Introduction to the Study of the Law of the Constitution

Chapter IV: The Rule of Law: Its Nature and General Applications

Law_101-150.indd 107 1/27/12 1:20 PM The Rule of Law. Chapter IV THE RULE OF LAW: ITS NATURE AND GENERAL APPLICATIONS Two features have at all times since the Norman Conquest 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,"1 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 inheritance, que leroy ad; car par la ley it meme et toutes ses sujets sont rules, et si la ley nefuit, nul roi, et nul inheritance sera."3 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. r Year Books, xxiv. Edward III.; cited Gneist, Englische Venvaltungsrecht, i. p. 454· 2 See Part I. 3 Year Books, xix. Henry VI., cited Gneist, EnglischeVenvaltungsrecht, i. p. 455· CHAPTER IV Law_101-150.indd 108 1/27/12 1:20 PM The rule of law in England noticed by foreign observers. Tocqueville on tlie want of respect for law in Switzerland and contrast with England . LAW OF THE CONSTITUTION Foreign observers of English manners, such for example as Voltaire , De Lolme, Tocqueville, 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; and admiration or astonishment at the legality of English habits and feeling is nowhere better expressed than in a curious passage from Tocqueville's writings, which compares the Switzerland and the England of 1836in respect of the spiritwhich pervades their laws and manners. He writes: I am not about to compare Switzerland4 with the United States, but with Great Britain. When you examine the two countries, or even if you only pass through them, you perceive, in my judgment, the most astonishing differences between them. Take it all in all, England seems to be much more republican than the Helvetic Republic. The principal differences are found in the institutions of the two countries, and especially in their customs (moeurs). 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 arrested administratively and detained in prison without much formality. 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 thirty-eight 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 the taste or desire for self-gavernment, 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 associations from much the same point of view as the French, that is to say, they consider them as a means 4 Many of Tocqueville's remarks are not applicable to the Switzerland of 1902; they refer to a period before the creation in 1848 of the Swiss Federal Constitution. PART /I 108 [18...