habeas Corpus Acts have achieved this end, and have therefore done for the liberty of Englishmen more than could have been achieved by any declaration of rights. One may even venture to say that these Acts are of really more importance not only than the general proclamations of the Rights of Man which have often been put forward in foreign countries, but even than such very lawyer-like documents as the Petition of Right or the Bill of Rights, though these celebrated enactments show almost equally with the Habeas Corpus Act that the law of the English constitution is at bottom judge-made law.
Effect of writ of habeas corpus on authority of judges. Every critic of the constitution has observed the effect of the Habeas Corpus Acts in securing the liberty of the subject; what has received less and deserves as much attention is the way in which the right to issue a writ of habeas corpus, strengthened as that right is by statute, determines the whole relation of the judicial body towards the executive. The authority to enforce obedience to the writ is nothing less than the power to release from imprisonment any person who in the opinion of the Court is unlawfully deprived of his liberty, and hence in effect to put an end to or to prevent any punishment which the Crown or its servants may attempt to inflict in opposition to the rules of law as interpreted by the judges. The judges therefore are in truth, though not in name, invested with the means of hampering or supervising the whole administrative action of the government, and of at once putting a veto upon any proceeding not authorised by the letter of the law. Nor is this power one which has fallen into disuse by want of exercise. It has often been put forth, and this too in matters of the greatest consequence; the knowledge moreover of its existence governs the conduct of the administration. An example or two will best show the mode in which the “judiciary” (to use a convenient Americanism) can and do by means of the writ of habeas corpus keep a hold on the acts of the executive. In 1839 Canadian rebels, found guilty of treason in Canada and condemned to transportion, arrived in official custody at Liverpool on their way to Van Diemen's Land. The friends of the convicts questioned the validity of the sentence under which they were transported; the prisoners were thereupon taken from prison and brought upon a writ of habeas corpus before the Court of Exchequer. Their whole position having been considered by the Court, it was ultimately held that the imprisonment was legal. But had the Court taken a different view, the Canadians would at once have been released from confinement. In 1859 an English officer serving in India was duly convicted of manslaughter and sentenced to four years' imprisonment: he was sent to England in military custody to complete there his term of punishment. The order under which he was brought to this country was technically irregular, and the convict having been brought on a writ of habeas corpus before the Queen's Bench, was on this purely technical ground set at liberty. So, to take a very notorious instance of judicial authority in matters most nearly concerning the executive, the Courts have again and again considered, in the case of persons brought before them by the writ of habeas corpus, questions as to the legality of impressment, and as to the limits within which the right of impressment may be exercised; and if, on the one hand, the judges have in this particular instance (which by the way is almost a singular one) supported the arbitrary powers of the prerogative, they have also strictly limited the exercise of this power within the bounds prescribed to it by custom or by statute. Moreover, as already pointed out, the authority of the civil tribunals even when not actually put into force regulates the action of the government. In 1854 a body of Russian sailors were found wandering about the streets of Guildford, without any visible means of subsistence; they were identified by a Russian naval officer as deserters from a Russian man-of-war which had put into an English port; they were thereupon, under his instructions and with the assistance of the superintendent of police, conveyed to Portsmouth for the purpose of their being carried back to the Russian ship. Doubts arose as to the legality of the whole proceeding. The law officers were consulted, who thereupon gave it as their opinion that “the delivering-up of the Russian sailors to the Lieutenant and the assistance offered by the police for the purpose of their being conveyed back to the Russian ship were contrary to law.” The sailors were presumably released; they no doubt would have been delivered by the Court had a writ of habeas corpus been applied for. Here then we see the judges in effect restraining the action of the executive in a matter which in most countries is considered one of administration or of policy lying beyond the range of judicial interference. The strongest examples, however, of interference by the judges with administrative proceedings are to be found in the decisions given under the Extradition Acts. Neither the Crown nor any servant of the Crown has any right to expel a foreign criminal from the country or to surrender him to his own government for trial. A French forger, robber, or murderer who escapes from France to England cannot, independently of statutory enactments, be sent back to his native land for trial or punishment. The absence of any power on the part of the Crown to surrender foreign criminals to the authorities of their own state has been found so inconvenient, that in recent times Extradition Acts have empowered the Crown to make treaties with foreign states for the mutual extradition of criminals or of persons charged with crime. The exercise of this authority is, however, hampered by restrictions which are imposed by the statute under which alone it exists. It therefore often happens that an offender arrested under the warrant of a Secretary of State and about to be handed over to the authorities of his own country conceives that, on some ground or other, his case does not fall within the precise terms of any Extradition Act. He applies for a writ of habeas corpus; he is brought up before the High Court; every technical plea he can raise obtains full consideration, and if on any ground whatever it can be shown that the terms of the Extradition Act have not been complied with, or that they do not justify his arrest and surrender, he is as a matter of course at once set at liberty. It is easy to perceive that the authority of the judges, exercised, as it invariably must be, in support of the strict roles of law, cuts down the discretionary powers of the Crown. It often prevents the English government from meeting public danger by measures of precaution which would as a matter of course be taken by the executive of any continental country. Suppose, for example, that a body of foreign anarchists come to England and are thought by the police on strong grounds of suspicion to be engaged in a plot, say for blowing up the Houses of Parliament. Suppose also that the existence of the conspiracy does not admit of absolute proof. An English Minister, if he is not prepared to put the conspirators on their trial, has no means of arresting them, or of expelling them from the country. In case of arrest or imprisonment they would at once be brought before the High Court on a writ of habeas corpus, and unless some specific legal ground for their detention could be shown they would be forthwith set at liberty. Of the political or, to use foreign expressions, of the “administrative” reasons which might make the arrest or expulsion of a foreign refugee highly expedient, the judges would hear nothing; that he was arrested by order of the Secretary of State, that his imprisonment was a simple administrative act, that the Prime Minister or the Home Secretary was prepared to make affidavit that the arrest was demanded by the most urgent considerations of public safety, or to assure the Court that the whole matter was one of high policy and concerned national interests, would be no answer whatever to the demand for freedom under a writ of habeas corpus. All that any judge could inquire into would be, whether there was any rule of common or of statute law which would authorise interference with a foreigner's personal freedom. If none such could be found, the applicants would assuredly obtain their liberty. The plain truth is that the power possessed by the judges of controlling the administrative conduct of the executive has been, of necessity, so exercised as to prevent the development with us of any system corresponding to the “administrative law” of continental states. It strikes at the root of those theories as to the nature of administrative acts, and as to the “separation of powers,” on which, as will be shown in a later chapter, the droit administratif of France depends, and it deprives the Crown, which now means the Ministry of the day, of all discretionary authority. whichThe actual or possible intervention, in short, of the Courts, exercisable for the most part by means of the writ of habeas corpus, confines the action of the government within the strict letter of the law; with us the state can punish, but it can hardly prevent the commission of crimes.
illegible We can now see why it was that the political conflicts of the seventeenth century often raged round the position of the judges, and why the battle might turn on a point so technical as the inquiry, what might be a proper return to a writ of habeas corpus. Upon the degree of authority and independence to be conceded to the Bench depended the colour and working of our institutions. To supporters, on the one hand, of the prerogative who, like Bacon, were not unfrequently innovators or reformers, judicial independence appeared to mean the weakness of the executive, and the predominance throughout the state of the conservative legalism, which found a representative in Coke. The Parliamentary leaders, on the other hand, saw, more or less distinctly, that the independence of the; Bench was the sole security for the maintenance of the common law, which was nothing else than the rule of established customs modified only by Acts of Parliament, and that Coke in battling for the power of the judges was asserting the rights of the nation; they possibly also saw, though this is uncertain, that the maintenance of rigid legality, inconvenient as it might sometimes prove, was the certain road to Parliamentary sovereignty.
Suspension of the Habeas Corpus Act
illegible During periods of political excitement the power or duty of the Courts to issue a writ of habeas corpus, and thereby compel the speedy trial or release of persons charged with crime, has been found an inconvenient or dangerous limitation on the authority of the executive government. Hence has arisen the occasion for statutes which are popularly called Habeas Corpus Suspension Acts. I say “popularly called,” because if you take (as you may) the Act 34 Geo. III. c. 54 as a type of such enactments, you will see that it hardly corresponds with its received name. The whole effect of the Act, which does not even mention the Habeas Corpus Act, is to make it impossible for any person imprisoned under a warrant signed by a Secretary of State on a charge of high treason, or on suspicion of high treason, to insist upon being either discharged or put on trial. No doubt this is a great diminution in the securities for personal freedom provided by the Habeas Corpus Acts; but it falls very far short of anything like a general suspension of the right to the writ of habeas corpus; it in no way affects the privileges of any person not imprisoned on a charge of high treason; it does not legalise any arrest, imprisonment, or punishment which was not lawful before the Suspension Act passed; it does not in any wise touch the claim to a writ of habeas corpus possessed by every one, man, woman, or child, who is held in confinement otherwise than on a charge of crime. The particular statute 34 Geo. III. c. 54 is, and (I believe) every other Habeas Corpus Suspension Act affecting England, has been an annual Act, and must, therefore, if it is to continue in force, be renewed year by year. must, The sole, immediate, and direct result, therefore, of suspending the Habeas Corpus Act is this: the Ministry may for the period during which the Suspension Act continues in force constantly defer the trial of persons imprisoned on the charge of treasonable practices. This increase in the power of the executive is no trifle, but it falls far short of the process known in some foreign countries as “suspending the constitutional guarantees,” or in France as the “prodamation of a state of siege”; it, indeed, extends the arbitrary powers of the government to a far less degree than many so-called Coercion Acts. That this is so may be seen by a mere enumeration of the chief powers which were conferred by comparatively recent enactment on the Irish executive. Under the Act of 1881 (44 Vict. c. 4) the Irish executive obtained the absolute power of arbitrary and preventive arrest, and could without breach of law detain in prison any person arrested on suspicion for the whole period for which the Act continued in force. It is true that the Lord Lieutenant could arrest only persons suspected of treason or of the commission of some act tending to interfere with the maintenance of law and order. But as the warrant itself to be issued by the Lord Lieutenant was made under the Act conclusive evidence of all matters contained therein, and therefore (inter alia) of the truth of the assertion that the arrested person or “suspect” was reasonably suspected, e.g. of treasonable practices, and therefore liable to arrest, the result dearly followed that neither the Lord Lieutenant nor any official acting under him could by any possibility be made liable to any legal penalty for any arrest, however ground-less or malicious, made in due form within the words of the Act. The Irish government, therefore, could arrest any person whom the Lord Lieutenant thought fit to imprison, provided only that the warrant was in the form and contained the allegations required by the statute. Under the Prevention of Crime (Ireland) Act, 1882–45 & 46 Vict. c. 25—the Irish executive was armed with the following (among other) extraordinary powers. The government could in the case of certain crimes abolish the right to trial by jury, could arrest strangers found out of doors at night under suspicious circumstances, could seize any newspaper which, in the judgment of the Lord Lieutenant, contained matter inciting to treason or violence, and could prohibit any public meeting which the Lord Lieutenant believed to be dangerous to the public peace or safety. Add to this that the Prevention of Crime Act, 1882, re-enacted (incidentally as it were) the Alien Act of 1848, and thus empowered the British Ministry to expel from the United Kingdom any foreigner who had not before the passing of the Act been resident in the country for three years. Not one of these extraordinary powers flows directly from a mere suspension of the Habeas Corpus Act; and, in truth, the best proof of the very limited legal effect of such so-called suspension is supplied by the fact that before a Habeas Corpus Suspension Act runs out its effect is, almost invariably, supplemented by legislation of a totally different character, namely, an Act of Indemnity.
An Act of Indemnity
Act of Indemnity Reference has already been made to Acts of Indemnity as the supreme instance of Parliamentary sovereignty. They are retrospective statutes which free persons who have broken the law from responsibility for its breach, and thus make lawful acts which when they were committed were unlawful. It is easy enough to see the connection between a Habeas Corpus Suspension Act and an Act of Indemnity. The Suspension Act, as already pointed out, does not free any person from civil or criminal liability for a violation of the law. Suppose that a Secretary of State or his subordinates should, during the suspension of the Habeas Corpus Act, arrest and imprison a perfectly innocent man without any cause whatever, except (it may be) the belief that it is conducive to the public safety that the particular person—say, an influential party leader such as Wilkes, Fox, or O'Connell—should be at a particular crisis kept in prison, and thereby deprived of influence. Suppose, again, that an arrest should be made by orders of the Ministry under circumstances which involve the unlawful breaking into a private dwelling-house, the destruction of private property, or the like. In each of these instances, and in many others which might easily be imagined, the Secretary of State who orders the arrest and the officials who carry out his commands have broken the law. They may have acted under the bona fide belief that their conduct was justified by the necessity of providing for the maintenance of order. But this will not of itself, whether the Habeas Corpus Act be suspended or not, free the persons carrying out the arrests from criminal and civil liability for the wrong they have committed. The suspension, indeed, of the Habeas Corpus Act may prevent the person arrested from taking at the moment any proceedings against a Secretary of State or the officers who have acted under his orders. For the sufferer is of course imprisoned on the charge of high treason or suspicion of treason, and therefore will not, while the suspension lasts, be able to get himself discharged from prison. The moment, however, that the Suspension Act expires he can, of course, apply for a writ of habeas corpus, and ensure that, either by means of being put on his trial or otherwise, his arbitrary imprisonment shall be brought to an end. In the cases we have supposed the prisoner has been guilty of no legal offence. The offenders are in reality the Secretary of State and his subordinates. The result is that on the expiration of the Suspension Act they are liable to actions or indictments for their illegal conduct, and can derive no defence whatever from the mere fact that, at the time when the unlawful arrest took place, the Habeas Corpus Act was, partially at any rate, not in force. It is, however, almost certain that, when the suspension of the Habeas Corpus Act makes it possible for the government to keep suspected persons in prison for a length of time without bringing them to trial, a smaller or greater number of unlawful acts will be committed, if not by the members of the Ministry themselves, willat any rate by their agents. We may even go farther than this, and say that the unavowed object of a Habeas Corpus Suspension Act is to enable the government to do acts which, though politically expedient, may not be strictly legal. The Parliament which destroys one of the main guarantees for individual freedom must hold, whether wisely or not, that a crisis has arisen when the rights of individuals must be postponed to considerations of state. A Suspension Act would, in fact, fail of its main object, unless officials felt assured that, as long as they bonafide, and uninfluenced by malice or by corrupt motives, carried out the policy of which the Act was the visible sign, they would be protected from penalties for conduct which, though it might be technically a breach of law, was nothing more than the free exertion for the public good of that discretionary power which the suspension of the Habeas Corpus Act was intended to confer upon the executive. This assurance is derived from the expectation that, before the Suspension Act ceases to be in force, Parliament will pass an Act of Indemnity, protecting all persons who have acted, or have intended to act, under the powers given to the government by the statute. This expectation has not been disappointed. An Act suspending the Habeas Corpus Act, which has been continued for any length of time, has constantly been followed by an Act of Indemnity. Thus the Act to which reference has already been made, 34 Geo. HI. c. 54, was continued in force by successive annual re-enactments for seven years, from 1794 to 1801. In the latter year an Act was passed, 42 Geo. HI. c. 66, “indemnifying such persons as since the first day of February, 1793, have acted in the apprehending, imprisoning, or detaining in custody in Great Britain of persons suspected of high treason or treasonable practices.” It cannot be disputed that the so-called suspension of the Habeas Corpus Act, which every one knows will probably be followed by an Act of Indemnity, is, in reality, a far greater interference with personal freedom than would appear from the very limited effect, in a merely legal point of view, of suspending the right of persons accused of treason to demand a speedy trial. The Suspension Act, coupled with the prospect of an Indemnity Act, does in truth arm the executive with arbitrary powers. Still, there are one or two considerations which limit the practical importance that can fairly be given to an expected Act of Indemnity. The relief to be obtained from it is prospective and uncertain. Any suspicion on the part of the public, that officials had grossly abused their powers, might make it difficult to obtain a Parliamentary indemnity for things done while the Habeas Corpus Act was suspended. As regards, again, the protection to be derived from the Act by men who have been guilty of irregular, illegal, oppressive, or cruel conduct, everything depends on the terms of the Act of Indemnity. These may be either narrow or wide. The Indemnity Act, for instance, of 1801, gives a very limited amount of protection to official wrongdoers. It provides, indeed, a defence against actions or prosecutions in respect of anything done, commanded, ordered, directed, or advised to be done in Great Britain for apprehending, imprisoning, or detaining in custody any person charged with high treason or treasonable practices. Any no doubt such a defence would cover any irregularity or merely formal breach of the law, but there certainly could be imagined acts of spite or extortion, done under cover of the Suspension Act, which would expose the offender to actions or prosecutions, and could not be justified under the terms of the Indemnity Act. Reckless cruelty to a political prisoner, or, still more certainly, the arbitrary punishment or the execution of a political prisoner, between 1793 and 1801 would, in spite of the Indemnity Act, have left every man concerned in the crime liable to suffer punishment. Whoever wishes to appreciate the moderate character of an ordinary Act of Indemnity passed by the Imperial Parliament, should compare such an Act as 41 Geo. HI. c. 66, with the enactment whereby the Jamaica House of Assembly at, tempted to cover Governor Eyre from all liability for unlawful deeds done in suppressing rebellion during 1866. An Act of Indemnity, again, though it is the legalisation of illegality, is also, it should be noted, itself a law. It is something in its essential character, therefore very different from the proclamation of martial law, the establishment of a state of siege, or any other proceeding by which the executive government at its own will suspends the law of the land. It is no doubt an exercise of arbitrary sovereign power; but where the legal sovereign is a Parliamentary assembly, even acts of state assume the form of regular legislation, and this fact of itself maintains in no small degree the real no less than the apparent supremacy of law.
Chapter VI
THE RIGHT TO FREEDOM OF DISCUSSION
The Declaration of the Rights of Man and the French Constitution of 1791 proclaim freedom of discussion and the liberty of the press in terms which are still cited in text-book as embodying maxims of French jurisprudence.
Principles laid down in foreign constitution La libre communication des pensées et des opinions est un des droits les plus précieux de I'homme; tout citoyen peut done parler, écrire, imprimer librement, sauf à répondre de l'abus de cette liberté dans les cas déterminés par la loi.”
La constitution garantit, comme droit naturel et civil … la libreté à tout homme de parler, d'écrire, d'imprimer et publier ses pensées, sans que ses écrits puissent être soumis à aucune censure ou inspection avant leur publication.
Belgian law, again, treats the liberty of the press as a fundamental article of the constitution.
Art. 18. La pressed est libre; la censure ne pourra jamais être établie: il ne peut être exigé de cautionnement des écrivains, éditeurs ou imprimeurs.
Lorsque l'auteur est connu et domicilié en Belgique, l'éditeurs, l'imprimeur ou le distributeur ne peut être poursuivi.
illegible Both the revolutionists of France and the constitutionalists of Belgium borrowed their ideas about freedom of opinion and the liberty of the press from England, and most persons form such loose notions as to English law that the idea prevails in England itself that the right to the free expression of opinion, and especially that form of it which is known as the “liberty of the press,” are fundamental doctrines of the law of England in the same sense in which they were part of the ephemeral constitution of 1791 and still are embodied in the articles of the existing Belgian constitution; and, further, that our Courts recognise the right of every man to say and write what he pleases, espedally on social, political, or religious topics, without fear of legal penalties. Yet this notion, justified though it be, to a certain extent, by the habits of modem English life, is essentially false, and conceals from students the real attitude of English law towards what is called “freedom of thought,” and is more accurately described as the “fight to the free expression of opinion.” As every lawyer knows, the phrases “freedom of discussion” or “liberty of the press” are rarely found in any part of the statute-book nor among the maxims of the common law. As terms of art they are indeed quite unknown to our Courts. At no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech. The true state of things cannot be better described than in these words from an excellent treatise on the law of libel:
illegible Our present law permits any one to say, write, and publish what he pleases; but if he make a bad use of this liberty he must be punished. If he unjustly attack an individual, the person defamed may sue for damages; if, on the other hand, the words be written or printed, or if treason or immorality be thereby inculcated, the offender can be tried for the misdemeanour either by information or indictment.
Any man may, therefore, say or write whatever he likes, subject to the risk of, it may be, severe punishment if he publishes any statement (either by word of mouth, in writing, or in print) which he is not legally entitled to make. Nor is the law of England specially favourable to free speech or to free writing in the rules which it maintains in theory and often enforces in fact as to the kind of statements which a man has a legal right to make. Above all, it recognises in general no special privilege on behalf of the “press,” if by that term we mean, in conformity with ordinary language, periodical literature in general, and particularly the newspapers. In truth there is little in the statute-book which can be called a “press law.” The law of the press as it exists here is merely part of the law of libel, and it is well worth while to trace out with some care the restrictions imposed by the law of libel on the “freedom of the press,” by which expression I mean a person's right to make any statement he likes in books or newspapers.
Libels on individuals There are many statements with regard to individuals which no man is entitled to publish in writing or print; it is a libel (speaking generally) thus to publish any untrue statement about another which is calculated to injure his interests, character, or reputation. Every man who directly or indirectly makes known or, as the technical expression goes, “publishes” such a statement, gives currency to a libel and is liable to an action for damages. The person who makes a defamatory statement and authorises its publication in writing, the person who writes, the publisher who brings out for sale, the printer who prints, the vendor who distributes a libel, are each guilty of publication, and may each severally be sued. The gist of the offence being the making public, not the writing of the libel, the person who having read a libel sends it on to a friend, is a libeller; and it would seem that a man who reads aloud a libel, knowing it to be such, may be sued. This separate liability of each person concerned in a wrongful act is, as already pointed out, a very noticeable characteristic of our law. Honest belief, moreover, and good intentions on the part of a libeller, are no legal defence for his conduct. Nor will it avail him to show that he had good reason for thinking the false statement which he made to be true. Persons often must pay heavy damages for giving currency to statements which were not meant to be falsehoods, and which were reasonably believed to be true. Thus it is libellous to publish of a man who has been convicted of felony but has worked out his sentence that he “is a convicted felon.” It is a libel on the part of X if X publishes that B has told him that A's bank has stopped payment, if, though B in fact made the statement to X, and X believed the report to be true, it turns out to be false. Nor, again, are expressions of opinion when injurious to another at all certain not to expose the publisher of them to an action. A “fair” criticism, it is often said, is not libellous; but it would be a grave mistake to suppose that critics, either in the press or elsewhere, have a right to publish whatever criticisms they think true. Every one has a right to publish fair and candid criticism. But “a critic must confine himself to criticism, and not make it the veil for personal censure, nor allow himself to run into reckless and unfair attacks merely from the love of exercising his power of denunciation.” A writer in the press and an artist or actor whose performances are criticised are apt to draw the line between “candid criticism” and “personal censure” at very different points. And when on this matter there is a difference of opinion between a critic and his victim, the delicate question what is meant by fairness has to be determined by a jury, and may be so answered as greatly to curtail the free expression of critical judgments. Nor let it be supposed that the mere “truth” of a statement is of itself sufficient to protect the person who publishes it from liability to punishment. For though the fact that an assertion is true is an answer to an action for libel, a person may be criminally punished for publishing statements which, though perfectly true, damage an individual without being of any benefit to the public. To write, for example, and with truth of A that he many years ago committed acts of immorality may very well expose the writer X to criminal proceedings, and X if put on his trial will be bound to prove not only that A was in fact guilty of the faults imputed to him, but also that the public had an interest in the knowledge of A's misconduct. If X cannot show this, he will find that no supposed right of free discussion or respect for liberty of the press will before an English judge save him from being found guilty of a misdemeanour and sent to prison.
Libels on government We have spoken so far in very general terms of the limits placed by the law of libel on freedom of discussion as regards the character of individuals. Let us now observe for a moment the way in which the law of libel restricts in theory, at least, the right to criticise the conduct of the government.
Every person commits a misdemeanour who publishes (orally or otherwise) any words or any document with a seditious intention. Now a seditious intention means an intention to bring into hatred or contempt, or to excite disaffection against the King or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or the administration of justice, or to excite British subjects to attempt otherwise than by lawful means the alteration of any matter in Church or State by law established, or to promote feelings of illwill and hostility between different classes. And if the matter published is contained in a written or printed document the publisher is guilty of publishing a seditious libel. The law, it is true, permits the publication of statements meant only to show that the Crown has been misled, or that the government has committed errors, or to point out defects in the government or the constitution with a view to their legal remedy, or with a view to recommend alterations in Church or State by legal means, and, in short, sanctions criticism on public affairs which is bona fide intended to recommend the reform of existing institutions by legal methods. But any one will see at once that the legal definition of a seditious libel might easily be so used as to check a great deal of what is ordinarily considered allowable discussion, and would if rigidly enforced be inconsistent with prevailing forms of political agitation.
Expression of opinion on religious or moral questions. The case is pretty much the same as regards the free expression of opinion on religious or moral questions. Of late years circumstances have recalled attention to the forgotten law of blasphemy. But it surprises most persons to learn that, on one view of the law, any one who publishes a denial of the truth of Christianity in general or of the existence of God, whether the terms of such publication are decent or otherwise, commits the misdemeanour of publishing a blasphemous libel, and is liable to imprisonment; that, according to another view of the law, any one is guilty of publishing a blasphemous libel who publishes matter relating to God, Jesus Christ, or the Book of Common Prayer intended to wound the feedings of mankind, or to excite contempt against the Church by law established, or to promote immorality; and that it is at least open to grave doubt how far the publications which thus wound the feelings of mankind are exempt from the character of blasphemy because they are intended in good faith to propagate opinions which the person who publishes them regards as true. Most persons, again, are astonished to find that the denial of the truth of Christianity or of the authority of the Scriptures, by “writing, printing, teaching, or advised speaking” on the part of any person who has been educated in or made profession of Christianity in England, is by statute a criminal offence entailing very severe penalities. When once, however, the principles of the common law and the force of the enactments still contained in the statute-book are really appreciated, no one can maintain that the law of England recognises anything like that natural right to the free communication of thoughts and opinions which was proclaimed in France a little over a hundred years ago to be one of the most valuable Rights of Man. It is quite dear, further, that the effect of English law, whether as regards statements made about individuals, or the expression of opinion about public affairs, or speculative matters, depends wholly upon the answer to the question who are to determine whether a given publication is or is not a libel. The reply (as we all know) is, that in substance this matter is referred to the decision of a jury. Whether in any given case a particular individual is to be convicted of libel depends wholly upon their judgment, and they have to determine the questions of truth, fairness, intention, and the like, which affect the legal character of a published statement.
Freedom of discussion is, then, in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written. Such “liberty” may vary at different times and seasons from unrestricted license to very severe restraint, and the experience of English history during the last two centuries shows that under the law of libel the amount of latitude conceded to the expression of opinion has, in fact, differed greatly according to the condition of popular sentiment. Until very recent times the law, moreover, has not recognized any privilege on the part of the press. A statement which is defamatory or blasphemous, if made in a letter or upon a card, has exactly the same character if made in a book or a newspaper. The protection given by the Belgian constitution to the editor, printer, or seller of a newspaper involves a recognition of special rights on the part of persons connected with the press which is quite inconsistent with the general theory of English law. It is hardly an exaggeration to say, from this point of view, that liberty of the press is not recognised in England.
Why the liberty of the press has been thought peculiar to England Why then has the liberty of the press been long reputed as a special feature of English institutions?
The answer to this inquiry is, that for about two centuries the relation between the government and the press has in England been marked by all those characteristics which make up what we have termed the “rule” or “supremacy” of law, and that just because of this, and not because of any favour shown by the law of England towards freedom of discussion, the press, and especially the newspaper press, has practically enjoyed with us a freedom which till recent years was unknown in continental states. Any one will see that this is so who examines carefully the situation of the press in modem England, and then contrasts it either with the press law of France or with the legal condition of the press in England during the sixteenth and seventeenth centuries.
The present position of the English press is marked by two features
First, “the liberty of the press,” says Lord Mansfield, “consists in printing without any previous license, subject to the consequences of law.” Lord Ellenborough says:
The law of England is a law of liberty, and consistently with this liberty we have not what is called an imprimatur; there is no such preliminary license necessary; but if a man publish a paper, he is exposed to the penal consequences, as he is in every other act, if it be illegal.
These dicta show us at once that the so-called liberty of the press is a mere application of the general principle, that no man is punishable except for a distinct breach of the law. This principle is radically inconsistent with any scheme of license or censorship by which a man is hindered from writing or printing anything which he thinks fit, and is hard to reconcile even with the right on the part of the Courts to restrain the circulation of a libel, until at any rate the publisher has been convicted of publishing it. It is also opposed in spirit to any regulation requiring from the publisher of an intending newspaper a preliminary deposit of a certain sum of money, for the sake either of ensuring that newspapers should be published only by solvent persons, or that if a newspaper should contain libels there shall be a certainty of obtaining damages from the proprietor. No sensible person will argue that to demand a deposit from the owner of a newspaper, or to impose other limitations upon the right of publishing periodicals, is of necessity inexpedient or unjust. All that is here insisted upon is, that such checks and preventive measures are inconsistent with the pervading principle of English law, that men are to be interfered with or punished, not because they may or will break the law, but only when they have committed some definite assignable legal offence. Hence, with one exception, which is a quaint survival from a different system, no such thing is known with us as a license to print, or a censorship either of the press or of political newspapers. Neither the government nor any other authority has the right to seize or destroy the stock of a publisher because it consists of books, pamphlets, or papers which in the opinion of the government contain seditious or libellous matter. Indeed, the Courts themselves will, only under very special circumstances, even for the sake of protecting an individual from injury, prohibit the publication or republication of a libel, or restrain its sale until the matter has gone before a jury, and it has been established by their verdict that the words complained of are libellous. Writers in the press are, in short, like every other person, subject to the law of the realm, and nothing else. Neither the government nor the Courts have (speaking generally) any greater power to prevent or oversee the publication of a newspaper than the writing and sending of a letter. Indeed, the simplest way of setting forth broadly the position of writers in the press is to say that they stand in substantially the same position as letterwriters. A man who scribbles blasphemy on a gate and a man who prints blasphemy in a paper or in a book commit exactly the same offence, and are dealt with in England on the same principles. Hence also writers in and owners of newspapers have, or rather had until very recently, no special privilege protecting them from liability. Look at the matter which way you will, the main feature of liberty of the press as understood in England is that the press (which means, of course, the writers in it) is subject only to the ordinary law of the land.
illegible Secondly, press offences, in so far as the term can be used with reference to English law, are tried and punished only by the ordinary Courts of the country, that is, by a judge and jury.
Since the Restoration, offences committed through the newspapers, or, in other words, the publication therein of libels whether defamatory, seditious, or blasphemous, have never been tried by any special tribunal. Nothing to Englishmen seems more a matter of course than this. Yet nothing has in reality contributed so much to free the periodical press from any control. If the criterion whether a publication be libellous is the opinion of the jury, and a man may publish anything which twelve of his countrymen think is not blamable, it is impossible that the Crown or the Ministry should exert any stringent control over writings in the press, unless (as indeed may sometimes happen) the majority of ordinary citizens are entirely opposed to attacks on the government. The times when persons in power wish to check the excesses of public writers are times at which a large body of opinion or sentiment is hostile to the executive. But under these circumstances it must, from the nature of things, be at least an even chance that the jury called upon to find a publisher guilty of printing seditious libels may sympathise with the language which the officers of the Crown deem worthy of punishment, and hence may hold censures which are prosecuted as libels to be fair and laudable criticism of official errors. Whether the control indirectly exercised over the expression of opinion by the verdict of twelve commonplace Englishmen is at the present day certain to be as great a protection to the free expression of opinion, even in political matters, as it proved a century ago, when the sentiment of the governing body was different from the prevalent feeling of the class from which jurymen were chosen, is an interesting speculation into which there is no need to enter. What is certain is, that the practical freedom of the English press arose in great measure from the trial with us of “press offences,” like every other kind of libel, by a jury.
The liberty of the press, then, is in England simply one result of the universal predominance of the law of the land. The terms “liberty of the press,” “press offences,” “censorship of the press,” and the like, are all but unknown to English lawyers, simply because any offence which can be committed through the press is some form of libel, and is governed in substance by the ordinary law of defamation.
These things seem to us at the present day so natural as hardly to be noticeable; let us, however, glance as I have suggested at the press law of France both before and since the Revolution; and also at the condition of the press in England up to nearly the end of the seventeenth century. Such a survey will prove to us that the treatment in modern England of offences committed through the newspapers affords an example, as singular as it is striking, of the legal spirit which now pervades every part of the English constitution.
Companson with the press law of France. An Englishman who consults French authorities is struck with amazement at two facts: press law has long constituted and still Constitutes to a certain extent a special department of French legislation, and press offences have been, under every form of government which has existed in France, a more or less special dass of crimes. The Acts which have been passed in England with regard to the press since the days of Queen Elizabeth do not in number equal one-tenth, or even one-twentieth, of the laws enacted during the same period on the same subject in France. The contrast becomes still more marked if we compare the state of things in the two countries since the beginning of the eighteenth century, and (for the sake of avoiding exaggeration) put the laws passed since that date, and which were till 1881 in force in France, against every Act which, whether repealed or unrepealed, has been passed in England since the year 1700. It will be found that the French press code consisted, till after the establishment of the present Republic, of over thirty enactments, whilst the English Acts about the press passed since the beginning of the last century do not exceed a dozen, and, moreover, have gone very little way towards touching the freedom of writers.
The ground of this difference lies in the opposite views taken in the two countries of the proper relation of the state to literature, or, more strictly, to the expression of opinion in print.
In England the doctrine has since 1700 in substance prevailed that the government has nothing to do with the guidance of opinion, and that the sole duty of the state is to punish libels of all kinds, whether they are expressed in writing or in print. Hence the government has (speaking generally) exercised no special control over literature, and the law of the press, in so far as it can be said to have existed, has been nothing else than a branch or an application of the law of libel.
In France, literature has for centuries been considered as the particular concern of the state. The prevailing doctrine, as may be gathered from the current of French legislation, has been, and still to a certain extent is, that it is the function of the administration not only to punish defamation, slander, or blasphemy, but to guide the course of opinion, or, at any rate, to adopt preventive measures for guarding against the propagation in print of unsound or dangerous doctrines. Hence the huge amount and the special and repressive character of the press laws which have existed in France.
Up to the time of the Revolution the whole literature of the country was avowedly controlled by the state. The right to print or sell books and printed publications of any kind was treated as a special privilege or monopoly of certain libraries; the regulations (réglements) of 1723 (some part of which was till quite recently in force) and of 1767 confined the right of sale and printing under the severest penalties of librarians who were duly licensed. The right to publish, again, was submitted to the strictest censorship, exercised partly by the University (an entirely ecclesiastical body), partly by the Parliaments, partly by the Crown. The penalties of death, of the galleys, of the pillory, were from time to time imposed upon the printing or sale of forbidden works. These punishments were often evaded; but they after all retained practical force till the very eve of the Revolution. The most celebrated literary works of France were published abroad. Montesquieu's Esprit des Lois appeared at Geneva. Voltaire's Henriade was printed in England; the most remarkable of his and of Rousseau's writings were published in London, in Geneva, or in Amsterdam. In 1775 a work entitled Philosophie de la Nature was destroyed by the order of the Parliament of Paris, the author was decreed guilty of treason against God and man, and would have been burnt if he could have been arrested. In 1781, eight years before the meeting of the States General, Raynal was pronounced by the Parliament guilty of blasphemy on account of his Histoire des Indes. The point, however, to remark is, not so much the severity of the punishments which under the Ancien Régime were intended to suppress the expression of heterodox or false beliefs, as the strict maintenance down to 1789 of the right and duty of the state to guide the literature of the country. It should further be noted that down to that date the government made no marked distinction between periodical and other literature. When the Lettres Philosophiques could be burnt by the hangman, when the publication of the Henriade and the Encyclopédie depended on the goodwill of the King, there was no need for establishing special restrictions on newspapers. The daily or weekly press, moreover, hardly existed in France till the opening of the States General.
The Revolution (it may be fancied) put an end to restraints upon the press. The Declaration of the Rights of Man proclaimed the fight of every citizen to publish and print his opinions, and the language has been cited in which the Constitution of 1791 guaranteed to every man the natural right of speaking, printing, and publishing his thoughts without having his writings submitted to any censorship or inspection prior to publication. But the Declaration of Rights and this guarantee were practically worthless. They enounced a theory which for many years was utterly opposed to the practice of every French government.
The Convention did not establish a censorship, but under the plea of preventing the circulation of seditious works it passed the law of 29th March 1793, which silenced all free expression of opinion. The Directory imitated the Convention. Under the First Empire the newspaper press became the property of the government, and the sale, printing, and publication of books was wholly submitted to imperial control and censorship.
The years which elapsed from 1789 to 1825 were, it may be suggested, a revolutionary era which provoked or excused exceptional measures of state interference. Any one, however, who wants to see how consonant to the ideas which have permanently governed French law and French habits is the notion that the administration should by some means keep its hand on the national literature of the country, ought to note with care the course of legislation from the Restoration to the present day. The attempt, indeed, to control the publication of books has been by slow degrees given up; but one government after another has, with curious uniformity, proclaimed the freedom and ensured the subjection of the newspaper press. From,814 to 1830 the censorship was practically established (21st Oct. 2814), was partially abolished, was abolished (2829), was reestablished and extended (1820), and was re-abolished (1828). The Revolution of July 1830 was occasioned by an attempt to destroy the liberty of the press. The Charter made the abolition of the censorship part of the constitution, and since that date no system of censorship has been in name re-established. But as regards newspapers, the celebrated decree of 17th February 1852 enacted restrictions more rigid than anything imposed under the name of la censure by any government since the fall of Napoleon I. The government took to itself under this law, in addition to other discretionary powers, the right to suppress any newspaper without the necessity of proving the commission of any crime or offence by the owner of the paper or by any writer in its columns. No one, further, could under this decree set up a paper without official authorisation. Nor have different forms of the censorship been the sole restrictions imposed in France on the liberty of the press. The combined operations of enactments passed during the existence of the Republic of 1848, and under the Empire, was (among other things) to make the signature of newspaper articles by their authors compulsory, to require a large deposit from any person who wished to establish a paper, to withdraw all press offences whatever from the cognisance of a jury, to re-establish or reaffirm the provision contained in the réglement of 1723 by which no one could carry on the trade of a librarian or printer (commerce de la librairie) without a license. It may, in fact, be said with substantial truth that between 1852 and 1870 the newspapers of France were as much controlled by the government as was every kind of literature before 1789, and that the Second Empire exhibited a retrogression towards the despotic principles of the Ancien Régime. The Republic, it is true, has abolished the restraints on the liberty of the press which grew up both before and under the Empire. But though for the last twenty-seven years the ruling powers in France have favoured the liberty or license of the press, nothing is more plain than that until quite recently the idea that press offences were a peculiar class of offences to be dealt with in a special way and punished by special courts was accepted by every party in France. This is a matter of extreme theoretical importance. It shows how foreign to French notions is the idea that every breach of law ought to be dealt with by the ordinary law of the land. Even a cursory survey—and no other is possible in these lectures—of French legislation with regard to literature proves, then, that from the time when the press came into existence up to almost the present date the idea has held ground that the state, as represented by the executive, ought to direct or control the expression of opinion, and that this control has been exercised by an official censorship—by restrictions on the right to print or sell books—and by the subjection of press offences to special laws administered by special tribunals. The occasional relaxation of these restrictions is of importance. But their recurring revival is of far more significance than their temporary abolition.
illegible Let us now turn to the position of the English press during the sixteenth and seventeenth centuries.
The Crown originally held all presses in its own hands, allowed no one to print except under special license, and kept all presses subject to regulations put forward by the Star Chamber in virtue of the royal prerogative: the exclusive privilege of printing was thus given to ninety-seven London stationers and their successors, who, as the Stationers” Company, constituted a guild with power to seize all publications issued by outsiders; the printing-presses ultimately conceded to the Universities existed only by a decree of the Star Chamber.
Side by side with the restrictions on printing—which appear to have more or less broken down—there grew up a system of licensing which constituted a true censorship.
Press offences constituted a special class of crimes cognisable by a special tribunal—the Star Chamber—which sat without a jury and administered severe punishments. The Star Chamber indeed fell in 1642, never to be revived, but the censorship survived the Commonwealth, and was under the Restoration (1662) given a strictly legal foundation by the statute 13 & 14 Car. II. c. 33, which by subsequent enactments was kept in force till 1695.
Original likeness and subsequent unlikeness between press law of England and of France. There existed, in short, in England during the sixteenth and seven-teenth centuries every method of curbing the press which was then practised in France, and which has prevailed there almost up to the present day. In England, as on the Continent, the book trade was a monopoly, the censorship was in full vigour, the offences of authors and printers were treated as special crimes and severely punished by spedal tribunals. This similarity or identity of the principles with regard to the treatment of literature originally upheld by the government of England and by the government of France is striking. It is rendered still more startling by the contrast between the subsequent history of legislation in the two countries. In France (as we have already seen) the censorship, though frequently abolished, has almost as frequently been restored. In England the system of licensing, which was the censorship under another name, was terminated rather than abolished in 1695. The House of Commons, which refused to continue the Licensing Act, was certainly not imbued with any settled enthusiasm for liberty of thought. The English statesmen of 1695 neither avowed nor entertained the belief that the “free communication of thoughts and opinions was one of the most valuable of the rights of man.” They refused to renew the Licensing Act, and thus established freedom of the press without any knowledge of the importance of what they were doing. This can be asserted with confidence, for the Commons delivered to the Lords a document which contains the reasons for their refusing to renew the Act.
This paper completely vindicates the resolution to which the Commons had come. But it proves at the same time that they knew not what they were doing, what a revolution they were making, what a power they were calling into existence. They pointed out concisely, clearly, forcibly, and sometimes with a grave irony which is not unbecoming, the absurdities and iniquities of the statute which was about to expire. But all their objections will be found to relate to matters of detail. On the great question of principle, on the question whether the liberty of unlicensed printing be, on the whole, a blessing or a curse to society, not a word is said. The Licensing Act is condemned, not as a thing essentially evil, but on account of the petty grievances, the exactions, the jobs, the commercial restrictions, the domiciliary visits, which were incidental to it. It is pronounced mischievous because it enables the Company of Stationers to extort money from publishers, because it empowers the agents of the government to search houses under the authority of general warrants, because it confines the foreign book trade to the port of London; because it detains valuable packages of books at the Custom House till the pages are mildewed. The Commons complain that the amount of the fee which the licenser may demand is not fixed. They complain that it is made penal in an officer of the Customs to open a box of books from abroad, except in the presence of one of the censors of the press. How, it is very sensibly asked, is the officer to know that there are books in the box till he has opened it? Such were the arguments which did what Milton's Areopagitica had failed to do.
How slight was the hold of the principle of the liberty of the press on the statesmen who abolished the censorship is proved by their entertaining, two years later, a bill (which, however, never passed) to prohibit the unlicensed publication of news. Yet while the solemn declaration by the National Assembly of 1789 of the right to the free expression of thought remained a dead letter, or at best a speculative maxim of French jurisprudence which, though not without influence, was constantly broken in upon by the actual law of France, the refusal of the English Parliament in 1695 to renew the Licensing Act did permanently establish the freedom of the press in England. The fifty years which followed were a period of revolutionary disquiet fairly comparable with the era of the Restoration in France. But the censorship once abolished in England was never revived, and all idea of restrictions on the liberty of the press other than those contained in the law of libel have been so long unknown to Englishmen, that the rare survivals in our law of the notion that literature ought to be controlled by the state appear to most persons inexplicable anomalies, and are tolerated only because they produce so little inconvenience that their existence is forgotten.
Questions suggested by original similanty and final difference between press law of France and of England. TO a student who surveys the history of the liberty of the press in France and in England two questions suggest themselves. How does it happen that down to the end of the seventeenth century the principles upheld by the Crown in each country were in substance the same? What, again, is the explanation of the fact that from the beginning of the eighteenth century the principles governing the law of the press in the two countries have been, as they still continue to be, essentially different? The similarity and the difference each seems at first sight equally perplexing. Yet both one and the other admit of explanation, and the solution of an apparent paradox is worth giving because of its dose bearing on the subject of this lecture, namely, the predominance of the spirit of legality which distinguishes the law of the constitution.
Reasons for original similarity The ground of the similarity between the press law of England and of France from the beginning of the sixteenth till the beginning of the eighteenth century, is that the governments, if not the people, of each country were during that period influenced by very similar admirdstrative notions and by similar ideas as to the relation between the state and individuals. In England, again, as in every European country, the belief prevailed that a King was responsible for the religious belief of his subjects. This responsibility involves the necessity for regulating the utterance and formation of opinion. But this direction or control cannot be exercised without governmental interference with that liberty of the press which is at bottom the right of every man to print any opinion which he chooses to propagate, subject only to risk of punishment if his expressions contravene some distinct legal maxim. During the sixteenth and seventeenth centuries, in short, the Crown was in England, as in France, extending its administrative powers; the Crown was in England, as in France, entitled, or rather required by public opinion, to treat the control of literature as an affair of state. Similar circumstances produced similar results; in each country the same principles prevailed; in each country the treatment of the press assumed, therefore, a similar character.
Reason for letter dissimilarity The reason, again, why, for nearly two centuries, the press has been treated in France on principles utterly different from those which have been accepted in England, lies deep in the difference of the spirit which has governed the customs and laws of the two countries.
In France the idea has always flourished that the government, whether Royal, Imperial, or Republican, possesses, as representing the state, rights and powers as against individuals superior to and independent of the ordinary law of the land. This is the real basis of that whole theory of a droit administratif, which it is so hard for Englishmen fully to understand. The increase, moreover, in the authority of the central government has at most periods both before and since the Revolution been, or appeared to most Frenchmen to be, the means of removing evils which oppressed the mass of the people. The nation has in general looked upon the authority of the state with the same favour with which Englishmen during the sixteenth century regarded the prerogative of the Crown. The control exercised in different forms by the executive over literature has, therefore, in the main fully harmonised with the other institutions of France. The existence, moreover, of an elaborate administrative system, the action of which has never been subject to the control of the ordinary tribunals, has always placed in the hands of whatever power was supreme in France the means of enforcing official surveillance of literature. Hence the censorship (to speak of no other modes of checking the liberty of the press) has been on the whole in keeping with the general action of French governments and with the average sentiment of the nation, whilst there has never been wanting appropriate machinery by which to carry the censorship into effect.
No doubt there were heard throughout the eighteenth century, and have been heard ever since, vigorous protests against the censorship, as against other forms of administrative arbitrariness; and at the beginning of the Great Revolution, as at other periods since, efforts were made in favour of free discussion. Hence flowed the abolition of the censorship, but this attempt to limit the powers of the government in one particular direction was quite out of harmony with the general reverence for the authority of the state. As long, moreover, as the whole scheme of French administration was left in force, the government, in whatever hands it was placed, always retained the means of resuming its control over the press, whenever popular feeling should for a moment favour the repression of free speech. Hence arose the constantly recurring restoration of the abolished censorship or of restraints which, though not called by the unpopular name of la censure, were more stringent than has ever been any Licensing Act. Restrictions, in short, on what Englishmen understand by the liberty of the press have continued to exist in France and are hardly now abolished, because the exercise of preventive and discretionary authority on the part of the executive harmonises with the general spirit of French law, and because the administrative machinery, which is the creation of that spirit, has always placed (as it still places) in the hands of the executive the proper means for enforcing discretionary authority.
In England, on the other hand, the attempt made by the Crown during the sixteenth and seventeenth centuries to form a strong central administration, though it was for a time attended with success, because it met some of the needs of the age, was at bottom repugnant to the manners and traditions of the country; and even at a time when the people wished the Crown to be strong, they hardly liked the means by which the Crown exerted its strength.
Hundreds of Englishmen who hated toleration and cared little for freedom of speech, entertained a keen jealousy of arbitrary power, and a fixed determination to be ruled in accordance with the law of the land. These sentiments abolished the Star Chamber in 1641, and made the re-establishment of the hated Court impossible even for the frantic loyalty of 1660. But the destruction of the Star Chamber meant much more than the abolition of an unpopular tribunal; it meant the rooting up from its foundations of the whole of the administrative system which had been erected by the Tudors and extended by the Stuarts. This overthrow of a form of administration which contradicted the legal habits of Englishmen had no direct connection with any desire for the uncontrolled expression of opinion. The Parliament which would not restore the Star Chamber or the Court of High Commission passed the Licensing Act, and this statute, which in fact establishes the censorship, was, as we have seen, continued in force for some years after the Revolution. The passing, however, of the statute, though not a triumph of toleration, was a triumph of legality. The power of licensing depended henceforward, not on any idea of inherent executive authority, but on the statute law. The right of licensing was left in the hands of the government, but this power was regulated by the words of a statute; and, what was of more consequence, breaches of the Act could be punished only by proceedings in the ordinary Courts. The fall of the Star Chamber deprived the executive of the means for exercising arbitrary power. Hence the refusal of the House of Commons in 1695 to continue the Licensing Act was something very different from the proclamation of freedom of thought contained in the French Declaration of Rights, or from any of the laws which have abolished the censorship in France. To abolish the right of the government to control the press, was, in England, simply to do away with an exceptional authority, which was opposed to the general tendency of the law, and the abolition was final, because the executive had already lost the means by which the control of opinion could be effectively enforced.
To sum the whole matter up, the censorship though constantly abolished has been constantly revived in France, because the exertion of discretionary powers by the government has been and still is in harmony with French laws and institutions. The abolition of the censorship was final in England, because the exercise of discretionary power by the Crown was inconsistent with our system of administration and with the ideas of English law. The contrast is made the more striking by the paradoxical fact, that the statesmen who tried with little success to establish the liberty of the press in France really intended to proclaim freedom of opinion, whilst the statesmen who would not pass the Licensing Act, and thereby founded the liberty of the press in England, held theories of toleration which fell far short of favouring unrestricted liberty of discussion. This contrast is not only striking in itself, but also affords the strongest illustration that can be found of English conceptions of the rule of law.
Chapter VII
THE RIGHT OF PUBLIC MEETING
Right of public meeting The law of Belgium with regard to public meetings is contained in the nineteenth article of the constitution, which is probably intended in the main to reproduce the law of England, is probably and runs as follows:
Rules of Belgian constitution Art. 19. Les Belges ont le droit de s'assembler paisiblement et sans armes, en se conformant aux lois, qui peuvent régler l'exercice de ce droit, sans néanmoins le soumettre à une autorisation préalable.
Cette disposition ne s'applique point aux rassemblements en plein air, qui restent entièrement soumis aux lois de police.
Principal of English law as to right of public meeting The restrictions on the practice of public meeting appear to be more stringent in Belgium than in England, for the police have with us no special authority to control open-air assemblies. Yet just as it cannot with strict accuracy be asserted that English law recognises the liberty of the press, so it can hardly be said that our constitution knows of such a thing as any specific right of public meeting. No better instance can indeed be found of the way in which in England the constitution is built up upon individual rights than our rules as to public assemblies. The right of assembling is nothing more than a result of the view taken by the Courts as to individual liberty of person and individual liberty of speech. There is no special law allowing A, B, and C to meet together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases so that he does not commit a trespass, and to say what he likes to B so that his talk is not libellous or seditious, the right of B to do the like, and the existence of the same rights of C, D, E, and F, and so on ad infinitum, lead to the consequence that A, B, C, D, and a thousand or ten thousand other persons, may (as a general rule) meet together in any place where otherwise they each have a right to be for a lawful purpose and in a lawful manner. A has a right to walk down the High Street or to go on to a common. B has the same right. C, D, and all their friends have the same right to go there also. In other words, A, B, C, and D, and ten thousand such, have a right to hold a public meeting; and as A may say to B that he thinks an Act ought to be passed abolishing the House of Lords, or that the House of Lords are bound to reject any bill modifying the constitution of their House, and as B may make the same remark to any of his friends, the result ensues that A and ten thousand more may hold a public meeting either to support the government or to encourage the resistance of the Peers. Here then you have in substance that right of public meeting for political and other purposes which is constantly treated in foreign countries as a special privilege, to be exercised only subject to careful restrictions. The assertion, however, that A, B, C, and D, and a hundred thousand more persons, just because they may each go where they like, and each say what they please, have a right to hold meetings for the discussion of political and other topics, does not of course mean that it is impossible for persons so to exercise the right of meeting as to break the law. The object of a meeting may be to commit a crime by open force, or in some way or other to break the peace, in which case the meeting itself becomes an unlawful assembly. The mode in which a meeting is held may threaten a breach of the peace on the part of those holding the meeting, and theref ore inspire peaceable citizens with reasonable fear; in which case, again, the meeting will be unlawful. In either instance the meeting may lawfully be broken up, and the members of it expose themselves to all the consequences, in the way of arrest, prosecution, and punishment, which attend the doing of unlawful acts, or, in other words, the commission of crimes.
Meeting not unlawful because it will excite unlawful oppsition A public meeting which, from the conduct of those engaged in it, as, for example, through their marching together in arms, or through their intention to excite a breach of the peace on the part of opponents, fills peaceable citizens with reasonable fear that the peace will be broken, is an unlawful assembly. But a meeting which in not otherwise illegal does not become an unlawful assembly solely because it will excite violent and unlawful opposition, and thus may indirectly lead to a breach of the peace. Suppose, for example, that the members of the Salvation Army propose to hold a meeting at Oxford, suppose that a so-called Skeleton Army announce that they will attack the Salvationists and disperse them by force, suppose, lastly, that thereupon peaceable citizens who do not like the quiet of the town to be disturbed and who dread riots, urge the magistrates to stop the meeting of the Salvationists. This may seem at first sight a reasonable request, but the magistrates cannot, it is submitted, legally take the course suggested to them. That under the present state of the law this must be so is on reflection pretty dear. The right of A to walk down the High Street is not, as a rule, taken away by the threat of X to knock A down if A takes his proposed walk. It is true that A's going into the High Street may lead to a breach of the peace, but A no more causes the breach of the peace than a man whose pocket is picked causes the theft by wearing a watch. A is the victim, not the author of a breach of the law. Now, if the right of A to walk down the High Street is not affected by the threats of X, the right of A, B, and C to march down the High Street together is not diminished by the proclamation of X, Y, and Z that they will not suffer A, B, and C to take their walk. Nor does it make any difference that A, B, and C call themselves the Salvation Army, or that X, Y, and Z call themselves the Skeleton Army. The plain principle is that A's right to do a lawful act, namely, walk down the High Street, cannot be diminished by X's threat to do an unlawful act, namely, to knock A down. This is the principle established, or rather illustrated, by the case of Beatty v. Gillbanks. The Salvation Army met together at Weston-super-Mare with the knowledge that they would be opposed by the Skeleton Army. The magistrates had put out a notice intended to forbid the meeting. The Salvationists, however, assembled, were met by the police, and told to obey the notice. X, one of the members, declined to obey and was arrested. He was subsequently, with others, convicted by the magistrates of taking part in an unlawful assembly. It was an undoubted fact that the meeting of the Salvation Army was likely to lead to an attack by the Skeleton Army, and in this sense cause a breach of the peace. The conviction, however, of X by the magistrates was quashed on appeal to the Queen's Bench Division.
Field, J. says:
What has happened here is that an unlawful organisation [the Skeleton Army] has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition.
The principle here laid down is thus expressed by an Irish judge in a case which has itself received the approval of the English King's Bench Division.
Much has been said on both sides in the course of the argument about the case of Beatty v. Gitlbanks. I am not sure that I would have taken the same view of the facts of that case as was adopted by the Court that decided it; but I agree with both the law as laid down by the Judges, and their application of it to the facts as they understood them. The principle underlying the decision seems to me to be that an act innocent in itself, done with innocent intent, and reasonably incidental to the performance of a duty, to the carrying on of business, to the enjoyment of legitimate recreation, or generally to the exercise of a legal right, does not become criminal because it may provoke persons to break the peace, or otherwise to conduct themselves in an illegal way.
Nor is it in general an answer to the claim of, e.g. the Salvationists, to exercise their right of meeting, that whilst such exercise may excite wrongdoers to break the peace, the easiest way of keeping it is to prevent the meeting, for “if danger arises from the exercise of lawful rights resulting in a breach of the peace, the remedy is the presence of sufficient force to prevent that result, not the legal condemnation of those who exercise those rights.”
The principle, then, that a meeting otherwise in every respect lawful and peaceable is not rendered unlawful merely by the possible or probable misconduct of wrongdoers, who to prevent the meeting are determined to break the peace, is, it is submitted, well established, whence it follows that in general an otherwise lawful public meeting cannot be forbidden or broken up by the magistrates simply because the meeting may probably or naturally lead to a breach of the peace on the part of wrongdoers.
To the application of this principle there exist certain limitations or exceptions. They are grounded on the absolute necessity for preserving the King's peace.
FIRST LIMITATION
(1) Where illegality in meeting provokes breach of peace If there is anything unlawful in the conduct of the persons convening or addressing a meeting, and the illegality is of a kind which naturally provokes opponents to a breach of the peace, the speakers at and the members of the meeting may be held to cause the breach of the peace, and the meeting itself may thus become an unlawful meeting. If, for example, a Protestant controversialist surrounded by his friends uses in some public place where there is a large Roman Catholic population, abusive language which is in fact slanderous of Roman Catholics, or which he is by a local by-law forbidden to use in the streets, and thereby provokes a mob of Roman Catholics to break the peace, the meeting may become an unlawful assembly. And the same result may ensue where, though there is nothing in the mode in which the meeting is carried on which provokes a breach of the peace, yet the object of the meeting is in itself not strictly lawful, and may therefore excite opponents to a breach of the peace.
SECOND LIMITATION
(2) Where meeting lawful but peace can only be kept by dispersing it. Where a public meeting, though the object of the meeting and the conduct of the members thereof are strictly lawful, provokes a breach of the peace, and it is impossible to preserve or restore the peace by any other means than by dispersing the meeting, then magistrates, constables, and other persons in authority may call upon the meeting to disperse, and, if the meeting does not disperse, it becomes an unlawful assembly, Let us suppose, for example, that the Salvation Army hold a meeting at Oxford, that a so-called Skeleton Army come together with a view to preventing the Salvationists from assembling, and that it is in strictness impossible for the peace to be preserved by any other means than by requiring the Salvationists to disperse. Under these circumstances, though the meeting of the Salvation Army is in itself perfectly lawful, and though the wrongdoers are the members of the Skeleton Army, yet the magistrates may, it would seem, if they can in no other way preserve the peace, require the Salvationists to disperse, and if the Salvationists do not do so, the meeting becomes an unlawful assembly; and it is possible that, if the magistrates have no other means of preserving the peace, i.e. cannot protect the Salvationists from attack by the Skeleton Army, they may lawfully prevent the Salvationists from holding the meeting. But the only justification for preventing the Salvationists from exercising their legal rights is the necessity of the case. If the peace can be preserved, not by breaking up an otherwise lawful meeting, but by arresting the wrongdoers—in this case the Skeleton Army—the magistrates or constables are bound, it is submitted, to arrest the wrongdoers and to protect the Salvationists in the exercise of their lawful rights.
One point, however, deserves special notice since it is apt to be overlooked.
Limitations on right of public meeting are really limitations on individual freedom The limitations or restrictions which arise from the paramount necessity for preserving the King's peace are, whatever their extent, —and as to their exact extent some fair doubt exists,—in reality nothing else than restraints, which, for the sake of preserving the peace, are imposed upon the ordinary freedom of individuals.
Thus if A, a religious controversialist, acting alone and unaccompanied by friends and supporters, addresses the public in, say, the streets of Liverpool, and uses language which is defamatory or abusive, or, without being guilty of defamation, uses terms of abuse which he is by a local by-law forbidden to use in the streets, and thereby, as a natural result of his oratory, excites his opponents to a breach of the peace, he may be held liable for the wrongful acts of which his language is the cause though not the legal justification, and this though he does not himself break the peace, nor intend to cause others to violate it. He may, certainly, be called upon to find sureties for his good behaviour, and he may, probably, be prevented by the police from continuing addresses which are exciting a breach of the peace, for
the cases with respect to apprehended breaches of the peace show that the law does regard the infirmity of human temper to the extent of considering that a breach of the peace, although an illegal act, may be the natural consequence of insulting or abusive language or conduct.”
So again it may, where the public peace cannot otherwise be preserved, be lawful to interfere with the legal rights of an individual and to prevent him from pursuing a course which in itself is perfectly legal. Thus A, a zealous Protestant lady, walks through a crowd of Roman Catholics wearing a party emblem, namely, an orange lily, which under the circumstances of the case is certain to excite, and does excite, the anger of the mob. She has no intention of provoking a breach of the peace, she is doing nothing which is in itself unlawful; she exposes herself, however, to insult, and to pressing danger of public attack. A riot has begun; X, a constable who has no other means of protecting A, or of restoring the peace, requests her to remove the lily. She refuses to do so. He then, without use of any needless force, removes the flower and thereby restores the peace. The conduct of X is apparently legal, and A has no ground of action for what would otherwise have been an assault. The legal vindication of X's conduct is not that A was a wrongdoer, or that the rioters were within their rights, but that the King's peace could not be restored without compelling A to remove the lily.
Meeting not made unlawful by official proclamation of its illegality No public meeting, further, which would not otherwise be illegal, becomes so (unless in virtue of some special Act of Parliament) in consequence of any prodamation or notice by a Secretary of State, by a magistrate, or by any other official. Suppose, for example, that the Salvationists advertise throughout the town that they intend holding a meeting in a field which they have hired near Oxford, that they intend to assemble in St. Giles's and march thence with banners flying and bands playing to their proposed place of worship. Suppose that the Home Secretary thinks that, for one reason or another, it is undesirable that the meeting should take place, and serves formal notice upon every member of the army, or on the officers who are going to conduct the so-called “campaign” at Oxford, that the gathering must not take place. This notice does not alter the character of the meeting, though, if the meeting be illegal, the notice makes any one who reads it aware of the character of the assembly, and thus affects his responsibility for attending it. Assume that the meeting would have been lawful if the notice had not been issued, and it certainly will not become unlawful because a Secretary of State has forbidden it to take place. The proclamation has under these circumstances as little legal effect as would have a proclamation from the Home Office forbidding me or any other person to walk down the High Street. It follows, therefore, that the government has little or no power of preventing meetings which to all appearance are lawful, even though they may in fact turn out when actually convened to be unlawful because of the mode in which they are conducted. This is certainly a singular instance of the way in which adherence to the principle that the proper function of the state is the punishment, not the prevention, of crimes, deprives the executive of discretionary authority.
Meeting may be lawful though its holding contrary to public interest. A meeting, lastly, may be lawful which, nevertheless, any wise or public-spirited person would hesitate to convene. For A, B, and C may have a right to hold a meeting, although their doing so will as a matter of fact probably excite opponents to deeds of violence, and possibly produce bloodshed. Suppose a Protestant zealot were to convene a meeting for the purpose of denouncing the evils of the confessional, and were to choose as the scene of the open-air gathering some public place where meetings were usually held in the midst of a large town filled with a population of Roman Catholic poor. The meeting would, it is conceived, be lawful, but no one can doubt that it might provoke violence on the part of opponents. Neither the government, however, nor the magistrates could (it is submitted), as a rule, at any rate, prohibit and prevent the meeting from taking place. They might, it would seem, prevent the meeting if the Protestant controversialist and his friends intended to pursue a course of conduct, e.g. to give utterance to libellous abuse, which would be both illegal and might naturally produce a breach of the peace, or if the circumstances were such that the peace could not be preserved otherwise than by preventing the meeting. 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 fights, 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.
Chapter VIII
MARTIAL LAW
No sharp line can be drawn between rules of private law or of criminal law and constitutional lawThe 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 may be 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 fights determine the relation of individual citizens 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 manifestly 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 which pervades English law, 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 that 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 tune 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.
Martial Law “Martial Law” 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. We have nothing equivalent to what is called in France the “Declaration of the State of Siege,” under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorité 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.
In what sense martial law recognised by English law 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, 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 clear that all loyal subjects are bound to take their part in the suppression of riots. It is also clear that a soldier has, as such, no exemption from liability to the law for his conduct in restoring order. Officers, magistrates, 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, 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. 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. 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 magistrates 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, 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.
In what sense martial law not recognised by English law. 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, nearly equivalent to the state of things which in France and many other foreign countries is known as the declaration of a “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.Frech Law as to state of siegeAussitôt l'état de siège déclaré, les pouvoirs dont l'autorité civile était revêtue pour le maintien de l'ordre et de la police passent tout entiers à l'autorite militaire. —L'autorité civile continue neanmoins à exercer ceux de ces pouvoirs dont l'autoritè militaire ne l'a pas dessaisie.
- 8.Lest tribunaux militaires peuvent être saisis de la connaissance des crimes et délits contre la sûreté de la République, contre la constitution, contre l'ordre et la paix publique, quelle que soit la qualité des auteurs principaux et des complices.
- 9.L'autorité militaire a le droit,—1° De faire des perquisitions, de jour et de nuit, dans le domicile des citoyens;—2° D'°loigner les repris de justice et les individus qui n'ont pas leur domicile dans les lieux, soumis à l'état de siège;-—3° D'ordonner la remise des armes et munitions, et de procedér à leur recherche à leur enlèraent; —4° D'interdire les publications et les réunions qu'elle juge de nature à exciter ou à entretenir le desordre.
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 dedared 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 prodamation 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.
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. 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.
Chapter IX
THE ARMY
The ArmyTheEnglish army may for the purposes of this treatise be treated s consisting of the Standing Army or, in technical language, the Regular Forces and of the Territorial Force, which, like the Militia, 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.
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 tittle 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. 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
Standing Army. Its existence reconciled with Parliamentary government by the annual Mutiny Acts. 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 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. 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 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 offidal character, but is not thereby exempted from the ordinary liabilities of citizenship.
The object and principles of the first Mutiny Act of 1689 are exactly the same as the object and principles of the Army Act, 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.
This recital states the precise difficulty which perplexed the statesmen in 2689. 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,” 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
Soldier's position as 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.” 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.
Criminal liability A soldier is subject to the same criminal liability as a civilian. 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. 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.
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; 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.
Order of superiors no defence to charge of crime When a soldier is put on trial on a charge of crime, obedience to superiors orders is not of itself a defence.
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 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 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.
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. 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.
A SOLDIER'S POSITION AS A MEMBER OF THE ARMY
Soldier's positino as member of 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 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 determine whether a given person is or is not “a person subject to military law.”
Enlistment, which constitutes the contract 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.
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 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.
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, 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
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. Embodiment 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. 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.
Chapter X
THE REVENUE
RevenueAs 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 forces 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
Source 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 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, as it was at the beginning of the reign of William iv. and of the reign of Queen Victoria, for a fixed “civil list,” 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 £144,000,000. 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 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, the excise, the stamp duties, 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. 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
Authority for expenditure. 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 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 mediæval 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 England to the “account of his Majesty's Exchequer,” 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.
This authority may be given by a permanent Act, as, for example, by the Civil List Act, 1 & 2 Vict. 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 year 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. 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 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
Security for proper expenditure. 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.
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. 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.
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.
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 comparatively modem 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 the 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 1811 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; he reports annually to Parliament upon the 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.
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?
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 mandamus 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.
Chapter XI
THE RESPONSIBILITY OF MINISTERS
Ministerial responsibility.Ministerial responsibility means two utterly different things. It means in ordinary parlance the responsibility 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. (1) 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 countersignature 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.
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, 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.
Chapter XII
RULE OF LAW COMPARED WITH
DROIT ADMINISTRATIF
IntroductionIn many continental countries, and notably in France, there exists a scheme of administrative law —known to Frenchmen as droit administratif—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 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. 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.
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.
(A)Droit administrotif 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.
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 (magistrat), 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 générales) governing the droit administratif of his country. He grounds his request for information on his own ignorance about this special branch of French jurisprudence, and clearly 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 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 modem England, that mainly makes it worth while to study, not of course the details, but what Tocqueville calls the notions générales of French droit administratif. 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 clear 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.
(1) Nature of droit administratif.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”; and Aucoc in his work on droit administratif describes his topic in this very general language:
Administrative law determines (1) the constitution and the relations of those organs of society which are charged with the care of those social interests (intérêts 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 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 administratifhas undergone between 2800 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.
(2) Historical development. 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. Its development may conveniently be divided into three periods, marked by the names of the Napoleonic Empire and 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
Napoleon and the Restoration In the opinion of French men true droit administratif owes its origin to the consular constitution of the Year VIII. (1800) created by Bonaparte after the coup d'état of the 18thof Brumaire. But legists, no less than historians, admit that the ideas on which droit administratif rests, may be rightly traced back, as they have been by Tocqueville, to the ancien régime; every feature of Bonaparte's governmental fabric recalls some characteristic of the ancient monarchy; his Conseil d'État 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 régime, 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 clearly visible than in the methods by which Bonaparte's legislation and policy gave full expression to the ideas or conceptions of royal prerogative underlying the administrative practice of the ancien régime, 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.
illegible 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 Englishrnen.
Privileges of the States. 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.
Seperation of powers The second of these general ideas is the necessity of maintaining the so-called “separation of powers” (séparation 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 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. 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.
Characteristics. To the combination of these two general ideas may be traced four distinguishing characteristics of French administrative law.
(1) Rights of the state determined by special rules. The first of these characteristics is, as the reader will at once perceive, that the relation of the government and its officials towards 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.
(2)Law Courts without jurisdiction in matters concerning the state and administrative to be determined by administrative courts. 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 Assize(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. The other dass of so-called Courts were and are the administrative Courts, such as the Courts of the Prefects (Conseil de Préfecture) and the Council of State. The function of these bodies, in so far as they acted judicially (for they fulfilled many duties that were not judicial), was to determine questions of administrative law. The two kinds of Courts stood opposed to one another. The judicial Courts had, speaking generally, no concern with questions of administrative law, or, in other words, with cases in which the interest of the State or its servants was at issue; to entrust any judicial Court with the decision of any administrative suit would have been deemed in 1800, as indeed it is still deemed by most Frenchmen, a violation of the doctrine of the separation of powers, and would have allowed the interference by mere judges with cases in which the interest of the State or its servants was at issue. The administrative Courts, on the other hand, had, speaking generally, no direct concern with matters which fell within the jurisdiction of the judicial tribunals, but when we come to examine the nature of the Council of State we shall find that this restriction on the authority of a body which in Napoleon's time formed part of the government itself was far less real than the strict limitations imposed on the sphere of action conceded to the common law Courts.
Napoleon, in the second place, displayed towards the ordinary judges the sentiment of contemptuous suspicion embodied in revolutionary legislation. The law of 26–24 August 1790 is one among a score of examples which betray the true spirit of the Revolution. The judicial tribunals are thereby forbidden to interfere in any way whatever with any acts of legislation. Judicial functions, it is laid down, must remain separate from administrative functions. The judges must not, under penalty of forfeiture, disturb or in any way interfere with the operations of administrative bodies, or summon before them administrative officials on account of anything done by reason of their administrative duties. Napoleon had imbibed to the utmost the spirit of these enactments. He held, as even at a much later date did all persons connected with the executive government, that
the judges are the enemies of the servants of the State, and that there is always reason to fear their attempts to compromise the public interests by their malevolent, or at best rash, interference in the usual course of government business.
This fear was during the Empire, at any rate, assuredly groundless. Administrative officials met with no resistance from the Courts. After the Revolution the judges exhibited boundless humility and servile submission, they trembled before the power and obeyed the orders, often insolent enough, of the government. It is difficult, however, to see how in the days of Napoleon the ordinary judges could, whatever their courage or boldness, have interfered with the conduct of the government or its agents. They are even now, as a rule, without jurisdiction in matters which concern the State. They have no right to determine, for instance, the meaning and legal effect in case it be seriously disputed of official documents, as, for example, of a letter addressed by a Minister of State to a subordinate, or by a general to a person under his command. They are even now in certain cases without jurisdiction as to questions arising between a private person and a department of the government. In Napoleon's time they could not, without the consent of the government, have entertained criminal or civil proceedings against an official for a wrong done or a crime committed by such offidal in respect of private individuals when acting in discharge of his official duties. The incompetence, however, of the judicial Courts did not mean, even under Napoleon, that a person injured by an agent of the government was without a remedy. He might bring his grievance before, and obtain redress from, the administrative tribunals, i.e. in substance the Council of State, or proceedings might, where a crime or a wrong was complained of, be, with the permission of the government, taken before the ordinary Courts.
(3) conflicts of jurisdiction The co-existence of judicial Courts and of administrative Courts results of necessity in raising questions of jurisdiction. A, for example, in some judicial Court claims damages against X for a breach of contract, or it may be for what we should term an assault or false imprisonment. X's defence in substance is that he acted merely as a servant of the State, and that the case raises a point of administrative law determinable only by an administrative tribunal, or, speaking broadly, by the Council of State. The objection, in short, is that the judicial Court has no jurisdiction. How is this dispute to be decided? The natural idea of an Englishman is that the conflict must be determined by the judicial Courts, i.e. the ordinary judges, for that the judges of the land are the proper authorities to define the limits of their own jurisdiction. This view, which is so natural to an English lawyer, is radically opposed to the French conception of the separation of powers, since it must, if systematically carried out, enable the Courts to encroach on the province of the administration. It contradicts the principle still recognised as valid by French law that administrative bodies must never be troubled in the exercise of their functions by any act whatever of the judicial power; nor can an Englishman, who recollects the cases on general warrants, deny that our judges have often interfered with the action of the administration. The worth of Montesquieu's doctrine is open to question, but if his theory be sound, it is dear that judicial bodies ought not to be allowed to pronounce a final judgment upon the limits of their own authority.
Under the legislation of Napoleon the right to determine such questions of jurisdiction was in theory reserved to the head of the State, but was in effect given to the Council of State, that is, to the highest of administrative Courts. Its authority in this matter was, as it still is, preserved in two different ways. If a case before an ordinary or judicial Court clearly raised a question of administrative law, the Court was bound to see that the inquiry was referred to the Council of State for decision. Suppose, however, the Court exceeded, or the government thought that it exceeded, its jurisdiction and trenched upon the authority of the administrative Court, a prefects, who, be it remarked, is a mere government official, could raise a conflict, that is to say, could, by taking the proper steps, insist upon the question of jurisdiction being referred for decision to the Council of State. We can hardly exaggerate the extent of the authority thus conferred upon the Council. It has the right to fix the limits of its own power, it could in effect take out of the hands of a judicial Court a case of which the Court was already seised.
(4) Protection of officials The fourth and most despotic characteristic of droit administratif lies in its tendency to protect from the supervision or control of the ordinary law Courts any servant of the State who is guilty of an act, however illegal, whilst acting inborn fide obedience to the orders of his superiors and, as far as intention goes, in the mere discharge of his official duties.
Such an official enjoyed from 1800 fill 1872 a triple protection (garantie des fonctionnaires).
Act of State In the first place, he could not be made responsible before any Court, whether judicial or administrative, for the performance of any act of State (acte de gouvernement).
The law of France has always recognised an indefinite class of acts, i.e. acts of State, which, as they concern matters of high policy or of public security, or touch upon foreign policy or the execution of treaties, or concern dealings with foreigners, must be left to the uncontrolled discretion of the government, and lie quite outside the jurisdiction of any Court whatever. What may be the exact definition of an act of State is even now, it would appear in France, a moot point on which high authorities are not entirely agreed. It is therefore impossible for any one but a French lawyer to determine what are the precise qualities which turn conduct otherwise illegal into an act of State of which no French Court could take cognisance. Of recent years the tendency of French lawyers has certainly been to narrow down the sense of an ambiguous term which lends itself easily to the justification of tyranny. We may feel sure, however, that during the Napoleonic era and for long afterwards any transaction on the part of the government or its servants was deemed to be an act of State which was carried out bona fide with the object of furthering the interest or the security of the country.
Obedience to order In the second place, the French Penal Code, Art. 114, protected, as it still protects, an official from the penal consequences of any interference with the personal liberty of fellow citizens when the act complained of is done under the orders of his official superior.
In the third place, under the celebrated Article 75 of the Constitution of the Year VIII., i.e. of 1800, no official could, without the permission of the Council of State, be prosecuted or otherwise be proceeded against, for any act done in relation to his official duties.
The protection given was ample. Article 75 reads indeed as if it applied only to prosecutions, but was construed by the Courts so as to embrace actions for damages. Under the Napoleonic Constitution no servant of the State, whether a prefect, a mayor, or a policeman, whose conduct, however unlawful, met with the approval of the government, ran any real risk of incurring punishment or of paying damages for any act which purported to be done in discharge of his official duties.
The effect practically produced by the four characteristics of administratif, and especially the amount of the protection provided for officials acting in obedience to the orders of their superiors, depends in the main on the answer to one question: What at a given time is found to be the constitution and the character of the Council of State? Was it then under Napoleon a law Court administering judicially a particular branch of French law, or was it a department of the executive government? The answer is plain. The Council, as constituted or revived by Bonaparte, was the very centre of his whole governmental fabric. It consisted of the most eminent administrators whom Napoleon could gather round him. The members of the Council were entitled and were bound to give the supreme ruler advice. The Council, or some of the Councillors, took part in affairs of all descriptions. It is hardly an exaggeration to say that, subject to the absolute will of Napoleon, the members of the Council constituted the government. They held office at his pleasure. The Councillors dealt with policy, with questions of administration, with questions of administrative law. In 800 it is probable that administrative suits were not very early separated from governmental business. The Council, moreover, even when acting judicially, was more of a Ministry than of a Court, and when the Council, acting as a Court, had given its decision, or tendered its advice, it possessed no means for compelling the executive to give effect to its decisions. As a matter of fact, years have sometimes elapsed before the executive of the day has thought fit to put the judgments of the Council into force, and it was not till 1872 that its decisions acquired by law the character of real judgments. It was, moreover, as we have already pointed out, originally the final Conflict-Court. It had a right to determine whether a given case did or did not concern administrative law, and therefore whether it fell within its own jurisdiction or within the jurisdiction of the ordinary Courts. Thus the state of things which existed in France at the beginning of the nineteenth century bore some likeness to what would be the condition of affairs in England if there were no, or little, distinction between the Cabinet as part of the Privy Council and the Judicial Committee of the Privy Council, and if the Cabinet, in its character of a Judicial Committee, determined all questions arising between the government on the one side, and private individuals on the other, and determined them with an admitted reference to considerations of public interest or of political expediency. Nor was any material change produced by the fall of Napoleon. The restored monarchy eagerly grasped the prerogatives created by the Empire. There was even a sort of return to the unrestrained arbitrariness of the Directory. It was not until 1828, that is, within two years of the expulsion of Charles X., that public opinion enforced some restriction on the methods by which the administrative authorities, i.e. the government, invaded the sphere of the judicial Courts.
There are two reasons why it is worth while to study with care the droit administratif of our first period. The administrative law of to-day has been built up on the foundations laid by Napoleon. The Courts created by him still exist; their jurisdiction is still defined in accordance, in the main, with the lines which he laid down. True it is that machinery invented to support a scheme of rational absolutism has in later limes been used by legists and reformers for the promotion of legal liberty. But it is a fact never to be forgotten that the administrative law of France originated in ideas which favour the prerogatives of the government as the proper defence for the interest of the nation.
SECOND PERIOD: THE ORLEANS MONARCHY
AND THE SECOND EMPIRE 1830–1870
Monarehical Period This period deserves the special attention of English students. Napoleonic Imperialism was absolutism; the Restoration was reaction; neither admits of satisfactory comparison with any governmental system known to modern England. The forty years, on the other hand, which intervened between the expulsion of Charles X. and the fall of Napoleon III., though marked by three violent changes —the Revolution of 1848, the coup d'état of 1851, the overthrow of the Second Empire in 1870 — form, as a whole, a time of civil order. During these forty years France was, with the exception of not more than six months, governed under the established law of the land. An age of peaceful progress gives an opening for illuminative comparison between the public law of France and the public law of England. This remark is particularly applicable to the reign of Louis Philippe. He was, in the eyes of Englishmen, above all things, a constitutional king. His Parliamentary ministries, his House of peers, and his House of deputies, the whole framework and the very spirit of his government, seemed to be modelled upon the constitution of England; under his rule the supremacy of the ordinary law of the land, administered by the ordinary law Courts, was, as Englishmen supposed, as securely established in France as in England. They learn with surprise, that during the whole of these forty years few, if any, legislative or Parliamentary reforms touched the essential characteristics of droit droit administratif as established by Napoleon. It remained, as it still does, a separate body of law, dealt with by administrative Courts. With this law the judicial Courts continued to have, as they still have, no concern. The introduction of Parliamentary government took from the Council of State, during the reign of Louis Philippe, many of its political functions. It remained, however, as it does to-day, the great administrative Court. It preserved what it does not now retain, the right to define the jurisdiction of the judicial Courts. Servants of the State remained in possession of every prerogative or privilege ensured to them by custom or by Napoleonic legislation. Droit administratif, in short, retained till 1870 all its essential features. That this was so is apparent from two considerations:—
The Council an absolutely judical body. First, the Council of State never, during the period with which we are concerned, became a thoroughly judicial body.
This indeed is a point on which an English critic must speak with some hesitation. He will remember how easily a Frenchman, even though well acquainted with England, might at the present moment misinterpret the working of English institutions, and imagine, for instance, from the relation of the Lord Chancellor to the Ministry, that the Cabinet, of which the Chancellor is always a member, could influence the judgment given in an action entered in the Chancery Division of the High Court, whereas, as every Englishman knows, centuries have passed since the Lord Chancellor, when acting as a judge in Chancery, was in the slightest degree guided by the interest or the wishes of the Cabinet. An English critic will also remember that at the present day the Council of State commands as profound respect as any Court in France, and stand in popular estimation on a level with the Court of Cassation—the highest of judicial tribunals—and further, that the repute of the Council has risen during every year since 1830. Yet, subject to the hesitation which becomes any one who comments on the working of institutions which are not those of his own country, an English lawyer must condude that between 1830 and 1870 the Council, while acting as an administrative tribunal, though tending every year to become more and more judicialised, was to a considerable extent an official or governmental body, the members of which, when acting in the discharge of quasi-judicial functions, were likely to be swayed by ministerial or official sentiment. This assertion does not imply that the Council, consisting of persons of the highest eminence and character, did not aim at doing or did not constantly do justice. What is meant is that the Council's idea of justice was not likely to be exactly the same as that entertained by judicial or common law Courts.
No diminution in protection of official Secondly, the legal protection of officials suffered no diminution.
No man could be made liable before any Court whatever for carrying out an act of State (acte de gouvernement). And under the rule of Louis Philippe, as under the Second Empire, wide was the extension given, both in theory and in practice, to this indefinite and undefined expression.
In 1832 the Duchesse de Berry attempted to raise a civil war in La Vendée. She was arrested. The king dared not let her leave the country. He would not put on trial the niece of his wife. Republicans and Legitimists alike wished her to be brought before a law Court. The one class desired that “Caroline Berry” should be treated as an ordinary criminal, the other hoped to turn the Duchess into a popular heroine. The case was debated in Parliament again and again. Petitions demanded that she should either be set at liberty or brought before a jury. The government refused to take either course. She was detained in prison until private circumstances deprived her both of credit and of popularity. She was then quietly shipped off to Sicily. The conduct of the government, or in fact of the king, was illegal from beginning to end. The Ministry confessed, through the mouth of Monsieur Thiers, that the law had been violated. A vote of the Chamber of Deputies—not be it noted an act of legislation-supplied, it was held, full justification for a breach of the law. This was the kind of authority ascribed in 1832 by the constitutional Ministers of a constitutional monarch to an act of State. This most elastic of pleas was, it would seem, the excuse or the defence for the dealings of Napoleon III. with the property of the Orleans family; nor is it easy to believe that even as late as 1880 some of the proceedings against the unauthorised congregations were not examples of the spirit which places an act of State above the law of the land.
The Penal Code Article 114, protecting from punishment, though not from legal condemnation, an agent of the government who though he committed a crime acted in obedience to the commands of his official superiors, remained, as it still remains, in full force.
The celebrated Article 75 of the Constitution of the Year VIII., which made it impossible to take legal proceedings for a crime or a wrong against any official without the permission of the Council of State, which surely in this case must have acted in accordance with the government of the day, still stood unrepealed.
Public opinion refused to regard the Council as a judicial tribunal, and condemned the protection extended to official wrongdoers. Hear on this point the language of Alexis de Tocqueville:
In the Year VIII. of the French Republic a constitution was drawn up in which the following clause was introduced: “Art. 75. All the agents of the government below the rank of ministers can only be prosecuted for offences relating to their several functions by virtue of a decree of the Conseil d'État; in which case the prosecution takes place before the ordinary tribunals.” This clause survived the “Constitution de Fan VIII.,” and it is still maintained in spite of the just complaints of the nation. I have always found the utmost difficulty in explaining its meaning to Englishmen or Americans. They were at once led to conclude that the Conseil d'État in France was a great tribunal, established in the centre of the kingdom, which exercised a preliminary and somewhat tyrannical jurisdiction in all political causes. But when I told them that the Conseil d'Etat was not a judicial body, in the common sense of the term, but an administrative council composed of men dependent on the Crown, so that the King, after having ordered one of his servants, called a Prefect, to commit an injustice, has the power of commanding another of his servants, called a Councillor of State, to prevent the former from being punished; when I demonstrated to them that the citizen who has been injured by the order of the sovereign is obliged to solicit from the sovereign permission to obtain redress, they refused to credit so flagrant an abuse, and were tempted to accuse me of falsehood or of ignorance. It frequently happened before the Revolution that a Parliament issued a warrant against a public officer who had committed an offence, and sometimes the proceedings were stopped by the authority of the Crown, which enforced compliance with its absolute and despotic will. It is painful to perceive how much lower we are sunk than our forefathers, since we allow things to pass under the colour of justice and the sanction of the law which violence alone could impose upon them.
These are the words of a man of extraordinary genius who well knew French history, who was well acquainted with the France of his day, who had for years sat in Parliament, who at least once had been a member of the Cabinet, and to whom the public life of his own country was as well known as the public life of England to Macaulay. Tocqueville's language may bear marks of an exaggeration, explainable partly by his turn of mind, and partly by the line of thought which made him assiduously study and possibly overrate the closeness of the connection between the weaknesses of modern democracy and the vices of the old monarchy. Be this as it may, he assuredly expressed the educated opinion of his time. A writer who has admirably brought into view the many merits of the Council of State and the methods by which it has in matters of administrative litigation acquired for itself more and more of a judicial character, acutely notes that till the later part of the nineteenth century the language of everyday life, which is the best expression of popular feeling, applied the terms “courts of justice” or “justice” itself only to the judicial or common law Courts. What stronger confirmation can be found of the justice of Tocqueville's judgment for the time at least in which he lived?
Effect of droit administratif on position of French officials We can now understand the way in which from 1830 to 1870 the existence of a droit administratif affected the whole legal position of French public servants, and rendered it quite different from that of English officials.
Persons in the employment of the government, who formed, be it observed, a more important part of the community than do the whole body of English civil servants, occupied in France a situation in some respects resembling that of soldiers in England. For the breach of official discipline they were, we may safely assume, readily punishable in one form or another. But if like English soldiers they were subject to official discipline, they enjoyed what even soldiers in England do not possess, a very large amount of protection against proceedings before the judicial Courts for wrongs done to private citizens. The position, for instance, of say a prefect or a policeman, who in the over-zealous discharge of his duties had broken the law by committing an assault or a trespass, was practically unassailable. He might plead that the wrong done was an act of State. If this defence would not avail him he might shelter himself behind Article 114 of the Penal Code, and thus escape not indeed an adverse verdict but the possibility of punishment. But after all, if the Ministry approved of his conduct, he had no need for legal defences. He could not, not, of the assent of the Council of State, be called upon to answer for his conduct before any Court of law. Article 75 was the palladium of official privilege or irresponsibility. Nor let any one think mat that arm of defence had grown rusty with time and could not in practice be used. Between 1852 and 1864 there were 264 applications for authorisations under Article 75 to take proceedings against officials. Only 34 were granted, or, in other words, 230 were refused. The manifest injustice of the celebrated Article had been long felt. Even in 1815 Napoleon had promised its modification.
THIRD PERIOD: THE THIRD REPUBLIC, 1870–1908
Within two years from the fall of the Second Empire public opinion insisted upon three drastic reforms in the administrative or official law of France.
Repeal of Art 75 On the 19th of September 1870 Article 75 was repealed.
It had survived the Empire, the Restoration, the Orleans Monarchy, the Republic of 1848, and the Second Empire. The one thing which astonishes an English critic even more than the length of time during which the celebrated Article had withstood every assault, is the date, combined with the method of its abolition. It was abolished on the 19th of September 1870, when the German armies were pressing on to Paris. It was abolished by a Government which had come into office through an insurrection, and which had no claim to actual power or to moral authority except the absolute necessity for protecting France against invasion. It is passing strange that a provisional government, occupied with the defence of Paris, should have repealed a fundamental principle of French law. Of the motives which led men placed in temporary authority by the accidents of a revolution to carry through a legal innovation which, in appearance at least, alters the whole position of French officials, no foreign observer can form a certain opinion. It is, however, a plausible conjecture, confirmed by subsequent events, that the repeal of Article 75 was lightly enacted and easily tolerated, because, as many lawyers may have suspected, it effected a change more important in appearance than in reality, and did not after all gravely touch the position of French functionaries or the course of French administration.
A circumstance which fills an English lawyer with further amazement is that the repeal of Article 75 became, and still without any direct confirmation by any legislative assembly remains, part of the law of the land. Here we come across an accepted principle of French constitutional law which betrays the immense authority conceded both by the law and by the public opinion of France to any de facto and generally accepted government. Such a body, even if like the provisional government of 1848 it is called to office one hardly knows how, by the shouts of a mob consisting of individuals whose names for the most part no one now knows at all, is deemed to possess whilst it continues in power the fullest legislative authority. It is, to use French terms, not only a legislative but a constituent authority. It can issue decrees, known by the technical name of decree laws (decréts lois), which, until regularly repealed by some person or body with acknowledged legislative authority, are often as much law of the land as any Act passed with the utmost formality by the present French National Assembly. Contrast with this ready acceptance of governmental authority the view taken by English Courts and Parliaments of every law passed from 1642 to 1660 which did not receive the Royal assent. Some of them were enacted by Parliaments of a ruler acknowledged both in England and in many foreign countries as the head of the English State; the Protector, moreover, died in peace, and was succeeded without disturbance by his son Richard. Yet not a single law passed between the outbreak of the Rebellion and the Restoration is to be found in the English Statute Book. The scrupulous legalism of English lawyers acknowledged in 1660 no Parliamentary authority but that Long Parliament which, under a law regularly passed and assented to by Charles I., could not be dissolved without its own consent. A student is puzzled whether most to admire or to condemn the sensible but, it may be, too easy acquiescence of Frenchmen in the actual authority of any de facto government, or the legalism carried to pedantic absurdity of Englishmen, who in matters of statesmanship placed technical legality above those rules of obvious expediency which are nearly equivalent to principles of justice. This apparent digression is in reality germane to our subject. It exhibits the different light in which, even in periods of revolution, Frenchmen and Englishmen have looked upon the rule of law. The strange story of Article 75 needs a few words more for its completion. The decree law of 19th September 1870 reads as if it absolutely subjected officials accused of any breach of the law to the jurisdiction of the judicial Courts. This, moreover, was in fact the view taken by both the judicial and the administrative Courts between 1870 and 1872. But judicial decisions can in France, as elsewhere, frustrate the operation of laws which they cannot repeal. After 1870 proceedings against officials, and officials of all ranks, became frequent. This fact is noteworthy. The government wished to protect its own servants. It brought before the newly constituted Conflict-Court a case raising for reconsideration the effect of the decree law of 19th September 1870. The Court held that, though proceedings against officials might be taken without the leave of the Council of State, yet that the dogma of the separation of powers must still be respected, and that it was for the Conflict-Court to determine whether any particular case fell within the jurisdiction of the judicial Courts or of the administrative Courts, that is in effect of the Council of State. The principle of this decision has now obtained general acceptance. Thus a judgment grounded on that doctrine of the separation of powers which embodies traditional jealousy of interference by ordinary judges in affairs of State has, according, at any rate, to one high authority, reduced the effect of the repeal of Arctile 75 almost to nothing. “To sum the matter up,” writes Duguit, “the only difference between the actual system and that which existed under the Constitution of the Year VIII. is that before 1870 the prosecution of State officials was subject to the authorisation of the Council of State, whilst to-day it is subject to the authorisation of the Conflict-Court.”
(2) Decisions of Council of State became judgements. Under the law of 24th May 1872, the decisions of the Council of State concerning cases of administrative law received for the first time the obligatory force of judgments. They had hitherto been in theory, and from some points of view even in practice, as already pointed out, nothing but advice given to the head of the State.
(3) Creation of independent Conflict-Court The same law which enhanced the authority of the Council's decisions diminished its jurisdiction. The Council had, since 1800, decided whether a given case, or a point that might arise in a given case, fell within the jurisdiction of the judicial Courts or of the administrative Courts, i.e. in substance of the Council itself. This authority or power was, in 1872, transferred to a separate and newly constituted Conflict-Court.
This Conflict-Court has been carefully constituted so as to represent equally the authority of the Court of Cassation—the highest judicial Court in Francemand the authority of the Council of State— the highest administrative Court in France. It consists of nine members: —three members of the Court of Cassation elected by their colleagues; three members of the Council of State, also elected by their colleagues; two other persons elected by the above six judges of the Conflict-Court. All these eight members of the Court hold office for three years. They are re-eligible, and are almost invariably re-elected. The Minister of Justice (garde des sceaux) for the time being, who is a member of the Ministry, is ex officio President of the Court. He rarely attends. The Court elects from its own members a Vice-President who generally presides. The Conflict-Court comes near to an absolutely judicial body; it commands, according to the best authorities, general confidence. But its connection with the Government of the day through the Minister of Justice (who is not necessarily a lawyer) being its President, and the absence on the part of its members of that permanent tenure of office, which is the best security for perfect judicial independence, are defects, which, in the opinion of the fairest among French jurists, ought to be removed, and which, as long as they exist, detract from the judicial character of the Conflict-Court. An Englishman, indeed, can hardly fail to surmise that the Court must still remain a partly official body which may occasionally be swayed by the policy of a Ministry, and still more often be influenced by official or governmental ideas. Nor is this suspicion diminished by the knowledge that a Minister of Justice has within the year 1908 defended his position as President of the Court on the ground that it ought to contain some one who represents the interests of the government.
These three thorough-going reforms were carried out by legislative action. They obviously met the requirements of the time. They were of rapid; they appeared to be sudden. This appearance is delusive. They were in reality the outcome of a slow but continuous revolution in French public opinion and also of the perseverance with which the legists of the Council of State, under the guidance of French jurisprudence and logic, developed out of the arbitrariness of administrative practice a fixed system of true administrative law. To understand this evolution of droit administratif during the lapse of more than a century (1800–1908) we must cast a glance over the whole development of this branch of French law and regard it in the light in which it presents itself, not so much to an historian of France as to a lawyer who looks upon the growth of French public law from an historical point of view. We shall then see that the years under consideration fall into three periods or divisions. They are:
The Period of Unnoticed Growth, 1800–18
(Période D'élaboration Secréte)
During these years the Council, by means of judicial precedents, created a body of maxims, in accordance with which the Council in fact acted when deciding administrative disputes.
The Period of Publication, 1818–60
(Période de Divulgation)
During these forty-two years various reforms were carried out, partly by legislation, but, to a far greater extent, by judge-made law. The judicial became more or less separated off from the administrative functions of the Council. Litigious business (le contentieux administratif) was in practice assigned to and decided by a special committee (section), and, what is of equal consequence, such business was decided by a body which acted after the manner of a Court which was addressed by advocates, heard arguments, and after public debate delivered judicial decisions. These decisions were reported, became the object of much public interest, and were, after a manner with which English lawyers are well acquainted, moulded into a system of law. The judgments, in short, of the Council acquired the force of precedent. The political revolutions of France, which have excited far too much notice, whilst the uninterrupted growth of French institutions has received too little attention, sometimes retarded or threw back, but never arrested the continuous evolution of droit administratif; even under the Second Empire this branch of French jurisprudence became less and less arbitrary and developed more and more into a system of fixed and subtle legal rules.
The Period of Organisation, 1860–1908
(Période d'Organisation)
During the last forty-eight years, marked as they have been in France by the change from the Empire to a Republic, by the German invasion, and by civil war, the development of droit administratif has exhibited a singular and tranquil regularity. Sudden innovations have been rare and have produced little effect. The reforms introduced by the decree law of 19th September 1870, and by the law of 24th May 1872, are, taken together, considerable; but they in reality give effect to ideas which had since 1800 more or less guided the judicial legislation and practice both of the Council of State and of the Court of Cassation. If the legal history of France since 1800 be looked at as a whole, an Englishman may reasonably conclude that the arbitrary authority of the executive as it existed in the time of Napoleon, and even as it was exercised under the reign of Louis Philippe or of Louis Napoleon, has gradually, as far as the jurisdiction of the administrative Courts is concerned, been immensely curtailed, if not absolutely brought to an end. Droit administratif, though administered by bodies which are perhaps not in strictness Courts, and though containing provisions not reconcilable with the modem English conception of the rule of law, comes very near to law, and is utterly different from the capricious prerogatives of despotic power.
(B) Comparison between droit administratif and rule of law A comparison between the administrative law of France and our English rule of law, if taken from the right point of view, suggests some interesting points of likeness, no less than of unlikeness.
I. Likeness 1stPoint Droit administratif not opposed to English ideas current in sixteenth and seventeenth centuries It will be observed that it is “modem” English notions which we have contrasted with the ideas of administrative law prevalent in France and other continental states. The reason why the opposition between the two is drawn in this form deserves notice. At a period Which historically is not very remote from us, the ideas as to the position of the Crown which were current, if not predominant in England, bore a very close analogy to the doctrines which have given rise to the droit administratif of France. Similar beliefs moreover necessarily produced similar results, and there was a time when it must have seemed possible that what we now call administrative law should become a permanent part of English institutions. For from the accession of the Tudors till the final expulsion of the Stuarts the Crown and its servants maintained and put into practice, with more or less success and with varying degrees of popular approval, views of government essentially similar to the theories which under different forms have been accepted by the French people. The personal failings of the Stuarts and the confusion caused by the combination of a religious with a political movement have tended to mask the true character of the legal and constitutional issues raised by the political contests of the seventeenth century. A lawyer, who regards the matter from an exclusively legal point of view, is tempted to assert that the real subject in dispute between statesmen such as Bacon and Wentworth on the one hand, and Coke or Eliot on the other, was whether a strong administration of the continental type should, or should not, be permanently established in England. Bacon and men like him no doubt underrated the risk that an increase in the power of the Crown should lead to the establishment of despotism. But advocates of the prerogative did not (it may be supposed) intend to sacrifice the liberties or invade the ordinary private rights of citizens; they were struck with the evils flowing from the conservative legalism of Coke, and with the necessity for enabling the Crown as head of the nation to cope with the selfishness of powerful individuals and classes. They wished, in short, to give the government the sort of rights conferred on a foreign executive by the principles of administrative law. Hence for each feature of French droit administratif one may find some curious analogy either in the claims put forward or in the institutions favoured by the Crown lawyers of the seventeenth century.
The doctrine, propounded under various metaphors by Bacon, that the prerogative was something beyond and above the ordinary law is like the foreign doctrine that in matters of high policy (acte de gouvernement) the administration has a discretionary authority which cannot be controlled by any Court. The celebrated dictum that the judges, though they be “lions,” yet should be “lions under the throne, being circumspect that they do not check or oppose any points of sovereignty,” is a curious anticipation of the maxim formulated by French revolutionary statesmanship that the judges are under no circumstances to disturb the action of the administration, and would, if logically worked out, have led to the exemption of every administrative act, or, to use English terms, of every act alleged to be done in virtue of the prerogative, from judicial cognisance. The constantly increasing power of the Star Chamber and of the Council gave practical expression to prevalent theories as to the Royal prerogative, and it is hardly fanciful to compare these Courts, which were in reality portions of the executive government, with the Conseil d'État and other Tribunaux administratifs of France. Nor is a parallel wanting to the celebrated Article 75 of the Constitution of the Year VIII. This parallel is to be found in Bacon's attempt to prevent the judges by means of the writ De non procedendo Rege inconsulto from proceeding with any case in which the interests of the Crown were concerned. Mr. Gardiner observes:
The working of this writ, if Bacon had obtained his object, would have been, to some extent, analogous to that provision which has been found in so many French constitutions, according to which no agent of the Government can be summoned before a tribunal, for acts done in the exercise of his office, without a preliminary authorisation by the Council of State. The effect of the English writ being confined to cases where the King was himself supposed to be injured, would have been of less universal application, but the principle on which it rested would have been equally bad.
The principle moreover admitted of unlimited extension, and this, we may add, was perceived by Bacon. He writes to the King:
The writ is a mean provided by the ancient law of England to bring any case that may concern your Majesty in profit or power from the ordinary Benches, to be tried and judged before the Chancellor of England, by the ordinary and legal part of this power. And your Majesty knoweth your Chancellor is ever a principal counsellor and instrument of monarchy, of immediate dependence on the king; and therefore like to be a safe and tender guardian of the regal rights.
Bacon's innovation would, if successful, have formally established the fundamental dogma of administrative law, that administrative questions must be determined by administrative bodies.
The analogy between the administrative ideas which still prevail on the Continent and the conception of the prerogative which was maintained by the English crown in the seventeenth century has considerable speculative interest. That the administrative ideas supposed by many French writers to have been originated by the statesmanship of the great Revolution or of the first Empire are to a great extent developments of the traditions and habits of the French monarchy is past a doubt, and it is a curious inquiry how far the efforts made by the Tudors or Stuarts to establish a strong government were influenced by foreign examples. This, however, is a problem for historians. A lawyer may content himself with noting that French history throws light on the causes both of the partial success and of the ultimate failure of the attempt to establish in England a strong administrative system. The endeavour had a partial success, because circumstances, similar to those which made French monarchs ultimately despotic, tended in England during the sixteenth and part of the seventeenth century to augment the authority of the Crown. The attempt ended in failure, partly because of the personal deficiencies of the Stuarts, but chiefly because the whole scheme of administrative law was opposed to those habits of equality before the law which had long been essential characteristics of English institutions.
2nd point. droit administraty is case-law.Droit administratif is in its contents utterly unlike any branch of modern English law, but in the method of its formation it resembles English law far more closely than does the codified civil law of France. For droit administratif is, like the greater part of English law, “case-law,” or “judge-made law.” The precepts thereof are not to be found in any code; they are based upon precedent: French lawyers cling to the belief that droit administratif cannot be codified, just as English and American lawyers maintain, for some reason or other which they are never able to make very clear, that English law, and especially the common law, does not admit of codification. The true meaning of a creed which seems to be illogical because its apologists cannot, or will not, give the true grounds for their faith, is that the devotees of droit administratif in France, in common with the devotees of the common law in England, know that the system which they each admire is the product of judicial legislation, and dread that codification might limit, as it probably would, the essentially legislative authority of the tribunaux administratifs in France, or of the judges in England. The prominence further given throughout every treatise on droit administratif to the contentieux administratif recalls the importance in English lawbooks given to matters of procedure. The cause is in each case the same, namely, that French jurists and English lawyers are each dealing with a system of law based on precedent.
Nor is it irrelevant to remark that the droit administratif of France, just because it is case-law based on precedents created or sanctioned by tribunals, has, like the law of England, been profoundly influenced by the writers of text-books and commentaries. There are various branches of English law which have been reduced to a few logical principles by the books of well-known writers. Stephen transformed pleading from a set of rules derived mainly from the experience of practitioners into a coherent logical system. Private international law, as understood in England at the present day, has been developed under the influence first of Story's Commentaries on the Conflict of Laws, and next, at a later date, of Mr. Westlake's Private International Law. And the authority exercised in every field of English law by these and other eminent writers has in France been exerted, in the field of administrative law, by authors or teachers such as Cormenin, Macarel, Vivien, Laferriére, and Hauriou. This is no accident. Wherever Courts have power to form the law, there writers of textbooks will also have influence. Remark too that, from the very nature of judge-made law, Reports have in the sphere of droit administratif an importance equal to the importance which they possess in every branch of English law, except in the rare instances in which a portion of our law has undergone codification.
3rd point Evolution of illegible But in the comparison between French droit administratif and the law of England a critic ought not to stop at the points of likeness arising from their each of them being the creation of judicial decisions. There exists a further and very curious analogy between the process of their historical development. The Conseil d'État has been converted from an executive into a judicial or quasi-judicial body by the gradual separation of its judicial from its executive functions through the transference of the former to committees (sections), which have assumed more and more distinctly the duties of Courts. These “judicial committees” (to use an English expression) at first only advised the Conseil dÉtat or the whole executive body, though it was soon understood that the Council would, as a general rule, follow or ratify the decision of its judicial committees. This recalls to a student of English law the fact that the growth of our whole judicial system may historically be treated as the transference to parts of the King's Council of judicial powers originally exercised by the King in Council; and it is reasonable to suppose that the rather ill-defined relations between the Conseil d'État as a whole, and the Comité duĆontentieux, may explain to a student the exertion, during the earlier periods of English history, by the King's Council, of hardly distinguishable judicial and executive powers; it explains also how, by a natural process which may have excited very little observation, the judicial functions of the Council became separated from its executive powers, and how this differentiation of functions gave birth at last to Courts whose connection with the political executive were merely historical. This process, moreover, of differentiation assisted at times, in France no less than in England, by legislation, has of quite recent years changed the Conseil d'État into a real tribunal of droit administratif, as it created in England the Judicial Committee of the Privy Council for the regular and judicial decision of appeals from the colonies to the Crown in Council. Nor, though the point is a minor one, is it irrelevant to note that, as the so-called judgments of the Conseil d'État were, till 1872, not strictly “judgments,” but in reality advice on questions of droit administratif given by the Conseil d'État to the head of the Executive, and advice which he was not absolutely bound to follow, so the “judgments” of the Privy Council, even when acting through its judicial committee, though in reality judgments, are in form merely humble advice tendered by the Privy Council to the Crown. This form, which is now a mere survival, carries us back to an earlier period of English constitutional history, when the interference by the Council, i.e. by the executive, with judicial functions, was a real menace to that supremacy of the law which has been the guarantee of English freedom, and this era in the history of England again is curiously illustrated by the annals of droit administratif after the restoration of the Bourbons, 1815–30.
At that date the members of the Conseil d'État, as we have seen, held, as they still hold, office at the pleasure of the Executive; they were to a great extent a political body; there existed further no Conflict-Court; or rather the Conseil d'État was itself the Conflict-Court, or the body which determined the reciprocal jurisdiction of the ordinary law Courts and of the administrative Courts, i.e. speaking broadly, the extent of the Council's own jurisdiction. The result was that the Conseil d'État used its powers to withdraw cases from the decision of the law Courts, and this at a time when government functionaries were fully protected by Article 75 of the Constitution of the Year VIII. from being made responsible before the Courts for official acts done in excess of their legal powers. Nevertheless, the Conseil d'État, just because it was to a great extent influenced by legal ideas, resisted, and with success, exertions of arbitrary power inspired by the spirit of Royalist reaction. It upheld the sales of the national domain made between 1789 and 1814; it withstood every attempt to invalidate decisions given by administrative authorities during the period of the Revolution or under the Empire. The King, owing, it may be assumed, to the judicial independence displayed by the Conseil d'État, took steps which were intended to transfer the decision of administrative disputes from the Council or its committees, acting as Courts, to Councillors, acting as part of the executive. Ordinances of 1814 and of 1817 empowered the King to withdraw any administrative dispute which was connected with principles of public interest (toutes les affaires du contentieux de l'administration qui se lieraient àdes vues intérêt général) from the jurisdiction of the Conseil Étatl and bring it before the Council of Ministers or, as it was called, the Conseil d'en haut, and the general effect of this power and of other arrangements, which we need not follow out into detail, was that questions of droit administratif, in the decision of which the government were interested, were ultimately decided, not even by a quasi-judicial body, but by the King and his Ministers, acting avowedly under the bias of political considerations. In 1828 France insisted upon and obtained from Charles X. changes in procedure which diminished the arbitrary power of the Council. But no one can wonder that Frenchmen feared the increase of arbitrary power, or that French liberals demanded, after the Revolution of 1830, the abolition of administrative law and of administrative Courts. They felt towards the jurisdiction of the Counseil d'Etat the dread entertained by Englishmen of the sixteenth and seventeenth centuries with regard to the jurisdiction of the Privy Council, whether exercised by the Privy Council itself, by the Star Chamber, or even by the Court of Chancery. In each country there existed an appreciable danger lest the rule of the prerogative should supersede the supremacy of the law.
The comparison is in many ways instructive; it impresses upon us how nearly it came to pass that something very like administrative law at one time grew up in England. It ought, too, to make us perceive that such law, if it be administered in a judicial spirit, has in itself some advantages. It shows us also the inherent danger of its not becoming in strictness law at all, but remaining, from its dose connection with the executive, a form of arbitrary power above or even opposed to the regular law of the land. It is certain that in the sixteenth and seventeenth centuries the jurisdiction of the Privy Council and even of the Star Chamber, odious as its name has remained, did confer some benefits on the public. It should always be remembered that the patriots who resisted the tyranny of the Stuarts were fanatics for the common law, and could they have seen their way to do so would have abolished the Court of Chancery no less than the Star Chamber. The Chancellor, after all, was a servant of the Crown holding his office at the pleasure of the King, and certainly capable, under the plea that he was promoting justice or equity, of destroying the certainty no less than the formalism of the common law. The parallel therefore between the position of the English puritans, or whigs, who, during the seventeenth century, opposed the arbitrary authority of the Council, and the position of the French liberals who, under the Restoration (1815–30), resisted the arbitrary authority of the Conseil d'État and the extension of droit administratif, is a ĉlose one. In each case, it may be added, the friends of freedom triumphed.
The result, however, of this triumph was, it will be said, as regards the matter we are considering, markedly different. Parliament destroyed, and destroyed for ever, the arbitrary authority of the Star Chamber and of the Council, and did not suffer any system of administrative Courts or of administrative law to be revived or developed in England. The French liberals, on the expulsion of the Bourbons, neither destroyed the tribunaux administratifs nor made a ĉlean sweep of droit administratif.
The difference is remarkable, yet any student who looks beyond names at things will find that even here an obvious difference conceals a curious element of fundamental resemblance. The Star Chamber was abolished; the arbitrary jurisdiction of the Council disappeared, but the judicial authority of the Chancellor was touched neither by the Long Parliament nor by any of the Parliaments which met yearly after the Revolution of 1688. The reasons for this difference are not hard to discover. The law administered by the Lord Chancellor, or, in other words, Equity, had in it originally an arbitrary or discretionary element, but it in fact conferred real benefits upon the nation and was felt to be in many respects superior to the common law administered by the common-law Judges. Even before 1660 acute observers might note that Equity was growing into a system of fixed law. Equity, which originally meant the discretionary, not to say arbitrary interference of the Chancellor, for the avowed and often real purpose of securing substantial justice between the parties in a given case, might, no doubt, have been so developed as to shelter and extend the despotic prerogative of the Crown. But this was not the course of development which Equity actually followed; at any rate from the time of Lord Nottingham (1673) it was obvious that Equity was developing into a judicial system for the application of principles which, though different from those of the common law, were not less fixed. The danger of Equity turning into the servant of despotism had passed away, and English statesmen, many of them lawyers, were little likely to destroy a body of law which, if in one sense an anomaly, was productive of beneficial reforms. The treatment of droit administratif in the nineteenth century by Frenchmen bears a marked resemblance to the treatment of Equity in the seventeenth century by Englishmen. Droit administratifhas been the subject of much attack. More than one publicist of high reputation has advocated its abolition, or has wished to transfer to the ordinary or civil Courts (tribunaux judiciaires) the authority exercised by the administrative tribunals, but the assaults upon droit administrahif have been repulsed, and the division between the spheres of the judicial and the spheres of the administrative tribunals has been maintained. Nor, again, is there much difficulty in seeing why this has happened. Droit administratif with all its peculiarities, and administrative tribunals with all their defects, have been suffered to exist because the system as a whole is felt by Frenchmen to be beneficial. Its severest critics concede that it has some great practical merits, and is suited to the spirit of French institutions. Meanwhile droit administratif has developed under the influence rather of lawyers than of politicians; it has during the last half-century and more to a great extent divested itself of its arbitrary character, and is passing into a system of more or less fixed law administered by real tribunals; administrative tribunals indeed still lack some of the qualities, such as complete independence of the Government, which Englishmen and many Frenchmen also think ought to belong to all Courts, but these tribunals are certainly very far indeed from being mere departments of the executive government. To any person versed in the judicial history of England, it would therefore appear to be possible, or even probable, that droit administratif may ultimately, under the guidance of lawyers, become, through a course of evolution, as completely a branch of the law of France (even if we use the word 'law” in its very strictest sense) as Equity has for more than two centuries become an acknowledged branch of the law of England.
4th Point. Rapid growth of case-law. The annals of droit administratif during the nineteenth century elucidate again a point in the earlier history of English law which excites some perplexity in the mind of a student, namely, the rapidity with which the mere existence and working of law Courts may create or extend a system of law. Any reader of the History of English Law by Pollock and Maitland may well be surpised at the rapidity with which the law of the King's Court became the general or common law of the land. This legal revolution seems to have been the natural result of the vigorous exertion of judicial functions by a Court of great authority. Nor can we feel certain that the end attained was deliberately aimed at. It may, in the main, have been the almost undesigned effect of two causes: the first is the disposition always exhibited by capable judges to refer the decision of particular cases to general principles, and to be guided by precedent; the second is the tendency of inferior tribunals to follow the lead given by any Court of great power and high dignity. Here, in short, we have one of the thousand illustrations of the principle developed in M. Tarde's Lois de l'imitation, that the innate imitativeness of mankind explains the spread, first, throughout one country, and, lastly, throughout the civilised world, of any institution or habit on which success or any other circumstance has conferred prestige. It may still, however, be urged that the creation under judicial influence of a system of law is an achievement which requires for its performance a considerable length of time, and that the influence of the King's Court in England in moulding the whole law of the country worked with incredible rapidity. It is certainly true that from the Norman Conquest to the accession of Edward I. (1066–1272) is a period of not much over two centuries, and that by 1272 the foundations of English law were firmly laid; whilst if we date the organisation of our judicial system from the accession of Henry II. (7a54), we might say that a great legal revolution was carried through in not much more than a century. It is at this point that the history of droit administratif helps the student of comparative law.
One need not, however, be greatly astonished at rapidity in the development of legal principles and of legal procedure at a period when the moral influence or the imaginative impressiveness of powerful tribunals was much greater than during the later stages of human progress. In any case it is certain—and the fact is a most instructive one—that under the conditions of modern civilisation a whole body of legal rules and maxims, and a whole system of quasi-judicial procedure, have in France grown up within not much more than a century. The expression “grown up” is here deliberately used; the development of droit adxministratif between 1800 and 1908 resembles a natural process. It is as true of this branch of French law as of the English constitution that it “has not been made but has grown.”
II Unlikeness. 1st point. illegible not to be identified with any part of law of England. An intelligent student soon finds that droit administratif contains rules as to the status, the privileges, and the duties of government officials. He therefore thinks he can identify it with the laws, regulations, or customs which in England determine the position of the servants of the Crown, or (leaving the army out of consideration) of the Civil Service. Such “official law” exists, though only to a limited extent, in England no less than in France, and it is of course possible to identify and compare this official law of the one country with the official law of the other. But further investigation shows that official law thus understood, though it may form part of, is a very different thing from droit administratif. The law, by whatever name we term it, which regulates the privileges or disabilities of civil servants is the law of a dass, just as military law is the law of a dass, namely, the army. But droit administratif is not the law of a dass, but—a very different thing—a body of law which, under given circumstances, may affect the rights of any French citizen, as for example, where an action is brought by A against X in the ordinary Courts (tn'bunaux judiciaires), and the rights of the parties are found to depend on an administrative act (acte administratif), which must be interpreted by an administrative tribunal (tribunal administratif). In truth, droit administratIf is not the law of the Civil Service, but is that part of French public law which affects every Frenchman in relation to the acts of the public administration as the representative of the State. The relation indeed of droit administratif to the ordinary law of France may be best compared not with the relation of the law governing a particular class (e.g. military law) to the general law of England, but with the relation of Equity to the common law of England. The point of likeness, slight though in other respects it be, is that droit administratif in France and Equity in England each constitute a body of law which differs from the ordinary law of the land, and under certain circumstances modifies the ordinary civil rights of every citizen.
When our student finds that droit administratif cannot be identified with the law of the Civil Service, he naturally enough imagines that it may be treated as the sum of all the laws which confer special powers and impose special duties upon the administration, or, in other words, which regulate the functions of the Government. Such laws, though they must exist in every country, have till recently been few in England, simply because in England the sphere of the State's activity has, till within the last fifty or sixty years, been extremely limited. But even in England laws imposing special functions upon government officials have always existed, and the number thereof has of late vastly increased; to take one example among a score, the Factory legislation, which has grown up mainly during the latter half of the nineteenth century, has, with regard to the inspection and regulation of manufactories and workshops, given to the Government and its officials wide rights, and imposed upon them wide duties. If, then, droit administratif meant nothing more than the sum of all the laws which determine the functions of civil servants, droit administratif might be identified in its general character with the governmental law of England. The idea that such an identification is possible is encouraged by the wide definitions of droit administratif to be gathered from French works of authority, and by the vagueness with which English writers occasionally use the term “administrative law.” But here, again, the attempted identification breaks down. Droit administratif, as it exists in France, is not the sum of the powers possessed or of the functions discharged by the administration; it is rather the sum of the principles which govern the relation between French citizens, as individuals, and the administration as the representative of the State. Here we touch upon the fundamental difference between English and French ideas. In England the powers of the Crown and its servants may from time to time be increased as they may also be diminished. But these powers, whatever they are, must be exercised in accordance with the ordinary common law principles which govern the relation of one Englishman to another. A factory inspector, for example, is possessed of peculiar powers conferred upon him by Act of Parliament; but if in virtue of the orders of his superior officials he exceeds the authority given him by law, he becomes at once responsible for the wrong done, and cannot plead in his defence strict obedience of official orders, and, further, for the tort he has committed he becomes amenable to the ordinary Courts. In France, on the other hand, whilst the powers placed in the hands of the administration might be diminished, it is always assumed that the relation of individual citizens to the State is regulated by principles different from those which govern the relation of one French citizen to another. Droit administratif, in short, rests upon ideas absolutely foreign to English law: the one, as I have already explained, is that the relation of individuals to the State is governed by principles essentially different from those rules of private law which govern the rights of private persons towards their neighbours; the other is that questions as to the application of these principles do not lie within the jurisdiction of the ordinary Courts. This essential difference renders the identification of droit administratif with any branch of English law an impossibility. Hence inquiries which rightly occupy French jurists, such, for example, as what is the proper definition of the contentieux administratif; what is the precise difference between actes de gestion and actes de puissance publique, and generally, what are the boundaries between the jurisdiction of the ordinary Courts (tribunaux judiciaires) and the jurisdiction of the administrative Courts (tribunaux administratifs) have under English law no meaning.
2nd Point Droit administratif not in real introduced in to law of England. Has droit administratif been of recent years introduced in any sense into the law of England?
This is an inquiry which has been raised by writers of eminence, and which has caused some perplexity. We may give thereto a decided and negative reply.
The powers of the English Government have, during the last sixty years or so, been largely increased; the State has undertaken many new functions, such, for example, as the regulation of labour under the Factory Acts, and the supervision of public education under the Education Acts. Nor is the importance of this extension of the activity of the State lessened by the consideration that its powers are in many cases exercised by local bodies, such, for example, as County Councils. But though the powers conferred on persons or bodies who directly or indirectly represent the State have been greatly increased in many directions, there has been no intentional introduction into the law of England of the essential principles of droit administratif. Any official who exceeds the authority given him by the law incurs the common law responsibility for his wrongful act; he is amenable to the authority of the ordinary Courts, and the ordinary Courts have themselves jurisdiction to determine what is the extent of his legal power, and whether the orders under which he has acted were legal and valid. Hence the Courts do in effect limit and interfere with the action of the “administration,” using that word in its widest sense. The London School Board, for example, has Člaimed and exercised the right to tax the ratepayers for the support of a kind of education superior to the elementary teaching generally provided by School Boards; the High Court of Justice has decided that such right does not exist. A year or two ago some officials, acting under the distinct orders of the Lords of the Admiralty, occupied some land alleged to belong to the Crown; the title of the Crown being disputed, a court of law gave judgment against his officials as wrong-doers. In each of these cases nice and disputable points of law were raised, but no English lawyer, whatever his opinion of the judgments given by the Court, has ever doubted that the High Court had jurisdiction to determine what were the rights of the School Board or of the Crown. Droit administratif, therefore, has obtained no foothold in England, but, as has been pointed out by some foreign critics, recent legislation has occasionally, and for particular purposes, given to officials something like judicial authority. It is possible in such instances, which are rare, to see a slight approximation to droit administratif, but the innovations, such as they are, have been suggested merely by considerations of practical convenience, and do not betray the least intention on the part of English statesmen to modify the essential principles of English law. There exists in England no true droit administratif.
An English lawyer, however, who has ascertained that no branch of English law corresponds with the administrative law of foreign countries must be on his guard against falling into the error that the droit administratif of modern France is not “law” at all, in the sense in which that term is used in England, but is a mere name for maxims which guide the executive in the exercise if not of arbitrary yet of discretionary power. That this notion is erroneous will, I hope, be now clear to all my readers. But for its existence there is some excuse and even a certain amount of justification.
The French Government does in fact exercise, especially as regards foreigners, a wide discretionary authority which is not under the control of any Court whatever. For an act of State the Executive or its servants cannot be made amenable to the jurisdiction of any tribunal, whether judicial or administrative. Writers of high authority have differed indeed profoundly as to the definition of an act of State (acte de gouvernement). Where on a question of French law French jurists disagree, an English lawyer can form no opinion; he may be allowed, however, to conjecture that at times of disturbance a French Government can exercise discretionary powers without the dread of interference on the part of the ordinary Courts, and that administrative tribunals, when they can intervene, are likely to favour that interpretation of the term act of State which supports the authority of the Executive. However this may be, the possession by the French Executive of large prerogatives is apt, in the mind of an Englishman, to be confused with the character of the administrative law enforced by Courts composed, in part at any rate, of officials.
The restrictions, again, placed by French law on the jurisdiction of the ordinary Courts (tribunaux judiciaires) whereby they are prevented from interfering with the action of the Executive and its servants, seem to an Englishman accustomed to a system under which the Courts of law determine the limits of their own jurisdiction, to be much the same thing as the relegating of all matters in which the authority of the State is concerned to the discretion of the Executive. This notion is erroneous, but it has been fostered by a circumstance which may be termed accidental. The nature and the very existence of droit administratif has been first revealed to many Englishmen, as certainly to the present writer, through the writings of Alexis de Tocqueville, whose works have exerted, in the England of the nineteenth century, an influence equal to the authority exerted by the works of Montesquieu in the England of the eighteenth century. Now Tocqueville by his own admission knew little or nothing of the actual working of droit administratif in his own day. He no doubt in his later years increased his knowledge, but to the end of his life he looked upon droit administratlif, not as a practising lawyer but as the historian of the ancien régime, and even as an historian he studied the subject from a very peculiar point of view, for the aim of Lȇncien régime et la Révolution is to establish the doctrine that the institutions of modern France are in many respects in spirit the same as the institutions of the ancient monarchy; and Tocqueville, moved by the desire to maintain a theory of history which in his time sounded like a paradox, but, owing greatly to his labours, has now become a generally accepted truth, was inclined to exaggerate the similarity between the France of the Revolution, the Empire, or the Republic, and the France of the ancien régime. Nowhere is this tendency more obvious than in his treatment of droit administratif. He demonstrates that the ideas on which droit administratif is based had been accepted by French lawyers and statesmen long before 1789; he notes the arbitrariness of droit administratif under the monarchy; he not only insists upon but deplores the connection under the ancien régime between the action of the Executive and the administration of justice, and he certainly suggests that the droit administratif of the nineteenth century was all but as ĉlosely connected with the exercise of arbitrary power as was the droit administrati'f of the seventeenth or the eighteenth century.
He did not recognise the change in the character of droit adminis-tratif which was quietly taking place in his own day. He could not by any possibility anticipate the reforms which have occurred during the lapse of well-nigh half a century since his death. What wonder that English lawyers who first gained their knowlege of French institutions from Tocqueville should fail to take full account of that judidalisation (juridictionnalisation) of administrative law which is one of the most surprising and noteworthy phenomena in the legal history of France.
III Merits and demerits It is not uninstructive to compare the merits and defects, on the one hand, of our English rule of law, and, on the other, of French droit administratif.
Rule of law—its merits Our rigid rule of law has immense and undeniable merits. Individual freedom is thereby more thoroughly protected in England against oppression by the government than in any other European country; the Habeas Corpus Acts protect the liberty no less of foreigners than of British subjects; martial law itself is reduced within the narrowest limits, and subjected to the supervision of the Courts; an extension of judicial power which sets at nought the dogma of the separation of powers, happily combined with judidal independence, has begotten reverence for the bench of judges. They, rather than the government, represent the august dignity of the State, or, in accordance with the terminology of English law, of the Crown. Trial by jury is open to much criticism; a distinguished French thinker may be right in holding that the habit of submitting difficult problems of fact to the decision of twelve men of not more than average education and intelligence will in the near future be considered an absurdity as patent as ordeal by battle. Its success in England is wholly due to, and is the most extraordinary sign of, popular confidence in the judicial bench. A judge is the colleague and the readily accepted guide of the jurors. The House of Commons shows the feeling of the electors, and has handed over to the High Court of Justice the trial of election petitions. When rare occasions arise, as at Sheffield in 1866, which demand inquiries of an exceptional character which can hardly be effected by the regular procedure of the Courts, it is to selected members of the bench that the nation turns for aid. In the bitter disputes which occur in the conflicts between capital and labour, employers and workmen alike will often submit their differences to the arbitration of men who have been judges of the High Court. Reverence, in short, for the supremacy of the law is seen in its very best aspect when we recognise it as being in England at once the cause and the effect of reverence for our judges.
Defects The blessings, however, conferred upon the nation by the rule of law are balanced by undeniable, though less obvious, evils. Courts cannot without considerable danger be turned into instruments of government. It is not the end for which they are created; it is a purpose for which they are ill suited at any period or in any country where history has not produced veneration for the law and for the law Courts. Respect for law, moreover, easily degenerates into legalism which from its very rigidity may work considerable injury to the nation. Thus the refusal to look upon an agent or servant of the State as standing, from a legal point of view, in a different position from the servant of any other employer, or as placed under obligations or entitled to immunities different from those imposed upon or granted to an ordinary citizen, has certainly saved England from the development of the arbitrary prerogatives of the Crown, but it has also in more ways than one been injurious to the public service.
The law, for instance, has assuredly been slow to recognise the fact that violations of duty by public officials may have an importance and deserve a punishment far greater than the same conduct on the part of an agent of an ordinary employer. Some years ago a copyist in a public office betrayed to the newspapers a diplomatic document of the highest importance. Imagination can hardly picture a more flagrant breach of duty, but there then apparently existed no available means for punishing the culprit. If it could have been proved that he had taken from the office the paper on which the communication of state was written, he might conceivably have been put on trial for larceny. But a prisoner put on trial for a crime of which he was in fact morally innocent, because the gross moral offence of which he was really guilty was not a crime, might have counted on an acquittal. The Official Secrets Act, 1889, now, it is true, renders the particular offence, which could not be punished in 1878, a misdemeanour, but the Act, after the manner of English legislation, does not establish the general principle that an official breach of trust is a crime. It is therefore more than possible that derelictions of duty on the part of public servants which in some foreign countries would be severely punished may still in England expose the wrong-doer to no legal punishment.
Nor is it at all wholly a benefit to the public that bona fide obedience to the orders of superiors is not a defence available to a subordinate who, in the discharge of his functions as a government officer, has invaded the legal rights of the humblest individual, or that officials are, like everybody else, accountable for their conduct to an ordinary Court of law, and to a Court, be it noted, where the verdict is given by a jury.
In this point of view few things are more instructive than an examination of the actions which have been brought against officers of the Board of Trade for detaining ships about to proceed to sea. Under the Merchant Shipping Acts since 1876 the Board have been and are bound to detain any ship which from its unsafe and unseaworthy condition cannot proceed to sea without serious danger to human life. Most persons would suppose that the officials of the Board, as long as they, bona fide, and without malice or corrupt motive, endeavoured to carry out the provisions of the statute, would be safe from an action at the hands of a shipowner. This, however, is not so. The Board and its officers have more than once been sued with success. They have never been accused of either malice or negligence, but the mere fact that the Board act in an administrative capacity is not a protection to the Board, nor is mere obedience to the orders of the Board an answer to an action against its servants. Any deviation, moreover, from the exact terms of the Acts—the omission of the most unmeaning formality—may make every person, high and low, concerned in the detention of the ship, a wrong-doer. The question, on the answer to which the decision in each instance at bottom depends, is whether there was reasonable cause for detaining the vessel, and this inquiry is determined by jurymen who sympathise more keenly with the losses of a shipowner, whose ship may have been unjustly detained, than with the zeal of an inspector anxious to perform his duty and to prevent loss of life. The result has (it is said) been to render the provisions of the Merchant Shipping Acts, with regard to the detention of unseaworthy ships, nugatory. Juries are often biassed against the Government. A technical question is referred for decision, from persons who know something about the subject, and are impartial, to persons who are both ignorant and prejudiced. The government, moreover, which has no concern but the public interest, is placed in the false position of a litigant fighting for his own advantage. These things ought to be noticed, for they explain, if they do not justify, the tenacity with which statesmen, as partial as Tocqueville to English ideas of government, have ĉlung to the conviction that administrative questions ought to be referred to administrative Courts.
Droit administratif — The merits of administrative law as represented by modern French droit administratif, that is. when seen at its very best. escape the attention, and do not receive the due appreciation of English constitutionalists. No jurist can fail to admire the skill with which the Council of State, the authority and the jurisdiction whereof as an administrative Court year by year receives extension, has worked out new remedies for various abuses which would appear to be hardly touched by the ordinary law of the land. The Council, for instance, has created and extended the power of almost any individual to attack, and cause to be annulled, any act done by any administrative authority (using the term in a very wide sense) which is in excess of the legal power given to the person or body from whom the act emanates. Thus an order issued by a prefect or a bye-law made by a corporation which is in excess of the legal power of the prefect or of the corporate body may, on the application of a plaintiff who has any interest in the matter whatever, be absolutely set aside or annulled for the benefit not only of the plaintiff, but of all the world, and this even though he has not himself suffered, from the act complained of, any pecuniary loss or damage. The ingenious distinction again, which has been more and more carefully elaborated by the Council of State, between damage resulting from the personal fault (faute personnelle), e.g. spite, violence, or negligence of an official, e.g. a prefect or a mayor, in the carrying out of official orders, and the damage resulting, without any fault on the part of the official, from the carrying out of official orders, illegal or wrongful in themselves (faute de service), has of recent years afforded a valuable remedy to persons who have suffered from the misuse of official power, and has also, from one point of view, extended or secured the responsibility of officials—responsibility enforceable in the ordinary Courts—for wrongful conduct, which is in strictness attributable to their personal action. And in no respect does this judge-made law of the Council appear to more advantage than in cases, mostly I conceive of comparatively recent date, in which individuals have obtained compensation for governmental action, which might possibly be considered of technical legality, but which involves in reality the illegitimate use of power conferred upon the government or some governmental body for one object, but in truth used for some end different from that contemplated by the law. One example explains my meaning. The State in 1872 had, as it still has, a monopoly of matches. To the government was given by law the power of acquiring existing match factories under some form of compulsory purchase. It occurred to some ingenious minister that the fewer factories there were left open for sale, the less would be the purchase-money which the State would need to pay. A prefect, the direct servant of the government, had power to dose factories on sanitary grounds. Under the orders of the minister he dosed a factory belonging to A, nominally on sanitary grounds, but in reality to lessen the number of match factories which the State, in the maintenance of its monopoly, would require to purchase. There was no personal fault on the part of the prefect. No action could with success be maintained against him in the judicial Courts, nor, we may add, in the administrative Courts. A, however, attacked the act itself before the Council of State, and got the order of the prefect annulled, and ultimately obtained, through the Council of State, damages from the State of over £2000 for the illegal ĉlosing of the factory, and this in addition to the purchase-money received from the State for taking possession of the factory,
Defers NO Englishman can wonder that the jurisdiction of the Council of State, as the greatest of administrative Courts, grows apace; the extension of its power removes, as did at one time the growth of Equity in England, real grievances, and meets the need of the ordinary citizen. Yet to an Englishman imbued with an unshakeable faith in the importance of maintaining the supremacy of the ordinary law of the land enforced by the ordinary Law Courts, the droit administratif of modern France is open to some grave criticism.
The high and increasing authority of the Council of State must detract, he surmises, from the dignity and respect of the judicial Courts. The more there is of the more, the less there is of the less” is a Spanish proverb of profound wisdom and wide application. There was a time in the history of England when the judicial power of the Chancellor, bound up as it was with the prerogative of the Crown, might have overshadowed the Courts of Law, which have protected the hereditary liberties of England and the personal freedom of Englishmen. It is difficult not to suppose that the extension of the Council's jurisdiction, beneficial as may be its direct effects, may depress the authority of the judicial tribunals. More than one writer, who ought to represent the ideas of educated Frenchmen, makes the suggestion that if the members of the Council of State lack that absolute security of tenure which is universally acknowledged to be the best guarantee of judicial independence, yet irremovable judges, who, though they may defy dismissal, are tormented by the constant longing for advancement, are not more independent of the Government at whose hands they expect promotion than are members of the Council of State who, if legally removable, are by force of custom hardly ever removed from their high position.
Trial by jury, we are told, is a joke, and, as far as the interests of the public are concerned, a very bad joke. Prosecutors and criminals alike prefer the Correctional Courts, where a jury is unknown, to the Courts of Assize, where a judge presides and a jury gives a verdict. The prosecutor knows that in the Correctional Court proved guilt will lead to condemnation. The criminal knows that though in the inferior Court he may lose the chance of acquittal by good-natured or sentimental jurymen, he also avoids the possibility of undergoing severe punishment. Two facts are certain. In 1881 the judges were deprived of the right of charging the jury. Year by year the number of causes tried in the Assize Courts decreases. Add to this that the procedure of the judicial Courts, whether civil or criminal, is antiquated and cumbrous. The procedure in the great administrative Court is modelled on modern ideas, is simple, cheap, and effective. The Court of Cassation still commands respect. The other judicial Courts, one can hardly doubt, have sunk in popular estimation. Their members neither exercise the power nor enjoy the moral authority of the judges of the High Court.
It is difficult, further, for an Englishman to believe that, at any rate where politics are concerned, the administrative Courts can from their very nature give that amount of protection to individual freedom which is secured to every English citizen, and indeed to every foreigner residing in England. However this may be, it is certain that the distinction between ordinary law and administrative law (taken together with the doctrine of the separation of powers, at any rate as hitherto interpreted by French jurists), implies the general belief that the agents of the government need, when acting in bonafide discharge of their official duties, protection from the control of the ordinary law Courts. That this is so is proved by more than one fact. The desire to protect servants of the State has dictated the enactment of the Code pénal, Article 114. This desire kept alive for seventy years Article 75 of the Constitution of the Year VIII. It influenced even the men by whom that Article was repealed, for the repeal itself is expressed in words which imply the intention of providing some special protection for the agents of the government. It influenced the decisions which more or less nullified the effect of the law of 19th December 1870, which was at first supposed to make the judicial Courts the sole judges of the liability of civil servants to suffer punishment or make compensation for acts of dubious legality done in the performance of their official duties. Oddly enough, the success with which administrative Courts have extended the right of private persons to obtain damages from the State itself for illegal or injurious acts done by its servants, seems, as an English critic must think, to supply a new form of protection for the agents of the government when acting in obedience to orders. There surely can be little inducement to take proceedings against a subordinate, whose guilt consists merely in carrying out a wrongful or illegal order, given him by his official superior, if the person damaged can obtain compensation from the government, or, in other words, from the State itself. But turn the matter which way you will, the personal immunities of officials who take part, though without other fault of their own, in any breach of the law, though consistent even with the modem droit administratif of France, are inconsistent with the ideas which underlie the common law of England. This essential opposition has been admirably expressed by a French jurist of eminence. Hauriou writes:
Under every legal system, the right to proceed against a servant of the government for wrongs done to individuals in his official capacity exists in some form or other; the right corresponds to the instinctive impulse felt by every victim of a legal wrong to seek compensation from the immediately visible wrong-doer. But on this point the laws of different countries obey utterly different tendencies. There are countries [such, for example, as England or the United States] where every effort is made to shelter the liability of the State behind the personal responsibility of its servant. There are other countries where every effort is made to cover the responsibility of the servant of the State behind the liability of the State itself, to protect him against, and to save him from, the painful consequences of faults committed in the service of the State. The laws of centralised countries, and notably the law of France, are of this type. There you will find what is called the protection of officials (garantie des fonctionnaries).
Chapter XIII
RELATION BETWEEN
PARLIAMENTARY SOVEREIGNTY
AND THE RULE OF LAW
The sovereignty of Parliament and the supremacy of the law of the land—the two principles which pervade the whole of the English constitution—may appear to stand in opposition to each other, or to be at best only counterbalancing forces. But this appearance is delusive; the sovereignty of Parliament, as contrasted with other forms of sovereign power, favours the supremacy of the law, whilst the predominance of rigid legality throughout our institutions evokes the exercise, and thus increases the authority, of Parliamentary sovereignty.
Parliamentary sovereignty favour rule of law. The sovereignty of Parliament favours the supremacy of the law of the land.
That this should be so arises in the main from two characteristics or peculiarities which distinguish the English Parliament from other sovereign powers.
The first of these characteristics is that the commands of Parliament (consisting as it does of the Crown, the House of Lords, and the House of Commons) can be uttered only through the combined action of its three constituent parts, and must, therefore, always take the shape of formal and deliberate legislation. The will of Parliament can be expressed only through an Act of Parliament.
This is no mere matter of form; it has most important practical effects. It prevents those inroads upon the law of the land which a despotic monarch, such as Louis XIV., Napoleon I., or Napoleon llI., might effect by ordinances or decrees, or which the different constituent assemblies of France, and above all the famous Convention, carried out by sudden resolutions. The principle that Parliament speaks only through an Act of Parliament greatly increases the authority of the judges. A Bill which has passed into a statute immediately becomes subject to judicial interpretation, and the English Bench have always refused, in principle at least, to interpret an Act of Parliament otherwise than by reference to the words of the enactment. An English judge will take no notice of the resolutions of either House, of anything which may have passed in debate (a matter of which officially he has no cognisance), or even of the changes which a Bill may have undergone between the moment of its first introduction to Parliament and of its receiving the Royal assent. All this, which seems natural enough to an English lawyer, would greatly surprise many foreign legists, and no doubt often does give a certain narrowness to the judicial construction of statutes. It contributes greatly, however, both (as I have already pointed out) to the authority of the judges and to the fixity of the law.
The second of these characteristics is that the English Parliament as such has never, except at periods of revolution, exercised direct executive power or appointed the officials of the executive government.
No doubt in modern times the House of Commons has in substance obtained the fight to designate for appointment the Prime Minister and the other members of the Cabinet. But this right is, historically speaking, of recent acquisition, and is exercised in a very roundabout manner; its existence does not affect the truth of the assertion that the Houses of Parliament do not directly appoint or dismiss the servants of the State; neither the House of Lords nor the House of Commons, nor both Houses combined, could even now issue a direct order to a military officer, a constable, or a tax-collector; the servants of the State are still in name what they once were in reality—“servants of the Crown”; and, what is worth careful notice, the attitude of Parliament towards government officials was determined originally, and is still regulated, by considerations and feelings belonging to a time when the “servants of the Crown” were dependent upon the King, that is, upon a power which naturally excited the jealousy and vigilance of Parliament.
Hence several results all indirectly tending to support the supremacy of the law. Parliament, though sovereign, unlike a sovereign monarch who is not only a legislator but a ruler, that is, head of the executive government, has never hitherto been able to use the powers of the government as a means of interfering with the regular course of law; and what is even more important, Parliament has looked with disfavour and jealousy on all exemptions of officials from the ordinary liabilities of citizens or from the jurisdiction of the ordinary Courts; Parliamentary sovereignty has been fatal to the growth of “administrative law.” The action, lastly, of Parliament has tended as naturally to protect the independence of the judges, as that of other sovereigns to protect the conduct of officials. It is worth notice that Parliamentary care for judicial independence has, in fact, stopped just at that point where on a priori grounds it might be expected to end. The judges are not in strictness irremovable; they can be removed from office on an address of the two Houses; they have been made by Parliament independent of every power in the State except the Houses of Parliament.
Tendency to support rule of law often not found in foreign representative assemblies The idea may suggest itself to a reader that the characteristics or peculiar of the English Parliament on which I have just dwelt foreign must now be common to most of the representative assemblies which exist in continental Europe. The French National Assembly, for example, bears a considerable external resemblance to our own Parliament. It is influenced, however, by a different spirit; it is the heir, in more ways than one, of the Bourbon Monarchy and the Napoleonic Empire. It is apparently, though on this point a foreigner must speak with hesitation, inclined to interfere in the details of administration. It does not look with special favour on the independence or authority of the ordinary judges. It shows no disapprobation of the system of droit administrahif which Frenchmen—very likely with truth—regard as an institution suited to their country, and it certainly leaves in the hands of the government wider executive and even legislative powers than the English Parliament has ever conceded either to the Crown or to its servants. What is true of France is true under a different form of many other continental states, such, for example, as Switzerland or Prussia. The sovereignty of Parliament as developed in England supports the supremacy of the law. But this is certainly not true of all the countries which now enjoy representative or Parliamentary government.
Rule of law favours Parliamentery sovereignty The supremacy of the law necessitates the exercise of Parliamentary sovereignty.
The rigidity of the law constantly hampers (and sometimes with great injury to the public) the action of the executive, and from the hard-and-fast rules of strict law, as interpreted by the judges, the government can escape only by obtaining from Parliament the discretionary authority which is denied to the Crown by the law of the land. Note with care the way in which the necessity for discretionary powers brings about the recourse to exceptional legislation. Under the complex conditions of modem life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers, without occasional use of arbitrary authority. During periods, for instance, of social disturbance you need not only to punish conspirators, but also to arrest men who are reasonably suspected of conspiracy; foreign revolutionists are known to be spreading suspecteds edition of conspiracy; throughout the land; order can hardly be maintained unless the executive can expel aliens. When two foreign nations are at war, or when civil contests divide a friendly country into two hostile camps, it is impossible for England to perform her duties as a neutral unless the Crown has legal authority to put a summary check to the attempts of English sympathisers to help one or other of the belligerents. Foreign nations, again, feel aggrieved if they are prevented from punishing theft and homicide,—if, in short, their whole criminal law is weakened because every scoundrel can ensure impunity for his crimes by an escape to England. But this result must inevitably ensue if the English executive has no authority to surrender French or German offenders to the government of France or of Germany. The English executive needs therefore the right to exercise discretionary powers, but the Courts must prevent, and will prevent at any rate where personal liberty is concerned, the exercise by the government of any sort of discretionary power. The Crown cannot, except under statute, expel from England any alien whatever, even though he were a murderer who, after slaughtering a whole family at Boulogne, had on the very day crossed red-handed to Dover. The executive therefore must ask for, and always obtains, aid from Parliament. An Alien Act enables the Ministry in times of disturbance to expel any foreigner from the country; a Foreign Enlistment Act makes it possible for the Ministry to check intervention in foreign contests or the supply of arms to foreign belligerents. Extradition Acts empower the government at the same time to prevent England from becoming a city of refuge for foreign criminals, and to co-operate with foreign states in that general repression of crime in which the whole civilised world has an interest. Nor have we yet exhausted the instances in which the rigidity of the law necessitates the intervention of Parliament. There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the government must then take is dear. The Ministry must break the law and trust for protection to an Act of Indemnity. A statute of this kind is (as already pointed out ) the last and supreme exercise of Parliamentary sovereignty. It legalises illegality; it affords the practical solution of the problem which perplexed the statesmanship of the sixteenth and seventeenth centuries, how to combine the maintenance of law and the authority of the Houses of Parliament with the free exercise of that kind of discretionary power or prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilised country.
This solution may be thought by some critics a merely formal one, or at best only a substitution of the despotism of Parliament for the prerogative of the Crown. But this idea is erroneous. The fact that the most arbitrary powers of the English executive must always be exercised under Act of Parliament places the government, even when armed with the widest authority, under the supervision, so to speak, of the Courts. Powers, however extraordinary, which are conferred or sanctioned by statute, are never really unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges. Parliament is supreme legislator, but from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or to the Houses of Parliament, if the Houses were called upon to interpret their own enactments. In foreign countries, and especially in France, administrative ideas—notions derived from the traditions of a despotic monarchy—have restricted the authority and to a certain extent influenced the ideas of the judges. In England judicial notions have modified the action and influenced the ideas of the executive government. By every path we come round to the same conclusion, that Parliamentary sovereignty has favoured the rule of law, and that the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a spirit of legality.
- (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.
Titles (by Subject) 
