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 A GOVERNMENT OF LAW

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A GOVERNMENT OF LAW AS DISTINGUISHED FROM A GOVERNMENT OF FUNCTIONARIES BY HON. HANNIS TAYLOR, PH.D. FRANCIS LIBBER has told us, in his "Civil Liberty and Self-Government," p. 108, that the "guarantee of the suprem acy 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 func tionaries. It is so natural in the Anglican race that few think of it as essentially im portant 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." In giving expansion to the same thought at a later time Mr. Dicey, who fills the chair of Blackstone at Oxford, has said : "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 Minis ter 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 pay ment of damages for acts done in their official character but in excess of their law ful authority. A colonial governor, a secre tary of state, a military officer, and all sub ordinates, though carrying out the com mands of their superiors, are as responsible for any act which the law does not author ize as is any private and unofficial person." Under the Anglican system of civil liberty any man may at his peril resist any act which Law of the Constitution, p. 183.

he considers unlawful, and then have the question of legality passed upon in the ordi nary courts under the law of the land. Angli can law knows no special or official tribunals in which or special rules under which acts performed by officials claiming to have legal authority can be tested. In countries not governed by Anglican law obedience to the officer is, as a general rule, demanded, and redress can only take place after previous obedience. In France, for instance, no matter whether the government be Royal, Imperial, or Republican, the doctrine has always prevailed that the government, as representing the state, possesses rights and powers as against individuals superior to and independent of the ordinary laws of the land. That theory, so hard for us to under stand, is the real basis of a droit administratif under which officials, that is all per sons 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 tri bunals, and subject in many respects to official law administered by official bodies. For this droit adminisiratif, which under one name or another prevails in most of the continental states, there is in English phrase ology no proper equivalent for the good and sufficient reason that the thing itself dees not exist. The absence of any such branch of law in the jurisprudence of the United States at once attracted de Tocqueville's at tention; and in 1831 he wrote to a judge in his own country asking not only for an ex planation of this contrast between French and American institutions, but for an ex position of the general ideas (notions gener ates) governing the droit administratif of his own country.1 If, under the French 1 (Euvres Completes, vii. p. 66.