Oldalképek
PDF
ePub

PART VII

THE POSITION OF PARLIAMENT AND THE
COURTS OF LAW IN THE SYSTEM

Three modes of central control.

OF LOCAL GOVERNMENT

I

EVERY Constitutional government in working out a system of local administration has to solve in its own way the problem of central control. Broadly speaking, three methods are available, and may be employed either severally or in combination: (1) The local authorities may be subjected to the orders of a central department. This is administrative centralisation in the fullest sense. (2) They may be subjected to the legal control of courts of law, whose decisions will be concerned merely with the question as to whether or not any particular act of administration is lawful. (3) They may be subjected to political control-a term which signifies the supervision exercised by a representative central organ, expressing the will of the supreme authority in the State.

The question now to be investigated is how and to what extent these three methods have been pursued in the English solution of the problem. Above all, we must ascertain precisely what is the nature, the structure, and the actual working of the central organ which embodies the supreme will of the English State in relation to internal government. It has already been made clear in the preceding part that those departments of the central government which have to do with home affairs are not possessed of sovereign control over a

decentralised system of local government. If English local authorities can be called subordinate in any true sense, they are subordinated only to Parliament. It is far more correct,

as we have again and again shown, to say that the English system of local government has its centre of gravity in Parliament than to find that centre in the Local Government Board.

Many side lights upon the relationship between Parliament and local government have appeared in earlier chapters. Attention is now to be concentrated on the position of Parliament as supreme administrative authority-a position which it still holds in law and in fact, despite the creation in modern times of administrative departments with supervisory powers.

"Alle staatliche Verwaltung ist regelmässiges staatliches Handeln." 1 There is indeed, as this saying implies, a touch of the concrete and of the actual in the business of public administration which does not appear in any other function of the modern State. The reason of this is the prominence of a personal factor; for every act of administration appears as the act of a person endowed with public authority. In primitive administrations the personal factor was felt throughout government. The King was the sole organ of public authority, and it is very instructive to observe that in the Germanic States the interpretation of the law, Rechtsprechung, with the adjudication of wrongs to property and torts, remained in the hands of the people long after the execution of judgments and sentences (the administration of justice) had passed over to the King and his servants.2

The develop

ment of

administrative

In all the States of continental Europe internal administration has developed as a separate function of public authority. On the one hand, it subdivided itself, as the needs of society grew more complex; on the other hand, and at the same time, in this very process of differentiation and extension, it gained concentration and unity, while it strengthened the authority of the ruler of the land and his advisers, who, by this enlargement and refinement of administration,

law on the Continent.

1 So Laband in Das Staatsrecht des Deutschen Reiches, 3rd ed., i. p. 645. 2 The invasion of the Old Germanic constitution by kingly powers of administration is reflected in the development of the Frankish office of Count (cf. Sohm, Deutsche Reichs- und Gerichtsverfassung, p. 35).

tightened their hold over all ranks of society. Then, by degrees, as the written and unwritten laws of each nation were formed more or less under foreign influences into a great and independent system, there grew up by its side a complexity of rules to regulate and regularise the execution of public authority. In short, the old distinction between a judgment and its execution was preserved, and out of this distinction were developed two systems-one the rule of law proper, the other the rule of administration or administrative law. This administrative law, as it is called, originates in the sovereign's unlimited power of issuing ordinances. It is put into force by an army of officials and councillors subordinated to the command of the sovereign. Administrative law is distinguished in many important respects from the ordinary law of the land. An ordinary law can only be

altered if and when certain conditions more or less independent of the will of the sovereign are fulfilled. But, as administration is held to be the peculiar domain of the sovereign, so administrative law is held to be his law, and the administrative orders issued by him are held to be equivalent to the laws of the land. In the course of centuries the empire of criminal and private law shrank before the inroads of public authority, which invaded with ceaseless and evergrowing activity province after province of civic life, until at last there was established throughout the continent of Europe the doctrine that all public authority, including legislation, is vested in the sovereign. Jus publicum—administrative law— now predominated over private law, the latter being at the mercy of the sovereign, to whom, as the personification of government, it owed its operative force. Thus arose the absolutist State of the eighteenth century, based on the doctrine of an omnipotent monarch, which limited and reduced to a minimum the conception of independent law.1

1 An alteration of the law of the land seems, however, in German territories to have long involved the agreement of the Estates (cf. Schröder, Deutsche Rechtsgeschichte, pp. 6, 33 sqq.). The oldest administrative laws of Germany in the modern sense are the territorial police ordinances of the fifteenth and sixteenth centuries. These were indeed discussed by the Estates and framed with their assistance; but, at the same time, first in Austria, afterwards throughout the German Empire, administration was reorganised under an absolute monarch. And this organisation became the weapon of that monarchical supremacy

He had

Rule of one

law in

England.

The limits of our task forbid us to describe these developments in detail, or to inquire how far, in the course of the nineteenth century, continental States have been restoring the rule of law over administration. This continental history is important here only because it forms so complete an antithesis to the development of the law and constitution of England, and because through this antithesis the true meaning and effect of the English constitution are best shown. In England, as on the Continent, the King-after the ripening of the Anglo-Norman State-was acknowledged as the embodiment of authority. judicial powers concurrent with, and superior to, those of the people's courts. He sent officers from his palace to execute justice in all parts of the land. He was the chief of such public administration as then existed. But the growth of this kingly power and the development of an administrative law as the peculiar province of the Crown were arrested,—so deeply rooted were the principles of the common law, and so strong was the national feeling that no rule of common law might be altered without the consent of the people. Accordingly, the exercise of public authority, instead of controlling, was controlled by, the laws of the land. The term common law" comprised originally all the customary rules, whether of Saxon or Danish origin, which, at first local, gradually obtained

(Obrigkeit) by which the whole public authority was soon to be concentrated in the hands of the sovereign. At the same time the influence of the Estates upon legislation and government steadily diminished, until, in the second half of the seventeenth century, the Police-State of the Continent with its absolute sovereign had matured and become complete. The origin and formation of monarchical central government in the sixteenth century was also intimately connected with the organisation of justice; for this reason, that, from the standpoint of an omnipotent prince, every question in which his majesty and supremacy (Obrigkeit) were involved, was claimed, and successfully claimed, as a question of administrative law to be decided by the new authorities-the servants of the monarch. In this way, for the first time, Privatrecht and Öffentliches Recht were sharply distinguished. The first term was now understood to include the whole of those laws and institutions which did not touch the interest or affect the execution of the supreme authority. At the same time, by the side of the old courts of justice which decided private rights and exercised ordinary criminal justice, there was created a special jurisdiction for the decision of administrative law; and this function was assigned to the officers of the central administrative authority (cf. for this development the excellent description of Tezner, Die landesfürstliche Verwaltungsrechtspflege in Oesterreich, 1898; especially p. 62 sqq.).

1

general recognition, and brought all Englishmen into relation with one another. The Norman Conquest threw into sharp relief the difference between English and foreign views of law, and strengthened the national feeling against any encroachment on customary rights. In the wars waged by the barons and the people with the King the lex terrae, or the old law of the land, was triumphantly vindicated as against the absolute dominion of the King. William the Conqueror himself expressly confirmed the laws of Edward the Confessor, thereby recognising and adopting the main body of Anglo-Saxon law; although it is true that, in introducing the feudal system, he was engrafting a new and foreign plant upon the English stem. The laws of the Confessor were again confirmed by Henry I. Common law therefore remained the kernel of the national constitution. Its peculiar forms and characteristics were kept alive by judicial decisions, and gradually absorbed or prevailed over foreign influences. Like all uncodified laws, resting upon an ancient Volksrecht, the common law sought to give precise expression to all the traditional rules, maxims, presumptions, or proverbial sayings which regulated the relations of individuals both to one another and to the public authority. Recognised then, however reluctantly, by the Norman conqueror and his successors, the common law operated to limit kingly power; for the King was thus bound from the first by the existing laws of the land. A further and still more important consequence ensued. The fundamental conception

"Within England itself, though for a while there was fighting enough between the various Germanic folks, the tribal differences were not so deep as to prevent the formation of a common language and a common law. Even the strong Scandinavian strain seems to have rapidly blended with the Anglian. It amplified the language and the law, but did not permanently divide the country. If, for example, we can to-day distinguish between law and right, we are debtors to the Danes; but very soon law is not distinctive of Eastern or right of Western England. In the first half of the twelfth century a would-be expounder of the law of England had still to say that the country was divided between the Wessex law, the Mercian law, and the Danes' law, but he had also to point out that the law of the King's court stood apart from and above all partial systems. The local customs were those of shires and hundreds, and shaded off into each other. We may speak of more Danish and less Danish counties; it was a matter of degree; for rivers were narrow and hills were low. England was meant by nature to be the land of one law" (Professor Maitland's article on English Law" in the Encyclopædia Britannica, vol. xxviii. p. 247 (1902).

« ElőzőTovább »