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
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
Public-domain text, read in full here on John Shaqi.
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