There is already a considerable amount of administrative devolution; the Chief Secretary for Ireland and the Secretary for Scotland are the heads of great regional administrative systems which are to a degree autonomous.

Legislative devolution undeniably means a turning back of the pages of history, an abandonment of a legislative unity which was won with much difficulty. It might conceivably lead to pure federalism. On this account, as well as for other reasons, it encounters sturdy opposition from large and influential elements, especially in England. The necessity of easing the burden which Parliament now bears, joined with the demands of the several countries in their own interest, will, however, probably insure the triumph of the idea in some form. A non-partisan resolution calling upon the Government to appoint a parliamentary body of inquiry led to a general debate on the subject in the House of Commons in the summer of 1919, and influential men of all political faiths agreed that legislative devolution was only a question of time. The resolution was passed by a substantial majority, and a Speaker's Conference of thirty-three members (similar to the Speaker's Conference of 1916-17 on electoral reform) was set to work, with power to prepare a bill.

The Conference concluded its sittings in the spring of 1920 and submitted for Parliament's consideration two different schemes, one drawn up by Speaker Lowther and the other by a Liberal member, Mr. Murray Macdonald. The Speaker's plan looked to the experimental creation of subordinate legislatures for the three regional units of Great Britain: England, Wales, and Scotland should have separate divisional legislatures called "grand councils"; each legislature should consist of a Council of Commons and a Council of Peers; the Council of Commons should consist of the members of the Imperial House of Commons for the given division; the Council of Peers should consist of peers nominated by the Committee of Selection of the House of Lords; the grand councils should hold their sessions in the autumn, so as to avoid conflict with the sessions of the Imperial Parliament, and they should meet at Westminster or in any other place that they might select. The alternative plan of Mr. Macdonald differed from this chiefly in providing for the permanent establishment of separately elected subordinate parliaments; the parliament of each geographical division should consist of the same number of members as now represent the division in the Imperial Parliament, organized on a unicameral or bicameral basis as the Government should determine. Both

plans sought to distribute powers between the Imperial Parliament and the subordinate legislatures with a view to allocating to the latter all matters of purely English, Welsh, and Scottish concern. Ireland was left out of the schemes, on the assumption that its affairs would be adequately provided for by the pending Home Rule legislation. To the date of writing (June, 1920), the subject has received no farther consideration in Parliament. But it promises to demand much attention in future months and years.1

1 Compare the "regionalist" movement in France, described below, pp. 481-483. It has even been proposed that England itself be divided into three provinces, with legislatures meeting at London, Winchester, and York. On various phases of the subject see A. V. Dicey, "Thoughts on the Parliament of Scotland," in Quar. Rev., Apr., 1916; J. A. R. MacDonald, "Devolution or Destruction," in Contemp. Rev., Aug., 1918; W. R. D. Adkins, "Home Rule for England," ibid., Mar., 1920; Anon., "The Better Government of the United Kingdom," in Round Table, Sept., 1918; B. Williams [ed.], Home Rule Problems (London, 1911), Chap.

X.

CHAPTER XII

LAW AND JUSTICE

Sources and Nature of the Law. Nothing," says a recent writer, "has contributed more to the stability of the British Empire, or the respect in which it is held, than the even-handed dispensing of justice which has distinguished its tribunals, from the highest to the lowest, for the last two hundred years." 1 The fundamental principle of the English political system may, indeed, be said to be the rule of law, which means, in effect, two things: first, that no man may be deprived of life, liberty, property, or any other fundamental "right right" save on account of a breach of the law proved in court and, second, that no man stands above the law, and that for every violation of the law punishment may be inflicted or reparation obtained, whatever the station or character of the offender. Upon these great guarantees a system of justice has been built up which lends the British nation one of its chief distinctions.

The importance of English law for the student of jurisprudence arises from three principal considerations. In the first place, it is, along with the Roman law, one of the two great bodies of law developed among western peoples in historical times. In the second place, it has spread over a very large part of the earth and has profoundly affected legal ideas and methods, even outside English-speaking lands. Finally, the English system of jurisprudence and the English conceptions of law are essentially those which prevail in the United States, and hence are of peculiar interest for American students.

The English have always been inclined to take a very practical view of law. From at least the seventeenth century, they have uniformly conceived of it as being the rules, of whatsoever origin or nature, that the courts will recognize and enforce.4

1 Jenks, Government of the British Empire, 246.

2 The only exception to this general proposition is the sovereign, who may not be sued or prosecuted in the ordinary courts; but his immunity, as matters now stand, is of no practical importance.

3 Bryce, "The Extension of Roman and English law," in Studies in History and Jurisprudence, 72-121.

Lowell, Government of England, II, Chap. lxi.

Principles or practices which the courts will not enforce may be very influential as custom; but they are not law. Other important characteristics of English law are unity, antiquity, and continuity. Formed originally of two streams - the Saxon and the Norman-French-which flowed together after the Conquest, the law developed thenceforth to our own day with never a break ; one can read one's way backward in the great textbooks and commentaries - Blackstone in the eighteenth century, Hale and Coke in the seventeenth, Fitzherbert in the sixteenth, Littleton in the fifteenth, Bracton in the thirteenth, and Glanvill in the twelfth and find that one is always reading about the same great, although ever growing and expanding, body of law.

As the law has taken shape, it comprises two great elements, namely, statute law and common law. Statute law is enacted law. In earlier times it consisted mainly of royal legislation; in later centuries it has consisted, rather, of acts of Parliament, supplemented by by-laws, rules, and regulations made under parliamentary sanction by public officials and bodies. Inasmuch as it is constantly being amended and amplified, its bulk has come to be enormous. The more comprehensive and fundamental part of English law, however, is, and has always been, the common law. The common law is a product of custom rather than of legislation. It owes its existence to the operation of what the lawyers call stare decisis — the principle, namely, that a decision of a court shall set up a presumptive basis of action in all analogous cases subsequently arising, and especially when the same decision has been repeatedly made or affirmed over a long period of time. No definite date can be assigned for its beginning; but the great formative period was the twelfth to the fourteenth century, and, more particularly, the reigns of Henry II (1154-89) and his immediate successors. These were the times in which large control of local affairs was drawn into the hands of the king. On the judicial side, this meant a wide substitution of royal courts for feudal and other local tribunals. The judges who presided in these royal courts were sent out from the central government and formed a compact group with many opportunities for interchanges of opinion and with strong inducements to accept one another's judgments and follow common principles and procedure. On the basis of their reiterated and mutually respected decisions arose the common law, so called because it was universally applied wherever the king's courts were held eventually, in every part of the land. In sharp contrast was the

1 F. Pollock, Expansion of the Common Law (London, 1904), 46–50.

situation in France, where law remained throughout the Middle Ages, and indeed until the Revolution, regional and not national, and therefore presented no such aspects of unity and coherence as English law offered from comparatively early centuries.1 So vigorous did the English common law become that it successfully resisted the influence of Roman law in centuries when that great system was undergoing marked revival on the continent; 2 and this is a fact of prime importance in English constitutional development, because whereas the Roman law was grounded on the doctrine of the absolute authority of the prince, the common law recognized no such doctrine, but instead became the great bulwark of the parliamentary controversialists of the sixteenth and seventeenth centuries.3

Despite the increased legislative activity of modern times, it may still be said that the rules of the common law are fundamental, the laws of Parliament only incidental. Statutes simply assume the principles of the common law, and are largely, as one writer has put it," the addenda and errata " of this law, incomplete and meaningless save in coördination with the legal order by which they are supported and enveloped.4 Thus no act of Parliament enjoins in general terms that a man shall pay his debts, or fulfill his contracts, or pay damages for trespass or slander. Statutes define the modes by which these obligations shall be met, but the obligations themselves are derived from the common law. It is, however, a fixed rule that where statutes fall in conflict with the common law the statutes prevail. The limitless power of Parliament involves the right to set aside or to modify any common law principle or practice; on the other hand, no development of the common law can annul a parliamentary statute.

Statute law, of course, invariably takes written form. The

1 See p. 448.

2 On the influence of Roman law in England see F. Pollock and F. W. Maitland, History of English Law to the Time of Edward I (Cambridge, 1898), I, Chap. v; Bryce, Studies in History and Jurisprudence, 860-886; and C. P. Sherman, "The Romanization of English Law," in Yale Law Jour., Feb., 1914.

3 Dunning, Political Theories from Luther to Montesquieu, 197-200, 219-223; Gooch, History of English Democratic Ideas in the Seventeenth Century, Chaps. ii-iii. 4 W. M. Geldart, Elements of English Law (London, 1912), 9. This author further remarks: "If all the statutes of the realm were repealed, we should have a system of law, though, it may be, an unworkable one; if we could imagine the common law swept away and the statute law preserved, we should have only disjointed rules torn from their context, and no provision at all for many of the most important relations of life." On the relation of common law and statutory law see also Ilbert, Legislative Methods and Forms, Chap. i. For a classical statement see Blackstone, Commentaries, I, 61–92.