Popular Law-making. Frederic Jesup Stimson
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Rights; The Privileged Classes.
XVII. SEX LEGISLATION, MARRIAGE AND DIVORCE
A Woman Is a Citizen; Her Right to Labor and Property; Marriage, Divorce, and Children; Women in Politics and Education; Reform of Divorce Procedure; Uniformity of Law in Divorce; The Secular Law in Sexual Matters; Marriage a Contract; The "Single Standard" and Free Divorce; Control of Marriage by the State; Recent Legislation; Radical Statutes in Sexual Matters; Legal Separation; The Married Woman's Privileges; The "Age of Consent"; Female Suffrage by Property-Owners; Kidnapping, Curfew, Rape; Statistics of Divorce; Industrial Liberty of Women; Female Labor in England and U.S.A.
XVIII. CRIMINAL LAW AND POLICE
Common Law Prevails; New Crimes and Penalties; Self-Regardant
Actions; Reform in Punishment; Procedure in the Courts; Lynching
and Mob Law; Interstate Commerce in Liquor, etc.; Physicians'
Privilege; Prohibition Laws; City Ordinances; Juvenile Courts and
Laws; Present Needs.
XIX. OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE PUBLIC DOMAIN
Government by Commission; Taxes, Debt, and Franchises; Municipal
Socialism; Internal Improvements; State Farms and Forests;
Education; Taxation and State Aid; Present Questions.
XX. FINAL
The Form of Our Statutes; Need of Authorized Revisions; Reforms
Recommended; Indexing and Arrangement; Need of a Parliamentary
Draughtsman; Recommendations of the State Librarians; Purpose of
this Book.
INDEX
POPULAR LAW-MAKING
I
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.[1] 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.
[Footnote 1: "The Law of the Federal and State Constitutions of the United States," Boston Book Company, 1908. "The American Constitution," Scribners, New York, 1907.]
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