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tion I have been seeking for twenty-five years, and whose material embodiment has just now grandly risen on the Berkeley Campus in the form of Boalt Hall of Law, I should feel that my efforts had been misdirected, that some trade form of law school would have served as well, nay, better.
"One characteristic of our age is that all the interests of the time are interdependent, are cooperative, are integrated in one general purpose. The unrest and agitation which are conspicuous in politics, in morals, in religion, are at work in the field of law. It is for you to turn that disquiet, that criticism, that dissatisfaction, that tendency to overthrow and destroy into right ways; to give a constructive character to such tendencies. Be prepared; don't delay; don't sit idly on the bank of the river of opportunity and let the stream flow irrevocably by. Think deeply and earnestly with all your faculties alive and all your knowledge at hand, and reform, remodel, readapt to the exigencies of today, to the expectations of tomorrow, the law that has grown out of tune with the spirit of the times, and the administration of the law which has been used by the panderers of the profession to subserve the interests of a trade.
"Fellows in the splendid fellowship of the law, you are the servants of highest rank in the state, the ministers of noblest service, the ministration of justice. If such is perchance your conception of your calling, now is your opportunity to make this holiest of secular vocations the greatest factor in the amelioration of human conditions. If your conception is less than that, I hope that the coming generation will have no punishment too severe for those who would prostitute the high priestess of justice to the lusts of the flesh."
Orrin K. McMurray.
Some Problems of Public Law
OT many years ago it was an accepted axiom that the highest manifestation of human activity is to be found in the State. Hegel's doctrine, as renewed by the Neo-Hegelians, described the State as the moral leader and as the material Sovereign of the nation. We read, for instance in Bosanquet's Philosophical Theory of the State: "The state is not only the political fabric it includes the whole hierarchy of institutions by which life is determined." We are very far from such an enthusiastic estimate nowadays. A former colleague of mine, Principal Barker, has found it appropriate to write about the "Discredited State" in an influential American Review, and he certainly does not stand alone in such an attitude.
It is not my intention to discuss the relative merits of these extreme pronouncements. I may be allowed to say, however, that personally I should consider it a relapse into barbarism if Society, after reaching by protracted and strenuous efforts the goal of a democratic State, were to break up into a number of competing groups taking the law in their own hands and granting a measure of loyalty to the nation in accordance with their shifting interests and moods. But this does not preclude the necessity of accounting for the bitter denunciations of the State and the attacks directed against its institutions from different sides. Convinced adherents of the State as the ultimate umpire and protector of social intercourse ought to inquire into the reasons of this widespread discontent and to try to disarm it by improvements and amendments, as well as by contradiction or compulsion.
In taking stock of the vulnerable points in the modern State's position I do not intend to dwell on reproaches leveled at destructive militarism, or at the intolerable burden of taxation, or at red-tape
1 This paper is a revised version of lectures delivered at the meeting of the Williamstown Institute of Politics in 1923, and at the University of Wisconsin.
2 P. 150.
E. Barker, Texas Revolutionary Finances, 19 Political Science Quar
bureaucratism. I should like to call attention to one kind of shortcomings which, I think, may be remedied by a consistent policy backed by public opinion. I mean the present state of the law as regards the duties of the State in its dealings with individual citizens. In constitutional law and practice we are chiefly confronted with the powers and rights of the State; occasionally we are informed about limitations of these powers and rights. But there is a vast domain of relations of public law giving rise to misunderstandings, conflicts, encroachments of various kinds, in which claims as to redress and compensation are of daily occurrence. Every State exercises rights of property, enters into conventions, makes bargains and employs labor. Hence possibilities of misuse of power, of breach of agreements, etc. Again, the officers of every State, while levying taxes, enforcing discipline, decreeing sanitary measures, managing educational establishments, may be negligent or act with undue harshness and in an arbitrary manner. Hence the problem of ensuring revision and, possibly, of compensating persons aggrieved by mischievous or malicious exercise of State authority.
Cases of this kind form an important class in the practice of lawyers, but they have more than a technical interest. Administrative law concerns laymen quite as much and perhaps more than criminal or constitutional law-at any rate private individuals are more often face to face with it. And the way such cases are treated is characteristic of the prevailing conceptions as to State Sovereignty, governmental authority and the legal standing of citizens. This is the reason why I venture to raise some questions usually relegated to text-books on Crown practice and to Law Reports. I may say from that outset that a comparative review of English and Continentalparticularly French-law on the subject seems the best means of reaching definite conclusions. The treatment of "claims" in the United States is also highly instructive, but it would be impertinent on my part to deal with it here: American readers will easily recognize similarities and divergences with English law. A comparative survey shows, in my opinion, that, while each of the two great systems of Western Europe possesses conspicuous advantages of its own, neither satifies entirely the requirements of modern democratic society, and that probably the best means of remedying defects would be to combine certain doctrines worked out separately by each of them.
Let us start with an examination of the methods employed in dealing with conflicts arising from the economic attributions of the
State. What happens in cases when complaints are raised against the State on the ground of illegal or wrongful exercise of powers over property, or of infringement of agreements, or of damages for which a private person would be liable to offer compensation. The Common Law starts in this respect from the well-known maxim "The King can do no wrong." Translated into general terms this means that the State or the People, as they say in America, cannot be compelled to acknowledge or make good wrongs by means of actions applicable to disputes between private individuals. If redress is to be obtained it must be sought by petition, as from inferiors to a privileged superior. Historically, this inequality of position was a very real and irksome drawback. In the thirteenth and fourteenth centuries, for example, there was no clear distinction between the petition of right and the petition of grace and, although actual wrongdoing was sometimes admitted by Kings, e.g., by Henry II,3 the juridical impossibility of making the King responsible was clearly established. The King could not be prosecuted in his own Court on the strength of a writ issued from his own Chancery. Some facilities were afforded in case of simple restitution and of objections to arbitrary seizure by fiscal officers (Traverse in Office), but the main channel open to complaints remained that of a petition which might lead occasionally to the satisfaction of just claims, but might also in many cases end in a scandalous denial of right. In spite of the overthrow of personal government the immunity of the State from prosecution was not abrogated: if anything it was strengthened by the victory of the national monarchy under the Tudors and Stuarts with the doctrine of absolute sovereignty of the State. It is from the revolution of the seventeenth century that we have to date the development of modern procedure on the subject. The dividing line may be drawn at the Bankers' case (1696, 1698 and 1701) and I beg leave to examine it in some detail because, as it seems to me, it has not been adequately treated in the books. It arose out of the misgovernment of Charles II, who borrowed money right and left to stop the gaps produced by his profligate life and reckless commitments. After refusing to pay the capital at the specified terms he concluded an arrangement with his creditors promising to pay 6% interest from the proceeds of the excise. These payments also came
4 Cf. L. Ehrlich, Proceedings against the Crown in Oxford Studies in Social and Legal History, VI.
See, e.g., Notebook of Bracton, Case 1106.
14 How. St. Tr. 1.
into arrear and, on the fall of the House of Stuart the creditors, of whom the principal was Sir Robert Vyner, demanded execution from the Crown revenue. Their claim was made in the Exchequer and acknowledged by that Court, but challenged by the Attorney General (in the Exchequer Chamber) before the Lord Keeper of the Great Seal, Somers, and nine Judges of the High Court as assessors. All these Judges except one-the Chief Justice of the Common Pleas, Sir G. Treby declared in favor of the claim, and of the method of obtaining payment, but Somers, acting on his personal authority, overruled the decision of the Court of Exchequer, on the ground that the case had been conducted wrongly-there could be no direct action against the Treasury; the proper way to obtain justice was by petition of right. This meant that the case had to go for trial by permission of the Crown. The arguments used to justify this decision apart from a technical review of mediaeval and sixteenth century precedents, were characteristic in so far as they revealed the political background of the Lord Keeper's decision. Sir G. Treby had urged the necessity of reckoning with State interests and State commitments and Lord Somers followed his lead in this respect.
Treby said, among other things: "Suppose the king be indebted to the petitioners, and also to the army, the fleets, &c. Now who shall direct the payment of these debts, the barons, or the treasurer? Who is the best judge of the state of the kingdom, and of its necessities? So that suppose there was only 4000£ in the exchequer, and we were threatened with a foreign invasion, how shall this money be disposed? Says the treasurer, to raise men to pay the army and our fleets, that by their assistance we may prevent the enemy from coming amongst us. No, say the barons, we must pay the bankers with this money, though at the same time we open the gates, and let in Hannibal to our utter ruin and destruction. My lord Coke, in his 4th Institut. treating of the court of the exchequer, takes notice of the oaths taken by the treasurer, and also by the barons. In the treasurer's oath it is mentioned, that he is to keep and dispense the king's treasure safely; but in the baron's oath, there is not a word of this matter taken notice of: which to me is an argument that the treasurer is judge in point of issuing money, whether it be due and payable or not, and to whom, in what manner, and when it shall be paid, &c. And this I take to be the true reason why no action can be brought against the treasurer, because he acts as a judge, and not as a minister of the court; for he is not attendant to it, as sheriffs, bailiffs, &c., are. So I take it, 'may be paid,' is enough for the barons