490
THE GREEN BAG
system, any official, no matter whether a minister, a prefect, or a policeman, com mits any official act in excess of his legal authority, the rights of the individual aggrieved and the. mode in which these rights are to be determined are questions of droit administratif which is administered by administrative courts (tribunanx administratifs) at the head of which stands the Council of State. To illustrate from recent events in France growing out of the con flicts between church and state: Suppose a policeman acting under the orders of his superiors, breaks into a monastery and, after seizing the property of its inmates, expels them from the house. When he is charged with acts which in English law would be called trespass and assault, he pleads that he is acting under government orders in execution of a decree dissolving certain religious societies. When the police man in question is brought before an ordi nary civil court and threatened with the ordinary law of the land, as he would be in any country subject to Anglican law, an ob jection is raised at once that the civil courts have no jurisdiction of such a case. The "conflict" which thus arises is not determinable however by the ordinary judges because in that event they would be allowed to pronounce a final judgment on the limits of their own authority in defiance of that principle of French law which declares that "administrative bodies must never be troubled in the exercise of their functions by any act whatever of the judicial power." To meet such contingencies there exists in France a Tribunal des Conflits, a court for the settlement of conflicts of jurisdiction, whose special function is to determine finally whether in a given case, say an action against a policeman for such a trespass and assault as has been described, comes within the juris diction of the civil courts, or of the adminis trative courts. If within the jurisdiction of the latter then the administrative law, unknown to Anglican countries, at once supersedes what we call the law of the land.
In the light of the foregoing contrast it will be easier to comprehend, I trust, Lieber's declaration that the "guarantee of the supremacy of the law leads to a principle which, so far as I know, it has never been attempted to transplant from the soil in habited by Anglican people, and which nevertheless has been in our system of lib erty the natural production of a thorough government of law, as distinguished from a government of functionaries." Let us glance for a moment at the historical origin of this supremacy of the law as embodied in what we call the law of the land to which the high and low are subject in the ordinary tribunals. Upon that rock has been built the constitutional church in England and the United States. The group of Low Dutch tribes from the neck of the Danish peninsula, out of whose union arose the English people, transferred to Britain that rough yet vigor ous system of political, judicial, and military organization which everywhere prevailed among the Teutonic tribes of the fatherland. Whenever a district of country was won from the native race, the conquerors en camped upon the soil; and then, after divid ing the land upon the basis of that peculiar system that rested at once on military and tribal divisions, they organized self-govern ing communities which became nurseries of English customary law. Just as the English language is the outcome of the fusion of the dialects spoken in those local communities, so English customary law, as a distinct and entire code, is the outcome of the fusion of the customary or popular law developed therein. The primitive system of law which thus matured in the provincial courts of the English people, like all archaic law, took on an iron rigorism of form which rendered it unelastic. Its entire inadequacy to the wants of a progressive society never became apparent, however, until the Norman Con quest drew England into the march of con tinental nations. The most important single outcome of that event was the centraliza tion of justice through the establishment of
