of the Bench is acquiesced in by the people. This acquiescence or submission is due to the Americans inheriting the legal notions of the common law, i. e. of the" most legal system of law" (if the expression may be allowed), in the world. De Tocqueville long ago remarked that the Swiss fell far short of the Americans in respect for law and justice'. The events of the last thirty-five years suggest that he perhaps underrated Swiss submission to law. But the law to which Switzerland is accustomed recognises wide discretionary power on the part of the executive, and has never fully severed the functions of the judge from those of the government. Hence Swiss federalism fails, just where one would expect it to fail, in maintaining that complete authority of the Courts which is necessary to the perfect federal system. But the Swiss, though they may not equal the Americans in reverence for judicial decisions, are a law-respecting nation. One may well doubt whether there are many states to be found where the mass of the people would leave so much political influence to the Courts. Yet any nation who cannot acquiesce in the finality of possibly mistaken judgments is hardly fit to form part of a federal state2.

1

Sce passage cited, Lecture V, pp. 168-171, post.

The meaning of an "unconstitutional" law.-The expression "unconstitutional" has, as applied to a law, at least three different meanings varying according to the nature of the constitution with reference to which it is used:

(i.) The expression as applied to an English Act of Parliament, means simply that the Act in question, as for instance the Irish Church Act 1869, is, in the opinion of the speaker, opposed to the

spirit of the English constitution; it cannot mean that the Act is either a breach of law or is void.

(ii.) The expression as applied to a law passed by the French Parliament, means that the law e. g. extending the length of the President's tenure of office, is opposed to the articles of the constitution. The expression does not necessarily mean that the law in question is void, for it is by no means certain (see pp. 122-123 ante) that any French Court will refuse to enforce a law because it is unconstitutional. The word would probably, though not of necessity, be when employed by a Frenchman, a term of censure.

(iii.) The expression, as applied to an Act of Congress, means simply that the Act is one beyond the power of Congress, and is therefore void. The word does not in this case necessarily import any censure whatever. An American might, without any inconsistency, say that an Act of Congress was a good law, that is a law calculated in his opinion to benefit the country, but that unfortunately it was "unconstitutional," that is to say ultra vires and void.

LECTURE V.

THE RULE OF LAW: ITS NATURE.

of Law"

Two features have at all times since the Norman The "Rule Conquest characterised the political institutions of the subject England.

of this

and next

The first of these features is the omnipotence or lecture. 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 commencement1, 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 three foregoing lectures.

The second of these features, which is very 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

1 Year Books, xxiv. Edward III; cited Gneist, Englische Verwaltungsrecht, i. p. 454.

The rule

England

observers.

“toutes ses sujets sont rulés, et si la ley ne fuit, nul roi, "et nul inheritance sera 1."

This supremacy of the law, or the security given under the English constitution to the rights of individuals, forms the subject of this lecture and of the two next lectures.

Foreign observers of English manners, such for example as Voltaire, De Lolme, De Tocqueville, or noticed by Gneist, have been far more struck than have Englishforeign men themselves with the fact that England is a country governed, as is scarcely any other part of Europe, under the rule of law; and admiration or astonishment at the legality of English habits and feelings is nowhere better expressed than in a curious passage from De Tocqueville's writings, which compares the Switzerland and the England of 1836 in respect of the spirit which pervades their laws and

De Tooque

manners.

"I am not about," he writes, " to compare Switzerville on the « land with the United States, but with Great Britain.

want of re

law in

land and

66

spect for "When you examine the two countries, or even if Switzer- "you only pass through them, you perceive, in my "judgment, the most astonishing differences between with Eng- "them. Take it all in all, England seems to be much "more republican than the Helvetic Republic. The

contrast

land.

66

principal differences are found in the institutions "of the two countries, and especially in their "customs (mœurs).

"1. In almost all the Swiss Cantons liberty of "the is a very recent thing.

press

1 Year Books, xix. Henry VI, cited Gneist, Englische Verwaltungsrecht, i. p. 455.

"2. In almost all of them individual liberty is by "no means completely guaranteed, and a man may "be arrested administratively and detained in prison without much formality.

"3. The Courts have not, generally speaking, a "perfectly independent position.

"4. In all the Cantons trial by jury is unknown.

66

5. In several Cantons the people were thirty"eight years ago entirely without political rights. "Aargau, Thurgau, Tessin, Vaud, and parts of the "Cantons of Zurich and Berne were in this condition.

"The preceding observations apply even more "strongly to customs than to institutions.

"i. In many of the Swiss Cantons the majority of "the citizens are quite without taste or desire for "self-government, and have not acquired the habit of "it. In any crisis they interest themselves about "their affairs, but you never see in them the thirst "for political rights and the craving to take part "in public affairs which seem to torment Englishmen "throughout their lives.

"ii. The Swiss abuse the liberty of the press on "account of its being a recent form of liberty, and "Swiss newspapers are much more revolutionary and "much less practical than English newspapers.

"iii. The Swiss seem still to look upon associa"tions from much the same point of view as the "French, that is to say, they consider them as a "means of revolution, and not as a slow and sure method for obtaining redress of wrongs. The "art of associating and of making use of the