What is a reign of law? are real enough, in so far as men recognize and act upon them. But unless the state also recognizes them and thereby transforms them into civil rights, they form no part of the liberty, that is, the political liberty, of the people of the state. The laws of nature and the moral law serve to limit the authority of political sovereigns, but they do not enter into that process by which the rights of men are secured in modern states through the reign of law. In the United States, for example, the Declaration of Independence proclaims certain "inalienable," that is, natural rights. The consciousness of these natural rights profoundly influences the conduct of public affairs on behalf of the American people. But the rights derived from the law of nature do not enter into the administration of legal justice unless written into the law of the land by the lawmaking organs of government. If not formally incorporated into the law of the land, they merely serve as good advice for good Americans, to be followed or not at their discretion. The reign of law, which secures the blessings of liberty, is the reign of civil law. The reign of law may take different forms in different states. In ancient times the authority of the Roman law at the height of the Empire afforded the best illustration of a reign of law, and the influence of that example, as well as the content of the Roman law itself, has greatly affected the development of political ideas in modern times, especially in the continental states of Western Europe. But the first modern state to put effectual checks on the arbitrary power of rulers, and thereby to establish the supremacy of the law in the administration of justice, was England. 2 In England, according to the eminent English jurist, Sir Albert V. Dicey, "when we say that the supremacy or of the law: of the law of the rule of law is a characteristic of the English constitution, Three we generally include under one expression at least three meanings distinct though kindred conceptions." And he proceeds reign of to explain the nature of these different meanings of a single expression. "It means, in the first place, the absolute First, the supremacy or predominance of regular law as opposed to supremacy the influence of arbitrary power, and excludes the existence ordinary of arbitrariness, of prerogative, or even of wide discre- land tionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else." It may be urged in criticism of this explanation that the power to punish for a breach of law confers upon some authority, judicial or other, the duty of ascertaining the fact of guilt and of exercising some discretion concerning the infliction of the prescribed penalties. After all is said, laws are administered by men, and may there not be ample room for arbitrariness in the process of administration? Dicey anticipates such criticism by explaining further that no man is punishable even for a distinct breach of the law unless that fact is established "in the ordinary legal manner before the ordinary Courts of the land." Thus the reign of law means, in the first place, not only the supremacy of the rules of conduct, which have been incorporated into the law of the land, but also the observance by public officers charged with the enforcement of the law of those processes which have been duly established for that purpose. example of The greater part of Dicey's highly instructive Introduc- The tion to the Study of the Law of the Constitution is devoted Great to a detailed explanation of the nature of the processes of 1 Introduction to the Study of the Law of the Constitution, 8th edition, p. 183. 2 Ibid., p. 198. 3 Ibid., pp. 183-184. Britain Arbitrary government in France under the ancien régime law and the manner in which they operated in England before the World War. He makes it clear how Englishmen came to possess that sense of security against arbitrary rule and oppression which Montesquieu had noted a century and a half earlier and proclaimed abroad as the essence of English liberty. Modern Englishmen, Dicey admits, may feel some surprise that the reign of law, in the sense in which he is using the term, should be considered as in any sense a peculiarity of English institutions, "since at the present day it may seem to be not so much the property of any one nation as a trait common to every civilized and orderly state." This surprise, however, will disappear, if they will look back to the time when the English constitution first began to be criticized and admired by foreign thinkers like Montesquieu. During the eighteenth century, as Dicey points out, many of the continental governments were far from oppressive, but there was no continental country where men were secure from arbitrary power. "The singularity of England was not so much the goodness or the leniency as the legality of the English system of government." Dicey cites in illustration of this judgment the protracted struggle of the eminent authors of the Encyclopédie to obtain utterance for their thoughts, and the remarkable experiences of the great French philosopher, Voltaire. 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. In 1725, when he was the literary hero of his country, he was lured from the table of a duke, whose guest he was, and thrashed by lackeys in the presence of their noble master. He was unable to obtain redress of any kind, and because he complained of this outrage, he paid a second visit to the Bastille. Later in the century the Encyclopedists were compelled to wait twenty-two years for permission to publish their celebrated work. Dicey shrewdly remarks that "it is hard to say whether the difficulties or the success of the contest bear the strongest witness to the wayward arbitrariness of the French Government." of the fall of the Bastille Dicey's discussion of the general character of govern- Significance ment on the Continent of Europe at this period is particularly illuminating. "Nor let it be imagined," he wrote, "that during the latter part of the eighteenth century the government of France was more arbitrary than that of other countries. . . . In France law and public opinion counted for a great deal more than in Spain, in the petty states of Italy, or in the Principalities of Germany. All the evils of despotism which attracted the notice of the world in a great kingdom such as France existed under worse forms in countries where, just because the evil was so much greater, it attracted the less attention. The power of the French monarch was criticized more severely than the lawlessness of a score of petty tyrants, not because the French King ruled more despotically than other crowned heads, but because the French people appeared from the eminence of the nation to have a special claim to freedom, and because the ancient kingdom of France was the typical representative of despotism. This explains the thrill of enthusiasm with which all Europe greeted the fall of the Bastille. When the fortress was taken, there were not ten prisoners within its walls; at that very moment hundreds of debtors languished in English goals. Yet all England hailed the triumph of the French populace with a fervor which to Englishmen of the twentieth century is at first sight hardly comprehensible. Reflection makes. clear enough the cause of a feeling which spread through the length and breadth of the civilized world. The Bastille was the outward and visible sign of lawless power. Its fall was felt, and felt truly, to herald in for the rest The reign of law of Europe that rule of law which already existed in England." The reign of law, according to Dicey's first meaning of the term, now exists not only in England and in all the dominions and dependencies of the Empire where the supremacy of the law of the realm is recognized, but also in many other modern states. An indication of at least a purpose to maintain a reign of law is afforded by the adoption of a written constitution. Definite methods may thus be provided for the enactment of rules of conduct into law and settled processes established for the actual administration of justice. An early expression of such a purpose, which is often cited, is the famous Mayflower Compact, adopted by the Pilgrim Fathers in the cabin of their ship, while it was lying off Cape Cod. But the Pilgrim Colony at Plymouth was not an independent state: it was merely a kind of local government. The first modern experiment in government under a written constitution on any considerable scale was that of the Puritan Commonwealth in the time of Oliver Cromwell. By means of the Instrument of Government, which Cromwell had had prepared, he sought in 1653 to convert his arbitrary rule into a reign of law. That experiment failed, and Englishmen did not again try to incorporate the fundamental laws of their realm into a single written document. Modern constitutional government was clearly foreshadowed by the Bill of Rights, which the English Parliament adopted in 1689, and the Act of Settlement, adopted in 1701, but actually began in the most approved form with the adoption of constitutions in the United States during the American Revolution. In 1789 the French Revolutionists introduced the written constitution to the Continent of Europe, and since then several hundred written constitutions have been adopted in all parts of the 1 Dicey, Introduction to the Study of the Law of the Constitution, 8th edition, pp. 187-188. |