this sphere, powers denied him by judicial decision, or upon exercising his rightful powers in a manner forbidden by such decision, there is no remedy provided in the constitution unless it be impeachment.1 Should the legislative and executive powers conspire against the judiciary, or the legislature fail to hold the executive to his duty by impeachment, the sovereignty within the constitution may be appealed to, so to amend the constitution as to prevent the nullification of its intent by its governmental servants. It is difficult to see how the guaranty of individual liberty against the government itself could be made more complete. Its fundamental principles are written by the state in the constitution; the power to put the final and authoritative interpretation upon them is vested by the state in a body of jurists, holding their offices independently of the political departments of the government and during their own good behavior; while finally, recourse to the sovereign itself is open if all other defenses fail.

This is the special point in which the constitutional law of the United States is far in advance of that of the European states. Of the three European constitutions which we are examining, only that of Germany contains, in any degree, the guaranties of individual liberty which the constitution of the United States so richly affords. The German imperial constitution has made a beginning in this direction, but only a beginning. A few of the rights and immunities belonging in this domain are written in the constitution itself by the act of the sovereign, the state.2 No department of the imperial government, therefore, can legally violate them. But the ultimate power of interpreting these rights and immunities is not vested by the constitution in the imperial judiciary. In fact, the imperial judiciary is not created by

1 Constitution of the United States, Art. II, sec. 4.

2 Reichsverfassung, Art. 3.

Laband, Das Staatsrecht das deutschen Reiches, I. Band, S. 551 ff.

the constitution at all. It owes its existence to a statute of the imperial legislature. It is therefore unable to stand between the legislature and the individual in the interpretation of the constitution. The legislative interpretation is the more ultimate. It is not certain that it can stand between the executive and the individual in the interpretation of the constitution. The most reliable commentator upon the German constitution ascribes to the Emperor the power of final interpretation of the constitutionality of the laws.2 Neither, again, has the imperial legislature the power to impeach the executive for encroaching upon the sphere of individual liberty guaranteed by the constitution. Lastly, there is no way provided in the constitution for the initiation of an amendment to the constitution, save through the agency of the imperial legislature itself.3 Constitutionally, then, the immunities of the individual as against the powers of the imperial legislature and executive taken together are nothing; as against the acts of the legislature and executive they are what these bodies resolve to allow them to be. This does not mean that the individual has no liberty in the German state. The legislature and executive have created for him a sphere of freedom, and have made it very nearly coextensive with the same domain in the United States. It simply means that the guaranties to the individual against the government itself are still wanting. It means that he is still exposed to the possible caprice and tyranny of the legislative and executive powers. It means that almost the whole power of the state over against the individual is still vested in the government. It means that the distinction between state and government is still in its infancy in this system.

In the French system there is not the slightest trace of a

1 Gerichtsverfassungsgesetz, 1877.

2 Laband, Das Staatsrecht des deutschen Reiches, I. Band, S. 549 ff.
3 Reichsverfassung, Art. 78.

constitutional guaranty of individual liberty.1 The legislative power is the ultimate interpreter of the constitution;2 and the machinery for amending the constitution can be set in motion only by the legislature. Moreover, the executive power appoints and removes at pleasure those quasi-judicial persons who decide controversies which arise between the individual and the government in the course of the administration of the law. The regular judicial power in France is created by the legislature, and the judges hold by a tenure and for a term designated by the legislature. The legislature may, therefore, abolish the judicial department or modify the tenure and term of the judges in any manner which it may choose or fancy. Moreover, the ordinary judiciary has, as above indicated, no general jurisdiction over controversies in which the administration is a party. The individual has thus generally but one recourse in case of a denial of his liberty by the administration, and that is to the legislature. The legislature cannot impeach the President in defense of the individual immunity, unless the act of the administration in violating the same amounts to high treason in the President; 5 but it may cause a change of ministry at its will, and it may impeach the ministers in case their acts in violation of the said immunities amount to crimes. Against the legislature itself, however, the individual has no defense. This does not mean that the individual has no liberty in France. In fact, the individual enjoys very nearly the same liberty there as here. It means simply that the guaranties of individual liberty against the powers of the government itself are entirely wanting. It means that in regard to this

1 Lebon, Das Staatsrecht der französischen Republik, S. 27.

2 Ibid. S. 23.

3 Loi relative à l'organisation des pouvoirs publics, 25-28 fevrier, Art. 8.

4 Lebon, Das Staatsrecht der französischen Republik, S. 78.

5 Loi relative à l'organisation des pouvoirs publics, 25-28 fevrier, 1875, Art. 6, §§ 1 and 2; Loi constitutionelle sur les rapports des pouvoirs publics, 16-18 juillet, 1875, Art. 12, § 2.

subject the whole power of the state is vested in the government. It means that the distinction between state and government is, in this respect, wholly wanting.

In the English system, while there are no constitutional guaranties of individual liberty against the Parliament, either when it acts as constituent assembly or when it acts simply as legislature, the individual has the defense of the regular courts, i.e. of the independent judiciary, against executive encroachments upon his liberty. The Parliament is the source both of individual liberty and of the courts, and cannot be limited or restrained by either. The Parliament has by statutes marked out a large domain of liberty for the individual; and has made the judiciary the special guardian of this domain, by freeing the judicial tenure from the executive power. But the Parliament may by statute sweep away every vestige of this liberty, if it will, and abolish the judiciary; and it may, furthermore, cause the removal of any judge either by impeachment or by address to the Crown. It is true, as I have demonstrated, that the Parliament, when acting as the state, is somewhat differently organized than when acting simply as legislature; i.e. that the Commons have a supremacy over the Lords and the King in the former case, while in the latter there is parity of powers between them; but this difference does not furnish the individual with an independent way of appeal to the state against the legislature. The appeal must be made through the body against which it is made. The trouble here again is that the whole power of the state is vested in the government, and that no sufficient distinction is made between the state and the government.

It will thus be seen that individual liberty is really a part of constitutional law in the system of the United States only. In all the other systems it is substantially statutory, Germany alone having made any progress, in this respect, out of the old system of governmental absolutism. I dwell

upon this point, for it is the point in which the great advance of the American idea over the European, in the development of constitutional law, is most distinctly manifested. I dwell upon it, furthermore, because I desire to explain, at the outset, why in the discussion of this topic I shall devote myself almost exclusively to the consideration of the constitution of the United States.