Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
But even the great code of Edward the Confessor has, for the most
part, to do only with political divisions, what shall be a shire, what
a parish, etc., and certain technical matters that have now 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
Public-domain text, read in full here on John Shaqi.
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