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.

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 warrantsa 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 no

agent of the government can be summoned before a tribunal, for acts done in the exercise of his office, without a preliminary authorization of the Council of State. The effect of the English writ being confined to cases where the king himself was supposed to be injured, would have been of less universal application, but the principle on which it rested would have been equally bad." The principle, moreover, admitted of unlimited extension, and this, we may add, was perceived by Bacon. "The writ," he writes to the king, "is a mean provided by the ancient law of England to bring any case that may concern your Majesty in profit or power from the ordinary Benches, to be tried and judged before the Chancellor of England, by the ordinary and legal part of this power. And your Majesty knoweth your Chancellor is ever a principal counsellor and instrument of monarchy, of immediate dependence on the king; and therefore like to be a safe and tender guardian of the regal rights." Bacon's innovation would, if successful, have formally established the fundamental dogma of administrative law that administrative questions must be determined by administrative bodies.

The analogy between the administrative ideas which still prevail on the Continent1 and the conception of the prerogative which was maintained by the English Crown in the seventeenth century has considerable speculative interest. That the administrative ideas supposed by many French writers to have been originated by the statesmanship of the great Revolution or of the first Empire are to a great extent developments of the traditions and habits of the French monarchy is almost past a doubt, and it is a curious inquiry how far the efforts made by the Tudors or Stuarts to establish a strong government were influenced by foreign examples. This, however, is a problem for historians. A lawyer may content himself with noting that French history throws light on the causes both of the partial success and of the ultimate failure of the attempt to establish in England a strong administrative system. The endeavor had a partial success, because circumstances, similar to those which made French monarchs ultimately despotic, tended in England during the sixteenth and part of the seventeenth century to increase the influence of the Crown. The attempt ended in failure, partly because of the personal deficiencies of the Stuarts, but chiefly because the whole scheme of administrative law was opposed to those habits of equality before the law which had long been essential characteristics of English institutions. — DICEY, Law of the Const. c. xii.2

It must be recollected that in the Continental States of Europe the courts of law have not, as a rule, the power to decide upon the legality

1 It is worth noting that the system of "administrative law," though more fully developed in France than elsewhere, exists in one form or another in most of the Continental States.

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or illegality of the administrative acts of executive officials. questions seem to be regarded as matters of public right and so properly withheld from the courts, whose jurisdiction over civil rights should not extend beyond private right. It can hardly be denied that every American lawyer, who holds that judicial courts are competent to decide questioned laws to be constitutional or unconstitutional, presupposes that the same courts are competent to decide questioned executive acts to be legal or illegal. Indeed, it is safe to assert, that every American must ponder long before he can understand how a judiciary which cannot question an executive act, can question an act of legislation. When judicial power was in America extended to cases arising under written constitutions, which involved the unconstitutionality and resultant invalidity of legislation, that extension was partially due to originality in creating new institutions and was partially the effect of existing causes. One of the most potent of existing causes must have been that the judges in every land of the common law could decide upon the legality or illegality of the executive acts of officials. It has been said in France that judges should not be competent to decide laws to be unconstitutional because the judiciary is a feeble power. Doubtless, it is correct to say that the judiciary is a feeble power in France and other civil law countries. But in all the lands of the common law, whether in the Eastern, the Western, or the Southern hemisphere, the judiciary is not a feeble power, and never has been. BRINTON COXE, Judicial Power and Unconstitutional Legislation, 102.

In approaching the history of the medieval church, we may regard the spiritualty of England, the clergy or clerical estate, as a body completely organized, with a minutely constituted and regulated hierarchy, possessing the right of legislating for itself and taxing itself, having its recognized assemblies, judicature and executive, and, although not as a legal corporation holding common property, yet composed of a great number of persons, each of whom possesses corporate property by a title which is either conferred by ecclesiastical authority, or is not to be acquired without ecclesiastical assent. . . . The spiritualty is by itself an estate of the realm; its leading members, the bishops and certain abbots, are likewise members of the estate of baronage; the inferior clergy, if they possess lay property or temporal endowments, are likewise members of the estate of the commons.". As an estate of the realm the spiritualty recognizes the headship of the king, as a member of the Church Catholic it recognizes, according to the mediæval idea, the headship of the pope. . . . They recognize the king as supreme in matters temporal, and the pope as supreme in matters spiritual; but there are questions as to the exact limits between the spiritual and the temporal, and most important questions touching the precise relations between the Crown and the Papacy. On medieval theory the king is a spiritual son of the pope; and the pope

...

may be the king's superior in things spiritual only, or in things temporal and spiritual alike. . . .

The idea of placing in one and the same hand the direct control of all causes temporal and spiritual was not unknown in the Middle Ages. The pope's spiritual supremacy being granted, complete harmony might be attained not only by making the pope supreme in matters temporal, but by delegating to the king supremacy in matters spiritual. . . . There were not wanting men who would try to persuade him [Henry II.] that even without any such commission he was supreme in spiritual as well as in temporal matters. Reginald Fitz Urse, when he was disputing with Becket just before the murder, asked him from whom he had the archbishopric? Thomas replied, "The spirituals I have from God and my lord the pope, the temporals and possessions from my lord the king." "Do you not," asked Reginald, "acknowledge that you hold the whole from the king?" "No," was the prelate's answer; we have to render to the king the things that are the king's, and to God the things that are God's." The words of the archbishop embody the commonly received idea; the words of Reginald, although they do not represent the theory of Henry II., contain the germ of the doctrine which was formulated under Henry VIII. - 3 STUBBS, Const. Hist. Eng. ch. xix. $$ 376, 377.

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A case of 1505-6 (Y. B. 21 H. VII., 1, 1), is stated by Coxe (Judic. Power and Unconst. Leg. 147), in which the validity of an Act of Parliament was debated. In this case KINGSMILL, J. (fol. 2a), said: "But, sir, the Act of Parliament cannot make the king a parson, for we, by our law, cannot make any temporal man have spiritual jurisdiction; no one can do this except the Supreme Head" [i. e., the pope]. Later on Palmes, "one of the new sergeants" (fol. 2b), argued: "No temporal Act can make a temporal man have spiritual jurisdiction; if it were ordained by Act that so and so should not offer any tithes to his curate, the Act would be void. And at the end of the case FROWIKE, C. J. (fol. 4b), said: "As to the other matter, whether the king can be parson by the Act of Parliament, as I understand, it is no great matter for argument; I have never seen that any temporal man can be a parson without the assent of the Supreme Head. . . And so a temporal Act, without the assent of the Supreme Head, cannot make the king a parson."

Coxe, ubi supra, p. 148, remarks: "It may seem strange to many of Blackstone's readers that parliamentary power should be spoken of as limited; but it would have seemed stranger to Englishmen before the Reformation for any one to say that the temporal Parliament could legislate with unlimited power in ecclesiastical matters regardless of the pope's wishes and authority. It required the Reformation, that is to say, an ecclesiastical revolution, for Parliament to obtain its modern plenitude of power in matters ecclesiastical."

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This ecclesiastical revolution" came within thirty years after the