and THE EQUAL PROTECTION of the LAWS A Treatise Based, in the Main, on the Cases in Which By HANNIS TAYLOR Hon. LL. D. of the Universities of Edinburgh and Dublin and of eight Author of "The Jurisdiction and Procedure of the Supreme Court of the CHICAGO 1917 LIBRARY UNIVERSITY OF CALIFORNIA DAVIS The author dedicates this book HANNIS JOSEPH TAYLOR recently admitted to the bar, and through him to the new generation of American lawyers who will be called upon to defend the ancient constitutional guaranties imbedded in "the law of the land" against the persistent effort now in progress to substitute for them a bureaucratic system based on the deadly assumption that this is no longer a thorough government of law as contradistinguished to a government of functionaries."' Quamquam te, Marce fili, Cari sunt pa rentes, cari liberi, propinqui, familiares, sed omnes omnium caritates patria una complexa est, pro qua quis bonus dubitet mortem oppetere, si ei sit profuturus? Cicero, De Officiis, I, i, xvii. The principles embodied in the constitutional formulas-due process of law and the equal protection of the laws are the ultimate outcome of the progressive history of the English and American peoples considered as one unbroken development. The basic conception, whether it be called "due process of law" or "the law of the land," is purely an English creation which has no prototype in the constitutional history of any other country. As Lieber has expressed it, "The guaranty of the supremacy of the law [due process] leads to a principle which, so far as I know, it has never been attempted to transplant from the soil inhabited by Anglican people, and which, nevertheless, has been, in our system of liberty, the natural production of a thorough government of law as contradistinguished to a government of functionaries." Civil Liberty and Self-Government, 91. As thus defined, due process of law stands as the antipole of what the French jurists call droit administratif, which rests upon the assumption that in France the government and each of its servants possess a body of special rights and privileges as against private citizens to be fixed on principles different from those defining the legal rights and duties of one citizen towards another. Under that theory, speaking generally, the ordinary tribunals have no concern with administrative law (droit administratif) as applied by administrative courts (tribunaux administratifs), at the head of which stands the Council of State. Dalloz, Jurisprudence Générale, 1883, ii, p. 212; iii, p. 94; 1884, i, p. 220; Aucoc, Droit Admin |