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
land"--that means jury trial, or at least the law of the land, as it
then was; and that phrase, or its later equivalent--due process of
law--is discussed to-day probably in one case out of every ten that
arise in our highest courts. Many books have been written upon it.
To start with, it means that none of these things can be done except
_under law_; that is, except under a lawsuit; except under a process
in a court, having jury trial if it be a civil case, and also
an indictment if it be a criminal case, with all the rights and
consequences that attend a regularly conducted lawsuit. It must be
done by the courts, and not by the executive, not by the mere will of
the king; and, still more important to us to-day, not by legislatures,
not even by Parliament. "We will sell to no man, we will deny or delay
to no man, either right or justice," needs no explanation; it is
equality before the law, repeated in our own Fourteenth Amendment.
Lastly, we have in cap. 41: "Merchants shall have safe conduct in
England, subject only to the ancient and allowed customs, not to evil
tolls"--a forecast of the allowable tariff as well as of the spirit
of modern international law. Finally, there is a chapter on mortmain,
recognizing that land might not be given to monasteries or religious
houses, and particularly under a secret trust; the object being to
keep the land, which made the power of the realm, out of the hands of
the church. As far as that part of it goes, it is merely historical to
us, but it developed into the principle that corporations "which have
no souls," and do not die, should not own too much land, or have too
much power--and that is a very live question in the United States
to-day.
Public-domain text, read in full here on John Shaqi.
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