in France of droit administratif deserves the notice of Englishmen. In the treatises on the constitutional law of France produced by writers entitled to high respect will be found the advocacy of a new form of decentralisation termed décentralisation par service,61 which seems to mean the giving to different departments of civil servants a certain kind of independence, e.g. leaving the administration of the Post Office to the body of public servants responsible for the management of the postal system. This body would, subject of course to supervision by the state, manage the office in accordance with their own knowledge and judgment; would, as far as I understand the proposal, be allowed to share in the gains affected by good management; and would, out of the revenue of the Post Office, make good the compensation due to persons who suffered by the negligence or misconduct of the officials. On the other hand, the officials would, because they were servants of the state who had undertaken certain duties to the state, be forbidden either to organise a strike or in any way to interrupt the working of the Post Office. It is a little difficult to see why this proposal should be called “decentralisation,” for that term has hitherto borne a very different meaning. To an Englishman the course of proceeding proposed is extremely perplexing; it however is from one or two points of view instructive. This so-called decentralisation looks as if it were a revival under a new shape of the traditional French belief in the merit of administration. This reappearance of an ancient creed possibly shows that French thinkers who have lost all enthusiasm for parliamentary government look for great benefits to France from opening there a new sphere for administrative capacity. It certainly shows that Frenchmen of intelligence are turning their thoughts towards a question which perplexes the thinkers or legislators
[print edition page lxv]
of other countries. How far is it possible for officials, e.g. railway servants and others who undertake duties on the due performance of which the prosperity of a country depends, to be allowed to cease working whenever by so doing they see the possibility of obtaining a rise in the wages paid them? My readers may think that this examination into the recent development of French droit administratif digresses too far from the subject which we have in hand. This criticism is, it is submitted, unsound, for the present condition of droit administratif in France suggests more than one reflection which is strictly germane to our subject. It shows that the slightly increasing likeness between the official law of England and the droit administratif of France must not conceal the fact that droit administratif still contains ideas foreign to English convictions with regard to the rule of law, and especially with regard to the supremacy of the ordinary law Courts. It shows also the possible appearance in France of new ideas, such as the conception of the so-called décentralisation par service which are hardly reconcilable with the rule of law as understood in England. It shows further that the circumstances of the day have already forced upon France, as they are forcing upon England, a question to which Englishmen have not yet found a satisfactory reply, namely, how far civil servants or others who have undertaken to perform services on the due fulfilment of which the prosperity of the whole country depends, can be allowed to use the position which they occupy for the purpose of obtaining by a strike or by active political agitation concessions from and at the expense of the state. Nor when once this sort of question is raised is it possible absolutely to reject the idea that England might gain something by way of example from the experience of France. Is it certain that the increasing power of civil servants, or, to use Mr. Muir’s expression, of “bureaucrats,” may not be properly met by the extension of official law?62 France has with undoubted wisdom more or less judicialised her highest administrative tribunal, and made it to a great extent independent of the Government of the day. It is at least conceivable that modern England would be benefited by the extension of official law. Nor is it quite certain that the
[print edition page lxvi]
ordinary law Courts are in all cases the best body for adjudicating upon the offences or the errors of civil servants. It may require consideration whether some body of men who combined official experience with legal knowledge and who were entirely independent of the Government of the day, might not enforce official law with more effectiveness than any Division of the High Court.
CONVENTIONS OF THE CONSTITUTION 63
Three different points deserve consideration. They may be summed up under the following questions and the answers thereto:
FIRST QUESTION
Have there been during the last thirty years notable changes in the conventions of the constitution?
ANSWER
Important alterations have most certainly taken place; these may, for the most part, be brought under two different heads which for the sake of clearness should be distinguished from each other, namely, first, new rules or customs which still continue to be mere constitutional understandings or conventions, and, secondly, understandings or conventions which have since 1884 either been converted into laws or are closely connected with changes of law.64 These may appropriately be termed “enacted conventions.”
MERE CONVENTIONS
These have arisen, without any change in the law of the land, because they meet the wants of a new time. Examples of such acknowledged understandings are not hard to discover. In 1868 a Conservative Ministry in office suffered an undoubted defeat at a general election. Mr. Disraeli at once resigned office without waiting for even the meeting of Parliament. The same course was pursued by Mr.
[print edition page lxvii]
Gladstone, then Prime Minister, in 1874, and again, in his turn, by Disraeli (then Lord Beaconsfield) in 1880, and by Gladstone in 1886. These resignations, following as they each did on the result of a general election, distinctly reversed the leading precedent set by Peel in 1834. The Conservative Ministry of which he was the head, though admittedly defeated in the general election, did not resign until they suffered actual defeat in the newly-elected House of Commons. It may be added, that on the particular occasion the Conservatives gained both influence and prestige by the ability with which Peel, though in a minority, resisted in Parliament the attempt to compel his resignation from office; for during this parliamentary battle he was able to bring home to the electors the knowledge that the Conservative minority, though defeated at the election, had gained thereby a great accession of strength. Peel also was able to show that while he and his followers were prepared to resist any further changes in the constitution, they fully accepted the Reform Act of 1832, and, while utterly rejecting a policy of reaction, were ready to give the country the benefits of enlightened administration. The new convention, which all but compels a Ministry defeated at a general election to resign office, is, on the face of it, an acknowledgment that the electorate constitutes politically the true sovereign power.65 It also tends to convert a general election into a decision that a particular party shall hold office for the duration of the newly-elected Parliament and, in some instances, into the election of a particular statesman as Prime Minister for that period.66 This new convention is the sign of many minor political or constitutional changes, such, for example, as the introduction of the habit, quite unknown not only to statesmen as far removed from us as Pitt, but to Peel, to Lord John Russell, or to Lord Palmerston, of constantly addressing, not only when out of office but also when in office, speeches to some body of electors and hence to the whole country.
[print edition page lxviii]
Another change in political habits or conventions unconnected with any legal innovation or alteration has received little attention because of its gradual growth and of its vagueness, but yet deserves notice on account of its inherent importance. It is now the established habit of any reigning king or queen to share and give expression to the moral feelings of British subjects. This expression of the desire on the part of English royalty to be in sympathy with the humane, the generous, and the patriotic feelings of the British people is a matter of recent growth. It may fairly be attributed
