cidence with reference to a precisely similar right, and vice CHAP. XVI.

versa.

The rules contained under the fifth and sixth heads of our arrangement are rules of Public law, because they relate to the rights of the State; but they approximate closely to rules of Private law, because they relate to the State merely as the greatest of artificial persons, and not as governing, administering, or preserving order.

It is beyond the scope of the present treatise to attempt more than a very brief indication of the topics included under each of the six heads under which we have distributed the matter of Public law.

tional Law.

I. The primary function of Constitutional law is to as- Constitucertain the political centre of gravity of any given State. It announces in what portion of the whole is to be found the 'internal sovereignty,' 'suprema potestas,' 'Staatsgewalt,' or, as Aristotle called it, Tò Kúpιov TS Tóλews1. In other words, it defines the form of government.

The sovereign part of the State, as thus ascertained, is The Sovereign omnipotent. Since it is the source of all law, its acts can power. never be illegal. As little can they be, strictly speaking, unconstitutional. The latter term is properly applied only to characterise an act of an inferior political authority in excess of its delegated powers. Thus a statute passed by the Congress of the United States may be unconstitutional, because the sovereign people has empowered the President and Congress to legislate only subject to certain reservations, and has entrusted to a Supreme Court the duty of deciding whether any given enactment is or is not made in pursuance of the restricted powers thus delegated; but the authority of the Queen, Lords, and Commons in England is fettered by no such limitation. An act is, strictly speaking, never unconstitu

1 Polit. iii. 1o. 10. Πολιτεία μὲν γάρ ἐστι τάξις ταῖς πόλεσιν ἡ περὶ τὰς ἀρχάς, τίνα τρόπον νενέμηνται, καὶ τί τὸ κύριον τῆς πολιτείας καὶ τί τὸ τέλος ἑκάστης τῆς κοινωνίας ἐστίν. Ib. iv. I. Io. Cf. supra, p. 42.

CHAP. XVI. tional unless it is also illegal, and can never be either if it is the act of the sovereign power. Only in a lax sense of the term is it permissible to describe as unconstitutional acts of the sovereign power which run counter to the expectations and political usage of the inhabitants of a country.

Its factors.

It enumerates

The definition of the sovereign power in a state necessarily leads to the consideration of its component parts. The distinction between legislative, executive, and judicial functions is as old as Aristotle1; but it was left for Montesquieu to point out the importance of these several functions being discharged by distinct groups of persons 2. With reference to all these questions constitutional law enters into minute detail. It prescribes the order of succession to the throne; or, in a Republic, the mode of electing a President. It provides for the continuity of the executive power 3. the 'prerogatives' of the king, or other chief magistrate. It regulates the composition of the Council of State, and of the Upper and Lower Houses of the Assembly, when the Assembly is thus divided; the mode in which a seat is acquired in the Upper House, whether by succession, by nomination, or by tenure of office; the mode of electing the members of the house of representatives; the powers and privileges of the assembly as a whole, and of the individuals who compose it; and the machinery of law-making. It deals also with the ministers, their responsibility and their respective spheres of action; the government offices and their organisation; the armed forces of the State, their control and the mode in which they are recruited; the relation, if any, between Church and State 4; the judges and their immunities; their power, if any,

1 Polit. iv. II. I.

2 Esprit, xi. c. 6.

3 With the maxim 'the King never dies,' cf. 'Sedes Apostolica non moritur.' c. 5. de rescr. in Sext. 1. 3.

Ecclesiastical is sometimes coordinated with Public and Private law. 'Nam et genera [legum] sunt tria, sacri, publici, privati iuris.' Quint. ii. 4. Cf. Ius triplex tabulae quod ter sanxere quaternae,

Sacrum, privatum, populi commune quod usquam est.' Auson. Id. xi. 61.

of disallowing as unconstitutional the acts of non-sovereign CHAP. XVI. legislative bodies; local self-government; the relations between the mother-country and its colonies and dependencies. It describes the portions of the earth's surface over which the sovereignty of the State extends, and defines the persons who are subject to its authority. It comprises therefore rules for the ascertainment of nationality 1, and for regulating the acquisition of a new nationality by naturalisation.' It declares the rights of the State over its subjects in respect of their liability to military conscription, to service as jurymen, and otherwise. It declares, on the other hand, the rights of the subjects to be assisted and protected by the State, and of that narrower class of subjects which enjoys full civic rights to hold public offices and to elect their representatives to the Assembly, or Parliament, of the Nation. Among the circumstances which may disqualify a subject for citizenship are minority, infamy, heresy, colour, lack of settled abode, insufficiency of income, and also sex, for in spite of the tendency of modern thought upon this subject, there are still those who say, 'die Politik ist Sache des Mannes 2.

A constitution has been well defined as 'l'ensemble des institutions et des lois fondamentales, destinées à règler l'action de l'administration et de tous les citoyens 3.' It is often, as in England, an unwritten body of custom, though, since the assertion of the 'rights of man' which preceded the French Revolution, the written enactment of such fundamental principles has been not uncommon, as well on the European continent as in America. A written constitution usually contains provisions which make innovation less easy than in the case of customary constitutions, such as that of

1 M. Cogordan, La Nationalité, p, 2. points out the recent origin of this term, and that it appears in the Dictionnaire de l'Académie française for the first time in 1835.

2 Bluntschli, Die Lehre vom Modernen Staat, i. p. 246.

3 Ahrens, Cours, iii. p. 380.

CHAP. XVI. England, any part of which may be modified by an ordinary act of Parliament1.

The contents of the constitutional branch of law may be illustrated by reference to a piece of proposed legislation, which enters far more into detail than is usual in such undertakings. The draft Political Code of the State of New York purports to be divided into four parts, whereof The first declares what persons compose the people of the State, and the political rights and duties of all persons subject to its jurisdiction: the second defines the territory of the State and its civil divisions: the third relates to the general government of the State, the functions of its public officers, its public ways, its general police and civil polity: the fourth relates to the local government of counties, cities, towns, and villages.' The Code begins with an announcement that 'the sovereignty of the State resides in the people thereof,' and the people is said to consist-1. of citizens who are electors; 2. of citizens not electors.'

The constitutions of federal governments, such as those of the United States or Switzerland, contain provisions upon many topics of private law, such as respect for property and contracts. The reason being, as has well been stated, that 'certain principles of policy or justice must be enforced upon the whole confederated body as well as upon the separate parts thereof, and the very inflexibility of the constitution tempts legislators to place among constitutional articles maxims which (though not in their nature constitutional) have special claims upon respect and forbearance?.'

1 Ahrens, Cours, iii. p. 381. Mr. Bryce has suggested the use of the terms 'rigid' and 'flexible' to express this distinction. See Dicey, Law of the Constitution, p. 84, and Professor Dicey's own instructive and ingenious applications of the distinctions, ib. pp. 114-125.

2

Dicey, Law of the Constitution, p. 139. It is thus that questions such as those raised in the Dartmouth College case, supra, p. 209 n., are brought before the Supreme Court.

Administrative

II. The various organs of the sovereign power are described CHAP. XVI. by constitutional law as at rest; but it is also necessary that they should be considered as in motion, and that the manner Law. of their activity should be prescribed in detail. The branch of the law which does this is called Administrative law, 'Verwaltungsrecht,' in the widest sense of the term. In this sense Administration has been defined as 'the exercise of political powers within the limits of the constitution ',' as 'the total concrete and manifoldly changing activity of the State in particular cases 2,' and as 'the functions, or the activity, of the sovereign power 3.'

sense.

Different views are taken as to the topics which are included Its widest under this very wide conception. It may fairly be said to include the making and promulgation of laws, the action of the government in guiding the State as a whole, the administration of justice, the management of the property and business transactions of the State, and the working in detail, by means of subordinates entrusted with a certain amount of discretion, of the complex machinery by which the State provides at once for its own existence and for the general welfare.

Administrative law, as thus conceived of, is not a coherent Its more specific body of doctrine, and it is convenient so to specialise the use sense. of the term as to apply it only to two of the five abovementioned topics. Of the rest, legislation and executive government are more fitly treated of under those chapters of Constitutional law which deal with the legislature and the sovereign; the rules for the administration of justice must be sought, so far as they provide for the organisation of the courts, under Constitutional law, so far as they govern civil procedure, under Adjective Private law, and so far as they govern crimes and criminal procedure, under those heads of Public law, namely the third and fourth, which we devote specifically to those topics; while the law relating to the

1 Ahrens, Cours, ii. p. 380.

Bluntschli, u. s. iii. p. 465.

› Pütter, apud Holzendorff, Encyclopädie, Erster Theil (ed. i.), p. 695.