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Certain Retrogressive Policies of the Progressive Party
Published online by Cambridge University Press: 04 October 2013
Extract
I do not wish to discuss these questions from a partisan point of view; for I am by no means opposed to all of them. But some study of the history of English legislation has made me appreciate not only the lack of novelty of these processes, but that there is a lesson to be drawn from the study of those early times, when in fact they were the usual method of making, of interpreting, and of executing, law. Our knowledge of these matters has come to us recently, mostly from the efforts of German scholars. We learn nothing from Blackstone; while even writers of the Bentham-Austin School wrote in more or less complete ignorance of the past history of Anglo-Saxon institutions, and with thought processes consciously or unconsciously based on the later Roman law. And so there is a school today, that would make the executive all powerful, not merely in the administration of government, but in declaring and executing the law; having as an object efficiency, not liberty, with institutions based on a benevolent State, not on a democratic people. Such schemes are ever attractive as a short cut to-results, particularly so in this country where the best meant efforts of a central government are sometimes controlled and dissipated by the local government of the States. This, however, is a larger question; I shall henceforth confine myself to the four or five precise reforms which have been recently recommended to us.
- Type
- Papers and Discussions
- Information
- Proceedings of the American Political Science Association , Volume 9: Ninth Annual Meeting , December 1913 , pp. 149 - 161
- Copyright
- Copyright © American Political Science Association 1913
References
1 Freeman, , Growth of the English Constitution, pp. 1–21Google Scholar.
2 Schmid, Gesetze der Angelsachsen, Einleitung, Sec. 4.
3 Jenks, Law and Politics in the Middle Ages, chap. 4, and summary.
4 Dooms of Wihtread, Schmid, , p. 15Google Scholar; Laws of Ine, ibid., p. 21; Laws of Alfred, ibid., p. 69.
5 Hannis-Taylor, i, 269.
6 Schmid, , Alfred and Gutbrun's Peace, p. 107Google Scholar.
7 Hannis-Taylor, ii, 12.
8 Even this may be doubted, “Lastly, the Witan acted as a Supreme Court of Justice, both in civil and criminal causes.” Kemble, , Saxons in England, ii. 215Google Scholar (quoted in Taswell-Langmead, sixth edition, p. 27).
9 Lea, H. C., Superstition and Force, p. 68Google Scholar.
10 Adams, Henry, Anglo Saxon Law, p. 1Google Scholar.
11 See Lea, H. C., Superstition and Force, pp. 49, 76Google Scholar.
12 Ibid p. 173. Lord Ashburton, for the liberals, opposed the bill depriving New Englanders of the right of appeal and trial by battle for murder, calling it “A pillar of our Constitution. It is called a remnant of barbarism and gothicism; but …. the whole of our Constitution is Gothic.”
13 See H. C. Lea, Ibid, p. 301, on the personal independence of the freeman as a distinguishing characteristic of all Teutonic institutions. “The freeman of the German forests, who sits in council with his chief, who frames the laws which both are bound to respect ..… Corporal punishments for him were unknown ..… the repression of crime was by giving free scope to the vengeance of the injured party, and by providing fixed rates of composition by which he could be bought off” and “crimes were regarded solely as injuries to individuals, and the idea that society at large was interested in their discovery, punishment and prosecution, was entirely too abstract to have any influence on the legislation of so barbarous an age.”
14 Lochner vs. New York, 198 U. S. 45.
15 “A knowledge of these things guards us, at any rate, from the illusion, for illusion it must be termed, that modern constitutional freedom has been established by an astounding method of retrogressive progress; that every step towards civilization has been a step backwards towards the simple wisdom of our uncultured ancestors.” Dicey's, Law of the Constitution, sixth edition, p. 17Google Scholar.