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The Growth of Executive Discretion

Published online by Cambridge University Press:  04 October 2013

Frank J. Goodnow
Frank J. Goodnow*
Affiliation:
Columbia University
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Extract

The most notable point of difference between the English and continental administrative systems at the end of the eighteenth century was probably the relation which they bore to the judiciary. The English administrative system was characterized by its subjection to the control of the courts. The continental administrative system, as seen particularly in that of France, was marked by its freedom from judicial control.

The retention by each system' of its characteristic feature may have been due to the conscious desire to secure judicial control or administrative independence, as the case might be. And yet the origin of the difference between the two systems is hardly to be attributed to any well-defined theory of government, but rather to a course of political development of which the leaders of political thought were in all probability not fully conscious. Thus, in England, the jurisdiction of the courts, to whose exercise the judicial control was due, was developed at a time when no clear distinction was made between judicial and administrative authorities, when the royal courts occupied toward the chief of administration, the crown, a position similar to that of all other governmental authorities, when the judges were like other officers subject to the disciplinary power of the crown, which might remove them from office at any time and bring pressure to bear upon them to secure decisions favorable to the royal interests. The development of a wide jurisdiction in the courts, under such circumstances, did not involve a subjection of administrative action to a control exercised by bodies independent of the administration. For the crown could prevent the rendering of decisions unfavorable to its interests. The crown did not, therefore, try to limit the jurisdiction of the royal courts, but permitted them to exercise such powers as ultimately made them the highest and last instance of control over almost all governmental action.

Type
Papers and Discussions
Information
Proceedings of the American Political Science Association , Volume 2: Second Annual Meeting , December 1906 , pp. 29 - 44
Copyright
Copyright © American Political Science Association 1906

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References

1 The United States Court of the District of Columbia has this jurisdiction, as the successor of the English Court of King's Bench through the Supreme Court of Maryland. But the territorial extent of its jurisdiction is confined to the District of Columbia.

2 Cary v. Curtis, 3 How., 236.

3 Shurtleff v. United States, 189 U. S., 311.

4 American School of Magnetic Healing v. McAnnulty, 187 U. S., 94.

5 The Supreme Court has interpreted this statute as preventing the courts from issuing the injunction in tax cases to government officers (Snyder v. Marks, 109 U. S., 189), but has, nevertheless, permitted the courts to issue it to private panties although the issue of the writ actually has the effect of preventing the collection of taxes. This was done, for example, in the incame tax cases. Pollock v. Farmers' Loan & Trust Co., 157 U. S., 429. Congress has also enacted legislation which takes from the individual the right to bring actions for tort or in replevin against the tax officers of the federal officers because of their performance of their duties. See the opinion in De Lima v. Bidwell, 182 U. S., 1.

6 Chesebrough v. United States, 192 U. S., 253.

7 Ekiu v. United States, 142 U. S., 651.

8 United States v. Ju Toy, 198 U. S., 253.

9 Buttfield v. Stranahan, 192 U. S., 470.

10 Bates & Guild Co. v. Payne, 99 U. S., 106.

11 Public Clearing House v. Coyne, 194 U. S., 497.

12 Murray's Lessee v. Hoboken Land and Improvement Company, 18 Howard, 272.

13 McMillen v. Anderson, 95 U. S., 37; Springer v. United States, 102 U. S., 586.

14 Department of Health v. Trinity Church, 145 N. Y., 32.

15 Jacobson v. Massachusetts, 197 U. S., 11. See also In re Veemeister, 179 N. Y., 239; State v. Jacobson, 183 Mass., 242; State v. Hay, 126 N. C., 999.

16 Haverty v. Bass, 66 Me., 71.

17 Morris v. Columbus, 102 Ga., 792; Abeel v. Clark, 84 Cal., 226; Duffield v. School District, 162 Pa. St., 476.

18 This exception is quite marked in the tax oases where a direct remedy against assessments is very commonly provided. Furthermore, in some cases the province of the writ of certiorari, the most important common law remedy for the review of administrative determinations, has been sometimes so extended by legislation as to offer to the individual affected by an administrative determinatiom the right to a judicial review of it even as to questions of fact.

19 Cunningham: Growth of English Industry and Commerce (1892), vol ii. p. 347.