USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 2
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Alaric, Theodoric, Clovis, Alboin, the chiefs who founded Teutonic dynasties in the continental provinces of the Roman Empire in the fifth
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habits of the majority. To the extent that a government, in its legislative acts, meets custom depends its length of life ; the functioning of past governments is the legislator's most reliable handbook. Nations are built upon the experience of other nations, just as invention is built upon invention, or philosophy upon life. There is nothing new under the sun. And, as man in the beginning was free, it would seem that the oldest of old institutions would be those that assure to man his right to freedom. Legal processes, some degree of consti- tutional restraint over personal acts, is necessary for the pro- tection of man in his freedom of body and estate. This, through the ages, has been commonly recognized, most men being logical enough to know that freedom without a common curb would lead to insecurity that would cancel freedom-to lawlessness that must eventually and inevitably react upon themselves.
Legislation based on the common good is apt to be just, and as such to be respected by the majority. Law is not always synonymous with justice, however. Justice is unsel- fishness, and can only emanate in the acts of people who seek to promote, and who properly gauge, the common weal. Law
century, were zealous Christians, and their successors, the German princes who reigned at Paris, Toledo, Arles and Ravenna, "listened with reverence to the instructions of bishops," and probably governed according to the principles above stated. On the other hand, we find that the followers of Ida and Cerdic brought to their settlements in Britain, "all the supersti- tutions of the Elbe." While Christianity was sweeping Teutonic Europe, "the rulers of Wessex and Mercia were still performing savage rites in the temples of Odin and Zernebock." Britain for a time was cut off from Europe; and until Christianized in the seventh century, the history of Britain since evacuation by the Romans, was largely mythical. The islands indeed were "objects of a mysterious horror," the ground of one province being reported to be "covered with serpents, and the air . such that no man could inhale it and live." "To this desolate region the spirits of the departed were ferried over from the land of the Franks at midnight. A strange race of fishermen performed the ghastly office. The speech of the dead was distinctly heard by the fishermen; their weight made the keel sink deep in the water; but their forms were invisible to mortal eye." However, Augustine, a Roman abbot, gained the support of the Frankish king, Charibert, of Paris-whose daughter Bercta had married Ethelberht, the barbarian king of Kent, whom she had failed to convert to Christian-
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is the expression of human interest, a true index of brother- hood. To the degree that Law veers from the harsh and ruth- less to the considerate and just, to exactly that degree is human brotherhood shown. The moral state of a government is at once evident in its practiced laws, just as the physical state of a people is indicated by the laws, oppressive or other- wise, under which they live. History shows many periods in which the state of the people must have been low, for oppres- sion was extreme. But history proves also that the under- lying power, the controlling factor, has been the people, not- withstanding that their power has so often, in misguided action, been directed against themselves. The correcting power has always been in the hands of the people. In all ages there have been instances of successful exploitation of the power of the people by selfish minor interests, but although the great body of the commonalty has so often lain prostrate, dormant, it has always had within it the power which when aroused to action has been strong enough to sweep away the unjust laws of corrupt despotic governments, and reaffirm
ity-landed at the Isle of Thanet in 597 A. D., where Hengest had landed more than a century before. Soon Canterbury, which was the earliest royal city of German England, became a centre of Latin influence. The Roman tongue again became the language of cultured Britons, used in its worship, its correspondence, its literature. But Augustine did more than Christian- ize Britain. He renewed its union with the Western world. The new England was admitted into the older commonwealth of nations, and to some extent its jurisprudence for some centuries thereafter was patterned after the prevailing code of continental nations.
It was not radically influenced by continental codes, however. The re- ligious element was strongly Roman after the coming of Augustine, but as Green points out, "The great fabric of the Roman law indeed never took root in England." Continuing, however, he writes: "But it is impossible not to recognize the result of the influence of Roman missionaries in the fact that codes of the customary English law began to be put in writing soon after their arrival."
Later, came another element of royalty, that based on the feudal sys- tem, and, as it worked out in France, under Louis le Gros, in the twelfth century, the king "possessed only a limited, incomplete, and accidental power; the power as it were of a great justice of the peace of the whole nation."-See Guizot's "History of Civilization in Europe; Macaulay's "History of England"; Green's "Short History of the English People."
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those laws which are based in brotherhood and the common weal.7
The human race, though divisible into distinct groups or societies, differing in size, circumstance, and characteristics physical and moral, is cast in a common mould. There are many varieties of the species. Yet all varieties or groups resemble each other in this "that they reveal on examination certain rules of conduct in accordance with which the relations of the members inter se are governed." These rules or laws consti- tute systems of jurisprudence which vary according to circum- stance, but which have common principles. A legal rule, apparently, should not be looked upon "as an isolated fact, but as the last link in an historical series."8
In the study of primitive conditions we find that almost all Aryan tribes manifested one dominating characteristic in com- mon, for while environment, climate, and exigency of the polit- ical state brought many differing traits in the tribes of the northwestern branch of the Indo-European race-the Celts for example developing characteristics very different from those of their neighbors, the Germans, on the other side of the
7. They might indeed safely tolerate a king in a few excesses ; for they had in reserve a check which soon brought the fiercest and proudest king to reason-the check of physical force. .
They might allow him to overstep the constitutional line sometimes ; but they also claimed for themselves the privilege of overstepping that line themselves, whenever his encroachments were so serious as to excite alarm. If not content with occasionally oppressing individuals he dared to oppress great masses, his subjects promptly appealed to the laws, and that appeal failing, appealed as promptly to the God of Battles .- Macaulay's "History of England," Vol. I, 26.
8. By far the most considerable contribution made by England to his- torical jurisprudence is the writings of Sir Henry Maine. The first of these, "Ancient Law," published in 1861, has probably had a more profound influence on contemporary thought than any other book of this generation. The "Early History of Institutions" and "Village Communities in the East and West" have since followed. In "Ancient Law" Sir Henry Maine proposes to trace the connection of the subject with the early history of society and its relation to modern ideas. Taking the Roman law as a typical system, he revealed for the first time to English readers the con- nection between the principles of forgotten lawyers and, not merely the legal ideas, but the moral commonplaces of our time. The book under-
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Rhine-yet all seemed to have inherent respect for constituted authority. They suffered often, in consequence, though they would have suffered more had there been no higher control. Rome built its great empire on the basis of the customs of the Aryan peoples that constituted it-the Latins, Sabins, Etruscans. These peoples had not identical notions of law, but possessed those fundamentals which made unity possible. Western civilization, or, to be clearer, European civilization, did not begin until "the moment of the fall of the Roman Em- pire," according to Guizot; but the legal systems built by the many European nations of the next ten centuries show unmis- takable evidences of Roman law. All drew from the Roman experience, just as Roman civilization was drawn from earlier civilizations. In the political state, as in all other phases of life, the present is built upon the past.9 We cannot escape it. Hence, sane men would not wittingly blind themselves by sweeping away the records of the past. And the past shows surprising sameness of ultimate result in the handling of human groups. Action may differ ; motives have in different peoples been quite dissimilar; but the great propelling power has always been in the people. This seems almost a ludicrous, or at least an unnecessary statement, for the physical power of many men ought to be more than that of few. It undoubtedly
mined what had been accepted as first principles by showing that they had a history. It gratified the intellectual sense by the brilliant identifications of legal ideas, obscured by differences of time and place and circumstance. It is not surprising that the influence has been even more extensive among educated laymen than among professional lawyers, for the latter are con- demned by custom to disregard everything in their science but its relation to the business of the day. But "Ancient Law" set the attitude of regard- ing a legal rule not as an isolated fact but as the last link in an historical series .- "Encyclopedia Britannica," 1892.
9. "When we regard the civilizations which have preceded that of mod- ern Europe, whether in Asia or elsewhere, including even Greek and Roman civilization, it is impossible to help being struck with the unity which per- vaded them. They seem to have emanated from a single fact, from a single idea; one might say that society has attached itself to a solitary dominant principle, which has determined its institutions, its customs, its creeds, in one word all its developments."-Guizot's "History of Civiliza- tion in Europe," Second Lecture.
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is. But physical force is not the only power. There have been instances of a minority, with greater strength of purpose, riding to its objective on the physical strength of the majority, the unity of mankind in such cases being real but not neces- sarily bringing common good. All such schemes, however, seem to depend for success upon the sufferance or inertia of, or the lack of understanding by, the majority. Unity has been necessary, as the balance of power has always rested with the people. In Egypt the theocratic principle pervaded the entire community, and was a success. The success was repeated in India, under like conditions. But an attempt to subject Europe to a theocratic organization in the middle ages failed because unity was not possible. The celibate clergy of the Roman Catholic Church constituted an element foreign to the people, and so it was undermined, whereas the Egyptian theocracy, having a married clergy constituted a complete society in itself, borrowing nothing from without, and so was able to lead the people without clashing with their instincts.
Although the histories of nations seem to show differently, the universe has been basically governed by the will of the people. Unity of commonalty and higher classes has been necessary for the long continuance of any system of govern- ment. Unity denied to the people of Rome as a theocracy had, in earlier centuries, been achieved by Romans as mili- tarists. The respect of Aryan peoples for constituted author- ity made possible, in the first Roman Republic and the suc- ceeding Roman Empire, the domination of a victorious caste which imposed upon its laws the principle of force. But free- dom-loving peoples encompassed the Empire, and their weight eventually was more than the militaristic power could bear. So the Empire collapsed.
The laws that have lived through the ages, those upon which, as will be seen, American laws have been based, have come from the people, the almost subconscious demand of the mass of mankind for rules of conduct which would bring to the
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majority the greatest good, the surest protection. Unjust arbitrary laws can have no permanency. Despotism defeats itself, for human brotherhood is strong and common in man. This lesson, it would seem, was well before the Dutch Gov- ernment at the time of the settlement of New York. Wes- senaer, in his "Historia van Europa," which was published in 1621-32, gives some light on the state of the colonists of New Netherland. Certainly, human brotherhood was evident in the proposals made by the homeland for the administration of the colony. It was realized that "'tis better to rule by love and friendship than by force."10 Law-abiding and tolerant though he may be, slow to discern though he has often shown himself to be, Man nevertheless eventually rises against unjust rule by a minority. The Ship of State may be driven far from its proper course, by contrary elements during stormy periods, but when calm comes again one realizes that Man is at the magnetic poles, able to correct the constitutional drift, and point the Ship of State ultimately to the harbor of Good Government.
Analysis of the history of all civilization demonstrates this fact. Love of freedom, inherent in man, encompasses the laws of the universe. Oppression in England caused the common- alty, championed by the nobility, to wrest from their sover- eign, in 1215 A. D., a declaration of their common rights, a recognition of their right to be free men, subject to the Law but not to the danger of losing life, limb, or estate at the caprice or will of the King. Thereafter, all English kings were called upon to acknowledge that "the King in his Realm has
10. "That being Freemen, they be settled there on a free tenure; that all they work for and gain be theirs to dispose of and to sell it according to their pleasure; that whoever is placed over them as Commander act as their Father, not as their Executioner, leading them with a gentle hand; for whoever rules them as a Friend and Associate will be beloved by them, as he who will order them as a superior will subvert and nullify every thing; yea, they will excite against him the neighboring provinces to which they will fly. "Tis better to rule by love and friendship than by force."-Wes- senaer's "Historia' van Europa."
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two superiors, God and the Law" (Rex in Regno duo superiores habet Deum et Legem) ; also that "no new laws bind the people of England but such as are by common consent agreed on."11 King John contrived to shuffle out of Magna Charta and off the earth, but the Fundamental Laws of England were kept well before his successors.12 Guizot brings to light an inter- esting fact, one not shown strongly by most English histor- ians, to wit: That Magna Charta was kept in vigorous life through the next four centuries, from the thirteenth to the sixteenth, by no less than thirty confirmations of its priv- ileges, and considerable expansion of them. Also, a hopeful spirit of political freedom followed the Reformation in Eng- land, the people finding "its fulcrum and the active means of
II. The prerogatives of the sovereign were undoubtedly extensive. . But his power, though ample, was limited by three great consti- tutional principles, so ancient that none can say when they began to exist, so potent that their natural development, continued through many genera- tions, has produced the order of things under which we now live.
First, the king could not legislate without the consent of his parlia- ment. Secondly, he could impose no taxes without the consent of his par- liament. Thirdly, he was bound to conduct the executive administration according to the laws of the land, and, if he broke those laws, his advisers and his agents were responsible .- Macaulay's "History of England," Vol. I, 24-25.
12. While the sovereigns were disposed to violate the three great prin- ciples under which the liberties of the English people were protected, Ma- caulay points out that "no English king has ever laid claim to the general legislative power," but by exercising his power to pardon offenders, the king was competent to annul virtually a penal statute. "Thus, with the help of subtle and courtly lawyers, grew up, on the doubtful frontier which separates executive from legislative functions, that great anomaly known as the dispensing power."
As to the second of the great principles, Macaulay writes: "That the king could not impose taxes without the consent of parliament is admitted to have been, from time immemorial, a fundamental law of England." John was forced to recognize it. Edward, the First, encountered such opposition, when he tried to break the rule, that he thought it expedient to yield. All the kings needed more money than parliament sanctioned, and most of them tried to get it. They were interdicted from taxing, but they claimed the right to beg, or borrow. It became a habit. They sometimes "begged in a tone not to be distinguished from a command, and sometimes borrowed with small thought of repaying. But the fact that it was thought necessary to disguise these exactions under the names of benevolences and loans, sufficiently proves that the authority of the great constitutional rule was universally recognized."
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action in the ancient institutions and social conditions."13 Hence, the power of the commonalty, if not the liberty of the individual, was carried most clearly into the seventeenth cen- tury, the first one of importance in American history. With the ruin of the feudal aristocracy and the passing of landed wealth from the higher nobility to the inferior nobility, from the aristocracy to the gentry, during the sixteenth century, with the increasing importance of the men of commerce and the improvement in the lot of the peasant class during the prosperous reign of Elizabeth, the English House of Commons began to have that power upon which representative govern- ment stands; and, as the seventeenth century dawned, the Lower House had far greater strength and prestige than the House of Lords. Wealth was represented in the House of Commons; the lords were poor. And the people had general knowledge of what were their rights. Nevertheless, during the first decades of that century, the struggle of the people against the increasing tyranny of their kings reached such a point that safety, for certain freemen who would not bow to
The Plantagenets and Tudors had good reason to know that although the commonalty might overlook many violations of their rights, they re- sisted all attempts to usurp Parliament's power over the public purse. "Henry the Eighth, for example, "encountered no opposition when he wished to send Buckingham, and Surrey, Anne Boleyn and Lady Salis- bury, to the scaffold. But when, without the consent of parliament he demanded of his subjects a contribution amounting to one-sixth of their goods, he soon found it necessary to retract. The cry of hundreds of thousands was, that they were English and not French, freemen and not slaves." Charles the First usurped this power, but it cost him his head. When the Long Parliament assembled in 1640, it was "universally said, and by many sincerely believed, that the legal reform would suffice for all things; that in the ancient laws and customs of the country there was that which would remedy all abuses."-See Macaulay's "History of Eng- land"; Green's "Short History of the English People"; and Hallam's "Con- stitutional History of England from the Accession of Henry VII to the Death of George II."
13. When we glance at the state of free institutions of England at the end of the sixteenth century, we find first, fundamental rules and prin- ciples of liberty, of which neither the country nor the legislature had ever lost sight ; second, precedents, examples of liberty, a good deal mixed it is true, with inconsistent examples and precedents, but sufficing to legalize and sustain the claims, and to support the defenders of liberty in any struggle
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the despotism of the sovereign, seemed to lie only in flight from their native land. Some went to the Netherlands, whence they, the Pilgrims, crossed to America. Open defiance of the fundamental laws of England by King James and more so by Charles the First embittered the people. The Puritans looked with stern severity on the attempt by Charles the First to extort a forced loan from the people in 1627, after Parliament had refused to grant him the sum he needed. The commonalty and gentry grimly resisted. John Hampden, a young Buck- inghamshire squire, was haled before the King's Board of Loan Commissioners, to show cause why he had not contrib- uted at the demand of the king's collectors. Though he faced a return to prison, and possibly death, John Hampden did not flinch. To the commissioners he said: "I would be content to lend, but fear to draw on myself that curse in Magna Charta which should be read twice a year against those who infringe it." He went back to prison, but in the next year, 1628, the parliamentary elections returned very few of the King's candidates. The patriots were triumphant, and on the question of personal liberty the tone of the Commons, when they met in March, was vehement. "We must vindicate our ancient liberties," said Sir Thomas Wentworth. "We must reinforce the laws made by our ancestors. We must set such a stamp upon them, as no licentious spirit shall dare hereafter to invade them." And, heedless of "sharp and menacing mes- sages from the King," the House pursued grimly the import- ant work it had set itself, the drafting of a Petition of Rights.14
against tyranny or despotism; third, special and local institutions, replete with germs of liberty; the jury, the right of assembling and of being armed; the independence of the municipal administrations and jurisdictions ; fourth and last, the Parliament and its power, of which the crown had more need than ever . , and was dependent for its very support upon the national vote .- Guizot's "Civilization in Europe," 13th lecture.
14. After stating the grievances, the Petition of Rights prayed "that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by Act of Parliament. And that none be called to make answer, or to take such oaths, or to be confined or otherwise molested or disputed concerning the same, or for
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This, which recited that "the statutes protected the subject against arbitrary taxation, against loans and benevolences, against punishment outlawry or deprivation of goods other- wise than by lawful judgment of his peers, against arbitrary imprisonment without stated charge," was delivered to the King. Charles made an evasive reply, which brought from the Commons a fearless remonstrance. Finally, Charles, with many mental reservations of which the Commons knew noth- ing, consented to the Petition of Rights, thus gaining the sub- sidy he wanted. Then he prorogued Parliament. And before it could again meet, his Church, the Anglican Church patron- ized by the Court, "was turning religion into a systematic attack on English liberty"; and "sober men looked forward to a day when every pulpit would be ringing with exhortations to passive obedience (to the King), with denunciations of Cal- vinism and apologies for Rome." Puritan England con- demned this; and when Parliament met again in January, 1629, the Commons reiterated "that all affairs of the realm, spiritual as well as temporal, were cognizable in Parliament."
refusal thereof. And that no freeman may in such manner as is before mentioned be imprisoned or detained. And that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come. And that the commissions for pro- ceeding by martial law may be revoked and annulled, and that hereafter no commissions of like nature may issue forth to any person or persons what- soever to be executed as aforesaid, lest by color of them any of your Majesty's subjects be destroyed and put to death, contrary to the laws and franchises of the land. All which they humbly pray of your most excel- lent Majesty, as their rights and liberties, according to the laws and statutes of the realm. And that your Majesty would also vouchsafe to declare that the awards, doings, and proceedings to the prejudice of your people in any of the premises shall not be drawn hereafter into consequence or example. And that your Majesty would be pleased graciously for the further comfort and safety of your people to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honor of your Majesty and the prosperity of the kingdom."
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