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قراءة كتاب Popular Law-making A study of the origin, history, and present tendencies of law-making by statute

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‏اللغة: English
Popular Law-making
A study of the origin, history, and present tendencies of law-making by statute

Popular Law-making A study of the origin, history, and present tendencies of law-making by statute

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دار النشر: Project Gutenberg
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barons, and under the Constitution—and here we first have to use that phrase—it could only be got from the barons by their consent. That is, the great barons of the realm had always given these aids in theory voluntarily. The king got them together, told them what he wanted, and they granted it; but still it had to come from them, and in the desire to get money the Norman kings first called together the Great Council, first consulted the parliament which afterward became their master. They made a legislature by calling them together, although only for this purpose, to give them the power of getting more money; but when the Great Council was once together and the kings began to be more and more grasping in their demands for money, the barons naturally wanted something on their side, and they would say to them: "Well, yes—you shall have this aid—we will vote you this tax—but the men of England must have such and such a law as they used to under Anglo-Saxon times." And they pretty soon got to using the word "people"; the "people" must have "the liberties they had under Edward the Confessor"; and time after time they would wring from a Norman king a charter, or a concession, to either the whole realm or a certain part of the realm, of all the liberties and laws and customs that they had under the old Saxon domination—and that ultimately resulted in bringing the whole free English law back. Thus, early law was custom; Anglo-Saxon law was free custom; the English lost it under the Conquest; and they got it back because the first Norman kings had to call the council together, which grew into Parliament, which then, in voting their aids or taxes, demanded their "old liberties"; and finally, after getting Magna Charta, after getting all their old Saxon liberties back, by easy transition, they began to say: "We would make certain regulations, ordinances, laws of our own"; though we have not yet got to the time where the notion of making new law, as a statute is now understood, existed.

II

EARLY ENGLISH LEGISLATION AND MAGNA CHARTA

Parliament began avowedly to make new laws in the thirteenth century; but the number of such laws concerning private relations—private civil law—remained, for centuries, small. You could digest them all into a book of thirty or forty pages. And even to Charles the First all the statutes of the realm fill but five volumes. The legislation under Cromwell was all repealed; but the bulk, both under him and after, was far greater. For legislation seems to be considered a democratic idea; "judge-made law" to be thought aristocratic. And so in our republic; especially as, during the Revolution, the sole power was vested in our legislative bodies, and we tried to cover a still wider field, with democratic legislatures dominated by radicals. Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of "isms" and reforms—full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States—the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow. They have gotten over the notion that any parliament, or legislature, or sovereign, should only sign the law—and I say sign advisedly because he doesn't enact it, doesn't create it, but signs a written statement of law already existing; all idea that it should be justified by custom, experiment, has been forgotten. And here is the need and the value of this our study; for the changes that are being made by new legislation in this country are probably more important to-day than anything that is being done by the executive or the judiciary—the other two departments of the government.

But before coming down to our great mass of legislation here it will be wise to consider the early English legislation, especially that part which is alive to-day, or which might be alive to-day. I mentioned one moment ago thirty pages as possibly containing the bulk of it. I once attempted to make an abstract of such legislation in early England as is significant to us to-day in this country;[1] not the merely political legislation, for ours is a sociological study. We are concerned with those statutes which affect private citizens, individual rights, men and women in their lives and businesses; not matters of state, of the king and the commons, or the constitution of government. Except incidentally, we shall not go into executive or political questions, but the sociological—I wish there were some simpler word for it—let us say, the human legislation; legislation that concerns not the government, the king, or the state, but each man in his relations to every other; that deals with property, marriage, divorce, private rights, labor, the corporations, combinations, trusts, taxation, rates, police power, and the other great questions of the day, and indeed of all time.

[Footnote 1: See "Federal and State Constitutions," book II, chap. 2.]

Had it not been for the Conquest, it would hardly have been necessary to have enacted the legislation of the first two or three centuries at all. Its object mainly was political, that is, to enforce Saxon law from Norman kings. No change was made, nothing new was added. There was, however, a little early Saxon legislation before the Conquest. The best compilation is contained in Stubbs's "Selected Charters." He says that the earliest English written laws contained amendments of older unwritten customs, or qualifications of those customs, when they were gradually wearing out of popular recollection. Such documents are generally obscure. They require for their elucidation a knowledge of the customs they were intended to amend. That is as I told you: everybody was supposed to know the law, and early written statutes were either mere compilations of already existing law, slight modifications of them, or else in the nature of imposing various penalties—all of which assume that you know the law already. When they attempted codification, which they did about twice before the Conquest (especially under Edward the Confessor, for that reason he is called the Father of English law, the English Justinian, because he was enough of a civilian to understand what a code was), King Edward made the attempt to get a certain amount of law written out; but even that would be very unintelligible if you tried to read it, for he assumed that one knew it all already, and it also is mainly in the nature of imposing penalties, not stating the law as it was. However, that is called the first English code. All the Saxon laws Dr. Stubbs could find fill only twenty-two pages of his small book; and he says that English law, from its first to its latest phase, has never possessed an authoritative, constructive, systematic, or approximately exhaustive statement, such as was attempted by the great founders of the civil or Continental law, by Justinian or by Napoleon Bonaparte. Now this is true, even to-day, of our English and our American law. That is, the great bulk of the law that is administered in our courts is not "written," it is not in any code. There are, of course, text-books on the subject, but they are of no binding

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