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upon political institutions, says in chapter 12: countries, servants of the state are in their official capacity to a great extent protected from the ordinary law of the land, exempted from the jurisdiction of ordinary tribunals, and subject to official law administered by official bodies. This scheme of so-called administrative law is opposed to all English ideas. The words Administrative Law are unknown to English judges and counsel, and are in themselves hardly intelligible without further explanation. This absence in our language is significant. It arises from non-recognition of the thing itself. In England and in the countries which like the United States derive their civilization from English sources, the system of administrative law and the very principles upon which it rests are in truth unknown. When the highest authority declares in so explicit a manner that administrative law is impossible under the common law system, at all events one thing can be promised in this course of lectures—novelty of subject.
It is the more remarkable that administrative law has not been conceived of as a department of our public law when it is part of the legal system of every country of continental Europe. Droit administratif is under every country of the civil law a well ascertained branch of public law. Indeed foreign writers cannot imagine orderly government without administrative law. They assume it as indispensable that the administration should have its own body of law to govern in all its legal relations. The character of these administrative laws, they say, must be different from the private laws which govern between individuals. For the interest of the state is a determining factor. All dealings, in short, in which the rights of an individual in reference to the state or to administrative officers come in question—as also the process whereby such rights and liabilities are to be enforced—come within the contentieux adminis. tratifs. And this is necessary, says M. Vivien in his Droit Administratif, Chapter 1: There are required different principles, different procedure, different training of judges, special knowledge and experience, in fine, administrative justice can only be obtained by administrative law, and by the employment of the administrative process.
Now, political science is a universal science. However diverse in its manifestations, governmental power is the same in last analysis. Accordingly, there is no power exercised in any government which is not to be found in some form or other in every government. In every government there must be a department charged with the enforcement of the law. In the law of every state, therefore, there must be a body of rules in relation to the action of that department. In that sense at least, there must be an administrative law in the law of
In one state the administrative law may allow a large sphere of action to the executive department; in another state that law may allow a small sphere of action to that department. And that is indeed the fact; in the civil law system the law governing administration has a superior position to the law of the land; in the common law system the law governing administration has an inferior position to the law of the land. So wide is this distinction that it would be an impossible thing to import the civil law forms to classify the common law facts.
At the same time, since there is an administration which proceeds in accordance with a law in the common law system as well as in the civil law system, it ought to be obvious that administrative law has a place in the jurisprudence of every state. In this broad statement of the problem it is obvious that there is an administrative law in the United States. That law which governs the administration of law by public officers is the subject of these lectures. S2 Law for administration.
In a discussion of administrative law there is a first distinction to be taken which may be marked by the phrases the external law and the internal law. External administrative law deals with the relations of the administration or of officers with citizens. Internal administrative law is concerned with the relations of officers with each other, or with the administration. And yet in a way both of these branches of this law are involved in any motion of the administration, since the administration cannot act upon an external matter without internal direction. Together, the external law and the internal law make up the law of administration.
To such extent is this interaction of the external law upon the internal law and of the internal law upon the external law the fact, that cases arise where there is an apparent conflict between these laws. Suppose the superior officer commands the inferior officer to do a certain act—it is the internal law that every order must be obeyed. But suppose that the external law directs the officer not to do that act—it is the external law that every law must be obeyed. Now, how can this inferior officer obey both the internal law and the external law when the one commands action, and the other requires inaction, as to the same subject matter? There must be some solution to allow the officer to escape from the horns of such a dilemma.
That is the question where the law of the land commands and the law of the administration demandswhich? There are the two possibilities. As a first inquiry let it be asked whether in such a conflict the order of the superior officer will prevail. A case that involves that is Hendricks v. Gonzales, 67 Fed. 351 (1895). This was an action by a charterer of a vessel against the Collector of the Port of New York to recover damages for the detention of the steamer by refusal to give clearance papers. The facts brought to the attention of the collector were that the cargo consisted wholly of arms and munitions of war; and that she was bound to a port near the base of operations of the Venezuelan insurgents. Upon report to Washington, the Secretary of Treasury ordered the vessel to be held. The judge submitted to the jury the question of fact whether the defendant had reasonable cause to believe that the vessel was intended to be used in the hostilities; if he had, in fact, he was entitled to a verdict. Error was assigned because of the refusal of the trial judge to rule that the defendant was exonerated from liability for his acts by the instructions of the Secretary of Treasury.
WALLACE, the Circuit Judge, stated the judgment thus: The questions presented by the assignments of error seem free from doubt. The plaintiff having complied with the conditions entitling him to clearance, it was the duty of the defendant as collector of the port, to grant a clearance for the vessel and her cargo, unless he was justified in refusing to do so by some other statutory authority. Neither the Secretary of the Treasury nor the President could nullify the statute, and though the defendant may have thought himself bound to obey the instructions of the former, his mistaken sense of duty could not justify his refusal of the clearance, and these instructions afforded him no protection unless they were authorized in law.
One feels a conflict of rights and duties in this decision. On the one hand the collector is bound by the internal law of administration to obey his superior in the administration; on the other hand the collector is bound by the external law of the land to the shipmaster. And in that conflict the law of the land is held the superior law. This is an illustration of the supremacy of the law of the land; no test shows more how the law of the land dominates the situation in administration in countries under the common law. The order of the superior is no defense because it is not recognized as of any value when there is positive law of the land to the contrary. The law of the land—the external law-overrules the law of the administration—the internal law.
This solution is for the extreme case where the duty to be performed is purely ministerial. If in the duty to be performed something is left to discretion this solution is reversed. In any estimate of the situation a case like In re Fair, 100 Fed. 149 (1900), must be stated in order that any extreme doctrine may be qualified. One Morgan, a prisoner in a United States military prison,