Thoughts from A. V. Dicey
Thoughts from Albert Venn Dicey, 1835-1922, on the English Constitution from Lectures Introductory to the Study of the Law of the Constitution.
See especially Dicey's remark on the power of English judges on writs of habeas corpus to thwart attempts by the Crown on grounds of public safety and as a matter of high policy to prevent anarchists from plotting to commit crimes. You will find it at the last entry on the A. V. Dicey page.
Source: Lectures Introductory to the Study of the Law of the Constitution, by A. V. Dicey, from a facsimile of the 1886 Second Edition published by MacMillan & Co., as produced in 1999 by The Legal Classics Library, Division of Gryphon Editions, New York.
The reader is reminded that the full text is always better than an abridged rendition as produced here. For a full understanding of the lectures, and the text of Lecture VI, the reader is advised to read the published volume.
Text in parentheses is in the original; text in brackets is supplied by the creator of this site.
Image: A. V. Dicey 1835-1922 by Désiré François Laugée, 1874. Trinity College University of Oxford Collection.
Lecture I - The True Nature of Constitutional Law.
- . . . the English commentator or lecturer. His position is entirely different from that of his American rivals. He may search the statute-book from beginning to end, but he will find no enactment which purports to contain the articles of the constitution; he will not find any test by which to discriminate laws which are constitutional or fundamental from ordinary enactments; he will discover that the very term "constitutional law," which is not (unless my memory deceives me) ever employed by Blackstone, is of comparatively modern origin; and, in short, that before commenting on the law of the constitution he must make up his mind what is the nature and the extent of English constitutional law. P. 6.
- He will find (it must be admitted) no lack of distinguished guides; he may avail himself of the words of lawyers such as Blackstone, of the investigations of historians such as Hallam or Freeman, and of the speculations of philosophical theorists such as Bagehot or Hearn. P. 7.
- . . . he will find, unless he can obtain some clue to guide his steps, that the whole province of so-called "constitutional law" is a sort of maze in which the wanderer is perplexed by unreality (by what, if I might venture to do so, I would call "shams"), by antiquarianism and by conventionalism. P. 7.
- . . . Blackstone. Of constitutional law as such there is not a word to be found in his Commentaries. The matters which appear to belong to it are dealt with by him in the main under the head Rights of Persons. . . . The Book contains much real learning about our system of government. Its true defect is the hopeless confusion both of language and of thought, introduced into the whole subject of constitutional law by Blackstone's habit - common to all lawyers of his time - of applying old and inapplicable terms to new institutions, and especially of ascribing in words to a modern and constitutional King, the whole and perhaps more than the whole of the powers actually possessed and exercised by William the Conqueror. P. 7-8.
- Let us turn from the formalism of lawyers to the truthfulness of our constitutional historians. . . . Let us eagerly learn all that is known, and still more all that is not known, about the Witenagemot. But let us remember that antiquarianism is not law, and that the function of a trained lawyer is not to know what the law was yesterday, still less what it was centuries ago, or what it ought to be to-morrow, but to state and explain what are the principles of law actually existing in England during the present year of grace 1886, 49 & 50 Victoria. For this purpose it boots nothing to know the nature of the Landesgemeinden of Uri, or to understand, if it be understandable, the constitution of the Witenagemot. All this is for a lawyer's purpose simple antiquarianism. P. 14-15.
- The struggles of the seventeenth century, the conflict between James and Coke, Bacon's theory of the prerogative, Charles' effort to substitute the personal will of Charles Stuart for the legal will of the King of England, are all matters which touch not remotely upon the problems of actual law. P. 17.
- . . . that every step towards civilization has been a step backwards towards the simple wisdom of our uncultured ancesters. The assumption which underlies this view, namely, that there existed among our Saxon forefathers a more or less perfect polity, conceals the truth both of law and history. P. 17.
- Civilization may rise above, but barbarism sinks below the level of legal fictions, and our respectable Saxon ancestors were, as compared, not with ourselves only, but with men so like ourselves as Coke and Hale, respectable barbarians. The supposition, moreover, that the cunning of lawyers has by a mass of legal fictions corrupted the fair simplicity of our original constitution, underrates the statesmanship of lawyers as much as it overrates the merits of early society. The fictions of the Courts have in the hands of lawyers such as Coke served the cause both of justice and of freedom, and served it when it could have been defended by no other weapons. For there are social conditions under which legal fictions or subtleties afford the sole means of establishing that rule of equal and settled law which is the true basis of the English civilization. Nothing can be more pedantic, nothing more artificial, nothing more unhistorical, than the reasoning by which Coke induced or compelled James to forego the attempt to withdraw cases from the Courts for his Majesty's personal determination. But no achievement of sound argument, no strike of enlightened statesmanship, ever established a rule more essential to the very existence of the constitution than the principle enforced by the obstinacy and the fallacies of the great Chief Justice. Oddly enough the notion of an ideal constitution corrupted by the technicalities of lawyers is at bottom a delusion of legal imagination. The idea of retrogressive progress is merely one form of its appeal to precedent. ... But the appeal to precedent is in the law courts merely a useful fiction by which judicial decision conceals its transformation into judicial legislation; and a fiction is none the less a fiction because it has emerged from the Courts into the field of politics or of history. Here, then, the astuteness of lawyers has imposed upon the simplicity of historians. Formalism and antiquarianism have, so to speak, joined hands; they have united to mislead students in search for the law of the constitution. P. 18-19.
- Let us turn now to political theorists. ... No author of modern times (it may be confidently asserted) has done so much to elucidate the intricate workings of English government as Bagehot. ... The truth is that Bagehot and Professor Hearn deal and mean to deal mainly with political understanding or conventions and not with rules of law. P. 20-21.
- Constitutional law, as the term is used in England, appears to include all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state. ... Observe that I have used the word "rules," not "laws." This employment of terms is intentional. Its object is to call attention to the fact that the rules which make up constitutional law, as the term is used in England, include two sets of principles or maxims of a totally distinct character. P. 24.
- The one set of rules are in the strictest sense "laws," since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims know as the Common Law) are enforced by the Courts; these rules constitute "constitutional law" in the proper sense of that term, and may for the sake of distinction, be called collectively, "the law of the constitution." P. 24-25.
- The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the Courts. This portion of constitutional law may, for the sake of distinction, be termed the "conventions of the constitution," or constitutional morality. P. 25.
- ... the distinction between "written law" (or statute law) and "unwritten law" (or common law). There are laws of the constitution, as the Bill of Rights, the Act of Settlement, the Habeas Corpus Acts, which are "written law," found in the statutebook, in other words, statutory enactments. There are other most important laws of the constitution ... which are "unwritten" laws, that is, not statutory enactments. P. 28.
- The distinction, in short, between written and unwritten law does not in any sense square with the distinction between the law of the constitution (constitutional law properly so called) and the conventions of the constitution. P. 29.
- ... a lawyer, called upon to teach or to study constitutional law ... With conventions or understandings he has no direct concern. They vary from generation to generation, almost from year to year. P. 30.
- His proper function is to show what are the legal rules (i.e., rules recognized by the Courts) which are to be found in the several parts of the constitution. P. 31.
- You have to deal partly with statute law, partly with judge-made law; you have to rely on Parliamentary enactments and also on judicial decisions, on authoritative dicta, and in many cases on mere inferences drawn from judicial doctrines; it is difficult to discriminate between prevalent custom and acknowledged law. This is true of the endeavour to expound the law of the Constitution; all this is true also in a measure of any attempt to explain our law of contract, our law of torts, or our law of real property. P. 32.
- We are compelled to search for the guidance of first principles ... three such guiding principles gradually become apparent: They are, first, the legislative sovereignty of Parliament; secondly, the universal rule or supremacy throughout the constitution of ordinary law, and thirdly, (though here I admit we tread on more doubtful and speculative ground), the dependence in the last resort of the conventions upon the law of the constitution. P. 34.
Lecture II - The Sovereignty of Parliament.
- Parliament means, in the mouth of a lawyer, (though the word has often a different sense in ordinary conversation), the King, the House of Lords, and the House of Commons; these three bodies acting together may be aptly described as the "King in Parliament," and substitute Parliament. P. 35.
- The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament. A law may, for our present purposes, be defined as "any rule which will be enforced by the Courts." The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described; any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts. P. 36.
- Let us now consider the position of Parliament in regard to those private rights which are in civilized states justly held specially secure or sacred. Coke (it should be noted) particularly chooses interference with private rights as specimens of Parliamentary authority. P.44.
- The statute-book teems with Acts under which Parliament gives privileges or rights to particular persons or imposes particular duties or liabilities upon other persons. P. 45.
- An Act of Indemnity is a statute, the object of which is to make legal transactions which when they took place were illegal, or to free individuals to whom the statute applies from liability for having broken the law, enactments of this kind were annually passed with almost unbroken regularity for more than a century (1727-1828) to free Dissentors from penalties .... such enactments being as it were the legislation of illegality are the highest exertion and crowning proof of sovereign power. P. 46-47.
- In 1610 ... a solemn opinion or protest of the judges established the modern doctrine that royal proclamations have in no sense the force of law; they serve to call the attention of the public to the law, but they cannot of themselves impose upon any man any legal obligation or duty not imposed by common law or by Act of Parliament. P. 50.
- "The maxim that there is no wrong without a remedy, does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong." ... "It would be more intelligently and correctly stated, if it were reversed, so as to stand, 'Where there is no legal remedy, there is no legal wrong.'" Bradlaugh v. Gossett, 12 Q.B.D. 271,285. P. 52.
- A large proportion of English law is in reality made by the judges, and whoever wishes to understand the nature and extent of judicial legislation in England, should read Professor Pollock's admirable essay on the Science of Case Law. . . . English judges do not claim or exercise any power to repeal a Statute, whilst Acts of Parliament may override and constantly do override the law of the judges. Judicial legislation is, in short, subordinate legislation, carried on with the assent and subject to the supervision of Parliament. P. 56.
- Parliament does constitute such a supreme legislative authority or sovereign power as, according to Austin and other jurists, must exist in every civilized state, and for that purpose to examine into the validity of the various suggestions, which have from time to time been made, as to the possible limitations on Parliamentary authority, and to show that none of them are countenanced by English law. P. 57.
- There is no legal basis for the theory that judges, as exponents of morality, may overrule Acts of Parliament. P. 58.
- In the time of the Stuarts the doctrine was maintained, not only by the King, but by lawyers and statesmen who, like Bacon, favoured the increase of royal authority, that the Crown possessed under the name of the "prerogative" a reserve, so to speak, of wide and indefinite rights and powers, and that this prerogative or residue of sovereign power was superior to the ordinary law of the land. P. 59.
- Parliament can legally legislate on any topic whatsoever which, in the judgment of Parliament, is a fit subject for legislation. P. 64.
- The actual exercise of authority by any sovereign whatsoever, and notably by Parliament, is bounded or controlled by two limitations. Of these the one is external, the other is an internal limitation. P. 70.
- The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects or a large number of them will disobey or resist his laws. ... it would be an error to suppose that the most absolute ruler who ever existed could in reality make or change every law at his pleasure. That this must be so results from considerations which were long ago pointed out by Hume. Force, he teaches, is in one sense always on the side of the governed, and government therefore in a sense always depends upon opinion. P. 70-71.
- The existence of ... a difference between the permanent wishes of the sovereign, or rather of the King who then constituted a predominant part of the sovereign power and the permanent wishes of the nation, is traceable in England throughout the whole period beginning with the accession of James the First and ending with the Revolution of 1688. The remedy for this divergence was found in the transference of power from the Crown to the Houses of Parliament; ... the difference between the will of the sovereign and the will of the nation was terminated by the foundation of a system of real representative government. Where a Parliament really represents the people, the divergence between the external and the internal limit to the exercise of sovereign power can hardly arise, or if it arises must soon disappear. P. 77.
Lecture III - Comparison Between Parliament and Non-Sovereign Law-Making Bodies.
- De Lolme, Gneist, and De Tocqueville seize at once upon the sovereignty of Parliament as a salient feature of the English constitution .... P. 80.
- There is under the English constitution no marked or clear distinction between laws which are not fundamental or constitutional and laws which are fundamental or constitutional. P. 82.
- ... the constitution has never been reduced to a written or statutory form because each and every part of it is changeable at the will of Parliament. P. 83.
- These then are the three traits of Parliament sovereignty as it exists in England: first, the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws; secondly, the absence of any legal distinction between constitutional and other laws; thirdly, the non-existence of any judicial or other authority having the right to nullify an Act of Parliament, or to treat it as void or unconstitutional. P. 84.
- The authority of the Victorian Parliament [Victoria, Australia] to change the articles of the Victorian constitution is from several points of view worth notice. P. 102.
- We have here a decisive proof that there is no necessary connection between the written character and the immutability of a constitution. The Victorian constitution is to be found in a written document; it is a statutory enactment. Yet the articles of this constitutional statute can be changed by the Parliament which it creates, and changed in almost though not absolutely in the same manner as any other law. This may seem an obvious matter enough, but writers of eminence so often use language which implies or suggests that the character of a law is changed by its being expressed in the form of a statute as to make it worth noting that a statutory constitution need not be in any sense an immutable constitution. The readiness again with which the English Parliament has conceded constituent powers to colonial legislatures shows how little hold is exercised over Englishmen by that distinction between fundamental and non-fundamental laws which runs through almost all the constitutions not only of the Continent but also of America. The explanation appears to be that in England we have long been accustomed to consider Parliament as capable of changing one kind of law with as much ease as another. P. 102-103.
- The constitution of Belgium has existed for more than half a century; the consititution of the United States will soon have endured for a hundred years; neither of them has during its existence undergone one tithe of the changes which have been experienced by the constitution of England since the death of George the Third. P. 117.
- The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of the law into conflict with the will of the really supreme power in the state. P. 118.
- To a student who at this distance in time calmly studies the history of the first Reform Bill, it is apparent that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a political revolution under the guise of a legal reform. P. 118-119.
- What are the safeguards which under a rigid constitution can be taken against unconstitutional legislation? P.119.
- The general answer to our inquiry (which of course can have no application to a country like England, ruled by a sovereign Parliament) is that two methods may be and have been adopted by the makers of constitutions with a view to rendering unconstitutional legislation either impossible or inoperative. P. 119.
- Reliance may be placed upon the force of public opinion and upon the ingenious balancing of political powers for restraining the legislature from passing unconstitutional enactments. This system opposes unconstitutional legislation by means of moral sanctions, which resolve themselves into the influence of public sentiment. P.119.
- Authority, again, may be given to some person or body of persons, and preferably to the Courts, to adjudicate upon the constitutionality of legislative acts, and treat them as void if they are inconsistent with the letter or the spirit of the constitution. This system attempts not so much to prevent unconstitutional legislation as to render it harmless through the intervention of the tribunals, and rests at bottom on the authority of judges. P. 119-120.
- The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort will be obeyed by the Courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution and from the resulting support of public opinion. P. 122-123.
- The authors of the American constitution (together with their Swiss imitators) have, for reasons that will appear in my next lecture, been even more anxious than French statesmen to limit the authority of every legislative body throughout the Republic. They have further shared the faith of continental politicians in the value possessed by general declarations of rights. But they have, unlike French constitution-makers, directed their attention, not so much to preventing Congress and other legislatures from making laws in excess of their powers, as to the invention of means by which the effect of unconstitutional laws may be nullified, and this result they have achieved by making it the duty of every judge throughout the Union to treat as void any enactment which violates the constitution, and thus have given to the restrictions contained in the constitution on the legislative authority either of Congress or State legislatures the character of real laws, that is, of rules enforced by the Courts. This system, which makes the judges the guardians of the constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation. P. 124-125.
Lecture IV - Parliamentary Sovereignty and Federalism.
- If, on the other hand, there be a desire for unity, the wish will naturally find its satisfaction, not under a federal, but under a unitarian constitution; the experience of England and Scotland in the eighteenth and of the states of Italy in the nineteenth century shows that common national feeling or the sense of common interests may be too strong to allow that combination of union and separation which is the foundation of federalism. P. 129-130.
- A federal state is a political contrivance intended to reconcile national unity and power with the maintenance of "state rights." P. 131.
- The preamble to the Constitution of the United States recites that, "We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." The tenth amendment enacts that "the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people." These two statements, which are reproduced with slight alteration in the constitution of the Swiss Confederation, point out the aim and lay down the fundamental idea of federalism. P. 131-132.
- This doctrine of the supremacy of the Constitution is familiar to every American, but in England even trained lawyers find a difficulty in following it out to its legitimate consequences. The difficulty arises from the fact that under the English constitution no principle is recognised which bears any real resemblance to the doctrine (essential to federalism) that the Constitution constitutes the "supreme law of the land." P. 132-133.
- In England we have laws which may be called fundamental or constitutional because they deal with important principles (as, for example, the descent of the Crown or the terms of union with Scotland) lying at the basis of our institutions, but with us there is no such thing as a supreme law, or law which tests the validity of other laws. P. 133.
- The one fundamental dogma of English constitutional law is the absolute legislative sovereignty or despotism of the King in Parliament. But this dogma is incompatible with the existence of a fundamental compact, the provisions of which control every authority existing under the constitution. P. 133-134.
- All power of the English state is concentrated in the Imperial Parliament, and all departments of government are legally subject to Parliamentary despotism. Our judges are independent, in the sense of holding their office by a permanent tenure, and of being raised above the direct influence of the Crown or the Ministry; but the judicial department does not pretend to stand on a level with Parliament; its functions might be modified at any time by an Act of Parliament; and such a statute would be no violation of the law. P. 143.
- Unitarianism, in short, means the concentration of the strength of the state in the hands of one visible sovereign power, be that power Parliament or Czar. P. 144.
- The power moreover of the Courts [of the United States] which maintains the articles of the Constitution as the law of the land, and thereby keeps each authority within its proper sphere, is exerted with an ease and regularity which has astounded and perplexed continental critics. The explanation is that the judges of the United States control the action of the Constitution, but they perform purely judicial functions, since they never decide anything but the cases before them. P. 150-151.
- It is natural to say that the supreme Court pronounces Acts of Congress invalid, but in fact this is not so. The Court never pronounces any opinion whatsover upon an Act of Congress. What the Court does do is simply to determine that in a given case A is or is not entitled to recover judgment against X; but in determining that case the Court may decide that an Act of Congress is not to be taken into account, since it is an Act beyond the constitutional powers of Congress. P. 151.
- If any one thinks this is a distinction without a difference he shows great ignorance of politics, and does not understand how much the authority of a Court is increased by confining its action to purely judicial business. P. 151.
- To a French jurist indeed filled with the traditions of the French Parliaments all this might be incomprehensible, but an English lawyer might easily see that the fathers of the republic treated Acts of Congress as English Courts treat bye-laws, and in forming the Supreme Court may probably have had in mind the functions of the Privy Council. It is still more certain that they had before their eyes cases in which the tribunals of particular States had treated as unconstitutional, and therefore pronounced void, Acts of the state legislature which contravened the state constitution. The earliest case of declaring a law unconstitutional dates (it is said) from 1786, and took place in Rhode Island, which was then, and continued till 1842, to be governed under the charter of Charles II. An Act of the legislature was declared unconstitutional by the Courts of North Carolina in 1787 and by the Courts of Virginia in 1788, whilst the Constitution of the United States was not adopted till 1789, and Marbury v. Madison, the first case in which the Supreme Court dealt with the question of constitutionality, was decided in 1803. P. 152-153.
- But if their notions were conceptions derived from English law, the great statesmen of America gave to old ideas a perfectly new expansion, and for the first time in the history of the world formed a constitution which should in strictness be "the law of the land," and in so doing created modern federalism. For the essential characteristics of federalism - the supremacy of the constitution - the distribution of powers - the authority of the judiciary - reappear, though no doubt with modifications, in every true federal state. P. 153.
- A system meant to maintain the status quo in politics is incompatible with schemes for wide social innovation. P.160.
- The difficulty of altering the Constitution produces conservative sentiment, and national conservatism doubles the difficulty of altering the Constitution. The House of Lords has lasted for centuries; the American Senate has existed for about one hundred years, yet to abolish or alter the House of Lords would be a far easier matter than to modify the consitution of the Senate. P. 161.
- From the fact that the judicial Bench supports under federal institutions the whole stress of the constitution, a special danger arises lest the judiciary should be unequal to the burden laid upon them. In no country has greater skill been expended on constituting an august and impressive national tribunal than in the United States. P. 163.
- But the moment that this bias becomes obvious a Court loses its moral authority, and decisions which might be justified on grounds of policy excite natural indignation and suspicion when they are seen not to be fully justified on grounds of law. P. 163.
- Federalism substitutes litigation for legislation, and none but a law-fearing people will be inclined to regard the decision of a suit as equivalent to the enactment of a law. P. 166.
- 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. P. 166.
LECTURE V - The Rule of Law; Its Nature.
- Foreign observers of English manners, such for example as Voltaire, De Lolme, De Toqueville, or Gneist, have been far more struck than have Englishmen themselves with the fact that England is a country governed, as is scarcely any other part of Europe, under the rule of law . . . . P. 170.
- We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint. P. 174.
- . . . we shall soon be convinced that the "rule of law" even in this narrow sense is peculiar to England, or to those countries which, like the United States of America, have inherited English traditions. P. 174.
- . . . wherever there is discretion there is room for arbitrariness. P. 175.
- During the eighteenth century many of the continental governments were far from oppressive, but there was no continental country where men were secure from arbitrary power. P. 175.
- In 1717 Voltaire was sent to the Bastille for a poem which he had not written, of which he did not know the author, and with the sentiment of which he did not agree. . . . His whole life was a series of contests with arbitrary power, and nothing but his fame, his deftness, his infinite resource, and ultimately his wealth, saved him from penalties far more severe than temporary imprisonment. P. 176-177.
- 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. P. 179-180.
- 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. P. 181.
- 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. . . . 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. P. 182.
- 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" . . . . P. 184.
- 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. P. 186.
- -- it is a body of law intended to preserve the privileges of the state. P. 187.
- It means as interpreted by French history, by French legislation, and by the decisions of French tribunals . . . 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. P. 188.
- But the ordinary judges are incompetent to pronounce judgment on any administrative act (acte administratif), that is, on any act done by any official, high or low, bona fide in his official character. P. 189.
- So strong moreover was the bias of French law in favour of the administration, that up to 1870 all servants of the government possessed a kind of exemption from the jurisdiction of the Courts absolutely inconsistent with every English notion of equality before the law. P. 195.
- 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. P. 202.
- Bona fide obedience to the orders of superiors is not a defence available to a subordinate who in the discharge of his functions as a government officer has invaded the legal rights of the humblest individual. Officials, like everybody else, are accountable for their conduct to a Court of Law, and to a Court, be it noted, where the verdict is given by a jury. P. 203.
- There remains yet a third and a different sense in which the "rule of law" or the predominance of the legal spirit may be described as a special attribute of English institutions. We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting), are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts . . . . P. 210.
- Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law. P. 211.
- There is in the English constitution an absence of those declarations or definitions of rights so dear to foreign contitutionalists. P. 211-212.
- But any knowledge of history suffices to show that foreign constitutionalists have, while occupied in defining rights, given insufficient attention to the absolute necessity for the provision of adequate remedies by which the rights they proclaimed might be enforced. P. 214.
- On the other hand, there runs through the English constitution that inseparable connection between the means of enforcing a right, and the right to be enforced which is the strength of judicial legislation. P. 214.
- The Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty. P. 215.
- Nor let it be supposed that this connection between rights and remedies which depends upon the spirit of law pervading English institutions is inconsistent with the existence of a written constitution, or even with the existence of constitutional declarations of rights. The Constitution of the United States and the constitutions of the separate States are embodied in written or printed documents. But the statesmen of America have shown unrivalled skill in providing means for giving legal security to the rights declared by American constitutions. The rule of law is as marked a feature of the United States as of England. P. 215.
LECTURE VI - The Rule of Law: Its Applications.
- The right to personal liberty as understood in England means in substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. P. 222.
- Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law, i.e. (speaking again in very general terms indeed) under some legal warrant or authority, and, what is of far more consequence, it is secured by the provision of adequate legal means for the enforcement of this principle. These methods are two-fold; namely, redress for unlawful arrest or imprisonment by means of prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus. P. 222-223.
- . . . few features in our legal system have done more to maintain the authority of the law than the fact that all offenses great and small are dealt with on the same principles and by the same Courts. P. 227.
- The right to the writ of habeas corpus existed at common law long before the passing in 1679 of the celebrated Habeas Corpus Act, 31 Car.II, cap. 2, and you may wonder how it has happened that this and the subsequent Act, 56 Geo.III, c. 100, are treated, and (for practical purposes) rightly treated, as the basis on which rests an Englishman's security for the enjoyment of his personal freedom. The explanation is, that prior to 1679 the right to the writ was often under various pleas and excuses made of no effect. P. 231-232.
- The Habeas Corpus Acts are essentially procedure Acts, and simply aim at improving the legal mechanism by means of which the acknowledged right to personal freedom may be enforced. P. 236.
- It is easy to perceive that the authority of the judges, exercised as it invariably must be in support of the strict rules of law, cuts down the discretionary powers of the Crown. It often prevents the English government from meeting public danger by measures of precaution which would as a matter of course be taken by the executive of any continental country. Suppose, for example, that a body of foreign anarchists come to England and are thought by the police on strong grounds of suspicion to be engaged in a plot, say for holding up the Houses of Parliament. Suppose also that the existence of the conspiracy does not admit of absolute proof. An English Minister, if he is not prepared to put the conspirators on their trial, has no means of arresting them, or of expelling them from the country. In case of arrest or imprisonment they would at once be brought before the High Court on a writ of habeas corpus, and unless some specific legal ground for their detention could be shown they would be forthwith set at liberty. Of the political or, to use foreign expressions, of the "administrative" reasons which might make the arrest or expulsion of a foreign refugee highly expedient, the judges would hear nothing; that he was arrested by order of the Secretary of State, that his imprisonment was a simple administrative act, that the Prime Minister or the Home Secretary was prepared to make affidavit that the arrest was demanded by the most urgent considerations of public safety, or to assure the Court that the whole matter was one of high policy and concerned national interests, would be no answer whatever to the demand for freedom, under a writ of habeas corpus. P. 241-242.
Posted: to Legal History and Philosophy of Law on Tue, Jul 9, 2019
Updated: Tue, Jul 9, 2019