the revelation of information, officially obtained, would injure the State or individuals. Two extremes have to be avoided, a pedantic maintenance of mystery, or a mischievous concealment of unconstitutional and illegal action on the one side; indiscreet gossiping on the other.

ment and

9. The State can reprimand or punish functionaries who Punishneglect or violate their duties. Crimes, which can be prosecuted discipline. and punished before the ordinary courts, are to be distinguished from neglect of duties, which renders a person liable to official discipline. The former are judged by the ordinary law of the land, the latter more specially from the point of view of the public interest. This distinction is the same as that between Justice (Gericht) and Police (Polizei). The former, as we have said, are proceeded against at criminal law, but the State has in some cases modified this in its own interest: (1) according to the French practice, the criminal prosecution of an official for an official crime can only take place with the authorisation of the government, or an authority specially empowered, or (2) there are special courts to try officials. The English practice rejects both these exceptional rules, but protects its aristocratic officials by other means against frivolous attacks 5.

b [Art. 75 of the Constitution of the year VIII, abolished by decree of Sept. 19, 1870 (Fr. trans.).]

4

According to the Imperial Law, über die Einführung des Gerichtsverfassungsgesetzes, § II, those laws of the various particular States (Landesgesetze) remain in force which make the civil or criminal prosecution of an official, on account of any act committed directly or indirectly in the exercise of his office, depend on a previous decision (Vorentscheidung). Such previous decision can, however, only determine whether the official has exceeded the powers of his office or has omitted a duty incumbent upon him. In those German States in which there is a Supreme Court of Administration this decision is pronounced by such court, in the other States by the Imperial Court. Federal laws of this sort exist in Prussia, Bavaria, Baden, Hesse, &c. (cp. Löning, Verwaltungsrecht, p. 126). In France the requirement of a previous decision has been abolished by the decree of Sept. 19, 1870. On the nature of discipline as distinct from punishment of officials very different views are held. Cp. Löning, op. cit. p. 127 ff.

5 Fischel, Verfassung Englands, p. 351; Homersham Cox, English Institutions [? pp. 442, 457, edit. 1863. The Attorney-General can stay proceedings.] The history of the negro revolt in Jamaica shows how difficult it is even in England to carry on a successful prosecution against powerful officials, even for frightful misuse of authority. Cp. Gneist, Enj. Verwaltungsrecht, p. 376 ff.

Official discipline goes further, and applies in cases where the ordinary law could find no sufficient ground for a charge, and even in cases where it would have acquitted the accused. It extends to all the faults and negligences of the functionary, even to his private life, so far as that may injure the honour and confidence which his office should receive.

Disciplinary punishments are either slight, such as warning, reprimand, and limited fine; or they are severe, such as suspension from office, removal to another place, compulsory retirement, or dismissal. The infliction of the slighter punishments is one of the ordinary powers of the superior officials, and requires no special legal proceeding. The severer, on the other hand, require a legal proceeding in order to protect the rights of officials against an arbitrary use of power. In many States the punishment of dismissal can only be inflicted by the ordinary law courts; but ordinary justice is apt to judge the fault as if it were only that of a private citizen, to take too much account of the man, and too little of the official. This system places the interest of the official for the time being above the permanent interest of the office and of the State, the rights of the individual above the rights of the community. A court of justice which has to decide on a matter of such public importance must be composed in such a way as to be able to appreciate the interests involved. Failing such a court, the right of dismissal must remain in the hands of the higher government officials 7.

CHAPTER XI.

TERMINATION OF PUBLIC SERVICE.

OFF

pression of

an office.

FFICE does not exist for the sake of the official, so that 1. Supif an office comes to be suppressed, the official can no longer remain such. Public interest alone must settle the nature and continuance of an office, but the suppression of an office does not put an end to the claims of the official to his maintenance, which continue as long as they would have done if the office had not been abolished.

Since the acceptance or refusal of office is usually a matter of free choice, so also is resignation; but the two are not quite on the same level. The freedom of undertaking an obligation does not imply the freedom of shaking it off. In a case where the ability and good-will of the individual are so important as in public offices, compulsory continuance of service is inexpedient1. On the other hand, where acceptance of office is a compulsory civic duty, its continuance, at least for a definite period, is likewise compulsory 2.

Resignation does not of itself bring the duties of an office 2. Resignato an end. An arbitrary abandonment of office would be

1 Prussian Landrecht, ii. 10. § 95 : 'The resignation of an official shall only be refused if the general welfare should seriously suffer by its being accepted.' Bavarian Edict of 1818, § 22: Any one in the service of the State may resign when he pleases without assigning any reason: but in such a case he loses all his salary as well as the title and insignia of office.'

2 Thus in England the sheriff (scire-gerefa) who has held the office for a year is free from the obligation of taking it for the next three years. Blackstone's Commentaries, i. 9. 1.

tion.

3. Retirement.

4. Dismissal.

desertion. Resignation is only a means of moving the State to withdraw the office it has given. Official duties are not at an end before the State has accepted the resignation, and the time when they terminate may be fixed by the authorities according to public convenience.

Termination of office in consequence of simple resignation puts an end to the private as well as the political rights attached to it.

It is otherwise if a public servant has the right of demanding to be placed on the retired list (Quiescirung, Inruhestandsetzung). This puts an end to the public powers of the official, but leaves him his rank, title, and a claim to payment. The amount of pension is commonly regulated according to age or length of service. The right to a retiring pension is based partly on advanced age (in Bavaria 70, in Prussia, Würtemberg, Saxony, Belgium, 65 years) combined with long service (30 to 40 years), partly on incapacity arising e. g. from ill health. The latter only constitutes a legal claim to a pension if it has been brought on by the service itself, for in such a case the State is bound to compensate the injuries incurred in the exercise of public duties 3.

Involuntary dismissal is differently regulated in different countries. In the time of the old German Empire [the Holy Roman Empire], through the influence of jurists, the private rights of the official were brought into great prominence. Office was considered as a right bestowed usually for life, and not to be withdrawn, except for violation of duty, by a judicial decision. There were indeed some protests that an honourable dismissal might be justified from grounds of public interest, but towards the end of the last century the first opinion was more and more widely diffused; and in many modern consti

Zacharia, D. St. § 142, collects some rules on this point in German States. Cp. Löning, Verwaltungsrecht, p. 134 f. As to Belgium, cp. the Law of July 31, 1844.

This is formally expressed in the electoral capitulation (Wahlcapitulation) of 1792 as to the members of the aulic council of the Empire (Reichshofrath), 10: No councillor can be dismissed except after judicial examination of the case, and by a sentence based thereon.' Cp. also the decision of the Deputation of the Empire (Reichsdeputations-Hauptschluss) of 1803, § 91.

tutions this principle was proclaimed as an advance in liberty and an important guarantee against arbitrary government, not only in Germany 4a, but more recently even in Switzerland, where most offices are only bestowed for limited periods.

In England, on the other hand, party struggles have long kept the political consciousness awake to the fact that office is given chiefly for the sake of the State, and not of the individual: so much so that the principle became established that the head of the State had full right of taking away as of bestowing office. An exception was introduced in the case of the judges, in order to ensure their independence. Under William III it was decided that the common law judges should not be appointed as before, durante bene placito,' but quam diu bene gesserint,' the King and Parliament remaining the sole judges of good conduct 5. The United States of North America adopted similar principles. In France administrative officials have always remained liable to dismissal at will, though from the fifteenth century judges have been irremoveable. As a matter of fact, however, even in France, officials enjoy a tolerably secure position, except in revolutionary times 7.

6

The German system exaggerates the importance of private rights, but if these are not made to override the welfare of the State, it has advantages over the arbitrary practice of other constitutional States. It assures the private interest of the functionary, and secures the State against party agitation and caprice.

In any case it is a fundamental principle that the office exists for the State, and therefore the State can in the public interest dismiss and replace an official. These two rights

1a [Bavaria is the only German country in which the ordinary Criminal courts alone can dismiss administrative officials: in the other states dismissal is regarded as a disciplinary punishment. So too in the Empire. Cp. Reichsbeamtengesetz of 1873, §§ 84, 86.

5 Statute 13 Will. III. cap. 3. Until the time of George III the office of judge was terminated by the death of the king. Cp. Gneist, Engl. Verwaltungsrecht, p. 236 ff.

6

Cp. Story, iii. 38. § 228.

7 Vivien, Étud. Administr. i. 260 f.