cable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complaints; and in England this authority has immemorially been exercised by the king or his substitutes. He therefore has alone the right of erecting courts of judicature; for, though the constitution of the kingdom hath intrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary that courts should be erected, to assist him in executing this power; and equally necessary that, if erected, they should be erected by his authority. And hence it is, that all jurisdictions of courts are either mediately or immediately derived from the Crown, their proceedings run generally in the king's name, they pass under his seal, and are executed by his officers. - Ib. 266, 267.

Two features have at all times since the Norman Conquest characterized the political institutions of England.

The first of these features is the omnipotence or undisputed supremacy throughout the whole country of the central government. This authority of the State or the nation was, during the earlier periods of our history,represented by the power of the Crown. The king was the source of law and the maintainer of order. The maxim of the courts, "Tout fuit in luy et vient de lui al commencement," was originally the expression of an actual and undoubted fact. This royal supremacy has now passed into that sovereignty of Parliament which has formed the main subject of the foregoing chapters.

The second of these features, which is closely connected with the first, is the rule or supremacy of law. This peculiarity of our polity is well expressed in the old saw of the courts, "La ley est le plus haute inheritance, que le roy ad; car par la ley il même et toutes ses sujets sont rulés, et si la ley ne fuit, nul roi, et nul inheritance sera.” — DICEY, Law of the Const. (4th ed.) c. iv. 173.

It has been already pointed out that in many countries, and especially in France, servants of the State are in their official capacity to a great extent protected from the ordinary law of the land, exempted from the jurisdiction of the ordinary tribunals, and subject to official law, administered by official bodies. This scheme of so-called administrative law is opposed to all English ideas, and by way of contrast admirably illustrates the full meaning of that rule of law which is an essential characteristic of our constitution.

The term droit administratif is one for which English legal phraseology supplies no proper equivalent. The words "administrative law," which are its most natural rendering, are unknown to English

1 He could not agree that the judiciary, which was part of the executive, should be bound to say that a direct violation of the constitution was law. - · Gouverneur Morris, 5 Ell. Deb. 429. — ED.

judges and counsel, and are in themselves hardly intelligible without further explanation.

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 civilization from English sources, the system of administrative law, and the very principles on which it rests, are in truth unknown.

...

Droit administratif, or "administrative law," has been defined by French authorities in general terms as "the body of rules which regulate the relations of the administration or of the administrative authority towards private citizens; and Aucoc, in his work on droit administratif, describes his topic in this very general language: “Administrative law determines (1) the constitution and the relations of those organs of society which are charged with the care of those social interests (intérêts collectifs) which are the object of public administration, by which term is meant the different representatives of society among which the State is the most important, and (2) the relation of the administrative authorities towards the citizens of the State."

These definitions are obviously wanting in precision, and their vagueness is not without significance. As far, however, as an Englishman may venture to deduce the meaning of droit administratif from foreign treatises and reports, it may (at any rate for our present purpose) be best described as that portion of French law which determines (i.) the position and liabilities of all State officials, and (ii.) the civil rights and liabilities of private individuals in their dealings with officials as representatives of the State, and (iii.) the procedure by which these rights and liabilities are enforced.

The effect of this description is most easily made intelligible to English students by giving examples of the sort of matters to which the rules of administrative law apply. If a minister, a prefect, a policeman, or any other official, commits acts in excess of his legal authority (excès de pouvoirs), as, for example, if a police officer, in pursuance of orders, say from the Minister of the Interior, wrongfully arrests a private person, the rights of the individual aggrieved and the mode in which these rights are to be determined is a question of administrative law. If, again, a contractor enters into a contract with any branch of the administration, e. g., for the supply of goods to the gov ernment, or for the purchase of stores sold off by a public office, and a dispute arises as to whether the contract has been duly performed, or as to the damages due from the government to the contractor for a breach of it, the rights of the contracting parties are to be determined in accordance with the rules of administrative law, and to be enforced (if at all) by the methods of procedure which that law provides. All dealings, in short, in which the rights of an individual in reference to the State, or officials representing the State, come in question, fall within the scope of administrative law. . .

The second of the general ideas on which rests the system of administrative law is the necessity of maintaining the so-called separation of powers (séparation de pouvoirs), or, in other words, of preventing the government, the legislature, and the courts from encroaching upon one another's province.

The expression "separation of powers," as applied by Frenchmen to the relations of the executive and the courts, with which alone we are here concerned, may easily mislead. It means, in the mouth of a French statesman or lawyer, something different from what we mean in England by the "independence of the judges," or the like expressions. As interpreted by French history, by French legislation, and by the decisions of French tribunals, it means neither more nor less than the maintenance of the principle that while the ordinary judges ought to be irremovable and thus independent of the executive, the government and its officials ought (whilst acting officially) to be independent of and to a great extent free from the jurisdiction of the ordinary courts. It were curious to follow out the historical growth of the whole theory as to the "separation of powers." It rests apparently upon Montesquieu's "Esprit des Lois," book xi. c. 6, and is in some sort the offspring of a double misconception; Montesquieu misunderstood on this point the principles and practice of the English Constitution, and his doctrine was in turn, if not misunderstood, exaggerated and misapplied by the French statesmen of the Revolution, whose judg ment was biassed, at once by knowledge of the inconveniences which had resulted from the interference of the French "parliaments" in matters of State, and by the characteristic and traditional desire to increase the force of the central government. The investigation, however, into the varying fate of a dogma which has undergone a different development on each side the Atlantic would lead us too far from our immediate topic. All that we need note is the extraordinary influence exerted in France, and in all countries which have followed French examples, by this part of Montesquieu's teaching, and the extent to which it underlies the political and legal institutions of the French Republic. . . .

We can now understand the way in which the existence of a droit administratif affects the whole legal position of French public servants, and renders it quite different from that of English officials.

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. The party wronged by an official must certainly seek relief, not from

the judges of the land, but from some official court. Before such a body the question which will be mainly considered is likely to be, not whether the complainant has been injured, but whether the defendant, say a policeman, has acted in discharge of his duties and in bonâ fide obedience to the commands of his superiors. If the defendant has so acted he will, we may almost certainly assume, be sure of acquittal, even though his conduct may have involved a technical breach of law. ... We may further draw the general conclusion that under the French system no servant of the government who, without any malicious or corrupt motive, executes the orders of his superiors, can be made civilly responsible for his conduct. He is exempted from the jurisdiction of the civil courts because he is engaged in an administrative act; he is safe from official condemnation because the act complained of is done in pursuance of his official duties.

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To this must be added a further consideration, to which for the sake of clearness no reference has hitherto been made. French law appears to recognize an indefinite class of acts of State," - acts, that is to say, which are done by the government, as matters of police, of high policy, of public security, and the like, and acts of this class do not fall within the control either of the administrative or of any other courts. It would, for example, appear that in questions of extradition, as regards persons who are not French citizens, the government can act freely on its own discretion, and that a foreigner threatened with expulsion or expelled from French territory by orders of the government will not be able to obtain protection or redress in any French court whatever; the executive possesses, under the French constitution, "prerogatives no other word so well expresses the idea which are above and beyond, rather than opposed to, the law of the land. What may be the precise limits which the system of administrative law taken together with the authority ascribed in France to the executive in matters of State imposes on the jurisdiction of the civil tribunals, no foreigner can pronounce with certainty. These limitations are, however, as we have seen, in many instances very strict, and are certainly sufficient to prevent the judges of the land from pronouncing judgment on wrongs, not amounting to actual crimes, done by officials to private citizens. These restrictions on the authority of the courts must, at any rate as an Englishman would think, diminish the moral influence of the whole judicial body, and deprive the French judicature of that dignity which the English Bench have derived from their undoubted power to intervene, indirectly indeed, but none the less efficiently, in matters of State. The condemnation of general warrants — a condemnation which, whatever be the French law of arrest, could not (it would seem) be at the present day pronounced by any court in France― did as much in the last century to raise the reputation of the Bench as to protect the freedom of the subject. Our judges would with difficulty retain the reverence with which their traditions surround them if the decisions, even of the House of Lords, were, whenever

they were alleged to interfere with the prerogative of the Crown, or the discretionary powers of the ministry, liable to be invalidated by some official body. The separation of powers, as the doctrine is interpreted in France, means, it would seem to an Englishman, the powerlessness of the courts in any conflict with the executive. However this may be, it assuredly means the protection of official persons from the liabilities of ordinary citizens.

Compare for a moment with the position of French officials under the system of droit administratif the situation of servants of the Crown in England.

Among modern Englishmen the political doctrines which have in France created the system of droit administratif are all but unknown. Our law bears very few traces indeed of the idea that when questions arise between the State or, as we should say, the Crown or its servants and private persons, the interests of the government should be in any sense preferred or the acts of its agents claim any special protection. Our laws, again, lend no countenance to the dogma of the "separation of powers as that doctrine is understood by Frenchmen. The common law courts have constantly hampered the action of the executive, and by issuing the writ of habeas corpus as well as by other means do in fact exert a strict supervision over the proceedings of the Crown and its servants. . . .

The doctrine propounded under various metaphors by Bacon that the prerogative was something beyond and above the ordinary law, is like the foreign doctrine that in matters of high policy the administration has a discretionary authority which cannot be controlled by any court. The celebrated dictum that the judges, though they be "lions," yet should be "lions under the throne, being circumspect that they do not check or oppose any points of sovereignty," is a curious anticipation of the maxim formulated by French revolutionary statesmanship, that the judges are under no circumstances to disturb the action of the administration, and would, if logically worked out, have led to the exemption of every administrative act, or, to use English terms, of every act alleged to be done in virtue of the prerogative from judicial cognizance. The constantly increasing power of the Star Chamber and of the Council gave practical expression to prevalent theories as to the royal prerogative, and it is hardly fanciful to compare these courts, which were in reality portions of the executive government, with the Conseil d'état and other Tribunaux administratifs of France. Nor is a parallel wanting to the celebrated Article 75 of the Constitution of the Year VIII. This parallel is to be found in Bacon's attempt to prevent the judges, by means of the writ De non procedendo Rege inconsulto, from proceeding with any case in which the interests of the Crown were concerned. "The working of this writ," observes Mr. Gardiner, "if Bacon had obtained his object, would have been to some extent analogous to that provision which has been found in so many French constitutions, according to which ne