of limits? To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. . . In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. Bt the third he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the State. . . . ... When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise these three powers; that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. But it is not proper, on the other hand, that the legislative power should have a right to stay the executive. . . . The legislative body ought not to have a power of arraigning the person, nor, of course, the conduct, of him who is intrusted with the executive power. His person should be sacred, because, as it is necessary for the good of the State to prevent the legislative body from rendering themselves arbitrary, the moment he is accused or tried there is an end of liberty. In this case the State would be no longer a monarchy, but a kind of republic, though not a free government. But as the person intrusted with the executive power can not abuse it without bad counsellors and such as have the laws as ministers, these men, though the laws protect them as subjects, may be examined and punished- an advantage which this government has over that of Gnidus, where the law allowed of no such thing as calling the Amymones to an account, even after their administration; and therefore the people could never obtain any satisfaction for the injuries done them. ... 1 1116. ALEXIS DE TOCQUEVILLE. Democracy in America. (1835. cc. V, VI, XXXV, Reeves' transl., Appleton ed., vol. I, pp. 59, 96, vol. II, pp. 800, 828.) The administrative power in the United States presents nothing either central or hierarchical in its constitution. . . . The central government is not represented by an individual whose business it is to publish police regulations and ordinances enforcing the execution of the laws; to keep up a regular communication with the officers of the township and the county; to inspect their conduct, to direct their actions, or to reprimand their faults. There is no point which serves as a centre to the radii of the administration. What, then, is the uniform plan on which the government is conducted, and how is the com 1 These were magistrates chosen annually by the people. See "Stephen of Byzantium." pliance of the counties and their magistrates or the townships and their officers enforced? . . . If all the secondary functionaries of the administration conform to the law, society in all its branches proceeds with the greatest uniformity; the difficulty remains of compelling the secondary functionaries of the administration to conform to the law. It may be affirmed that, in general, society has only two methods of enforcing the execution of the laws at its disposal: a discretionary power may be intrusted to a superior functionary of directing all the others, and of cashiering them in case of disobedience; or the courts of justice may be authorized to inflict judicial penalties on the offender. But these two methods are not always available. The right of directing a civil officer presupposes that of cashiering him if he does not obey orders, and of rewarding him by promotion if he fulfils his duties with propriety. But an elected magistrate can neither be cashiered nor promoted. All elective functions are inalienable until their term is expired. . . . The communities therefore in which the secondary functionaries of the government are elected are obliged to make great use of judicial penalties as a means of administration. . . . The second of these measures is the only thing that can possibly counterbalance the first; and it will be found that an elective authority which is not subject to judicial power will, sooner or later, either elude all control or be destroyed. The courts of justice are the only possible medium between the central power and the administrative bodies; they alone can compel the elected functionary to obey, without violating the rights of the elector. The extension of judicial power in the political world ought therefore to be in the exact ratio of the extension of elective offices; if these two institutions do not go hand in hand, the State must fall into anarchy or into subjection. . . To recapitulate in a few words what I have been showing: If a public officer in New England commits a crime in the exercise of his functions, the ordinary courts of justice are always called upon to pass sentence upon him. If he commits a fault in his official capacity, a purely administrative tribunal is empowered to punish him; and, if the affair is important or urgent, the judge supplies the omission of the functionary. Lastly, if the same individual is guilty of one of those intangible offences of which human justice has no cognizance, he annually appears before a tribunal [of electors] from which there is no appeal, which can at once reduce him to insignificance and deprive him of his charge. This system undoubtedly possesses great advantages, but its execution is attended with a practical difficulty which it is important to point out. . . . When an individual is really and sensibly injured by an administrative abuse, it is natural that his personal interest should induce him to prosecute. But if a legal formality be required, which, however advantageous to the community, is of small importance to individuals, plaintiffs may be less easily found; and thus, by a tacit agreement, the laws may fall into disuse. . . . It is perfectly natural that in a free country like America all the citizens should have the right of indicting public functionaries before the ordinary tribunals, and that all the judges should have the power of punishing public offences. But I was struck by the small number of political trials which occur in the United States. I had no difficulty in accounting for this circumstance. A lawsuit, of whatever nature it may be, is always a difficult and expensive undertaking. It is easy to attack a public man in a journal, but the motives which can warrant an action at law must be serious. A solid ground of complaint must therefore exist to induce an individual to prosecute a public officer, and public officers are careful not to furnish these grounds of complaint when they are afraid of being prosecuted. This does not depend upon the republican form of American institutions, for the same facts present themselves in England. These two nations do not regard the [Legislature's] impeachment of the principal officers of State as a sufficient guarantee of their independence. But they hold that the right of minor prosecutions, which are within the reach of the whole community, is a better pledge of freedom than those great judicial actions which are rarely employed until it is too late. . . . In the year VIII [1800] of the French Republic a constitution was drawn up in which the following clause was introduced: "Article 75. All the agents of the government below the rank of ministers can only be prosecuted for offences relating to their several functions by virtue of a decree of the Conseil d'Etat; in which case the prosecution takes place before the ordinary tribunals." This clause survived the Constitution of the year VIII, and is still maintained, in spite of the just complaints of the nation. I have always found the utmost difficulty in explaining its meaning to Englishmen or Americans. They were at once led to conclude that the Conseil d'Etat in France was a great tribunal, established in the centre of the kingdom, which exercised a preliminary and somewhat tyrannical jurisdiction in all political causes. But when I told them that the Conseil d'Etat was not a judicial body, in the common sense of the term, but an administrative council composed of men dependent on the Crown, so that the king, after having ordered one of his servants, called a Prefect, to commit an injustice, has the power of commanding another of his servants, called a Councillor of State, to prevent the former from being punished; when I demonstrated to them that the citizen who has been injured by the order of the sovereign is obliged to solicit from the sovereign permission to obtain redress, they refused to credit so flagrant an abuse, and were tempted to accuse me of falsehood or of ignorance. It frequently happened before the Revolution that a Parliament issued a warrant against a public officer who had committed an offence, and sometimes the proceedings were stopped by the authority of the Crown, which enforced compliance with its absolute and despotic will. It is painful to perceive how much lower we are sunk than our forefathers, since we allow things to pass under the colour of justice and the sanction of the law which violence alone could impose upon them. . . Upon examining what is now occurring among the democratic nations of Europe which are called free, as well as among the others, it will be observed that new and more dependent courts are everywhere springing up by the side of the old ones, for the express purpose of deciding, by an extraordinary jurisdiction, such litigated matters as may arise between the government and private persons. . . . Thus the government is more and more absolved from the necessity of subjecting its policy and its rights to the sanction of another power. As judges can not be dispensed with, at least the State is to select them, and always to hold them under its control; so that, between the government and private individuals, they place the effigy of justice rather than justice itself. The State is not satisfied with drawing all concerns to itself, but it acquires an ever-increasing power of deciding on them all without restriction and without appeal. . . . 1117. FRANCIS LIEBER. Civil Liberty and Self-Government. (1853. 3d ed., 1874, p. 108.) . . . The preceding guarantee of the supremacy of the law leads to a principle which, so far as I know, it has never been attempted to transplant from the soil inhabited by Anglican people, and which nevertheless has been in our system of liberty the natural production of a thorough government of law, as distinguished from a government of functionaries. It is so natural to the Anglican race that few think of it as essentially important to civil liberty, and it is of such vital importance that none who have studied the acts of government elsewhere can help recognizing it as an indispensable element of civil liberty. It is this: that, on the one hand, every officer, however high or low, remains personally answerable to the affected person for the legality of the act he executes, no matter whether his lawful superior has ordered it or not, and even whether the executive officer had it in his power to judge of the legality of the act he is ordered to do, or not; and that, on the other hand, every individual is authorized to resist an unlawful act, whether executed by an otherwise lawfully appointed officer or not. The resistance is made at the resister's peril. In all other countries, obedience to the officer is demanded in all cases, and redress can only take place after previous obedience. Occasionally, this principle acts harshly upon the officer; but we prefer this inconvenience to the inroad which its abandonment would make in the government of law. We will not submit to individual men, but only to men who are, and when they are, the organs of the law. . . . As an instance of the opposite to the French principle of that huge institution called gendarmerie, the following simple case may be taken: A sheriff, provided with the proper warrant, has the right, after request and denial, to open the house door, forcibly to open it, if a third party has taken refuge in it, or sent his goods there. "Every man's house is his castle," will not protect any one but the bona fide dweller in it. Nevertheless, the sheriff provided with his legal warrant does it at his own peril; for, if he breaks open the house, however well his suspicion may be grounded, and neither the party nor the goods sought for be there, the sheriff is a trespasser, and as such answerable to the inhabitant of the house before the courts of the land. This may be inconvenient in single cases. .. All law is inconvenient in some cases; but even if this opinion were founded, how august, on the other hand, appears the law I do not mean a single statute, but the whole self-evolving system of a common law of the land that errs on the side of individual liberty against the public power and the united weight of government! It might be supposed by those who are not familiar with this Anglican principle, that fear of resolute action in the officer would be the consequence. But this is not the case, as experience in England and the United States sufficiently proves. When magistrates and officers who, according to their sphere of action, ought not to be elective, are made elective, timidity or time-serving encroaches indeed upon the resolute performance of the officer's duty; but this has nothing to do with the principle here treated. . . . No machinery works without occasional friction. Compare with this the ruthless European continental police, and choose. 1118. A. V. DICEY. Lectures introductory to the Study of the Constitution. (1885. pp. 171-203, in part.) If therefore, we are ever to appreciate the full import of the idea denoted by the term "rule, supremacy, or predominance of law," we must first determine precisely what we mean by such expressions when we apply them to the British constitution. When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean in the second place, when we speak of the "rule of law" as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes, to one law administered by the ordinary Courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable, or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the Courts and made in their personal capacity liable to punishment or to the payment of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. . . An Englishman naturally imagines that the "rule of law" (in the sense in which we are now using the term) is a trait common to all civilised societies. But this supposition is erroneous. Most European nations had indeed, by the end of the eighteenth century, passed through that stage of development (from which England emerged before the end of the sixteenth century) when nobles, priests, and others could defy the law. But it is even now far from universally true that in continental countries all persons are subject to one and the same law, or that the Courts are supreme throughout the State. If we take France as the type of a continental State, we may assert with substantial accuracy that officials (under which word should be included all persons employed in the service of the State) are in their official capacity protected from the ordinary law of the land, exempted from the jurisdiction of the ordinary tribunals, and subject in many respects only to official law administered by official bodies. This is a topic which can be understood only after a survey (which for our present purpose must be a cursory one) of the nature and principles of what is called in France "droit administratif." "Droit administratif" is a term known under one form or another to the law of most continental States, but it is one for which English legal phraseology supplies no proper equivalent. . . . This absence from our language of any satisfactory equivalent for the expression "droit administratif" is significant; the want of a name arises at bottom from our non-recognition of the thing itself. In England, and in countries which, like the United States, derive their civilisation from English sources, the system of administrative law and the very principles on which it rests are in truth unknown. This absence from the institutions of the Union of anything answering to "droit administratif” arrested the observation of De Tocqueville from the first moment when he began his investigations into the characteristics of American democracy. . . Persons in the employment of the government, who form, be it observed, a much larger and more important part of the community than do the whole body of the servants of the English Crown, occupy in France a position in some respects resembling that of soldiers in England. For the breach of official discipline they are, we may safely assume, readily punishable in one form or another. But if, like English soldiers, they are subject to official discipline, they have, what even soldiers in England do not possess, a very large amount of protection against legal proceedings for wrongs done to private citizens. |