procedure. It remains to consider how far any further specialisation of judicial work and machinery is expedient. It is obvious that if a lay element, qualified by special experience, is introduced into the tribunals, they must be so far different for different departments of business: but it does not follow that the legal element, even of these tribunals, need be similarly restricted. The chief arguments for specialisation, here as in other matters, are that it renders possible a completer adaptation of the worker to his work, and tends to increase the skill derived from practice: on the other side, we have to take into account difficulties in defining the competence of different courts, and the waste of labour and expense entailed either by disputes about competence or by the necessity of breaking up a complicated dispute and dividing its naturally connected parts among different tribunals. In some cases, of course, the dividing lines are much easier to draw than in others: e.g. questions of divorce or of electoral right are easily separated from other matters of legal controversy, but it is difficult to find a definition of commercial transactions which will distinguish them in a clear and intelligible manner from other transactions. In any case it seems desirable, in order to maintain consistency in the administration of the law, that there should be one strong Supreme Court, with the power to correct errors committed by other tribunals in the general definition of civic rights and duties.1

A question of great importance that comes under this head is whether there should be special "administrative" courts 2 for disputes of right between governmental officials and private persons. For some disputes of this class there certainly seems to be no need of special judicial machinery: e.g. disputes as to pecuniary claims in respect of taxes or otherwise, made on private individuals in behalf of the public, or similar claims made by individuals on the state, in consequence of contracts between them and the government.

1 Such a court need not necessarily have the power of deciding cases on appeal it may have only the power of cancelling decisions arrived at by a process involving a material error in law.

2 Tribunaux Administratifs.

There is no reason for withdrawing the decision of such questions from the tribunals that deal with the mutual pecuniary obligations of private persons. The case is different when damages are claimed or punishment demanded for illegal violations of private rights by executive officials. Where, indeed, the alleged offences are committed by officials either avowedly not acting as such, or palpably misusing their official position for illegitimate private purposes, it again seems clear that it may be left to the ordinary tribunals to punish them, and to exact adequate reparation for the mischief caused by them. It is only where a wrong is alleged to have been committed by an official bona fide discharging his official duties, that the expediency of referring the question to the ordinary courts becomes doubtful.

In admitting this doubt, I do not lay stress on the danger -which seriously alarms some foreign publicists of the conflicts of authority between the executive and the judiciary that must be expected to result from giving to the latter the function of sitting in judgment on the former. Such conflicts are doubtless to be regretted: but if the executive is to be kept effectively within legal limits-which has seemed indispensable-it must meet with the resistance of some independent body when it transgresses these limits: and the evils of conflict are likely to be minimised if the independent resisting body has simply the judicial function of interpreting law, and no call or excuse to interfere with the exercise of the discretion that the law has assigned to the executive. Any impulses on the part of the judiciary to usurp a control over the discretion of the executive will ordinarily be easy to check by further legislative definition of that discretion: in the last resort, the power of dismissing judges, that I have proposed to reserve to a body in which members of the legislature form the majority, would suffice to overcome any obstinate attempts at usurpation.

1 It does not follow that the public should have no special advantages in such litigation, to balance the force of self-interest that must be expected continually to prompt private encroachments on public rights. But these advantages should be carefully defined by law, not secured by any partiality in the tribunals that apply the law.

My fear is rather that a tribunal not specialised by containing as one element persons who have had experience of executive work will hardly be well qualified to interpret the limiting rules of law wherever a somewhat indefinite standard has to be applied. For instance, if the question is whether an official had reasonable cause for arresting a suspected criminal without a warrant, detaining a ship as unseaworthy, or breaking up a public meeting, it seems more likely that a just decision will be arrived at by a court including persons who have had official experience of somewhat similar matters: though to secure the independence and impartiality of the court, it is important that such persons should not be actually members of the executive at the time. There is, however, a considerable difficulty in constructing a tribunal of this kind that will command general confidence, and not be widely suspected of undue bias in favour of the executive. If this difficulty be found insuperable, it may be necessary, for the effective performance of governmental work, to give the executive somewhat wider legal powers than it ordinarily requires; trusting to public opinion and parliamentary criticism to keep its exercise of these powers within somewhat narrower limits than those enforced by the judiciary.1

§ 9. A cognate question is raised by the need of a tribunal for dealing with charges of official misconduct, of which the mischief falls on the public, and does not give rise to a private claim for damages. Where the alleged offender holds his post "during pleasure" of a superior, and the offence charged is such as will be sufficiently punished by dismissal from employment, or some lighter disciplinary penalty which the ordinary official superior can inflict, the need of a formal judicial procedure does not arise; but if the offender's tenure is on "good behaviour," or if the gravity of the offence calls for a severer penalty

1 It should be observed that a right to receive services from executive officials does not necessarily imply a right to bring actions against such officials when the services in question are imperfectly rendered or improperly withheld. In the case of some governmental services-e.g. the relief of indigence-it would be palpably inexpedient to grant this latter right.

than dismissal, some judicial process is obviously required; the only question is whether it should be conducted by an ordinary court, or a special one, composed in whole or in part of experienced officials. The necessity of special military tribunals to punish breaches of military discipline is universally recognised; here, however, there is a peculiarly intense need of strict subordination and prompt punishment, and a frequent impossibility of having recourse, at least without intolerable delay, to external tribunals; reasons which do not ordinarily apply in the case of the civil service. In the latter case the question seems more doubtful; and the answer to it seems to depend on the degree of precision with which the official misconduct requiring punishment can be defined. Certainly the mere requirement of special penalties for breaches of official duty does not in itself involve a requirement of specially constituted tribunals; ordinary judges might be trusted to administer such penalties, and to understand that faults of omission and commission which are venial in private persons-e.g. breach of confidential secrecy become grave offences in the case of officials. The question rather is, whether either the forms of misbehaviour justifying dismissal from the service, or the kinds of gross neglect or corrupt misuse of official power or other flagrant postponement of public to private interests, for which severer penalties seem to be necessary, are in fact so "various in their character and so indefinable in their actual involutions that,"-though "easily understood by statesmen "-it "is almost impossible to provide systematically for them by positive law." So far as this is clearly the case, it would certainly seem that justice and the public interest require that such offences should be referred to a specially constituted tribunal, adequately supplied with the requisite experience of executive as well as judicial work. At the same time, a liability to punishment beyond dismissal, for offences that elude legal definition, is so formidable a risk to attach to the service of government and so open to abuse in party conflicts-that

1 Story, Constitution of the United States, Book III. ch. x. § 762.

I should hesitate to admit the need of it, without more proof than I have yet seen adduced.

The case is different with dismissal-even if accompanied with permanent exclusion from the public service:—since the official on whom this penalty may be inflicted by a judicial process, but not otherwise, has at any rate a securer tenure than most employees in private businesses. And for this purpose-so far as subordinate officials are concernedit would not seem difficult to construct a suitable tribunal, of the kind above indicated. But the phrases I have above quoted are applied by Story to the more highly placed functionaries, for whom the process of impeachment before the senate is mainly provided in the constitution of the United States; and certainly the danger of official misconduct, at once grave and difficult to define with precision beforehand, seems to increase with the extent of the power placed in the hands of a functionary. At the same time the difficulty of finding a tribunal at once of adequate strength and impartiality, and adequate insight, seems to increase in equal or even greater ratio: while if judicial forms came to be used without judicial impartiality, as a method of party warfare, the remedy might prove worse than the disease. Further, it is not clear that such a tribunal is needed under Parliamentary Government for the repression of offences of this kind that may be committed by the heads of executive departments, since these functionaries will be practically dismissible by Parliament supported by the people; and the loss of reputation that would be caused by such misconduct as would justify condemnation by a tribunal, would most probably lead to the retirement of the offending functionary. The case is however different where the supreme executive is appointed for a fixed period and is not dependent for its tenure of office on a parliamentary majority; in this latter case it would seem that the need of some process for getting rid of high officials guilty of grave misconduct may be occasionally very urgent, so that the advantages of establishing a tribunal before which they may be impeached outweigh the disadvantages.