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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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grown obsolete. So we may conclude with the statement, substantially accurate, that there was practically no new legislation, no constructive legislation under the Saxons; their social law was all unwritten.

And Parliament did not begin by being a law-making body. Its legislative functions were not very active, as they were confined to declaring what the law was; more important were its executive and judicial functions. In modern English government, particularly in our own, one of the basic principles is that of the three departments, executive, legislative, and judicial; the Norman or Roman theory rather reposed all power in one; that is, in the sovereign, commonly, of course, the king, the others being theoretically his advisers or servants. In England, to-day, the real sovereign is the Parliament; the merest shadow of sovereignty is left to the executive, the king, and none whatever given the judicial branch. In this country we preserve the three branches distinct, though none, not all three together, are sovereign; it is the people who are that. And each department is of equal dignity; although at one period there was a certain amount of public complaint that Congress was usurping more power than belongs to it, and recently that power was being usurped by the president, there has hardly been (except from Mr. Gompers and Mr. Hearst) any complaint that power is usurped by the judicial branch, however unpopular its decisions. But in England there is no pretence of maintaining the three branches uniform either in importance or in power. Starting with the Great Council, which had originally only a certain amount of executive power and a great deal of judicial power, they have retained and added to the former, while practically giving up the latter; and, moreover, they have divided into the two houses, the House of Lords and the House of Commons, with a division of sovereignty between them, the Commons, of course, getting the lion's share. The only judicial power substantially now remaining in the English Parliament is the power of impeachment, which is rarely exercised in England, and the appellate jurisdiction of the House of Lords, of the "law" lords, that is, those peers who held legal offices. On the other hand the legislative function of Parliament, which began merely in the way of saying what the law was, has enormously developed, and still more so the executive. Thus the legislative branch of the three divisions in the English government has increased out of all proportion to both the others, having now all the legislative power and most of the executive. And legislatively it is omnipotent; it is confined by no constitution; even the king cannot withhold his consent. Parliament can make any law, although against what was the Constitution; the Constitution may be modified by a simple statute. So their legislative function is infinite; and their executive function has, in substance, grown very large, because the British government is carried on by the cabinet, which is practically a committee of the House of Commons. But of the judicial function, which was the principal function of the Great Council at the time of the Conquest, hardly a shred remains. It is the history of all countries that people are not jealous of the judicial power, while they are extremely anxious to seize the legislative and executive. With us, however, we are supposed to have all three functions co-ordinate and in good working activity. But in both countries, money bills, bills imposing taxes, are the function of the lower house. That principle grew historically from the principle that all taxation must be voted by the people, directly or indirectly; must be with the common consent and for the common benefit. That principle was established by the House of Commons, and consequently they arrogated to themselves that part of the legislative power. That principle we have retained in our Federal Constitution, and in most of our State constitutions; all of which have the double house.

The first functions of Parliament were restricted to voting taxes. The king called the barons together merely to get "aids," and they wouldn't give them until he recognized what they chose to call the old law of England, always a pre-existing law. It was still a long time before there was constructive legislation. Just as, before the Conquest, in the seventh century, we find it said of the law of Wihtred: "Then the great lords with the consent of all came to a resolution upon these ordinances and added them to the customary laws of the men of Kent"; and, in the time of King Alfred: "I, then, Alfred, king, gathered these [laws] together, and commanded many of those to be written which our forefathers held, those which to me seemed good; and many of those which seemed to me not good I rejected them, by the counsel of my 'witan,' and they then said that it seemed good to them all to be holden";[1] so, after the Conquest, every Norman king was made on his coronation oath to promise this, the law of Edward the Confessor, until Magna Charta; after that they promised to respect Magna Charta instead, which was thus reissued or confirmed thirty-two times in the eighty-two years which intervened between Runnymede and the final Confirmation of Charters under Edward I. Thus, William the Conqueror himself, in his charter to the city of London, says, in Anglo-Saxon: "And I do you to wit that I will that ye two be worthy of all the laws that ye were worthy of in King Edward's day." So the Domesday Book records "the customs," that is to say, the laws, of various towns and counties; these bodies of customs invariably containing a mere list of penalties for the breach of the established law; while later charters usually give the inhabitants of a town all the customs and free privileges enjoyed by the citizens of London.

[Footnote 1: Stubbs's "Charters," p. 62.]

But after the Conquest laws could only be enacted with the concurrence of the king; and the phrase was, and is still, in form, that "the king wills it"—Le Roy le veult. Nevertheless, Parliament usually originated laws. The early Norman kings cared nothing about legislation; their sole desire was to get money from the people. For two centuries, therefore, Parliament was occupied only with laws recognizing the old Anglo-Saxon laws previously existing, or laws removing abuses of the royal power; and the desire of the king to tax the people was used as the lever to get him to assent to these laws.

With the usual sensible indifference of the English race to mere matters of form, they allowed the Norman kings to go on declaring the laws and signing them as if they were made only by the crown, which was the Norman theory—not caring for the shadow, if they could get the substance. Thus they established, in the first two or three centuries, the right to force legislation on the king, and they did it by the instrument of the taxation power. For taxation must be "by the common consent of the realm"; no taxation without representation, as the Declaration of Independence puts it, is probably the earliest principle of the English Constitution; and it is most significant to the student of the constitutional law, a most necessary reminder to those who do not value our Constitution, that it was the departure by George III from this very earliest of English constitutional principles that caused the loss of his American empire.

This was six hundred years old, therefore, at the time of our Revolution. Except those two principles, taxation by common consent and taxation for the common benefit—which latter was not finally established until two hundred years later (that is, it was put in the first Magna Charta, John's, and then quietly dropped out by Henry II, and kept out of the charter for nearly one hundred years),—we have to come down to the year 1100 before we find the first sociological statute. "Henry I called another convention of all the estates of the realm to sit in his royal

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