"We must not be in a hurry to get to the beginning of the long history of our law. Very slowly we are making our way towards it. The history of law must be a history of ideas. It must represent, not merely what men have done and said, but what men have thought in bygone ages. The task of reconstructing ancient ideas is hazardous, and can only be accomplished little by little. If we are in a hurry to get to the beginning we shall miss the path. Against many kinds of anachronism we now guard ourselves. We are careful of costume, of armour and architecture, of words and forms of speech. But it is far easier to be careful of these things than to prevent the intrusion of untimely ideas. In particular there lies a besetting danger for us in the barbarian's use of a language which is too good for his thought. Mistakes then are easy, and when committed they will be fatal and fundamental mistakes. If, for example, we introduce the persona ficta too soon, we shall be doing worse than if we armed Hengest and Horsa with machine guns or pictured the Venerable Bede correcting proofs for the press; we shall have built upon a crumbling foundation. The most efficient method of protecting ourselves against such errors is that of reading our history backwards as well as forwards, of making sure of our middle ages before we talk about the 'archaic,' of accustoming our eyes to the twilight before we go out into the night." F. W. MAITLAND: DOMESDAY BOOK AND BEYOND ONE Introduction NE of the most remarkable generalizations in Professor Dicey's brilliant book, The Law of the Constitution, is the statement that "federalism substitutes litigation for legislation." This statement has a peculiar importance in countries-of which there are so many on the continent of Europe-whose central institutions have in large part been consciously modelled in recent times upon those of England. Its importance is greater still in a country like our own, where not only central but local institutions as well stand to the English Constitution in the infinitely closer and more intimate relationship of parent and child. That there is an extraordinary amount of litigation here that we are a "litigious people"-may be admitted at once. It is true that constitutional matters of the highest concern to the people are commonly settled in the United States by private actions between individuals, matters often that would never in the ordinary course come before an English court of law. This is so well understood that illustration is unnecessary, and so noticeable a part of our system that it has probably attracted more attention among foreign observers than any other of our institutions. De Tocqueville was struck with awe at the power of a 1 Page 175 (7th ed.). |