Popular Law-making | Page 5

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.
[Footnote 1: Gneist, "The English Parliament," and Skottowe, "History of Parliament," perhaps best summarize this view.]
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