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CHAP. XVI. of disallowing as unconstitutional the acts of non-sovereign 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, 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 the edition of 1835.

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

Ahrens, Cours, iii. p. 380.

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

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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. 210 n., are brought before the Supreme Court.

CHAP. XVI.

Administrative Law.

Its widest sense.

Its more

specific

sense.

II. The various organs of the sovereign power are described by constitutional law as at rest; but it is also necessary that they should be considered as in motion, and that the manner 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.'

Different views are taken as to the topics which are included 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 body of doctrine, and it is convenient so to specialise the use 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.

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

State property and its business transactions would be found CHAP. XVI. in the fifth and sixth of our heads of public law.

functions.

Administrative law, in the specific sense of the term, which Its is identical with that in which some German writers employ the term 'Polizei,' deals with such topics as the following:i. The collection of the Revenue.

Revenue.

forces.

ii. The recruitment, equipment, and control of the Army Armed and Navy; Ship-building and Fortifications.

iii. The government of Colonies and Dependencies.

Dependencies.

iv. The collection of statistics; the registration of births, État civil. deaths, and marriages ('état civil')1 and of conveyances and mortgages of land; the custody of wills; the naturalisation of aliens; the granting of charters to corporations.

welfare.

v. The promotion of the material welfare of all the in- Material dividuals of whom the State is composed, either by the prevention of evil or the production of good. Among the operations carried on by State functionaries for this purpose are the following:

1. Measures of sanitary precaution, such as the organisation of drainage, the inspection and even destruction of unhealthy dwellings, the regulation of dangerous undertakings, such as mining, and of unwholesome trades; the inspection of ships; the prevention of the employment of women or children in certain occupations, or for more than a certain number of hours; quarantine; vaccination; the supply of pure water; the prevention of the adulteration of articles of food and drink 2.

2. The regular working of a poor-law, or the exceptional working of relief works and doles in time of famine.

1 In France this is dealt with as a matter of private law, in the Code Civil. 2 Mr. Traill has well remarked that whenever the modern state has thought fit to depart from the system of laissez-faire, it has not been content with merely commanding the citizen to do certain things, but has itself seen to his doing them. Central Government, p. 158. For a thorough-going protest against government inspection, see Mr. Herbert Spencer's The Man versus the State.

CHAP. XVI.

Moral

welfare.

Self-government.

Admini

strative jurisdiction.

3. The visitation of lunatic asylums and nunneries.

4. The protection of the coinage and the inspection of weights and measures.

5. The supervision of professions and trades.

6. The collection of information as to foreign commerce; the supervision of banks, insurance societies, and companies generally.

7. The supervision of roads, railways, canals, telegraphs, and posts.

8. The maintenance of lighthouses, harbours, sea-walls, and dykes.

9. The preservation of order, the detection of crime, and the management of prisons.

vi. The promotion of the intellectual and moral welfare of the public generally, by such measures as :

1. The organisation of schools, and the sustentation of museums and libraries.

2. The prevention of Sunday trading, the supervision of places of amusement, and the licensing of plays.

It must be remembered that much of this work, except in very highly centralised States, is entrusted to local authorities, often to the same authorities who also exercise an inferior criminal jurisdiction.

Disputed questions of administrative law, or cases of refusal to comply with its rules, are in England usually in minor matters brought before a justice of the peace. More serious questions are tried in the superior courts. Although military and ecclesiastical discipline is enforced by Courts martial and Courts christian, no person is by virtue of his official position exempted from the jurisdiction of the Common law. But it is maintained by some writers that questions affecting official persons, as such, should be exclusively decided by special tribunals, which accordingly exist in many countries, with a hierarchical organisation. An appellate Verwaltungsgerichtshof' was, for instance, estab

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