Front Page Titles (by Subject) CHAPTER IV.: THAT ADMINISTRATIVE TRIBUNALS (LA JUSTICE ADMINISTRATIVE) AND OFFICIAL IRRESPONSIBILITY (GARANTIS DES FONCTIONNAIRES) WERE INSTITUTIONS OF THE OLD REGIME. - The Old Regime and the Revolution
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CHAPTER IV.: THAT ADMINISTRATIVE TRIBUNALS (LA JUSTICE ADMINISTRATIVE) AND OFFICIAL IRRESPONSIBILITY (GARANTIS DES FONCTIONNAIRES) WERE INSTITUTIONS OF THE OLD REGIME. - Alexis de Tocqueville, The Old Regime and the Revolution 
The Old Regime and the Revolution, trans John Bonner (New York: Harper & Brothers, 1856).
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THAT ADMINISTRATIVE TRIBUNALS (LA JUSTICE ADMINISTRATIVE) AND OFFICIAL IRRESPONSIBILITY (GARANTIS DES FONCTIONNAIRES) WERE INSTITUTIONS OF THE OLD REGIME.
IN no country in Europe were the courts more independent of the government than in France; nor was there any in which more abnormal tribunals existed. The one involved a necessity for the other. Judges whose position was beyond the king’s reach, whom he could neither dismiss, nor displace, nor promote, and over whom he had no hold either by ambition or by fear, soon proved inconvenient. That led to the denial of their jurisdiction over cases to which the administration was a party, and to the establishment of another class of courts, less independent, which presented to the subject’s eye a semblance of justice, without involving, for the monarch, any risk of its reality.
In countries like Germany, where the judges were never as independent of the government as they were in France at this time, no such precaution was ever taken, and no administrative tribunals ever established. The monarch held the common courts in such subjection that he did not need extraordinary ones.
Very few of the royal edicts and declarations, or of the Orders in Council, issued during the last century of the old monarchy, were unprovided with a clause stating that all disputes that might arise, and lawsuits that might grow out of them, must be referred to the intendants and to the Council. The ordinary form of words was, “His majesty ordains that all disputes which may arise concerning the execution of the present decree, its accessories and corollaries, shall be tried before the intendant, and decided by him, subject to appeal to the Council. We forbid our courts and tribunals to take cognizance of any such disputes.”
In cases arising out of laws or old customs which made no similar provision, the Council constantly intervened by process of evocation, and took the suit out of the hands of the common judges to bring it before itself. The Council registers are full of such decrees of evocation. Frequently they gave to the practice the force of theory. A maxim, not of law, took root in the public mind to the effect that suits, in which state interests were involved, or which turned on the interpretation of a law, were not within the jurisdiction of ordinary courts, and that these latter were restricted to the decision of cases between private individuals. We have embodied this idea in a set form, but its substance belongs to the old regime.
In those days, the intendant and Council were the only court that could try cases growing out of questions of taxation. They alone were competent to decide suits concerning common carriers and passenger vehicles, public highways, canals, river navigation, and generally all matters in which the public interest was concerned.
Nothing was left undone by the intendants to extend their jurisdiction. Representations to the comptroller-general, and sharp hints to the Council, were incessant. One of the reasons assigned by a magistrate of this rank for issuing a writ of evocation is worth preserving. “Ordinary judges,” says he, “are bound by rule to repress illegal acts; but the Council can always overstep rules for a salutary purpose.”
This principle often led intendants and Council to assume jurisdiction over cases whose connection with the administration was so slight as to be invisible, and even over cases which had obviously no connection with it at all. A gentleman went to law with his neighbor. Dissatisfied with the tone of the court, he begged the Council to evoke the case. The intendant, to whom it was referred, reported that, “though the interests involved were wholly of a private nature, his majesty could always, if he chose, take cognizance of all classes of suits, without rendering account of his motives to any one.”
Individuals arrested for riot were usually tried on evocation before the intendant or the Provost of Police (prévôt de la maréchaussée). In times of scarcity, evocations of this kind were common, and the intendants appointed several “graduates” to assist them in their duties. They formed a sort of prefect’s council, with criminal jurisdiction. I have seen sentences rendered by these bodies condemning culprits to the galleys and to the scaffold. At the close of the seventeenth century, criminal jurisdiction was still frequently exercised by intendants.
Modern legists assure us that we have made great progress in administrative law since the Revolution. They tell us that “before that event the powers of the judiciary and those of the administration were intermingled and confused, but that since then they have been severed, and a line drawn between them.” A right appreciation of the progress here mentioned can only be formed when it is well borne in mind that if the judiciary under the old regime occasionally overstepped its natural sphere, it never filled the whole of that sphere. Both of these facts must be remembered, or a false and incomplete view will be taken of the subject. True, the courts were allowed to travel out of their sphere to make laws on certain subjects for the government of the public; but, on the other hand, they were denied cognizance of legitimate lawsuits, and thus excluded from a part of their proper domain. We have stripped the courts of the right of intruding into the administration of government, which they very improperly possessed under the old regime, but we have continued to suffer the government to intrude into the courts of law; yet it is even more dangerous for the government than for the judiciary to transcend its scope; for the interference of the latter in the administration of government only injures the public business, whereas the interference of government in the administration of justice tends to deprave the public mind, and to render men servile and revolutionary at one and the same time.
In one of the nine or ten constitutions which have been established in France within the last sixty years, and designed to last forever, an article was inserted declaring that no government official could be prosecuted before the common courts until permission had been obtained from the executive. The idea seemed so happy that, when the constitution was destroyed, the article in question was rescued from destruction, and has ever since been carefully sheltered from revolution. Officials commonly allude to the privilege secured to them by this article as one of the great triumphs of 1789, but here again they are in error. The old monarchy was quite as solicitous as more modern governments to protect its servants from responsibility to the courts, like mere citizens. Between the two eras the only substantial difference is this: before the Revolution government could not come to the rescue of its agents without having recourse to arbitrary and illegal measures; since then it has been legally authorized to let them violate the law.
When, under the old regime, an agent of the central government was prosecuted before any of the ordinary courts, an Order in Council usually forbade the judges to proceed with the case, and referred it to commissioners named in the order. The ground for the proceeding was, according to the opinion of a councilor of that day, because the ordinary judges were sure to be biased against a government official, and thus the king’s government was likely to be brought into contempt. Cases of evocation were not rare occurrences. They took place daily, and the lowest officials were as often protected by them as the highest. The most slender connection with government secured immunity from all authorities, save the Council only. A farmer liable to corvées prosecuted an overseer of the Bridge and Road department for having maltreated him. The Council evoked the case. The chief engineer reported confidentially to the intendant that “the overseer was no doubt much to blame, but that was no reason why the case should be allowed to take its course. It is of the highest importance to the department of Bridges and Roads that the ordinary courts should not take cognizance of complaints against the overseers made by workmen bound to service, for if they did, the works would soon be brought to a stand by the lawsuits which the public dislike of these officials would excite.”
On another occasion, a state contractor had taken from a neighboring field materials which he required, and used them. The intendant himself wrote to the comptroller-general, “I can not lay sufficient stress on the injury the government would incur if contractors were left at the mercy of the ordinary courts, for their principles are wholly at variance with those by which the administration is guided.”
A century has elapsed since these lines were written, and yet these public officers would pass for contemporaries of our own.