MEANING

Administrative law deals with the legal control of government and related administrative powers. In
other words, we can define administrative law as the body of rules and regulations and orders and
decisions created by administrative agencies of government. Administrative law consists of complaints
respecting government action that adversely affects an individual. Thus, administrative law involves
determining the legality of government actions. There is a two-fold analysis: the legality of the specific
law itself and the legality of particular acts purportedly authorized by the specific law.

Governments cannot perform any act by itself. Governments act through government officials who
must act within certain limitations. A government’s power to act comes from legislation. Thus,
government officials must act within the parameters (or scope) of such legislation which give their
actions lawful authority. These are lawful actions. If government officials act outside the scope of their
lawful authority and individuals are affected by these acts, then the principles of administrative law
provide individuals with the ability to seek judicial review of the administrative action and possible
remedies for the wrongful acts. It is indeed difficult to evolve a scientific precise and satisfactory
definition of administrative law. Many jurists have attempted to define it. But none of the definitions
has completely demarcated the nature, scope and contents of Administrative Law. Either the definitions
are too broad and include much more than what is necessary or they are too narrow and do not include
all the necessary contents.

Definition by Ivor Jennings

Ivor Jennings provided the following definition of the term ‘administrative law’.1 According to him;
‘administrative law is the law relating to the administrative authorities. This is the most widely
accepted definition, but there are two difficulties in this definition.

(1) It is very wide definition, for the law which determines the power and functions of administrative
authorities may also deal with the substantive aspects of such powers. For example: Legislation relating
to public health services, houses, town and planning etc. But these were not included within the scope
and ambit of administrative law as defined by Jennings, and

(2) It does not distinguish administrative law from constitutional law.

Definition by K. C. Davis

According to K. C. Davis; ‘Administrative law as the law concerns the powers and procedures of
administrative agencies, including especially the law governing judicial review of administrative
action’. 2Interestingly, this definition only touched some aspects of the scope of administrative law and
therefore not comprehensive enough.

Definition by Prof. Wade

1
Ivor Jennings. The Law and the Constitution. London, London Press Ltd. 1972.

2
Keneth Culp Davis. Administrative Law and Government. St. Paul, MN: West Publishing.
 According to HWR Wade, any attempt to define administrative law will create a number of
difficulties. But if the powers and authorities of the state are classified as legislative, administrative and
judicial, then administrative law might be said to be ‘the law which concerns administrative authorities
as opposed to the others.3

Again, there are also some difficulties with this definition. It falls to distinguish administrative law
from constitutional law, similar to Jennings’ definition mentioned above. Furthermore, this is also very
wide definition. It includes the entire legal field except the legislature and the judiciary. It also includes
the law of local government. It is also said that it is not possible to divide completely and definitely the
functions of legislative, executive and judiciary.4 It is very difficult to say precisely where legislation
ends and administrative begins. Though enacting laws is a function of the legislature the administrative
authorities, legislate under the powers delegated to them by the legislature and this delegated
legislation is certainly a part of administrative law.

Definition by Jain and Jain

According to Jain and Jain: ‘Administrative law deals with the structure, powers and function of the
organs of administration, the limits of their powers, the methods and procedures followed by them in
exercising their powers and functions, the method by which their powers are controlled including the
legal remedies available to a person against them when his rights are infringed by their operation’. 5

The basic function of Government is administration. Administration does not only involve the
determination of the policy of the state on every human activity but also the formulating of good and
effective laws, rules and regulations designed to ensure the operation and success of the policy as well
as to ensure that the laws, rules and regulations are functioning well.

For that purpose, Governments are given powers to make rules and regulations, to make inquiries and
take decisions, to inspect the working of policies, to grant and refuse licenses or permits for certain
standards of operation imposed by laws, both national and international.

It is to be appreciated that not all these powers can be described as purely administrative. Many of them
are legislative while others are judicial or quasi-judicial. For example, licensing; an Act may require
the Minister to make licensing regulations and to appoint licensing officers. The appointing of officers
may be purely an administrative act, but making of regulations is legislative.

A licensing officer appointed under the act may be required to make an inquiry before granting a
license to one of several or more applicants. In the holding of the inquiry, the officer may be under a
duty to hear evidence, listen to all applicants and observe the rules of natural justice before coming to a
decision.
3
HWR Wade. Administrative Law. (1967) Oxford University Press

4
Joseph Raz, 'Legal Principles and the Limits of Law' Yale LJ 81 (1972) 823.

5
Jain and Jain, ‘Definition and Scope of Administrative Law’ accessed from
https://www.academia.edu/15316267/Definition_and_Scope_of_Administrative_Law accessed 25 September 2021
While his or her final decision is bound to be administrative, the conduct of the inquiry will be judicial.
The combination of the inquiry and the decision reached can, therefore, be described as quasi-judicial.

Hood Phillips has made a lucid exposition of the distinction between an administrative decision and
judicial or quasi-judicial decisions in his book.6 He observes that a true judicial decision presupposes
an existing dispute between two or more parties and then involves four requisites, namely:

a) The presentation of their case by the parties of the dispute.

b) If the dispute is a question of fact, the ascertainment of the fact by means of evidence adduced
by the parties to the dispute and often with the assistance of argument by or on behalf of the
parties.

c) If the question in dispute is a question of law, the submission of legal argument by or on behalf
of the parties, and lastly

d) A decision which disposes of the whole matter by a finding upon the facts in dispute and an
application of the law of the land to the facts so found, including, where required, a ruling upon
any disputed question of law.

Basic Principles relevant Administrative Law

The Rule of law

Rule of law means that there must be good governance according to law and that all powers of public
officials must be derived from the law. Rule of law also means that in case of disputes, public officials
shall be subject to the law of the land. It also means equality before the law. It is directly relevant in
that it controls what public officials can do and expose them to legal liability when they fail to do what
they ought or when they do what they should not, or when they do wrongfully what they are mandated
to do rightfully.

According to Oluyede:

“The rule seems to denote, put in a simple form, the quality of the relationship between the government
and the individual citizens; the government determines how the law should apply to the individual in a
given case. The courts will not refuse to enforce a statute on grounds that it gives wide or arbitrary
powers. The law is not illegal but it might have been ill-advised. The Courts however must be free to
give their decision without fear or favour.”7

The Independence of the Judiciary

Disputes in administrative law involve public officials and public powers. It is therefore important
that such disputes must be resolved by the judiciary which is functionally independent from other
organs of government. The Judiciary is able to exercise independence because of:

 Mode of appointment

6
Constitutional and Administrative Law

7
Peter Oluyede: Administrative Law in East Africa, 1973, p.11
  Security of Tenure

 Financial benefits

 Judicial Immunity

 Qualifications and Competence

“Justice demands that the innocent citizen can be assured of personal security and that the guilty should
be punished. It demands impartiality between individual citizens- that the law should be the same for
all. Justice demands too, that the judges be made independent of power, politics; there should be a
separate hierarchy and system of command for the judiciary and once a man is appointed, it should be
made extremely difficult to displace him. But the judges must understand the people and the people of
the judiciary. The fact that judges interpret the law makes it vital that they should they should be part of
the society which is governed by the law. Their interpretation must be made in light of the assumptions
and aspirations of the society in which they live. Otherwise, their interpretations may appear ridiculous
to that society and to the whole concept of law being held in contempt by the people.”8

Human Rights

A good constitutional framework must have a bill of rights which declares rights available to all people
in the country. Public officials have a direct bearing on people’s human rights in reaching some
decisions e.g., freedom of speech. Public officials are in a position to guarantee the provisions of
human rights. Many complaints include abusee of powers and abuse of other people’s rights, that is
why human rights in the constitution are fundamental to human life and need to be fostered by public
authorities.

Human rights are inherent to all human beings, whatever nationality, place of residence, sex, national
or ethnic origin, color, religion, language or any other status. We are all equally entitled to our human
rights without discrimination. These rights are all interrelated, interdependent and indivisible.

Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary
international law, general principles and other sources of International la. International human rights
law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in
order to promote and protect human rights and fundamental freedoms of individuals or groups.

There should be a mechanism for enforcing these human rights. In Uganda, the constitution has a full
chapter on human rights and emphasizes that human rights are not granted by the state but they are
“God given and therefore the constitution just declares. It relates to the individual freedom, not to be
subjected to torture, press censorship, suffocation of freedom of expression and beliefs as well as
restriction on formation and participation in political parties, Labour unions, etc. The Constitution
provides that some of the human rights can be taken away or limited in public interest or where they
interfere with freedom of other persons.

“Where, after all, do universal human rights begin? In small places, close to home- so close and so
small that they cannot be seen on any maps of the world. Yet they are the world of the individual; the
neighborhood he lives in; the school or college he attends; the factory, farm or office where he works.
8
J Nyerere: Freedom & Socialism, 1969, pp. 1004-109
Such are the places where every man, woman and child seek equal justice, equal opportunity, equal
dignity without discrimination. Unless these rights have meaning there, they have little meaning
anywhere. Without concerted citizen action to uphold them close to home, we shall in vain for progress
in the larger world”, Eleanor Roosevelt.9

The doctrine of Separation of Powers

Separation of powers means that whereas the different organs of government have a common objective,
they must perform their specialized tasks without one controlling or otherwise interfering in the
performance of duties of the other (s). Separation of Powers is relevant to administrative law in
following ways:

 It ensures that there is separation of functions

 Separation of powers ensures that no organ should control the other organ(s) of government

 Separation of powers also means that there should be checks and balances: that each organ
should be able to check the powers and actions of other organs in an orderly manner.

Democracy or representative government

This tenet ensures that leaders are elected by people and they are accountable to the people through
developments, control of public resources, practicing fairness and justice. That at all times, government
officials and departments take the plight of the people as the guiding principle in all policies and
practices. It is on this premise that Article 1 of the Constitution provides, “All power belongs to the
people who shall exercise their sovereignty in accordance with this Constitution”. Article 126 (1)
obliges judicial officers to exercise their authority in conformity with the norms, values and aspirations
of the people.

A fair system of Criminal and Civil Proceedings

This is how people should be treated before the scales of justice and law. Therefore, certain elements
are supposed to be part and parcel of the system in order to ensure this;

 Presumption of Innocence

 There should be no retrospective criminal legislation; a person should not be punished for an act
that was not an offence at the time it was committed.

 Right to representation by an advocate in capital offences

 Requirement of proof of a criminal offence beyond a reasonable doubt and beyond a shadow of
a doubt in civil proceedings

 A right to a fair hearing before an independent and impartial tribunal/court.

 Observance of rules of natural justice in all hearings and determinations

 A right to appeal to a higher court or authority

9
Andrew Akutu: Introduction to Human Rights Concepts, Office of the High Commissioner for Human Rights, 2015
 NB: Article 28 of the Constitution gives elements of fair hearing in criminal and civil proceedings.

Accountability in administrative issues

This can be ascertained by the way in which public officials treat members of the public who come to
them. Accountability involves being fair in decision making, doing justice to all, respect for human
rights and accountability for resources, honesty, transparency and absence of corruption. This duty
obliges officials to explain their decisions and policies and to accept due criticism.

Social Justice

Good public administration also requires that there should be social justice. Simply put, this means that
members of the public should be accorded social justice to enable them enjoy a meaningful life. It
includes access to basic facilities like education, transportation, infrastructure and services, clean
environment, a right to food, security of person and property; etc. These can be implemented through
planning and enforcement at various administrative levels.

Executive/Ministerial responsibility

This means that members of the executive branch should be responsible for their activities and should
be accountable on how they use their powers. Ministerial responsibility may involve individual to the
President accountability. They can be individual to parliament under the auspices of Article 118 of the
Constitution and also individual to the public.

Ministers are also collectively responsible for all government decisions when they are made and also,
they support each other on policy matters. Collective responsibility means that policies and decisions
which are made in line with requirements of good administration.

Supremacy of the Constitution

Article 2 of the Constitution provides that the Constitution is the supreme law of Uganda and shall have
binding force on all authorities and persons throughout Uganda.

That if any other law or any custom is inconsistent with any of the provisions of the Constitution, the
Constitution shall prevail, and that other law to the extent of the inconsistency shall be null and void.

It follows that the constitution supersedes all customs, laws and practices, past, present and future and a
court of law will not sanction what is contrary to the constitution. Supremacy of the Constitution also
denotes that the relevant offices, officers and institutions of government respect the Constitution and
give effect to its provisions

NATURE OF ADMINSTRATIVE LAW

Administrative law is the body of law that governs the activities of administrative agencies of
government. Government agency action can include rule making, adjudication, or the enforcement of a
specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law,
administrative law deals with the decision making of administrative units of Government for example;
tribunals, boards, committees, or commissions, that are part of a national regulatory scheme in such
areas as police law, international trade, manufacturing, the environment, taxation, broadcasting,
immigration and transport. Administrative law expanded greatly during the 20th century, as legislative
bodies world wide created more government agencies to regulate the social, economic and political
spheres of human interaction.

Administrative law is a branch of law that concerns itself with the exercise of powers and procedures of
public authorities. Administrative law controls the exercise of powers by public authorities and it
relates to powers which are given to public authorities for purposes of the day to day running of the
affairs of the state, as opposed to general rules that may be written in a constitution.

Administrative law relates more to the establishment of powers, functions and procedures of public
administrative officials and authorities but less to the laws which govern the country. Public authorities
are those institutions which exercise public powers and operate through public officials and public
authorities. For example; the police, permanent secretaries.

Public administrative authorities are charged with the implementation of government policies and
execution of laws. Public administrative authorities include the President who can be an administrative
official in appointments for example in appointing judges, permanent secretaries, ministers, public
servants, chiefs, directors of public corporations like Bank of Uganda, Universities, Uganda Revenue
Authority, local authorities, administrative tribunals etc.

Public institutions and public authorities are given powers which enable them to carry out these
activities. These activities affect the rights of citizens and there is therefore need to control exercise of
power given to public officials.

Good governance requires that public authorities be transparent, fair and should exercise principles of
justice and this can be only guaranteed by observing principles of administrative law. In managing the
affairs of the state, officials are expected to respect the rights of individuals at the same time, public
officials and authorities are also expected to uphold public interests. This delicate balancing of private
and public interests is usually within the domain of public authorities. They are not expected to violate
individual rights for the sake of public interests unless it is justifiable under the constitution.

This process of balancing is an aspect of administrative law. Administrative law controls public
authorities in the following ways:

It ensures that powers, functions and responsibilities are carried out by the proper authorities. This
guarantees efficiency and also ensures that tasks are carried out by competent or professionally
qualified authorities.

It also ensures that correct procedures are followed in executing public tasks. The requirement to
follow laid down procedures guarantees; fairness, consistency, transparency, thoroughness and
effiency.

Administrative law also ensures that public authorities operate within the confines of the rule of law.
The rule of law requires that all public authorities are subject to the ordinary law of the land. The rule
of law also requires that there should be equality before the law. No person should be treated
differently because of socio-economic inequality or other inequality. It is a duty of public authorities to
ensure the rule of law prevails since they are confronted with practical situations regarding the
observance of the rule of law.

Public authorities are also required to give accountability, a measure of performance of public duties,
that is officers are accountable for their actions and are responsible when they abuse their powers by
way of reporting appraisals etc.

Administrative law also ensures that private individuals who are wronged by public officials get redress
from authorities other than the public officer under whose hands they have suffered. The aggrieved
persons may go to court to get private or public law remedies for example damages, habeas corpus,
mandamus, prohibition and certiorari.

Furthermore, administrative law also ensures that public officials are controlled by other public legal
institutions for example police, parliament, Auditor General, Inspector General of Government. They
also control public authorities by ensuring that they put in place principles of natural justice. These are
common law principles which have been developing to ensure that there is fairness in the
administration of justice. These principles apply even if there is o rule or procedure that provides that
they should apply.

Administrative law is about the process of reaching the decision concerning issues. It is not about the
correctness of the particular decision reached and not about whether a decision was reached and not
about whether a decision was correct or wrong.

Administrative law is not concerned with merits of the decision because it normally involves the
exercise of discretionary power i.e., making decisions on what should be done, when, how, by who, etc.
It is therefore not appropriate for the courts to interfere with powers of discretion because to do so
undermines the whole essence of giving these powers. A 3rd party such as court will intervene when the
decisions are wrong or correct; hence administrative law is concerned with appeals about the way
decisions are made and not appeals from the decisions themselves.10

In summary administrative law aims at the following:

 Ensuing those public authorities exercise fairness in decision making

 Ensuring that public authorities do justice to all, without fear or favor.

 Ensuring that public authorities follow laid and established procedures.

 Ensuring that public officials are accountable, that is through elections, disciplinary processes,
legal suits, monitoring by Inspectorate of Government, criminal proceedings and judicial
review.

Objectives of Administrative Law

The general objective of administrative law is to ensure that public authorities act within
the confines of the law and that they make decisions that promote good governance.
10
Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155
 The specific objectives of Administrative Law are:

Acting Intra vires

a) To ensure that public administrative authorities exercise powers which are

entrusted to them under the law. This eliminates the possibility of wrong
authorities exercising powers. It ensures that all public authorities act within the
powers which have been conferred i.e., intra vires.

Procedures

b) Administrative Law requires that public administrative authorities follow

established procedures. Procedures are important because they ensure
 Transparency in operations
 Consistency in decision making
 Uniformity of decisions
 There is no arbitrariness in decision making
 Certainty of what is expected of officials or ordinary individuals
 Order and efficiency in operations

Proper use of discretions

c) Administrative Law expects public officials entrusted with discretionary powers to use
such powers in manner that promotes the objective of specific government policies
and laws. In this respect public authorities are not expected to use discretionary
powers unreasonably, take into account irrelevant factors, or use powers to achieve
purpose over than those anticipated under the law.
 Properly constituted Authorities

d) Administrative Law ensures that public powers are exercised by proper authorities.
These are therefore restrictions on delegation of statutory powers. The law also
restricts divestiture of discretionary powers.

Observance of principles of Fairness and Justice

e) Administrative Law is to promote the observance of principles of natural Justice.

Article 42 of the Constitution of Uganda requires all public officials and public
officials to ensure fairness and justice in their entire task which involve decision
making. Furthermore Article 28 of the Constitution provides for a fair hearing in all
matters and adjudication of disputes. Administrative Law invalidates decisions that
are made without recourse to principles of fairness, justice and fair hearing.

Remedies against public officials

f) Administrative Law also provides for remedies against public officials. Individuals
or institutions aggrieved by decisions of public officials, government departments,
public corporations are entitled to redress under various legal processes. Remedies
may be obtained through court processes or through non judicial processes. The law
does not allow any wrong to be suffered without availability of redress of remedies.

Accountability of public officials

g) Administrative Law also promotes accountability in the process of exercising public

powers. Public officials are expected to exercise public powers in a manner that
promote public interest. They are therefore expected to protect public resources,
respect individual freedoms and generally to act in a manner that promotes public
welfare.

These objectives are summarized in Article 4211, which says that; “Any person appearing before
any administrative official or body has a right to be treated justly and fairly and shall have a right
to apply to a court of law in respect of any administrative decision taken against him or her.”

Administrative law is broken into several interrelated parts. They are administrative rules,
regulations and procedures for government agencies and bodies; the scope of agency authority,
in particular individual privacy; and the enforcement powers of agencies. Administrative law
encompasses laws and legal principles governing the administration and regulation of
government agencies. Such agencies are delegated power by the state legislature to act as agents
11
1995 Constitution of the Republic of Uganda
for the executive. Generally, administrative agencies are created to protect public interest rather
than to vindicate private rights. Administrative is the body of law that governs the activities of
administrative agencies of government. Government agency action can include rulemaking,
adjudication, or the enforcement of a specific regulatory agenda

In other words, administrative law concerns itself with checking;

 Illegality

 Procedural impropriety

 Irrationality

 Denial of natural justice

FUNCTIONS OF ADMINISTRATIVE LAW

Administrative Law in Uganda plays a crucial role in ensuring that government agencies and
officials exercise their powers and functions in a lawful, reasonable, and fair manner. The
functions of Administrative Law in Uganda can be categorized into the following areas:

Regulation

Purpose: To create rules, regulations, and policies that govern the actions and decisions of
government agencies and individuals in Uganda.

Examples:

The Uganda Communications Commission (UCC) regulates the telecommunications sector in

Uganda, ensuring that operators comply with licensing requirements and standards.

The National Environment Management Authority (NEMA) regulates environmental impact

assessments and ensures that projects comply with environmental laws and regulations.

Protection

Purpose: To protect individuals and organizations from arbitrary or unlawful actions, and to
ensure that their rights are respected in Uganda.

Examples:

The Uganda Human Rights Commission (UHRC) investigates and addresses human rights
violations by government agencies and officials.
The Judiciary in Uganda provides a platform for individuals and organizations to seek redress
against unlawful actions by government agencies and officials.

Accountability

Purpose: To hold government agencies and individuals accountable for their actions and
decisions, and to ensure that they are transparent and responsible in Uganda.

Examples:

The Office of the Auditor General (OAG) audits government agencies and reports on their
financial management and accountability.

The Inspectorate of Government (IGG) investigates and addresses corruption and abuse of office
by government officials.

Efficiency

Purpose: To promote efficiency in the actions and decisions of government agencies, and to
ensure that they are effective in achieving their goals in Uganda.

Examples:

The Ministry of Public Service (MoPS) provides guidance and support to government agencies
to improve their performance and efficiency.

The National Planning Authority (NPA) coordinates and monitors the implementation of
national development plans and policies.

Transparency

Purpose: To ensure that government agencies are transparent in their actions and decisions, and
that they provide information to the public and involve them in the decision-making process in
Uganda.

Examples:

The Access to Information Act (2005) requires government agencies to provide information to
the public upon request.

The Uganda Bureau of Statistics (UBOS) provides data and statistics to the public on various
aspects of the economy and society.

In Uganda, Administrative Law plays a vital role in promoting good governance, protecting
human rights, and ensuring that government agencies and officials are accountable and
transparent. By understanding these functions, we can better appreciate the importance of
Administrative Law in promoting the rule of law and democratic governance in Uganda.

Promotion of Public Participation

Purpose: To ensure that government agencies involve the public in the decision-making process
and provide opportunities for public participation in Uganda.

Examples:

The National Environment Management Authority (NEMA) conducts public hearings and
consultations on environmental impact assessments and projects.

The Uganda National Roads Authority (UNRA) engages with local communities and
stakeholders in the planning and implementation of road projects.

Resolution of Disputes

Purpose: To provide mechanisms for resolving disputes between government agencies,

individuals, and organizations in Uganda.

Examples:

The Administrative Review Tribunal (ART) hears appeals against decisions of government
agencies and provides a platform for resolving disputes.

The Uganda Revenue Authority (URA) has a dispute resolution mechanism for resolving tax
disputes between taxpayers and the authority.

Protection of Public Interest

Purpose: To ensure that government agencies and officials act in the public interest and do not
abuse their powers in Uganda.

Examples:

The Inspectorate of Government (IGG) investigates and addresses corruption and abuse of office
by government officials.

The Uganda Human Rights Commission (UHRC) promotes and protects human rights and
ensures that government agencies and officials respect the rights of individuals and communities.

Promotion of Good Governance

Purpose: To promote good governance principles, such as transparency, accountability, and

responsiveness, in government agencies and officials in Uganda.
Examples:

The Ministry of Public Service (MoPS) provides training and guidance to government agencies
on good governance principles and practices.

The National Planning Authority (NPA) promotes good governance in the implementation of
national development plans and policies.

Regulation of Public Services

Purpose: To ensure that public services, such as healthcare, education, and utilities, are provided
efficiently and effectively in Uganda.

Examples:

The Uganda National Council for Higher Education (UNCHE) regulates and accredits higher
education institutions in Uganda.

The Uganda Electricity Regulatory Authority (ERA) regulates the electricity sector and ensures
that electricity services are provided efficiently and effectively.

Protection of the Environment

Purpose: To ensure that government agencies and officials protect the environment and promote
sustainable development in Uganda.

Examples:

The National Environment Management Authority (NEMA) regulates environmental impact

assessments and ensures that projects comply with environmental laws and regulations.

The Uganda Wildlife Authority (UWA) manages and conserves wildlife resources and protected
areas in Uganda.

Promotion of Social Justice

Purpose: To promote social justice and ensure that government agencies and officials address the
needs of vulnerable and marginalized groups in Uganda.

Examples:

The Ministry of Gender, Labour and Social Development (MGLSD) promotes social justice and
addresses the needs of vulnerable and marginalized groups, including women, children, and
persons with disabilities.

The Uganda Human Rights Commission (UHRC) promotes and protects the rights of vulnerable
and marginalized groups, including refugees and internally displaced persons.
HISTORICAL BACKGROUND

The earliest administrative procedure was an inquest or inquisition - a term which has come, in
modem times, to have a sinister meaning.12 Yet to the Romans, and the civilians generally,
inquisitio meant no more than "investigation" which has become so prominent a feature of
current legislative activity.

In Magna Carta the "Writ of Inquisition of Life or Limb" formed the subject of an entire clause
(36) in order that it might "be granted freely and not denied." "It is certain," says Dicey, 13 "that,
in the 16th and 17th centuries the jurisdiction of the Privy Council, and even of the Star
Chamber, odious as its name has remained, did confer some benefits on the public.14

It should always be remembered that the patriots who resisted the tyranny of the Stuarts, were
fanatics for the common law and, could they have seen their way to do so, would have abolished
the court of chancery no less than the Star Chamber."

ROME

As with many other modern institutions, both the term and the procedure for which it stands,
hark back to ancient Rome, where, especially with the advent of the Empire, important legal
changes were constantly occurring. Augustus, the first Emperor, directed that questions
regarding fidei commissa (somewhat resembling the "trusts" of Anglican law) "should be
handled, not by the Praetor, and the usual judicial machinery, but by the Consuls " – i.e.,
administratively." 15

12
"Even to this day the word 'inquisitorial' bears the burden of historical unpopularity." Jenks, A SHORT HISTORY OF ENGLISH
LAW (5th ed., 1938) 48.

13
Law of the Constitution (1924), 374-5.

14
E.g., the dying declarations rule, of which HOLDSWORTH, (ante n. 1 at V, 183) says "the earliest statement . . . is to be found
in a dictum of Coke in the Star Chamber." So, of the privilege of professional communications to counsel. Berd v. Lovelace
(1576-7) and other cases cited, ib. 333 n. 6.

15
BUCKLAND, THE MAIN INSTITUTIONS OF ROMAN LAW (1931) 386.
He also established the fiscus 16 Caesaris, which took over certain functions of the Censor, to
whom, under the republic, fell the collection of revenue (vectigalia) which "consisted in farming
out the taxes to the highest bidder (maximis pretiis)."17

"The management of (the fiscus) was entrusted to an official known successively as the Patronus
or procurator fisci,18" the procurator a rationibus and, toward the close of the second century, as
the rationalis."19

"The procuratores sat in judgment on questions arising between the state and an individual, just
as the Censor had under the republic." The Emperor Claudius (A. D. 41-54) was somewhat of a
law reformer20 and 21it was he who brought about the grant of jurisdiction to the procuratores.
But whatever the date and source of the grant, the fact seems to be established that, at least as
early as the first Christian century, a purely administrative official was vested with judicial
functions in an important branch of the police power - the public revenues.22

Moreover, the combination of judge and prosecutor, so much a subject of controversy today,
was thus fully realized although the ordinary courts continued to function as before. What the
procedure was before these administrative tribunals, must be left largely to conjecture; but
16
"Originally the rope basket into which the public moneys were put, which the Romans applied to the treasury and which is
used on the Continent in the same sense." SELIGMIAN, ENCYC. Soc. Sciences, VI. 266. The fiscus was a juridical person in its
proprietary capacity. See SHERMIAN, ROMAN LAW IN THE MODERN WORLD, II, p. 118 n. 13; COD. THEOD. X, 1; PAULUS,
Sententiae, V, XII; Di, XLIX, 14. The fiscus might sue; but if on a document, it must have been the original. PAULUS, Sententiae,
XII. 10, 11; Coo. X (II)

17
ABOTT, ROMAN POLITICAL INSTITUTIONS (3d ed., 1911) 194. Exercise of the power to enforce collection was regulated by
imperial legislation, collected in CODEX. lib. X: e.g.: "It has been forbidden to seize without imperial authority the property of
one thought to be indebted to the fiscus (ib. I, 5). "The right of defence” is granted to those whose property is subject to
interference by the fiscus" (ib. 6).

18
Cf. the promotor fiscal (public attorney) of Spanish law

19
Abbott, ante n. 8 at p. 366

20
The emperor’s honest zeal for good government was displayed by an active attention to the law courts which the regular
lawyer found most embarrassing." HAMMERTON & BARNES, WORLD History (1937) 272-3.

A translation of the Claudian decree concerning citizenship of the Ananni is found in Hardy’s ROBRAN LAWS AND CHARTERS
(1912) 126.

21
"These officials, as constituted by Augustus, had properly speaking no judicial authority . . . It was, however, doubtless found
inconvenient that officials entrusted with such important duties should not have wider powers; and at Claudius' request the
Senate gave them authority to decide suits - a power which must have extended at all events to all cases connected with the
fisc." ARNOLD, ROMAN PROVINCIAL Administration (3d ed., 1914) 124-5, citing Suetonius, Claudius, 12.

22
"The procurators who played the part of quaestores in imperial provinces, had full judicial authority in disputes between the
taxpayer and the . . . fiscus ever since Claudius, and their real power is frequently described as superior to that of the legate
(proconsul)." ARNOLD, ROMAN IMPERIALISM (1906), 73-4. ". .. His revenue officers in the provinces (procuratores) received the
most distinctive prerogative of public magistrates - jurisdiction." Pelham, The Early Roman Emperors, 202 QuAR. REV. 538.
already the regular courts were in a period of transition toward centralized control and both
machinery and procedure were undergoing marked changes, the results of which could scarcely
fail to affect these new tribunals. One of their procedural innovations was the inquisitio. 23

THE MEDIEVAL FRANKISH EMPIRE

Voltaire's jibe that the "Holy Roman Empire" was "neither holy, Roman nor an empire," seems
to have fixed its place in the average reader's estimation. Yet it lasted a thousand years (longer,
by far than most governments), attracted outstanding rulers who strove to occupy its throne and
held sway over a goodly portion of Europe.

More important in our present quest is the new empire's preservation and transmission to
posterity of certain institutions and legal ideas bequeathed by the older one,24 and which
otherwise might have perished in the sleep of the Middle Ages.

Among these was the inquest procedure, a revival of which appears to have occurred under the
eighth century Frankish kings, whose Missi Dominici25 (Royal Commissioners) visited (usually
in pairs - a layman and a cleric) districts of the Frankish realm in which they were strangers,
inspected officials and even the clergy,26and ad ministered justice.27 For while they did not
displace the ordinary courts, "the king could, on appeal, withdraw any case from the (latters')
jurisdiction. . for decision by the king's court..., or... by a royal official."28

23
"In the later Roman Empire, the imperial treasury had found itself at a loss in dealing with fiscal questions in the provinces. It
was not unnatural that the imperial claims should often be met, especially in districts remote from centers of administration,
with professions of ignorance, very hard to prove. Was a particular farm, or was it not, part of the property of the deceased
person who had bequeathed all his belongings to Caesar? To solve this and similar problems, the imperial officials used to seize
upon a certain number of the most responsible persons in the neighborhood and compel them to find an answer." Jenks, ante
n. 2 at p. 47.

24
". .. in his effort to weld discordant elements into one body, to introduce regular gradations of authority, to control the
Teutonic tendency to localization by his missi-officials commissioned to traverse, each some part of his dominions. reporting on
and redressing, the evils they found - as well as by his oft repeated personal progresses. Charlemagne was guided by the
traditions of the old Empire." BRYCE, THE HOLY ROMAN EMPIRE (rev. ed. 1904) 69

25
"The missi dominici were Charlemagne's principal instruments of order and administration, throughout the vast territory of
his empire." GUZIOT, HISTORY OF FRANCE (Masson's ed.) 47.

26
See infra, n. 26 sq.

27
See generally BRUNNER, Dra ENSTEHUNG DER SCHWURGERICHTE (Berlin, 1872), 74, 75, the pioneer work in this field. The
author, a Darwin in legal history, worked out his discovery mainly by a painstaking perusal of the public archives in Paris. "That
the English jury is historically traceable to the Frank inquest, was first demonstrated by Brunner. His conclusions have been
accepted by all modern English historians." Smith (Munroe), DEVELOPMENT OF EUROPEAN LAW (1928), 146. "Such is now the
prevailing opinion and it has triumphed in this country over the natural disinclination of Englishmen to admit that this
'palladium of our liberties' is, in its origin, not English but Frankish - not popular but royal." POLLOCK & MAITLAND, HISTORY OF
ENGLISH LAW (2d ed. 1923) 1, 141-2.

28
Smith, ante n. 19 at p. 144.
The Missi Dominici possessed most of the advantages claimed for modern administrative
tribunals - expert knowledge, acquired previously or indirectly, greater expedition and a
simplified and more rational procedure.29

For the Missi could, and regularly did, discard the "older modes of trial"30 and proceed by
inquest.31 This method, employed especially in cases involving status and boundaries of the
royal demesne,32 etc., consisted in summoning a group ("usually more than six, frequently more
than twelve") of the leading men of the vicinity (hence the surviving requirement as to vicinage)
supposed to be informed on the subject matter and who, after being sworn (hence called jurati)33
gave their conclusions (which, if harmonious, constituted their Vere dictum, upon which the
Missi based their report) as to the disputed points.

Ecclesiastical Inquests.

We have seen that one of the Missi was usually a cleric and that the clergy, like others, were
subject to the inquest.34 Ultimately, they became a part of the system; for Charlemagne, in the
last year (814) of his life, made his bishops virtually Missi Dominici by directing them to
investigate, on their official visitations, complaints of offenses within the diocese. A successor,
Charles le Chauve, in 876 repeated the commission and the system, as eventually developed, has

29
"In the beginning the inquest was a form of administrative, rather than judicial, procedure." CARPENTER & STAFFORD,
READINGS IN EARLY LEGAL INSTITUTIONS (1932), 346. "The capituld inissorum were instructions issued to royal commissioners,
containing rules which they were to observe" and "enforce; and when, in Charlemagne's reign, royal commissioners rode circuit
throughout the empire, holding what amounted to royal courts, these ordinances became important instruments for the
development of substantive, as well as procedural law." Saithe, ante n. 19 at pp. 132-3. "The Karolingian kings issued
instructions to their Missi very much as Henry II issued them to his itinerant justices." STUBBS, CONSTITUTIONAL HISTORY OF
ENGLAND, I, 656

30
See THATE, PRELINARY TREATISE ON EVIDENCE (1898) Ch. I

31
"Imitating, it may be, the procedure of the Roman fiscus, he (the Frankish king) assumes to himself the privilege of
ascertaining and maintaining his own rule by means of an inquest . . . He orders that a group of men, the best and most
trustworthy of the district, be sworn to declare what lands, what rights he ought to have" therein. "He uses this procedure for
many purposes . . . in his litigation he will rely on the verdict of the neighbors instead of on battle or the ordeal - in order that
he may learn how he is served by his subordinates... in order that he may detect those grave crimes which threaten his peace . .
. The procedure which he employs in support of his own rights, he can and does grant as a favor to others." POLLOCK &
MAITLAND, ante n. 19 at 1, 141

32
The grantee of land might evade the challenge to which a private deed was subject, by suing his grantor and, upon the latter's
admission, obtain a judgment which had the force of a royal document. See Smith, ante n. 19 at pp. 144-5. 25.

33
"The royal commissioner, if cause were shown him to suspect perjury... could require of them that they clear themselves by
ordeal." SMITH, ante n. 19 at p. 143.

34
"Bishops and Abbotts are as essential a part of rising feudalism as counts and dukes. Their benefices are held under the same
conditions of fealty and the service in war of their vassal -tenants, not of the spiritual person himself; they have similar rights of
jurisdiction and are subject alike to the imperial missi." BRYCE, ante n. 16 at p. 67
been described as follows: "As the bishop reached each parish in his visitation, the whole body
of the people was assembled in a local synod.

From among these he selected seven men of mature age and approved integrity who were then
sworn on relics to reveal, without fear or favor, whatever they might know or hear, then or
subsequently, of any offense requiring investigation.

These testes synodales35 became an institution established, theoretically at least, in the church;
and long lists of interrogatories were drawn up to guide the bishop in examining them; so that no
possible sin or immorality might escape the searching inquisition."36

It was this phase of the inquest which survived longest in France and Pollock & Maitland,37 even
thought that "it would not be wonderful if this procedure spread from the Frankish church to the
English;" for the latter "was borrowing ideas and institutions" from the former, "in the days of
Dunstan and Oswald."

Subsequent History.

Less than 30 years after Charlemagne's death, his "great empire was partitioned "38 into three
distinct and independent kingdoms ... Germany, Italy and France."

Each naturally retained something of Frankish institutions, among them the inquest procedure, of
which we find traces in all. "Even in Germany it will appear from time to time," observe Pollock
& Maitland,39 as if looking forward from the Middle Age.

To Italy the empire had been extended by Charlemagne's conquest of the Lombard kingdom and
the overthrow of Desiderius, its last ruler, in 774. Whether as a result of such extension, or as an
35
These were recognitors or jurors - not witnesses. "In the early part of the 10th century, the cannonist, Regius of Priim
describes the bishop holding his synod, selecting a number of trustworthy men from among the assembled laity, administering
to them an oath that they will tell the truth and conceal nothing for love or hate, reward or kinship, asking them to report their
suspicions of their neighbors and compelling to the ordeal or to compurgation those against whom bad tales are told." Pollock
& Maitland, ante n. 19 at I, 142.

36
LEA, HISTORY OF THE INQUISITION OF THE MIDDLE AGES (1888), 1, 312, Cf. the same author's STUDIES IN CHURCH HISTORY,
85

37
lb. I, 142.

38
By the Verdun Treaty of 843, between Charlemagne's grandsons.

39
Ante n. 19 at I, 141.
inheritance from the older Roman state, the inquest procedure seems to have found a place in
various parts of the peninsula, and its adjacent islands.40 It certainly obtained in southern Italy,
although another possible source there was the Norman kingdom of Sicily. In France " there was
the most remarkable development of all; but before discussing it, let us turn to a country not
usually considered as within the Frankish "axis," though to some extent dominated by it, viz.

SPAIN

Contacts between the Frankish and Moslem (Spanish) empires, occurred intermittently during
Charlemagne's reign and after. The latter, invited by a rebel against the khalif, led an army across
the Pyrenees into Spain in 778, and though initially successful, its rear guard was decimated on
the homeward march. Under his son, Louis, however, the war was renewed in 785; and in 812,
Emir El Hakim ceded to the Franks the territory between the Ebro and the Pyrenees. Northern
Spain was thus regained for Christendom long before the southern and that may account for the
infiltration of Frankish ideas.

At any rate, when the great Spanish law book41 of the 13th century came to be drafted, it
included a title (XVII of Partida III), devoted to royal inquisitions;42 and it seems from the details
there set forth that the system was a transplantation of the Frankish. There was usually the same
number (two) of inquisitors (missi), although the parties might agree on one, or, if royal interests
were not involved, each might select one and "the king should appoint a third,43 thus providing
for arbitration.

40
"Similar in character were the 'Inquisitors and Manifestors' whom we find in Verona in 1228, employed by the state for the
detection and punishment of blasphemy; and a still stronger resemblance is seen in the Jurados of Sardinia in the 14th century-
inhabitants selected in each district and sworn to investigate all cases of crime, to capture the malefactor and to bring him
before court for trial." LFA, ante n. 28, first citation at I, 311-12.

41
LAS SIETE PARTIDAS (Edition of Scott, Lobingier & Vance, 1931).

42
"Pesquisa in Castilian means the same as inquisitio in Latin, and it is advantageous in many respects; for, by means of it, the
truth is ascertained concerning evil deeds, which can be proved or established in no other way. And, moreover, kings, by means
of it, are informed with certainty of the acts done in their country and punish false and insolent men who, through deficiency of
evidence, expect to escape punishment for their misdeeds." lb. III (XVII, i) p. 685

43
lb. v, p. 687.
The Chief Merino44 or presiding magistrate of the district might, under certain conditions,
appoint inquisitors.45 They were required to be "moral men who fear God and are of good
reputation" but "diligent in ascertaining the truth... prudent and zealous in all their inquiries." 46

No one could escape such service except on some valid excuse.47 Inquisitors and their clerks
were obliged to "swear that they will conduct the investigation faithfully and that neither through
love, fear nor for any gift promised, will they change, enlarge, or minimize what they really
ascertain, nor fail to put such interrogatories as will better enable them to learn the truth.

They were entitled to "be honored and protected, just as are the judges of the King's court;"
which must furnish the notaries who accompany the inquisitors;" but if the latter became corrupt,
they incurred the same penalties as their victims did or were designed to.

Procedure.

The inquiry must be opened within nine days (three, if possible) after receipt of the commission;
witnesses must be sworn, examined separately, and cautioned not to disclose their testimony
(which was taken in secret) "until the record of the investigation has been read;" clerks must
swear "to take down the testimony faithfully, and without change; and the authorities must
furnish a transcript of it, including the names of the witnesses, and their statements, to the parties
interested.., that they may defend their rights." The inquisitors' report was forwarded under seal
to the king and if it involved a complaint against individuals, "they should be summoned to come
and hear it."

BRITAIN

44
"The merino (from the Latin mayorino regis) was an official dating, possibly from before the 11th century. His functions were
at first limited to the collection of taxes and rents. Later he was given judicial, political and military functions, formerly reserved
to the count, and was in fact the representative of the royal authority in the comarca:' MADDEN, Political Theory AND Law and
Medieval Spain (1930) 129 n

45
PARTIDAS In (XVII, ii).

46
lb. iv. Disqualified are those "who are disreputable, or subject to suspicion or enemies of those under investigation." lb. ix.
Moreover "no member of the clergy, or of a religious order - even though he be of good reputation - may act as an inquisitor in
a criminal case .. . nor in any other investigation, except such as pertain to matters ordered bp the law of holy church nor . . . in
any secular dispute except . . . by consent of both parties." lb. ix. The contrast between this exclusion of the clergy and the
prominence given them by Charlemagne (ante n. 26 sq.) may have been due to the arrival in Spain (some 20 years before
completion of the PARTDAS) of the papal inquisitorial system (see my Lex Christiana, 20 Georgetown L. J., 19) and the desire to
keep the two systems distinct. Lea, however, thought that the papal inquisition was "not recognized in the PARTDAS." (lb.).

47
lb. XVII, vi.
The inquest procedure "survived in the provinces conquered by the Normans and was brought by
them to England," says Holdsworth,48 summarizing the expert conclusions of our time, and he
might have added that they brought it also to Scotland.49 For there seems to have been no
semblance of it in the Anglo-Saxon period, when tribunals were of the primitive or popular type;
but while he retained these for local administration, the Conqueror soon introduced the inquest
on a national scale and its first result was the famous Domesday Survey.50 Naturally its purpose
was primarily fiscal, one of the early phases of police power; but the principle was soon applied
in other fields.

Here, too, the course of development paralleled that of Normandy. After extensive use in fiscal
inquiries, the inquest came to be employed in land disputes, which were then abundant. "In the
earliest case 51 in which there is, to our knowledge, anything that could be called trial by jury, the
Conqueror directs his justiciars ... to summon to one place the moots of several shires to hear a
plea between the Abbott of Ely and divers other persons.

Certain of the English, who know what lands were held by the church of Ely on the day of
[Edward] the Confessor's death, are to declare their knowledge upon oath. This will be a verdict-
not a judgment. The justices are to restore to the church not all the lands that she had at the date
thus fixed, but only such of them as no one claims under the Conqueror.

A particular question... about possession at a given moment ... is thus singled out as one that
should be decided by a sworn inquest of neighbours.52 From what we have seen of Henry I's
administration of the Norman duchy53 we would naturally expect to find the inquest procedure
employed in England during his reign; "in fact on several occasion juratores are mentioned on
the Pipe Roll of 31 Henry L.54

48
62 Ante n. 60 at I, 312.

49
Scotland. ". . . there is no doubt that from the time of David I (1084- 1153) onwards, the kings made use of the inquest
procedure . . . On the whole, we take it that the jury has much the same history in Scotland and in England; it spreads outwards
from the King; it is an 'assize,' an institution established by ordinance." POLLOCK & MAITLAND, ante n. 19 at 144 n

50
Domesday. "The great fiscal record known as DOMESDAY BOOK (IV, 497) was compiled out of the verdicts of juries." lb. II,
143.

51
"At the very end of William I's reign." HOLDSWORTH, ante n. 60 at II, 161.

52
POLLOCK & MAITLAND, ante n. 19 at I, 144, citing HAMILTON, INQUISITIO CoM. CANTAB. p. xviii. Cf. HAMILTON, FEUDAL
ENGLAND (1876). 129

53
Ante n. 58

54
POLLOCK & MAITLAND, ante n. 19, at 1, 144. Cf. STUBBS, ante, ib., following BRUNNER, ante n. 19 at pp. 465 sq
"A story comes to us from the abbey of St. Albans which describes a law suit of Stephen's day, in
which the -question 'Lay fee or alms' [in a dispute like that just mentioned] was submitted to a
jury, charged to tell the truth, both by the King and by the bishop of the diocese.55

Under Henry II,56 whose expansion of the system as Duke of Normandy, we have already traced,
"the exceptional becomes normal" in England. "The King concedes to his subjects as a royal
boon his own prerogative procedure.

This is done bit by bit, now for this class of cases and now for that.57 His Constitutions of
Clarendon 58 ("a declaration of king's customs" by a council of the nobles called -by Henry in
1164) which, according to Green 59 initiated the rule [reign] of law," gave the system written
recognition.60

Two years later, probably at the Council of Clarendon, the King instituted his "assize of novel
disseisin," which entitled one who had been dispossessed of his free tenement without a
judgment, to a royal writ and a jury to answer who had the right of possession.61

At the same council, one more of the barbaric modes of trial62 was abolished and a decade later,
at the Council of Northampton, the "assize of mort d'ancestor" was instituted, giving the heir of
one who died in seisin, the right to possession as against everyone who had no judgment."63

Under the Constitutions of Clarendon, actions for advowsons of churches are reserved for the
king's court; must be commenced by the royal "writ of right of advowson;" the claimant must
offer battle; his adversary may choose between battle and "the grand assize." Then the "assize of

55
POLLOCK & Maitland, I, 145, citing Gesta Abbatum I, 113-115.

56
Whose "reign is of supreme importance in the history of our law . . . due to the action of the central power, to reforms
ordained by the King." Ib. 136.

57
lb. 1, 144.

58
Latin text in STUBBS, SELECT CHARTERS (1929) 162.

59
Ante n. 64 at p. 110

60
"The notice of the use of a jury (art. 6) and of the principle of recognition by twelve lawful men in case of a dispute, as to the
tenure of an estate alleged to be held in frank-almoign, (art. 9) is the earliest case of such mention in anything like statute law."
STUBBS ante n. 72.

61
POLLOCK & MATLND, ante n. 19 at I, 46, term it "one of the most important laws ever issued in England

62
"Compurgation was not regarded by the king as a proof of innocence and the Assize of Clarendon required those" who had
thus proved it "to abjure the realm." Holdsworth, ante n. 1, at I, 323.

63
"Another and a heavy blow is thus struck at feudal justice ... Another use is found for the inquest of neighbors; for . . .
whether the dead man died seized and whether the claimant is his heir, will be decided by verdict." POLLOCK & MAITLAND,
ante n. 19, at I, 148
darein presentment" gave possession to him who "presented the last parson" and "an inquest of
neighbours is summoned to declare who it was."

Thus, the results of Henry II's reign could be summarized " by saying "that the whole of English
law is centralized and unified by the institution of a permanent court of professional judges, by
the frequent mission of itinerary judges, throughout the land, by the inquest or 'recognition' and
the 'original writ’ as normal parts of the machinery of justice." The English "jury" of the late
12th century, then, was "a body of neighbours ... summoned by some public officer to give upon
oath a true answer to some question."

They were "neighbours" (i. e. of "the vicinage") because the "question" almost always involved
local knowledge. They were, however, neither witnesses nor triers of fact; rather were they
technical advisers, of the "public officer" (usually an itinerant justice) who summoned them.
They were thus in a real sense "experts," who might, under wise planning and proper
supervision, have developed into "professional assessors,” like those who now function in the
British courts in admiralty, patent and trademark and workmen's compensation cases. At least it
should have been possible to keep the "recognitors" as a "special jury," to pass upon concrete and
fairly simple questions within their own personal knowledge. According to Holdsworth 6 the
process by which these "recognitors" were changed from technical advisers into triers of fact,
was initiated to meet a temporary emergency; but the new role was one for which they were
fitted neither by nature nor by training.

Moreover, there were other possible solutions of the problem of criminal trials. The continental
systems provided models and in any event the function of the civil jury could have been kept
distinct. The process of transformation was indeed "gradual" - and also difficult;" it was at least
five centuries after Henry II before personal knowledge on the part of jurors finally became
tabu;88 but at last it marked the end of inquest procedure, both civil and criminal.

In its place came, ultimately, the "common jury," which, as even Holdsworth reluctantly
recognizes, "may be composed of persons who have neither the desire nor the capacity to weigh
evidence or to arrive at a conclusion upon the facts in issue." So far, indeed, are modern jurors
from familiarity with the subjects of their deliberation, that any suspicion thereof would probably
insure a challenge.

And, in order to protect them from being "misled,” a highly technical and complicated law of
proof has grown up, differing from that of any other civilized system and presenting continual
problems and obstacles for the administrative tribunals which have since arisen.

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