classes, to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the Prime Minister 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 payment of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person." Under the Anglican system of civil liberty any man may at his peril resist any act which he considers unlawful, and then have the question of legality passed upon in the ordinary courts under the law of the land. Anglican 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 understand, is the real basis of a droit administratif under which officials, that is all persons 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 tribunals and subject in many respects to official law administered by official bodies. For this droit administratif, which under one name or another prevails in most of the continental states, there is in English phraseology no proper equivalent for the good and sufficient reason that the thing itself does not exist. The absence of any such branch of law in the jurisprudence of the United States at once attracted de Tocqueville's attention; and in 1831 he wrote to a judge in his own country asking not only for an explanation of this contrast between French and American institutions, but for an exposition of the general ideas (notions générales) governing the droit administratif of his own country.1 If, under the French system, any official, no matter whether a minister, a prefect, or a policeman, commits any official act n excess of his legal authority, the rights of the individual aggrieved and the mode in which these rights are to be determined are questions of droit administratif which is administered by administrative courts (tribunaux administratifs) at the head of which stands the Council of State. To illustrate

1 Euvres Complètes, Vol. VII, p. 66.

from recent events in France growing out of the conflicts between church and state: Suppose a policeman acting under the orders of his superiors, breaks into a monastery and, after seizing the property of its inmates, expels them from the house. When he is charged with acts which in English law would be called trespass and assault, he pleads that he is acting under government orders in execution of a decree dissolving certain religious societies. When the policeman in question is brought before an ordinary civil court and threatened with the ordinary law of the land, as he would be in any country subject to Anglican law, an objection is raised at once that the civil courts have no jurisdiction of such a case. The "conflict " which thus arises is not determinable however by the ordinary judges because in that event they would be allowed to pronounce a final judgment on the limits of their own authority in defiance of that principle of French law which declares that "administrative bodies must never be troubled in the exercise of their functions by any act whatever of the judicial power." To meet such contingencies there exists in France a Tribunal des Conflits, a court for the settlement of conflicts of jurisdiction, whose special function is to determine finally whether a given case, say an action against a policeman for such a trespass and assault as has been described, comes within the jurisdiction of the civil courts, or of the administrative courts. If within the jurisdiction of the latter then the administrative law, unknown to Anglican countries, at once supersedes what we call the law of the land.

In the light of the foregoing contrast it will be easier to comprehend, I trust, Lieber's declaration that the "guarantee of the supremacy 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 functionaries." Let us glance for a moment at the historical origin of this supremacy of the law as embodied in what we call the law of the land to which the high and low are subject in the ordinary tribunals. Upon that rock has been built the constitutional church in England and the United States. The group of Low Dutch tribes from the neck of the Danish peninsula, out of whose union arose the English people, transferred to Britain that rough yet vigorous system of political, judicial, and military organization which everywhere prevailed among the Teutonic tribes of the fatherland.

Whenever a district of country was won from the native race, the conquerors encamped upon the soil; and then, after dividing the land upon the basis of that peculiar system that rested at once on military and tribal divisions, they organized self-governing communities which became nurseries of English customary law. Just as the English

language is the outcome of the fusion of the dialects spoken in those local communities, so English customary law, as a distinct and entire code, is the outcome of the fusion of the customary or popular law developed therein. The primitive system of law which thus matured in the provincial courts of the English people, like all archaic law, took on an iron rigorism of form which rendered it unelastic. Its entire inadequacy to the wants of a progressive society never became apparent, however, until the Norman Conquest drew England into the march of continental nations. The most important single outcome of that event was the centralization of justice through the establishment of a great court at Westminster by whose agency a new system of royal law, which found its source in the person of the king, was brought in to remedy the defects of the old, unelastic system of customary law prevailing in the provincial courts of the people. This new system of royal law was sent down to the popular courts existing in the shires by the hands of the itinerant justices who there represented the crown first for fiscal then for judicial purposes. During the reigns of the four Norman kings the English and Norman races became fused together into one nation scarcely conscious yet of its own unity. As soon as that condition of things was reached in which it was difficult to distinguish an Englishman from a Norman, all legal distinctions in favor of one race as against the other necessarily passed out of view. The substructure of the new political and legal fabric which thus arose out of the amalgamation of races was English, the superstructure was Norman. The welding together of the two systems received a temporary check during the period of disorganization known as the reign of Stephen, a period during which the royal authority which Henry I had done so much to consolidate came to an end, while England, for the first and last time in her history, sank into that state of feudal anarchy which the Conqueror by his far-sighted policy had striven to prevent. For a time the land lay helpless in the hands of the barons, who intrenched themselves in their unlicensed castles and arrogated to themselves all the rights of petty despots. The great mission of Henry II, Henry of Anjou, was to reestablish order and with it the reign of equal law. The full scope of Henry's policy was not only to establish the reign of law, but to reduce all orders of men to a state of equality under the same system of law; in other words, to establish the supremacy of the law as afterwards understood. The most formidable obstacles which stood in the way of the complete execution of that design were the baronage on the one hand, with their private jurisdictions, and the clergy on the other, with their far-reaching claims of exemption from the ordinary process of the temporal tribunals. When Henry II passed away, the prodigal knight-errant who succeeded him, Richard I, impressed upon the nation, then marshaled in the ranks of the three estates, the necessity

for concert of action against a central despotism capable of oppressing every class by the imposition of inordinate taxation. The hope that the accession of John would relieve that condition was quickly disappointed. His needs proved as great as Richard's, and the money he obtained was used for purposes that appealed to no one but himself. The excessive exactions demanded both in money and service, coupled to the unpopular uses to which these were put, form the keynote of the whole reign; they form the background of Magna Charta. When viewed in the light of the circumstances attending its execution, the fact clearly appears that while that great instrument was issued in the form of a royal grant, it was really a consitutional compact entered into by the royal authority on the one hand and the nation marshaled in the ranks of the three estates on the other. There is nothing in the provisions of the charter to recall obsolete distinctions of English and Norman blood; there is nothing to suggest differences of English and Norman law. The very absence of such provisions clearly shows that such distinctions had passed forever away. The winning of the Great Charter was the final consummation of the work of union, and this first great act of the united nation was not in the path of political experiment. The provisions of the charter embody no abstract theory of government; they consist simply of a summing up of the traditional liberties of the English nation, with such modifications as those liberties had suffered through the results of the Norman Conquest. The royal pretentions born of that event reached the limit of their growth when both Richard and John, accepting the imperialist theories of Glanvill, held that the will of the prince was the law of the land. The reckless attempts made by John to enforce that theory finally brought about the armed conflict between the nation and the king. Upon the part of the nation it was claimed that the law of the land was not the will of the prince, but the immemorial laws of the English Kingdom, with such modifications and amendments as those laws had suffered in the process of Norman centralization. After the coming of the Conqueror, the Old-English system of customary law was generally appealed to as "the laws of good King Edward," while the changes which it suffered through the result of the Conquest were generally described as the amendments made by King William. There is no attempt in the Charter to wipe out the irrevocable effects of the Conquest; the new system of central administration and the system of feudal tenures are both recognized as abiding elements in the constitution. The effort is to fix the limits of innovation, to define the extent to which the centralizing and feudalizing process to which the Conquest gave birth shall be permitted to abridge the immemorial freedom in the time to come.

Only in the light of such an historical preface is it possible to expound the judicial clauses of the Great Charter in which its framers,

after making provisions touching the character and appointment of judicial officers, announced a series of practical rules, both general and special, for the government of all courts in the administration of justice. First among those general rules stands the famous declaration that "no freeman shall be arrested or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and by the law of the land." The technical student of English law who expounds the phrase per judicium parium, in the light of recent research, does not find in it a guarantee of trial by jury, which had not then come into existence. He finds that the phrase "the lawful judgment of his peers" was only intended to guarantee to the accused a trial by his "equals." That right was not originally a class privilege of the aristocracy but a right shared by all grades of freeholders; whatever their rank they could not be tried by their inferiors. In that respect English custom did not differ from the procedure prescribed by the feudal usage on the continent. In England the "peers" of a crown tenant were his fellow crown tenants, who would normally deliver judgment in the Curia Regis; while the "peers" of a tenant of a mesne lord were the other freeholding tenants assembled in the court baron of the manor. A further illustration of the meanings conveyed by the word "peers" to a medieval mind together with the nature of judicium parium may be drawn from that provision in John's charter of April 10, 1201, which provides that "if a Christian bring a complaint against a Jew, let it be adjudged by his peers of the Jews. When the twin phrase per legem terræ is interpreted by like standards it appears that originally it "simply required judicial proceedings, according to the nature of the case; the duel, ordeal, or compurgation, in criminal cases, the duel, witnesses, charters, or recognition in property cases.” 1 The words appear at least twice in Glanvill, each time apparently in the technical sense. And yet it is equally clear that this older and technical signification of the phrase, per legem terræ, was gradually forgotten as the term "law of the land" ripened into the wider meaning expressed by it in the popular speech of to-day. The wider meaning clearly appears in the statutes reaffirming, expanding, or explaining the Great Charter. The important series of such statutes passed in the reigns of Edward III and Richard II illustrate how the per legem terræ of 1215 was read in the fourteenth century as equivalent to the wider phrase "by due process of law." When we remember that, by that time, the jury system, grand and petit, had developed, it is not strange that the act of 1352, for example, after reciting the charter provision in question, insisted on the necessity of "indictment or presentment of good and lawful people of the same neighborhood where such deeds be done." Evidently founding his

1 Bigelow, History of Procedure, 155.