ADMINISTRATIVE JURISDICTION AND THE IMMUNITY OF PUBLIC OFFICERS ARE
INSTITUTIONS OF FRANCE ANTERIOR TO THE REVOLUTION.[26]
In no country in Europe were the ordinary courts of justice less
dependent on the Government than in France; but in no country were
extraordinary courts of justice more extensively employed. These two
circumstances were more nearly connected than might be imagined. As the
King was almost entirely powerless in relation to the judges of the
land--as he could neither dismiss them, nor translate them, nor even,
for the most part, promote them--as, in short, he held them neither by
ambition nor by fear, their independence soon proved embarrassing to
the Crown. The result had been, in France, more than anywhere else, to
withdraw from their jurisdiction the suits in which the authority of
the Crown was directly interested, and to call into being, as it were
beside them, a species of tribunal more dependent on the sovereign,
which should present to the subjects of the Crown some semblance of
justice without any real cause for the Crown to dread its control.
In other countries, as, for instance, in some parts of Germany, where
the ordinary courts of justice had never been as independent of the
Government as those of France, no such precautions were taken, and no
administrative justice (as it was termed) existed. The sovereign was so
far master of the judges, that he needed no special commissions.
The edicts and declarations of the Kings of France, published
in the last century of the monarchy, and the Orders in Council
promulgated within the same period, almost all provided on behalf of
the Government, that the differences which any given measure might
occasion and the litigation which might ensue, should be exclusively
heard before the Intendants and before the Council. ‘It is moreover
ordered by his Majesty, that all the disputes which may arise upon
the execution of this order, with all the circumstances and incidents
thereunto belonging, shall be carried before the Intendant to be judged
by him, saving an appeal to the Council, and all courts of justice and
tribunals are forbidden to take cognisance of the same.’ Such was the
ordinary form of these decrees.
In matters which fell under laws or customs of an earlier date, when
this precaution had not been taken, the Council continually intervened,
by way of what was termed _evocation_, or the calling up to its own
superior jurisdiction from the hands of the ordinary officers of
justice suits in which the administration of the State had an interest.
The registers of the Council are full of minutes of _evocation_ of this
nature. By degrees the exception became the rule, and a theory was
invented to justify the fact.[27] It came to be regarded as a maxim of
state, not in the laws of France, but in the minds of those by whom
those laws were applied, that all suits in which a public interest was
involved, or which arose out of the construction to be put on any act
of the administration, were not within the competency of the ordinary
judges, whose only business it was to decide between private interests.
On this point we, in more recent times, have only added a mode of
expression; the idea had preceded the Revolution of 1789.
Already at that time most of the disputed questions which arose out of
the collection of the revenue were held to fall under the exclusive
jurisdiction of the Intendant and the King’s Council.[28] So, too,
with reference to the regulation of public waggons and stage-coaches,
drainage, the navigation of rivers, etc.; and in general all the suits
in which the public authorities were interested came to be disposed
of by administrative tribunals only. The Intendants took the greatest
care that this exceptional jurisdiction should be continually extended.
They urged on the Comptroller-General, and stimulated the Council. The
reason one of these officers assigned to induce the Council to call
up one of these suits deserves to be remembered. ‘An ordinary judge,’
said he, ‘is subject to fixed rules, which compel him to punish any
transgression of the law; but the Council can always set aside rules
for a useful purpose.’
On this principle, it often happened that the Intendant or the
Council called up to their own jurisdiction suits which had an almost
imperceptible connection with any subject of administrative interest,
or even which had no perceptible connection with such questions at all.
A country gentleman quarrels with his neighbour, and being dissatisfied
with the apparent disposition of his judges, he asks the Council to
_evoke_ his cause. The Intendant reports that, ‘although this is a case
solely affecting private rights, which fall under the cognisance of the
courts of justice, yet that his Majesty can always, when he pleases,
reserve to himself the decision of any suit whatever, without rendering
any account at all of his motives.’
It was generally before the Intendant or before the Provost of the
Maréchaussée that all the lower order of people were sent for trial,
by this process of evocation, when they had been guilty of public
disturbances. Most of the riots so frequently caused by the high price
of corn gave rise to transfers of jurisdiction of this nature. The
Intendant then summoned to his court a certain number of persons, who
formed a sort of local council, chosen by himself, and with their
assistance he proceeded to try criminals. I have found sentences
delivered in this manner, by which men were condemned to the galleys,
and even to death. Criminal trials decided by the Intendant were still
common at the close of the seventeenth century.
Modern jurists in discussing this subject of administrative
jurisdictions assert, that great progress has been made since
the Revolution. ‘Before that era,’ they say, ‘the judicial and
administrative powers were confounded; they have since been
distinguished and assigned to their respective places.’ To appreciate
correctly the progress here spoken of, it must never be forgotten,
that if on the one hand the judicial power under the old monarchy was
incessantly extending beyond the natural sphere of its authority,
yet on the other hand that sphere was never entirely filled by it.
To see one of these facts without the other is to form an incomplete
and inaccurate idea of the subject. Sometimes the courts of law were
allowed to enact regulations on matters of public administration,
which was manifestly beyond their jurisdiction; sometimes they were
restrained from judging regular suits, which was to exclude them from
the exercise of their proper functions. The modern law of France has
undoubtedly removed the administration of justice from those political
institutions into which it had very improperly been allowed to
penetrate before the Revolution; but at the same time, as has just been
shown, the Government continually invaded the proper sphere of the
judicial authorities, and this state of things is unchanged, as if the
confusion of these powers were not equally dangerous on the one side as
on the other, and even worse in the latter mode; for the intervention
of a judicial authority in administrative business is only injurious
to the transaction of affairs; but the intervention of administrative
power in judicial proceedings depraves mankind, and tends to render men
at once revolutionary and servile.
Amongst the nine or ten constitutions which have been established in
perpetuity in France within the last sixty years, there is one in which
it was expressly provided that no agent of the administration can be
prosecuted before the ordinary courts of law without having previously
obtained the assent of the Government to such a prosecution.[29] This
clause appeared to be so well devised that when the constitution to
which it belonged was destroyed, this provision was saved from the
wreck, and it has ever since been carefully preserved from the injuries
of revolutions. The administrative body still calls the privilege
secured to them by this article one of the great conquests of 1789; but
in this they are mistaken, for under the old monarchy the Government
was not less solicitous than it is in our own times to spare its
officers the unpleasantness of rendering an account in a court of law,
like any other private citizens. The only essential difference between
the two periods is this: before the Revolution the Government could
only shelter its agents by having recourse to illegal and arbitrary
measures; since the Revolution it can legally allow them to violate the
laws.
When the ordinary tribunals of the old monarchy allowed proceedings
to be instituted against any officer representing the central
authority of the Government, an Order in Council usually intervened
to withdraw the accused person from the jurisdiction of his judges,
and to arraign him before commissioners named by the Council; for,
as was said by a councillor of state of that time, a public officer
thus attacked would have had to encounter an adverse prepossession
in the minds of the ordinary judges, and the authority of the King
would have been compromised. This sort of interference occurred not
only at long intervals, but every day--not only with reference to
the chief agents of the Government, but to the least. The slightest
thread of a connection with the administration sufficed to relieve an
officer from all other control. A mounted overseer of the Board of
Public Works, whose business was to direct the forced labour of the
peasantry, was prosecuted by a peasant whom he had ill-treated. The
Council _evoked_ the cause, and the chief engineer of the district,
writing confidentially to the Intendant, said on this subject: ‘It is
quite true that the overseer is greatly to blame, but that is not a
reason for allowing the case to follow the ordinary jurisdiction; for
it is of the utmost importance to the Board of Works that the courts of
common law should not hear or decide on the complaints of the peasants
engaged in forced labour against the overseers of these works. If this
precedent were followed, those works would be disturbed by continual
litigation, arising out of the animosity of the public against the
officers of the Government.’
On another occasion the Intendant himself wrote to the
Comptroller-General with reference to a Government contractor, who
had taken his materials in a field which did not belong to him. ‘I
cannot sufficiently represent to you how injurious it would be to the
interests of the Administration if the contractors were abandoned to
the jurisdiction of the ordinary courts, whose principles can never be
reconciled to those of the Government.’
These lines were written precisely a hundred years ago, but it appears
as if the administrators who wrote them were our own contemporaries.
FOOTNOTES:
[26] [_Que la justice administrative et la garantie des fonctionnaires
sont des institutions de l’Ancien Régime._ The difficulty of rendering
these terms into intelligible English arises from the fact that at
no time in the last two centuries of the history of England has the
executive administration assumed a peculiar jurisdiction to itself or
removed its officers from the jurisdiction of the courts of common law
in this country. It will be seen in this chapter that the ordinary
jurisdictions of France have always been liable to be superseded by
extraordinary judicial authorities when the interests of the Government
or the responsibility of its agents were at stake. The arbitrary
jurisdiction of all such irregular tribunals was, in fact, abolished in
England in 1641 by the Act under which fell the Court of Star Chamber
and the High Commission.]
[27] See Note XXII.
[28] See Note XXIII.
[29] [The article referred to is the 75th article of the Constitution
de l’An VIII., which provided that the agents of the executive
government, other than the ministers, could only be prosecuted for
their conduct in the discharge of their functions, in virtue of a
decision of the Council of State.]