The party wronged by an official must certainly seek relief, not from the judges cf the land, but from some official Court. Before such a body the question which will be mainly considered is likely to be, not whether the complainant has been injured, but whether the defendant, say a policeman, has acted in discharge of his duties and in bona fide obedience to the commands of his superiors. If the defendant has so acted he will, we may almost certainly assume, be sure of acquittal, even though his conduct may have involved a technical breach of law. . . . We may further draw the general conclusion that under the French system no servant of the government who, without any malicious or corrupt motive, executes the orders of his superiors, can be made civilly responsible for his conduct. He is exempted from the jurisdiction of the civil Courts because he is engaged in an administrative act; he is safe from official condemnation because the act complained of is done in pursuance of his official duties. . . . Among modern Englishmen the political doctrines which have in France created the system of droit administratif are all but unknown. . . . Hence in Modern England the civil servants of the Crown are not, even as regards their official duties, subject to any peculiar kind of law or amenable to special tribunals. . . . If a civil servant may with us escape legal punishment for breach of his duties to the State, the fact that he serves the Crown gives him in general no protection against actions for wrongs to private persons. 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. Officials, like everybody else, are accountable for their conduct to a 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 Act, 1876, the Board 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 endeavored to carry out the provisions of the statute, would be safe from an action at the hands of a ship-owner. 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 Act - 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 one point which should be impressed upon every student is that the "droit administratif" of France rests upon political principles at variance with the ideas which are embodied in our existing Constitution, and contradicts modern English convictions as to the rightful supremacy or rule of the law of the land. 1119. FRANK J. GOODNOW. Comparative Administrative Law. (1893. Vol. II, p. 163.) . . . Suits for Damages against Officers. I. The English Rule. According to the original German[ic] law, all officers of the government were subject to the law of the land in the same way as ordinary individuals, and were liable to be held responsible by the Courts for their actions committed without authority of law, whenever such actions caused damage to individuals. The principle seems to have been retained in England, its retention being undoubtedly aided by the character of the administrative system which was early adopted there. The English system of administration was of that kind which has been denominated the self-government system, i. e. a system in which the officers were absolutely non-professional in character. . . They were regarded simply as ordinary citizens, who for the time being were serving the government by the discharge of public functions and who after their time of service had expired would fall back again into the ranks of private citizens. The same rules were applied to them which were applied to ordinary citizens. They were not exempted in any way from the observance of the law on account of their official position. . . . 2. The Roman Rule. While the English law, basing itself on the old Germanic principle of the responsibility of all persons to the courts for the damages they committed unlawfully, gave the Courts power to mulct officers in damages where their acts had been contrary to the law and in excess of their jurisdiction; the Roman law, starting out from the point of view of the government rather than from that of the individual, provided, in the interest of governmental efficiency, that the officers of the government could, during their term of office, be brought to account and made responsible for damages only with the consent of their superior officer. The German principle of the responsibility of officers was at first adopted on the continent. Soon, however, with the introduction of the Roman law, came the Roman principle of official irresponsibility. In the Holy Roman Empire the powers of the imperial Courts diminished so much as a result of the decay of the empire that it was impossible to enforce the responsibility of the various territorial lords, to the most important of whom a legal exemption from responsibility to the imperial Courts was given by the grant of the privilegium de non appellando. The result was that at the time of the Reformation the monarchs and princes on the continent with all their agents were uncontrolled by the Courts, which no longer had the power to hold them responsible for the damages which they might illegally inflict upon individuals. The reason of the adoption among German peoples of this rule of law, which seems so regardless of private rights, is to be found in the needs of the administration at the time that it was adopted. The struggle with feudalism was at its height, and it was the private rights of the feudal lords, or what they chose to consider as their private rights, which were most liable to violation on the part of the princes of the continent. Now the imperial courts in Germany and the royal courts in France were held by judges who were independent in tenure over against the Emperor, any given prince, or the King — in Germany because the judges were chosen by the estates, in France because the judgeships in the ordinary courts were bought and sold and treated as private property. The retention of the principle of the responsibility of the royal and princely officers to the ordinary courts would therefore have effectually prevented the Kings and princes from destroying the feudal system with all its abuses and pretended vested rights and would have made impossible the development of the national state upon the continent. In England the condition of things was quite different. There the officers of the royal courts were the paid servants of the King and subject to his disciplinary power. They did not possess a tenure independent of the Crown till 1701, when the act of settlement provided that they should be removed only on the address of both houses of Parliament. The desire of the absolute monarchy to reduce the nobility to submission and to do away with feudalism was thus the cause of the adoption on the continent of the Roman principle that the officers of the government might be sued by the individual only after the consent of their superior had been obtained. In France this consent was to be given by the Council of the King which, before granting such consent, determined the question of jurisdiction, i. e. whether the officer had acted contrary to the law; and the suits had to be brought before special courts over whose organization the King had full power. The effect of the French Revolution on the position of governmental officers was at first simply to increase their irresponsibility. Since the time of the revolution the position of officers in France has undergone a somewhat different development from that of officers in Germany, though Germany has been influenced by what has been done in France. . . - a. The Modification of the Roman Rule in France. The desire of the leaders of the revolution to carry on the reform work of the monarchy was so great and their distrust of the courts on account of their attempts to protect the privileged classes in the latter days of the monarchy was so widespread that little desire was felt of subjecting the administration, which was to carry on the reforms of the new era that had just dawned, to the control of the courts. Accordingly we find incorporated into article 75 of the Constitution of the 22d of Frimaire, an VIII (1800), from which year date almost all of the permanent administrative results of the revolution, the principle which had come down to the absolute monarchy from the Roman law, viz., that no individual could bring suit in the courts against an administrative officer until the Council of State, an administrative council, had decided that the officer had acted outside of his jurisdiction, and had given its consent to the bringing of the suit. In case such consent was given the suit was to be brought in the ordinary courts. But after the reforms of the revolutionary period had been completed this principle had outlasted its usefulness and remained only a menace to private rights. For use of it was made to destroy almost all fear in the minds of the officers of the administration that they would suffer pecuniary loss for violating their duties; and an important sanction for administrative integrity was lost. . . . As a result of the abuse of this principle by the government of the second empire, the French people decided to tear it out of their public law root and branch. Therefore, after the overthrow of the government of the empire, one of the first acts of the new government of the national defence was to repeal article 75 and all provisions of law depending upon it or of like import. . . . But the principles of the separation of powers and the independence of the administration were too firmly imbedded in the French law to permit of their being shaken.. ... ... b. Modifications of the Roman Rule in Germany. - After the breaking up of the empire in 1806 . . . the old Germanic rule as to the responsibility of the officers of the administration to the courts was felt to be inconsistent with the needs of an administration able to cope with the problems presented in this century. It was feared that the administration would be unable to perform its work. Therefore the old Roman principle was reintroduced into Germany, or at any rate into Prussia, which may be taken as a type, and it was provided that no individual might sue an officer of the administration before the consent of an administrative body called a competence court had been given. As in France, the responsibility of officers for damages was not in theory destroyed, but the bringing of a suit was simply made more difficult. But, as in France, the way in which the law was applied did not give satisfaction; and when the present empire was founded the attempt was made to do away with the evils which experience had shown. . . . The result of this development is that the responsibility of German officials to individuals for the damages they may have committed either through a violation of the law or through their negligent action is broader than in any other of the countries whose law is being considered. The old German principle has, notwithstanding the temporary adoption of the principles of the Roman law, retained a greater influence in the land of its birth than in any of the other countries. . . . However, the exercise of this control of the civil courts is more difficult than in either England or the United States. 1120. EDMUND M. PARKER. State and Official Liability. (1905. Harvard Law Review, XIX, 335.) In the sixth edition of Mr. A. V. Dicey's interesting volume, is found a chapter entitled "The Rule of Law Contrasted with Droit Administratif." This title suggests that the droit administratif, which is in this manner contrasted with the rule of law, must be something lawless and arbitrary; that the words "droit administratif" cannot be used in the sense in which we employ the term "administrative law," but rather must signify some sort of administrative right or might, the word "droit” being employed much After defining droit administratif, as in the motto "Dieu et mon droit." Mr. Dicey alleges that any one who considers its nature with care, "or the kind of topics to which it applies, will soon discover that it rests at bottom on two leading ideas alien to the conception of Modern Englishmen." . . . "The first of these notions 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 on which he stands in dealing with his neighbors." The statement contained in this paragraph I believe to be in the main correct; and I have no intention of questioning the accuracy of Mr. Dicey's statement that this notion is alien to the conceptions of modern Englishmen. But if he means to suggest (and it seems to me that this is his meaning) that this notion is alien to the conceptions of modern Englishmen because it is not recognized by the law of England, or, in other words, that by the law of England the existence and extent of the rights, privileges, and prerogatives of the government as against private citizens are to be determined on the same principles and the same considerations which fix the legal rights and duties of one citizen towards another, he has evidently misapprehended the law of England. A few elementary cases will serve for illustration. A peace officer without a warrant arrests M. on suspicion of having committed a certain felony. A private M. brings citizen without a warrant arrests N. on suspicion of having committed the same felony. In fact, no such felony had been committed by any one. suit against the officer, and N. brings suit against the citizen who arrested him. The principles which govern in the action brought by M. are not the same as those brought by N., and Mr. Dicey certainly would not contend that the officer's liability to M. was to be determined by the same rule as that of the private citizen to N. It would seem, therefore, that, if true of France, it is also true of England, that the extent of the rights, privileges, or prerogatives of the government as against the private citizen is to be determined on principles different from the consid erations which fix the legal rights and duties of one citizen towards another; and it is also true of England, as well as of France, that an individual in his dealings with the State does not stand on anything like the same footing that he does in dealing with his neighbors; and one must conclude that if this notion is alien to the conceptions of modern Englishmen, it can be only because of their lack of familiarity with the law of their own country. Mr. Dicey is, of course, aware of these matters. Indeed he expressly refers to some of them (namely, the Petition of Right and the enactments protecting public officials from suit) as "faint traces in the law of England" of some such principle as "the idea that when questions arise between the State (or, as we should say, the Crown) or its servants and private persons, the interests of the government should be in any sense preferred or the acts of its agents claim any special protection." . . . The fact that an individual in this country does not in his dealings with the State stand on anything like the same footing on which he stands in dealings with his neighbors, is too well known and recognized to require any citation or authority in its support. . . . The first of the ideas, then, on which the droit administratif of France rests is one which is familiar to every lawyer in this country, and should, one must suppose, be no novelty to those of England. "The second of the general ideas, on which rests the system of administrative law, is the necessity of maintaining the so-called separation of powers," according to Mr. Dicey, or, as we should phrase it, the necessity of maintaining the proper division of the powers of government into legislative, executive, and judicial. . . . For instance, Mr. Dicey says: "If a Minister, a Prefect, a policeman, or any other official, commits acts in excess of his legal authority, as, for example, if a police officer in pursuance of orders, say from the Minister of the Interior, wrongfully arrests a private person, the rights of the individual aggrieved and the mode in which these rights are to be determined is a question of administrative law. . . . The assertion, however, that where an official in the discharge of his official duty injures a private individual, the person wronged cannot claim redress from the ordinary judges, does not mean or imply that a person who is thus aggrieved, say who is wrongfully arrested by a policeman acting under orders, or libelled in an official notice issued by mayor, is without a remedy. The incompetence of the civil tribunals means, only, that, where any wrong has been done through an official proceeding, redress must be sought through the proper official authorities, or, as they are called, the administrative tribunals (tribunaux administratifs)." As these statements are hopelessly at variance with the decisions of the Courts, it seems proper to direct attention to their incorrectness. . . . In view of the recent decisions in France, it is difficult to understand how Mr. Dicey can state, as he does, that "we may further draw the general conclusion that under the French system no servant of the government, who without any malicious or corrupt motive executes the orders of his superiors, can be made civilly responsible for his conduct." . . . The matter of surprise . . . is that . . . Mr. Dicey should not have entirely rewritten his Chapter XII, so as to bring his exposition of droit administratif more into accord with the contemporary authors to whose works he refers his readers. . . . Undoubtedly one who has any familiarity with that subject will see, in Mr. Dicey's two notes in the appendix, a virtual retraction of most of the statements made by him in the chapter under discussion, and retained, even in its amended form, in the sixth edition; but the ordinary reader is not much aided thereby. |