482 the idea that the American judiciary has no peculiar functions to construe the laws. On the contrary, a reaction set in, even at the time of Jackson's re-election. It may be said that any judicial review of American history, from the Revolution to the Compromise of 1850, would be false if it did not record not only the predisposition of the American people to recognize a peculiar function in the judiciary to construe the laws, but also to accept the decision of a lawfully organized court as final. The fundamental rule was briefly put by Webster, that the law is the supreme rule for the government of all, and it may truthfully be said that the most serious shock which American political institutions could have received during the first seventy-five years of their history, would have been the violation of the confidence which the American people, during that time, put in their courts.

THE REACTION AGAINST JACKSONIANISM.

A distinguished English jurist has pointed out that administrative law, the droit administratif, for which English phraseology supplies no proper equivalent, is unknown to English judges and counsel; and he has shown with equal truth that in countries, which like the United States have derived their civilization from English sources, the system of administrative law and the very principle on which it rested are unknown.1 The term has made its appearance in recent years in America, and more particularly in institutions of learning, and has been used by some legal writers, but it was unknown to the American people during the period now under review. Administrative law, as defined by Mr. Dicey is "that portion of French law which determines the possession and

1A. V. Dicey, "The Law of the Constitution;" Chap. XII. See his discussion of the true nature of constitutional law in the first of his lectures introductory to the study of the law of the Constitution, pp. 1-34.

ADMINISTRATIVE LAW IN AMERICA.

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liabilities of all State officials; the civil rights and liabilities of private individuals in their dealings with officials as representatives of the State, and the procedure by which these rights and liabilities are enforced." In the United States the laws which regulated the conduct of public servants, from the Revolution to the Compromise of 1850, in no wise construed them a distinct class or imparted to them functions which in no sense were extralegal,-legally or essentially different from those exercised by others. Public servants were understood to be only agents of the sovereign body,—the people,—and were responsible only to that sovereignty.

The idea was fully expressed by George Mason in the Virginia Bill of Rights of 1776, when he said, that, all power is vested in the people and consequently derived from them, and that magistrates are their trustees and servants and at all times amenable to them. Mason's ideas were found in all the State constitutions of the eighteenth century, which were modeled on the Virginia plan, and the concept of public law which they embodied may be said to have been common to every thinking mind in the country. By the term magistrates must be understood all public servants. Thus in America all legal relations were interpreted under the constitution and the statute, or the common law, and no right or interest was in any way affected because of the administrative service which a party to that right or interest was under obligation to give otherwise than as interpreted by the laws of the land. The theory of the American Constitution was one of the separation of powers, and it was carried out in practice by the interpretation of executive, legislative and judicial powers, by the courts. But there was no law for the construction of the powers of the separate departments other than that provided by the Constitution and the legislature.

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AMERICA AND FRANCE COMPARED.

There was no administrative law of the Executive, of the Legislative or of the Judiciary, or of the so-called executive Departments. The practice of a department, if lawful, might be cited as a precedent in court, but no departmental rule was suffered to prevail, if contrary to the common law or of a statute. In this respect, government in the United States is entirely different from government in France, where the law of the civil departments is construed by the courts as ancillary to the law of France. From this it follows that French officials compose a body distinct from the electors on the one hand, and from the Legislature, the Judges and the Executive on the other. It also followed that the state in France did not mean what it meant in America. Here the state is subject, at least in theory, to the same tests of law and equity as the individual; and official position, with the possible exception of that of the President, does not screen the individual from the responsibilities which he would be under in a private station.

The supreme character of the Constitution was first exhaustively investigated and defined in a decision by ChiefJustice Marshall in 1819.1 The Convention of 1787 had assembled with the assent of the States, but the ratification of its work by the people was a final act, which, said Marshall, required no affirmance and could not be negatived by the State governments. "The Constitution when thus adopted was of complete obligation and bound the State sovereignties." But had not the people already surrendered all their powers to these sovereignties and had they any more to give? The question whether they might resume and modify the powers given to the government,

1

1 McCulloch vs. State of Maryland et al., 4 Wheaton, 316: confirmed by him in 1829, in Weston et al. vs. The Council of Charleston, 2 Peters, 449. (1829.)

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Marshall considered no longer unsettled. "Much more might the legitimacy of the general government be doubted. Had it not been created by the States? The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league, such as was the Federation, the State sovereignties were certainly competent; but when, in order to form a more perfect Union, it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then, is emphatically and truly a government of the people. In form and in substance it emanated from them, its powers are granted by them and are to be exercised directly on them and for their benefit. This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all these arguments which enlightened friends, while it was pending before the people, found it necessary to urge.

Marshall declared that the principle was already universally admitted, but that the question respecting the extent of the powers actually granted was perpetually arising and would probably continue to arise as long as our system existed. But he laid down another proposition, which he declared must command universal assent: "That the government of the Union though limited in its powers, is unlimited within its sphere of action. This would seem to result necessarily from its nature. It is the government

1 For these arguments see pp. 88, 97, 108, 109, 118, 120.

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of all; its powers are delegated to all; it represents all and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The Nation on those subjects on which it can act must necessarily bind its component parts." But the question was not left to mere reason, for the people had decided it in express terms, by saying that the Constitution and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, and by requiring members of the State legislatures and officers of the executive and judicial departments of the States to take the oath of fealty to it. "The government of the United States, then, though limited in its powers is supreme, its laws when made in pursuance of the Constitution form the supreme law of the land 'anything in the constitution or laws of any State to the contrary notwithstanding.'"

A constitution, said he, if it contained an accurate detail of all the subdivisions of which its great powers admit and of all the means by which they might be carried into execution, would partake of the prolixity of a legal code and could scarcely be embraced by the human mind. The public would probably never understand it. "Its nature, therefore," continued he, "requires that only its great outlines should be marked; its important objects designated and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” That this idea was entertained by the framers of the Constitution, he thought, not only to be inferred from the nature of the instrument but from its language. It did not profess to enumerate all the means by which the powers which it confers may be executed, nor did it prohibit the creation of a corporation, meaning a United States bank, if the existence of such a being was essen