THE ENGLISH IDEA OF LAW

My object in the lectures upon which this work is based was to give some notion of the problems of the time (in this country, of course, particularly) which are confronting legislators primarily, political parties in the second place, but finally all good citizens. The treatment was as untechnical as possible. The lectures themselves were for men who meant to go into business, for journalists, or political students; a general view an elemental, broad general view of the problems that confront legislation to-day. So is the book not one for lawyers alone; it seeks to cover both what has been accomplished by law-making in the past, and what is now being adopted or even proposed; the history of statutes of legislation by the people as distinct from “judge-made” law; how far legislatures can cure the evils that confront the state or the individual, and what the future of American legislation is likely to be. Constitutional difficulties I had merely mentioned, as there was another course of lectures on American constitutional principles, which supplemented it. In those I tried to show what we cannot do by legislation; in these I merely discussed what had been done, and tried to show what we are now doing. What we may not do may sound, perhaps, like a narrow field; but the growth of constitutional law in this country is so wide in the first place including all the English Constitution, and more than that, so many principles of human liberty that have been adopted into our Constitution, either at the time it was adopted, or which have crept into it through the Fourteenth Amendment, with all the innovations of State constitutions as well that really the discussion of what cannot be done by statute takes one almost over the entire range of constitutional law and even into the discussion of what cannot be done in a free country or under ordinary principles of human liberty.

How many of us have ever formulated in our minds what law means? I am inclined to think that the most would give a meaning that was never the meaning of the word law, at least until a very few years ago; that is, the meaning which alone is the subject of this book, statute law. The notion of law as a statute, a thing passed by a legislature, a thing enacted, made new by representative assembly, is perfectly modern, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the National Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have assumed in our minds the main bulk of the concept of law as we formulate it to ourselves. I guess that the ordinary newspaper reader, when he talks about “laws” or reads about “law,” thinks of statutes; but that is a perfectly modern concept; and the thing itself, even as we now understand it, is perfectly modern. There were no statutes within the present meaning of the word more than a very few centuries ago. But statutes are precisely the subject of this book; legislation, the tendency of statute-making, the spirit of statutes that we have made, that we are making, and that we are likely to make, or that are now being proposed; so it is concerned, in a sense, with the last and most recent and most ready-made of all legal or political matters. The subject of statute-making is not thought difficult; it is supposed to be perfectly capable of discussion by any one of our State legislators, with or without legal training; and sometimes with lamentable consequences. For the subject is of the most immense importance, now that the bulk of all our law is, or is supposed to be, statutes.

In order to understand, therefore, what a statute is, and why it has grown important to consider statute-making, it is necessary to have some knowledge of the meaning of the word law, and of the origin both of representative government and of legislatures, before we come to statutes, as we understand them; for parliaments existed centuries before they made statutes as we now use this word. Statutes with us are recent; legislatures making statutes are recent everywhere; legislatures themselves are fairly recent; that is, they date only from the end of the Dark Ages, at least in Anglo-Saxon countries. Representative government itself is supposed, by most scholars, to be the one invention that is peculiar to the Anglo-Saxon people.

And there is another invention if we can call it one to my mind of far greater importance, which I should urge was also peculiar to the Anglo-Saxon people; that is, the invention or the idea of personal liberty; which is understood, and always has been understood, by Anglo-Saxons in a sense in which it never existed before, so far as I know, in any people in the history of the world. It is that notion of personal liberty which was the cause of representative government, not representative government that was the cause of personal liberty. In other words, the people did not get up a parliament for the sake of having that parliament enact laws securing personal liberty. It was the result of a condition of personal liberty which prevailed among them and in their laws that resulted in representative government, and in the institution of a legislature, making, as we now would say, the laws; though a thousand years ago they never said that a legislature made laws, they only said that it told what the laws were. This is another very important distinction. The “law” of the free Anglo-Saxon people was regarded as a thing existing by itself, like the sunlight, or at least as existing like a universally accepted custom observed by every one. It was five hundred years before the notion crept into the minds, even of the members of the British Parliaments, that they could make a new law. What they supposed they did, and what they were understood by the people to do, was merely to declare the law, as it was then and as it had been from time immemorial; the notion always being and the farther back you go and the more simple the people are, the more they have that notion that their free laws and customs were something which came from the beginning of the world, which they always held, which were immutable, no more to be changed than the forces of nature; and that no parliament, under the free Anglo-Saxon government, or later under the Norman kings, who tried to make them unfree, no king, could ever make a law, but could only declare what the law was. The Latin phrase for that distinction is jus dare, and jus dicere. In early England, in Anglo-Saxon times, the Parliament never did anything but tell what the law was; and, as I said, not only what it was then, but what it had been, as they supposed, for thousands of years before. The notion of a legislature to make new laws is an entirely modern conception of Parliament. How did it arise? The English Parliament, as you doubtless know, was the successor, or grew out of the old Witenagemot, the old Saxon Great Council, and that Great Council originally and I am now talking of centuries before the Conquest the Witenagemot, included in theory all the free inhabitants of the realm, just as a modern town meeting does. Mind you, they were then tribes, living in “Hundreds.” They were not nations, not even states and counties, and in early times it probably was possible to have a popular assembly which should include at least all the warriors, all the fighting men, and consequently all the men whose votes counted. No man who could not fight could share in the government an historical fact which our suffragists tend to ignore when they talk of “rights.” The Witenagemot, undoubtedly, was originally a universal assembly of the tribe in question. But as the tribes got amalgamated, were associated together, or at least localized instead of wandering about, and particularly when they got localized in England where before they had been but a roaming people on account of their struggles with the Britons the necessity of greater organization probably became obvious to them at once, and the Witenagemot readily assumed a somewhat more formal form; and that resulted in representation. For we are talking of early England; that is, of the eastern half of what is now England, the Saxon part; obviously you couldn’t put all the members even of East Anglia in one hall or in one field to discuss laws, so they invented representation. All the authorities appear to be agreed that there is no prototype for what seems to us such a very simple thing as representation, representative government, among the Greeks or the Romans, or any of the older civilizations of which we have knowledge. It is very surprising that it is so, and I am always expecting that some one will discover, either in the Achaian League or somewhere, that it is not so, that there is a prototype; but there doesn’t seem to be any regular system of representative government until you get to Anglo-Saxon peoples. So that was the second stage of the Witenagemot, and then it properly begins to be called the Great Assembly or Council of the people. This representative assembly was then not only legislative, it was also executive, to some extent, and entirely judicial; for we are a thousand years before the notion of the threefold division of government has occurred to any one. The early Saxon Witenagemot, as later the Norman kings tried to, did unite all three functions in themselves. Their main function was judicial; for the reason that there was very little notion as yet of legislation, in a people or tribe whose simple customs and simple property demanded very few laws, where the first remedy for any man for any attack on his family or property was the remedy of his own good, right hand. When you really only got into a lawsuit, at least as concerning property, as a result of a killing of somebody or other, albeit in defence of one’s own chattels, it is obvious that there need not be much legislation; the laws were too well known, the unwritten law too well enforced. It probably would have surprised the early Englishman if he had been told that either he or anybody else didn’t know the law still more that there was ever any need for any parliament or assembly to tell him what it was. They all knew the law, and they all knew that they knew the law, and the law was a thing that they knew as naturally as they knew fishing and hunting. They had grown up into it. It never occurred to them as an outside thing.

So it has been found that where you take children, modern children, at least boys who are sons of educated parents, and put them in large masses by themselves, they will, without apparently any reading, rapidly invent a notion of law; that is, they will invent a certain set of customs which are the same thing to them as law, and which indeed are the same as law. They have tried in Johns Hopkins University experiments among children, to leave them entirely alone, without any instruction, and it is quite singular how soon customs will grow up, and it is also quite singular and a thing that always surprises the socialist and communist, that about the earliest concept at which they will arrive is that of private property! They will soon get a notion that one child owns a stick, or toy, or seat, and the others must respect that property. This I merely use as an illustration to show how simple the notion of law was among our ancestors in England fifteen hundred years ago, and how it had grown up with them, of course, from many centuries, but in much the same way that the notion of custom or law grows up among children. The English had acquired naturally, but with the tradition of centuries, the notion of law a sexisting; and that brings us to the next point.

Here again we are so confused with our modern notions of law that it is very important not to be misled by them at the beginning. I am quite sure that all the American people when they think of law in the sense I am now speaking of, even when they are not thinking necessarily of statute law, do mean, nevertheless, a law which is enforced by somebody with power, somebody with a big stick. They mean a law, an ordinance, an order or dictate addressed to them by a sovereign, or by at least a power of some sort; and they mean an ordinance which if they break they are going to suffer for, either in person or in property. In other words, they have a notion of law as a written command addressed by the sovereign to the subject, or at least by one of the departments of government to the citizen. Now, that, I must caution you, is in the first place rather a modern notion of law, quite modern in England; it is really Roman, and wasn’t law as it was understood by our Anglo-Saxon ancestors. He didn’t think of law as a thing written, addressed to him by the king. Neither did he necessarily think of it as a thing which had any definite punishment attached or any code attached, any sanction, as we call it, or thing which enforces the law; a penalty, or fine, or imprisonment. There are just as good “sanctions” for law outside of the sanctions that our people usually think of as there are inside of them; and often very much better. For instance, the sanction of a strong custom. Take any example you like; there are many States where marriage between blacks and whites is not made unlawful, but where practically it is made tremendously unlawful by the force of public opinion. Take the case of debts of honor, so-called, debts of gambling; they are paid far more universally than ordinary commercial debts, even by the same people; but there is no law enforcing them there is no sanction for the collection of gambling debts. And take any custom that grows up. We know how strong our customs in college are. Take the mere custom of a club table; no one dares or ventures to supplant the members at that table. That kind of sanction is just as good a law as a law made by statute and imposing five or ten dollars penalty or a week’s imprisonment. And judges or juries recognize those things as laws, just as much as they do statute laws; when all other laws are lacking, our courts will ask what is the “custom of the trade.” These be laws; and are often better enforced than the statute law; the rules of the New York Stock Exchange are better enforced than the laws of the State legislature. Now all our early Anglo-Saxon law was law of that kind. And it was not written down for a great many centuries, and even after being first written it wasn’t usual to affix any penalty; they were mere customs, but of an iron-bound nature customs that were followed far more devoutly than the masses of our people follow any of our written laws to-day. And their “sanction” was twofold: In the first place, the sanction I have mentioned, universal custom, social ostracism for breach. A second and very obvious sanction, that if you do a thing that I don’t like and think is against the law, I am going to knock you down or kill you if I can! That was a sanction, and a perfectly good one; and the question that arose, therefore, was not at all as to penalty for the law-breaker; it was whether there should be a penalty for the law-breaker’s being killed. That is the reason they didn’t have to have any penalty! In those days if there was a custom that a certain tribe had a certain pasture, and a man of another tribe pastured his cattle in that pasture, the first man would go to him and they would have a fight, and if he killed him he would be, as we say, arrested; then the matter would be inquired into by the kin of the murdered man or neighbors, and if the killer could prove that the murdered man had committed a breach of the law, he went off scot free so, as a matter of fact he would to-day, if it were justifiable homicide. In other words, it was a question of whether it was justifiable homicide; and that brought in the question what the law was, and it was usually only in that way. For the law was but universal custom, and that custom had no sanction; but for breach of the custom anybody could make personal attack, or combine with his friends to make attack, on the person that committed the breach, and then, when the matter was taken up by the members of both tribes, and finally by the Witenagemot as a judicial court, the question was, what the law was; and if it was proved, for instance, that the law was that there was private property in that pasture belonging to the man who committed the murder he went off scot free. That was the working of the old Anglo-Saxon law, and it was a great many centuries before the notion of law changed in their minds from that. And this “unwritten law” perdures in the minds of many of the people to-day.

So it was that the Witenagemot this Great Council of the realm was primarily judicial, in the first instance always judicial; that is, it never made new laws. It got together to try people for the breach of law; and that incidentally brought up the validity of the old law, and then decided whether old law was valid or not. In a sense, therefore, you see they told what the law was, they announced it; but they never supposed they were making new laws. That was the last thing they intended to do, and the last thing the people would have stood, had they tried it.

So much for the growth of law, the origin of Anglo-Saxon law, as we understand it, and for representative government, and for the origin of Parliament. I doubt if there was any giving of new law, anything that we should call legislation, made by the English Parliament, then called the Witenagemot, before the Norman Conquest. I have never been able to find any. You find occasional announcements that the men of Kent “shall have their liberties as they used to,” and perhaps there will be a statement of what those liberties were, in brief; but it is always clearly meant that they are stating the law as already existing. How, then, did they invent a legislature?

The Roman law, the whole Roman system, as you know, was absolutely distinct, and distinct in two great principles which have lasted down really into modern times, and still divide Continental countries from Anglo-Saxon countries. What I call the first great principle is universal law the principle that no officer of government, no high official, no general, no magistrate, no anybody, can do anything against the law without being just as liable, if he infringed upon a subject’s liberty, as the most humble citizen. That is a notion which does not yet exist on the Continent or any part of the world except England and the United States, and the countries or colonies copying after them. In Germany, for instance, Dr. Gierke tells me it exists only partially and by a modern constitution. This is the first great difference; and the second one is the notion that laws are made by the people only, with or without representative government. The notion of law as a custom is Teutonic; but on the Continent the Germans abandoned it. The Roman law was always law more as we moderns think of it; it was an order, addressed by the sovereign, or at least by a political superior, to a subject or to a political inferior; addressed in the form of definite writing, that is to say, a statute, and with a sanction, that is to say, a penalty, a threat as to what the sovereign will do if the subject does not obey. That is the universal notion of Roman law, and it has so far affected certain English writers on jurisprudence that I feel almost one should be warned against them. Not that their side isn’t arguable, but the weight of English history seems the other way. Austin, for instance, was so much impressed with the notion of law as an order from the sovereign to an inferior that he practically, even when considering the English Constitution, adopts that notion of law, and therefore arrives to some conclusions, as it seems to me, unwarranted, and certainly omits to note a great many things that would be noted had he kept clearly the Anglo-Saxon theory of law in mind.

Now the Normans, mind you, had purely Roman law. While they were in Normandy, being in France, they had imbibed or adopted Roman notions of law, perhaps because they were then first civilized. They had lost their old Saxon notions, if they had any, for they were, after all, of the same race as the Saxons. Nevertheless, when they conquered England they brought just as much the notion of the Roman law into England as if they had been Caesar’s legions. And that fact must always be borne in mind, and that led to centuries of conflict in the making of English constitutional law. The first thing, of course, that they tried to do, that the Norman kings tried to do, was to use law in the Roman way; that is, to make the law themselves, from the king. For that was another consequence of the Roman law, that not only was it an order by the sovereign power, but that this sovereign power was not in theory a legislature, as it is with us to-day, but the sovereign; in France and the Continental countries laws were made in theory and in practice by the king. So the Normans came over with the Roman notion, in the first place, as to what law was, that it was a written, newly made order of a sovereign, not a thing that had grown up and was part of the lives and customs of the people, but a thing made out of hand by the king; and, secondly, that it was made by the king and not by any legislature. And the first two or three centuries of English parliamentary history were mainly taken up, in the English Parliament, so far as it concerns the subject of our course here, in the contest between Parliament and the king as to who should make law and what law was. It took more than one century for the Parliament, after the Norman Conquest, to revive as a Parliament at all; then when it did finally get together it took two or three centuries before it established the principle that it had anything to do with the making of law. The Norman kings regarded the Parliament as a mere method of getting money from the people, hardly even as a Council when they sought for popular support; and yet it was through the fact that they so regarded Parliament that Parliament was enabled ultimately to acquire the law-making or the legislative power which exists in all our legislatures to-day. The king, in those days, derived his revenue mainly from his own land. It was not necessary for the government to have any revenue except for what we should call the king’s private purse. What was wanted for public expense was for two or three well-recognized purposes, all purposes of defence. The old English taxation system was in a sense no system. There wasn’t any such thing as taxation. There was the “threefold necessity” as it was called. It was necessary for the king to have money, horses, grain, supplies, etc., to defend the kingdom, and to build forts, and to maintain bridges or defensive works; and that was the only object of taxation in those times. Those were the only “aids” they were called “aids” those were the only aids recognized. The first word for tax is an “aid”, granted voluntarily, in theory at least, by the barons to the king, and for these three purposes only. The king’s private purse was easily made up by the enormous land he held himself. Even to-day the crown is probably the largest land-owner in the kingdom, but at the time of the Conquest, and for many years afterward, he certainly owned an hundredfold as much, and that gave him enough revenue for his purse; of course, in those days, money for such things as education, highways, police, etc., was entirely out of their mind. They were not as yet in that state of civilization. So the king got along well enough for his own income with the land he owned himself as proprietor. But very soon after the Norman Conquest the Norman kings began to want more money. Nominally, of course, they always said they wanted it for the defence of the realm. Then they wanted it, very soon, for crusades; lastly, for their own favorites. They spent an enormous amount of money on crusades and in the French wars; later they began to maintain always abroad what we should call standing armies, and they needed money for all those purposes. And money could yet be only got from the barons, the nobility, or at least the landed gentry, because the people, the agricultural laborers or serfs, villeins, owned no land. Knights and barons paid part of the tax by furnishing armed men, but still, as civilization increased, there was a growing demand on the part of the Norman kings for money. Now this money could be got only from the 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.