Accountability of Public Officials and Judicial Review of Administration

Key Insight

In the United States, alongside England, a fundamental aspect of liberty is the right of any citizen to accuse public officials before ordinary courts, and for judges to sentence them. This is not a special privilege for the courts but a natural right, and denying it would be an encroachment. Far from weakening government, this accountability is seen to increase respect for public officials, as they become more meticulous in their conduct to avoid criticism. While easy to accuse officials in the press, actual legal prosecutions are less frequent due to the inherent difficulty and cost of trials, serving as a practical deterrent against frivolous lawsuits, yet ensuring redress for just grievances.

The American and English systems prioritize enabling even the least citizen to bring routine lawsuits in small matters over grand impeachment proceedings, believing this better guarantees freedom. Their approach treats official arbitrariness and tyranny akin to theft, advocating for facilitated prosecution and alleviated punishment to ensure justice is both more certain and effective. This philosophy reflects a historical lesson: making justice mild yet certain is more impactful than harsh, uncertain retribution. Consequently, officials are incentivized to avoid providing cause for complaint, as they are aware of their constant exposure to legal challenge.

This system stands in stark contrast to the French Constitution's Article 75 (of Year VIII), which stipulates that government agents (excluding ministers) can only be prosecuted for official acts with the Council of State's decision. Americans and Englishmen found this incomprehensible due to several critical flaws. Firstly, it subjected all litigants to preliminary hearings before a single, centralized high court, which they viewed as a form of tyranny. More significantly, they could not grasp that the Council of State was an administrative body, subordinate to the king, not an independent judicial one. This structure allowed the king to order an iniquitous act through one servant (a prefect) and then prevent the punishment of that offender through another (a councilor of state), effectively requiring an injured citizen to seek the prince's permission to obtain justice, a system they perceived as an 'enormity' and a regression from earlier gains against open despotism.