CHAPTER IV THE RULE OF LAW: ITS NATURE AND GENERAL APPLICATIONS IV. The Rule of Law. Two features have at all times since the Norman Con- Chapter quest characterised the political institutions of England. The first of these features is the omnipotence or 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 commencement,' 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 foregoing chapters.2 The second of these features, which is 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 in 1 Year Books, xxiv. Edward III.; cited Gneist, Englische Verwaltungsrecht, i. p. 454. 2 See Part I. Part II. The rule of law in England heritance, que le roy ad; car par la ley il même et toutes ses sujets sont rulés, et si la ley ne fuit, nul roi, et nul inheritance sera." This supremacy of the law, or the security given under the English constitution to the rights of individuals looked at from various points of view, forms the subject of this part of this treatise. 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 Englishobservers. men themselves with the fact that England is a foreign De Tocque want of respect for 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 feeling 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 manners. 6 When you "I am not about," he writes, "to compare Switzerville on the land with the United States, but with Great Britain. examine the two countries, or even if you only pass through them, you perceive, in my judg"ment, the most astonishing differences between them. "Take it all in all, England seems to be much more re law in Switzer land and contrast with Eng land. 66 publican than the Helvetic Republic. The principal differences are found in the institutions of the two "countries, and especially in their customs (maurs). 66 "1. In almost all the Swiss Cantons liberty of the press is a very recent thing. "2. In almost all of them individual liberty is by no means completely guaranteed, and a man may be 1 Year Books, xix. Henry VI., cited Gneist, Englische Verwaltungsrecht, i. p. 455. "arrested administratively and detained in prison Chapter "without much formality. 66 "3. The Courts have not, generally speaking, a perfectly independent position. "4. In all the Cantons trial by jury is unknown. "5. In several Cantons the people were thirtyeight 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 selfgovernment, 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 66 66 66 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 right of associa"tion is but little understood in Switzerland. "iv. The Swiss do not show the love of justice "which is such a strong characteristic of the English. "Their Courts have no place in the political arrange IV. Part II. "ments of the country, and exert no influence on public opinion. The love of justice, the peaceful " and legal introduction of the judge into the domain "of politics, are perhaps the most standing character"istics of a free people. Bearing of "v. Finally, and this really embraces all the rest, "the Swiss do not show at bottom that respect for justice, that love of law, that dislike of using force, "without which no free nation can exist, which strikes strangers so forcibly in England. 66 "I sum up these impressions in a few words. Whoever travels in the United States is involuntarily and instinctively so impressed with the fact "that the spirit of liberty and the taste for it have pervaded all the habits of the American people, that "he cannot conceive of them under any but a Repub"lican government. In the same way it is impossible "to think of the English as living under any but a free government. But if violence were to destroy the Republican institutions in most of the Swiss Cantons, "it would be by no means certain that after rather a "short state of transition the people would not grow "accustomed to the loss of liberty. In the United "States and in England there seems to be more liberty "in the customs than in the laws of the people. In "Switzerland there seems to be more liberty in the "laws than in the customs of the country.' De Tocqueville's language has a twofold bearing ville's re- on our present topic. His words point in the clearest marks on manner to the rule, predominance, or supremacy of law as the distinguishing characteristic of English institutions. They further direct attention to the meaning of rule of law. 1 See De Tocqueville, Œuvres Complètes, viii. pp. 455-457. |