Delphi Complete Works of Stephen Leacock, page 440
2. The Relation of the Courts to the Executive and to the Legislature. Certainty of tenure and of compensation guarantee the judiciary against being unduly controlled by the other branches of the government. The question next arises, whether and to what extent the officers of the legislative and executive departments are to be protected from the power of the judiciary. That their original appointment or election is not made by the judiciary goes without saying. But it must be further decided whether, while they are in office, the legality of their official acts is to be subject to the decision of the courts. Shall the judges have power to decide whether the legislature or the executive, or any part of the executive, has acted in excess of its lawful power? To an American unacquainted with foreign governments, the answer seems self-evident, for the principle of limited constitutional powers and responsibility before the courts lies at the basis of the American system. But on this most important point of public law, the usage of modern states is divided between two sharply contrasted systems. In the United States, the Latin-American Republics, Great Britain and her colonies, the officers of the government are responsible before the law courts. The complete legal immunity of the British sovereign, and the immunity (except by impeachment) of the President of the United States, are exceptions of a special nature which need not be considered in this connection. On the other hand, it is the prevalent usage in the continental countries of Europe that the ordinary courts of law have no power to question the legality or decide as to the constitutionality of the official actions of the legislative and executive officers. A closer consideration of the consequences of these antagonistic principles will show how greatly the relations of the government to the individual citizens are affected thereby.
The case of the British Empire is less complicated and may be treated first. In the United Kingdom every servant of the state (except the king) is responsible for his actions to the ordinary courts of law. “Every official,” says Mr. Dicey, “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.” Not only the members of the executive civil service, but the officers and men of the army are individually liable before the ordinary tribunals for any unlawful acts, even if performed at the command of a superior officer. “The position of a soldier,” says the same authority, “may be, both in theory and practice, a difficult one. He may, as it has been well said, be liable to be shot by a court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it.” In spite of the apparent anomaly involved in the last instance, the protection afforded to individual liberty by this responsibility of executive officers cannot be overestimated. In the case of the British legislature there cannot, of course, be any such thing as a statute made in excess of power. For since the Parliament (used here in its legal sense of King, Lords, and Commons) is supreme, every statute that it makes is legally a good statute and cannot be questioned by the courts. But the legislative enactments of any minor body (such as a county council) are always subject to be passed upon by the courts, and perhaps set aside on grounds of illegality.
It is in such countries as the United States that the principle of judicial decision on the validity of the actions of the government has the greatest consequences. Here, as in England, the officers of the executive are responsible to the courts for their official actions. But this is by no means all. For since the national and state legislatures are given by the Constitution only a certain definite and limited power, it becomes the duty of the courts to decide whether or not the legislature in the making of any statute has confined itself to the powers it legally possesses. Where such is not the case the court (though it cannot abolish or amend the statute itself) can refuse to apply it in the individual case before it, which is in practice equivalent to declaring the statute invalid. Americans are apt to regard this power of the courts as a necessary consequence of a written constitution. For how else, it might be asked, can the legislature and the executive be duly confined to the power granted them? Logical as this seems, it remains true, as will presently be shown in the cases of France and Germany, that the existence of a written constitution is not always accompanied by this revisional power of the ordinary courts of law. That such an institution should have grown up in the United States is one of the most felicitous features of American political evolution. The germ of its development is found under the colonial governments, from which in the last resort appeal might be taken against any action of the legislature or executive of the colony to the king in council. The written charters that had been so familiar in colonial history and still existed at the Revolution in Massachusetts, Rhode Island, and Connecticut prepared the way for written constitutions limiting the powers of the organs of government. The severing of the connection of the colonies and the crown rendered it necessary to substitute something for the appellate jurisdiction of the king in council. Even before the making of the federal Constitution (1787) the judiciary of the new state governments had begun to occupy this field. Several decisions of state tribunals are recorded in which acts of the legislatures are declared unconstitutional. In the report of a Virginia case in 1782 in which this point was raised, it is stated that “Chancellor Blair with the rest of the judges was of the opinion that the court had power to declare any resolution of the legislature or of either branch of it unconstitutional and void.” The federal Constitution of 1787 did not in terms lay down this function of the courts; but the proper sanction for it is found in art. iii, § 2, and in art. vi, of the Constitution. “The Judicial Power,” it is laid down, “shall extend to all cases . . . arising under this Constitution.” Moreover “this Constitution and the Laws of the United States which shall be made in pursuance thereof . . . shall be the supreme Law of the Land: and the Judges in every State shall be bound thereby.” The case of Marbury v. Madison (1803), in which an act of Congress was declared unconstitutional, definitely established the precedent for the later working of the national government. The constitutional relation thus established between the judiciary and the other branches is not, however, unique in the United States. In the Dominion of Canada, for example, the judiciary exercise an analogous power in their interpretation of the British North America act, and the judges under the federal system of the Australian commonwealth are entrusted with a similar function.
Widely contrasted with the relation in which the American courts of law are thus seen to stand as regards the Congress and the officers of the executive, is the position occupied by the courts in the chief continental countries of Europe. The latter, as we have seen, are (with the exception of Hungary) countries with written constitutions. Yet the courts of law are not found to exercise the function of declaring the acts of the legislature unconstitutional. In such countries as France and Italy this is not so surprising, for these are not federal governments, and the constitution in these cases is concerned only with the organization of the government, and with the protection of individual liberty, and not with the division of legislative power between central and local authorities. As a consequence of this the French courts do not question the validity of a statute. Conceivably a French statute might be grossly unconstitutional; a law, for instance, which professed to abolish the republican form of government would be in direct violation of the constitution. But in practice such do not occur. In the case of the German empire, which is federal, and which has a written constitution, one would expect to find the courts constantly called upon, as in the United States, to adjudicate upon the constitutionality of state and federal laws. In point of fact no such decisions are given. Isolated cases have occurred in which the courts (the federal as well as state) have declared certain statutes of the minor German legislatures to be in violation of the state constitution. But the legality of imperial statutes once made passes unquestioned. The bulk of authority, supported by the declaration of the Reichsgericht (or imperial court) itself, is in favor of admitting that such a revisional power exists. Other authorities take an entirely opposite view. Since no law of the imperial legislature goes into force until officially promulgated by the emperor, these writers regard the promulgation as itself supplying the necessary test of constitutionality. Be this as it may, the fact of the matter remains that imperial statutes are always accepted by the courts as valid. More noteworthy still is the fact that in the federal republic of Switzerland the same practice prevails; indeed it is a provision of the Swiss constitution that every statute passed by the federal assembly must be accepted as valid.
3. Administrative Law and Administrative Courts. But the absence of this revising power of the courts is not the only point in which Continental practice is at variance with that of America. The whole status of executive officers before the law is different. The principle by which every official in England and America is responsible to the courts for his official actions does not apply. On the Continent this form of liability is replaced by the regulations and procedure known as administrative law. Under this system public servants acting in their official capacity are not subject to the jurisdiction of the ordinary tribunals, but can only be called to account before the administrative courts. These are specially constituted bodies composed for the most part of members of the executive. In France, for example, there is a graded service of administrative courts which exist parallel with the ordinary tribunals. In each department the prefect and his prefectoral council (appointed by the president) act as an administrative court. Special jurisdiction is exercised by the court of accounts, councils of revision (as to military recruiting), colonial courts of conflict, and certain councils for public instruction. Final jurisdiction is exercised by the council of state, a body nominated by the president. A special body (the tribunal of conflicts), made up of equal representation from the two kinds of courts, together with the ministers of justice and two added members, decides on cases of disputed competence. The jurisdiction of administrative courts over official actions is not indeed quite without exception. “The ordinary courts have as a result of statutory provision the entire control of the matter of expropriation or the exercise of the right of eminent domain. Again, arrests made by the administration are under the control of the ordinary courts as a result of the Penal Code. It is true also that where the government or a department of the government becomes a party to an ordinary commercial contract the jurisdiction is in part given to the ordinary courts.” But in the main the statement holds good that in France, and in constitutional countries generally, conflicts between individuals and the administration are settled by the administration itself.
The administrative system of courts originated in France with the extension of the absolute centralized monarchy, which tended to supplant by royal officials the older local tribunals. The Constituent Assembly of 1789 expressly adopted the principle of executive courts for passing upon the acts of the executive. In doing this they hoped to free the executive from being unduly dependent on the judicial branch of the government, and found the warrant for their action in the familiar dogma of the separation of powers. “The constitution will be equally violated, if the judiciary may intermeddle with administrative matters and trouble administrative officers in the discharge of their duties. . . . Every act of the courts of justice which purports to oppose or arrest the action of the administration, being unconstitutional, shall be void and of no effect.” The principle thus established has been adopted by the successive governments that have ruled over France. Though nominally abolished at the inception of the third republic, the technical interpretation of the decree of repeal has been such as to render it ineffectual in practice. Theoretically dependent on the principle of distributed powers, it has really commended itself as a means of strengthening the hands of the executive government. Some writers have indeed sought to show that the administrative courts themselves afford a valid protection of individual liberty. But the bulk of the evidence seems to prove that the rights of the individual are of necessity sacrificed under a system in which the executive may be at one and the same time the aggressor and the judge of the aggression.
4. The Electorate: Evolution of So-called Universal Suffrage in Leading Countries. In speaking of the executive, legislative, and judicial branches of government, reference has frequently been made to the election of the officials of these departments by the people. Let us therefore conclude the discussion of the organs of government by a brief treatment of the electorate. The body thus designated is not identical with the whole body of citizens. A citizen means any individual member of a state, male or female, who owes it allegiance and who may claim its protection, but the electorate only includes those who under the suffrage laws of that particular state, enjoy the right to vote. The electorate, or voters, are sometimes spoken of as the “political people,” to distinguish them from those who have no direct legal share in the conduct of public affairs. The French constitution of 1791, anxious to harmonize the principle of popular sovereignty with a very restricted suffrage, spoke of their two classes as “active and passive citizens.”
The right of the general body of the people to vote for representatives to govern them is the corner stone of the free institutions of Great Britain and America. The origin of this representative government lies hidden at the very beginnings of Anglo-Saxon institutions. In Saxon England we find every township sending up an elected reeve and four men to represent it in the court, or general meeting, of the shire. It is presumed that in such early elections all free men had a part. But at the very beginnings of parliamentary government in England the right to vote tended to restrict itself to owners of land. This was only natural in a country like England in the fifteenth century, where wealth, social standing, and ownership of land were almost identical terms. A statute of Henry VI (1430) limited the right to vote in county elections to residents possessing a freehold worth forty shillings a year. The value of money having changed since the fifteenth century in a ratio of at least one to fifteen, this means a quite high property qualification. Although the clause requiring residence fell into disuse, this statute governed the franchise in the English counties for four hundred years. In the boroughs, too, the suffrage, though varying greatly from town to town, rested for the most part either on the possession of real estate or the payment of taxes. Thus it came about that in the course of time the right to vote became permanently associated with the holding of property. This political fact was accompanied, as is usually the case, by an explanatory political theory. The property-owner was viewed as having a stake in the community, and his vote was regarded as the consequence, not of his personal citizenship, but of his property. In the American states in the early years of their independence this theory was prevalent. The suffrage, and with it the right to be elected, rested on quite restrictive property qualifications. Even in Revolutionary France the first constitution (1791) included among its “active citizens” only those who paid annually a “direct tax equal at least to the value of three days’ labor.”
But the democratic ideas which worked themselves out in the philosophy of the eighteenth century and in the French and American revolutions gradually led to the dominance of a quite different view. This was the principle of (so-called) “universal suffrage,” or the right of all adult capable citizens to vote, by virtue of their being such, and irrespective of the holding of property. This doctrine was proclaimed by the Jacobins, or extreme republicans among the French revolutionists, though even among these only a minority considered that women should share in this “universal right.” The influence of the same theory was seen in America in the early part of the nineteenth century, when the states abandoned the principle of a property qualification, and moved nearer and nearer to manhood suffrage. In England too, where abstract political theories have but little weight, the practical injustice of the restricted franchise led to the long agitation culminating in the Parliamentary Reform of 1832. The various governments which have modeled themselves on those of Britain and the United States have adopted also the principle of universal suffrage.
In the democratic countries of to-day, the people entitled to vote represent a fraction of the population ranging from one fifth downwards. The general principle is that of the admission to the polls of all the adult male citizens of mental and moral capacity. The principle is extremely simple, and in some states is applied to the whole community by a single and comprehensive law. Thus, for example, in France, the law of July 7, 1874, grants the suffrage to all male citizens of France at least twenty-one years of age. Similarly the right to vote for members of the German Reichstag, the popular house of the imperial legislature, is granted by the constitution to all resident male citizens of the German Empire who have reached the age of twenty-five. In the United States, the suffrage, though extremely democratic both in principle and practice, is extremely complex in its legal details. The Constitution leaves the matter in the hands of the state governments; in voting for members of the federal House of Representatives, the voters (Constitution, art. i, § 2) “in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” To this is to be added the provision of the Fifteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The suffrage laws of the separate states, though all agree in excluding persons under twenty-one years of age, vary very much in reference to qualifications and exclusions. Four of the states (Colorado, Idaho, Utah, and Wyoming) grant the full suffrage to women. Most of them admit as voters only citizens of the United States; others grant the suffrage to aliens, otherwise qualified, who have declared their intention to become citizens. The term of necessary residence in the state previous to voting varies from three months (Maine) to two years (Alabama and others); so also does the requisite term of residence (if any) in county, town, or precinct. The general list of exclusions comprises insane persons, idiots, and felons. Most states exclude paupers, and some specifically exclude the Chinese (California, Nevada, Oregon). In several of the Southern states peculiar suffrage laws are found which are intended to circumvent the Fifteenth Amendment in order indirectly to prevent the negroes from voting. Thus in Louisiana the voting list comprises all citizens of the United States who are able to read, and write, or who own three hundred dollars’ worth of property assessed in their names, or whose fathers or grandfathers were entitled to vote on January 1, 1867.
