or, more radically, by substituting in their stead elective officials, who may be removed from office at stated times or whenever necessity requires. 9 Power of the Lower House. So important a change as this is not easily accomplished, and seldom without revolution. The history of all commercial states, ancient or modern, illustrates the principle. In England the process began by attempts on the part of the House of Commons to compel the King either to accept Ministers named by it or to consent that Ministers named by him be responsible to the House. Bills of attainder and bills of impeachment were weapons used by the House in the attainment of its object. The Puritan Revolution and the Revolution of 1688 definitely fixed the principle and applied it to Kings as well as to Ministers. The rise and development of the premiership in the eighteenth and nineteenth centuries worked out a system whereby the real work of government might be done by the House, while retaining the forms and appearance of an autocratic monarchy. The United States of America at the adoption of its Constitution went one step farther when it refused to establish kingship and nobility, and in their stead established an elective head assisted by ministers appointed or elected for definite terms, all subject to removal on impeachment by the lawmaking body. Naturally these same principles apply to the struggle for supremacy which generally arises between the two houses of legislation. In monarchies they represent distinct sets of interests, not always harmonious. Each desires to have the final voice in decisions, and victory ultimately goes to that one which represents more truly the broader interests of the nation. In democracies the two houses 'This office was legally recognized in 1906. tend to represent practically the same kinds of interests, and full coöperation is hindered only by natural rivalries based on beliefs as to the respective importance of the two houses. Functions of Legislative Bodies.-The numerous functions of modern lawmaking bodies may be broadly classed under four heads, though there are many differences in detail and in the scope of powers exercised under each head. 1. They have the right to declare and to formulate the law of the land, removing what has become obsolete, making clear what is ambiguous, and supplying new laws to suit the changing conditions of social life. This flexibility introduced into law has enabled states to adapt themselves readily to altering conditions, a thing wellnigh impossible under ancient theories of fixed and unchanging law. 2. They have the right to decide on the amount of tax to be levied for governmental purposes, the goods or other property on which it should be levied and to control the levying and expenditure of such taxes by reserving the right to hold responsible and to instruct, or even to appoint, all important officers in charge of public funds. This "power over the purse" has been the most effective agency in enabling the lawmaking body to control the other departments of government. 3. Lawmaking bodies have slowly won or are winning the right to dictate the policy of the state in international affairs. This historic power of the executive is passing under the control of the legislative department, which leaves to the executive the form of power, but exercises the substance of it through its control over finance and over the ministry or cabinet of the executive. In this usurpation of powers properly executive it may assist in the making of treaties, or declare war, or share in the appointment of diplomatic or military officers. 4. The lawmaking body in many other ways is now able to exert power not primarily legislative. It may exercise judicial functions in deciding cases of contested election, or in trying its own members or officers of the other departments of government. It may appoint, or assist in the appointment, of officials, regulate the army, navy, and civil service, appoint and supervise administrative commissions, and regulate more or less completely the policy and administration of the other departments of government. These classes of functions show clearly the importance of lawmaking bodies in political development. Almost unknown in Western civilization down to the nineteenth century, except in England and her American colonies, they have suddenly pushed to the front as agencies for economic and democratic development, and have reached perhaps the acme of their powers. Their natural limitations are now becoming manifest, and at present they do not enjoy the confidence formerly placed in them. It remains to be seen whether by internal changes they will become more efficient and regain lost confidence, or be superseded by more trustworthy governmental agencies, 10 10 For example, by the constitutional convention in the making of fundamental law, and by the electorate through the use of the initiative and referendum. CHAPTER XVI THE DEVELOPMENT OF LAWMAKING Immutable Character of Ancient Law.-Laws in the beginnings of political life, it may be recalled, were not made at all in the modern sense; they grew out of longstanding habits of mind and well recognized customs. Naturally, in savage or nomadic life, to men whose memory of things seldom went back of two or three generations, many customs would seem even more ancient than they really were. When codes of laws were memorized and handed down by tradition, as so frequently was the case, or when the invention of the art of writing supplemented the memory of man, far greater fixity and conservatism were possible in both law and custom. Hence ancient political systems of the patriarchal type always assumed that the law of the land was permanent and immutable, like the "law of the Medes and Persians, which altereth not," 1 or the ancient and long-standing customs of England, tracing back to a "time whereof the memory of man runneth not to the contrary." 2 Founded on traditional custom as ancient law was, and in a static civilization, it seemed changeless and divine. Only impious hands would dare to alter sacred customs ordained and sanctioned by the gods. 'Daniel VI, 8. ง See Blackstone's Commentaries, Introduction, Section 3. Processes of Change.-Yet no set of customs is sufficient to meet the requirements of a changing civilization, and hence there has regularly been a sort of necessity for a periodic modification of the old and introduction of the new. There are several processes whereby such changes were accomplished. I. Change Through Conquest.-A fundamental and prolific source of change arises from conquest. The history of civilization is one long series of conquests involving compulsory amalgamations of race and assimilations of customs. Every subjugation implies modification of custom since neither party can maintain its own customs intact. Some customs of the conquered are ruthlessly suppressed, others modified and others, again, slowly become assimilated through unconscious imitation. The fact that conquerors and conquered become subject to practically similar environmental conditions also tends to produce uniformity of custom, each unconsciously conforming somewhat to the other. Such processes are always going on in human experience, and numerous illustrations of it in modern times will readily suggest themselves. II. Change Through Interpretation.-Again, no matter how static a civilization may be, no generation has just the same environment as its predecessor, nor do its people interpret customs exactly as did their ancestors. Hence by a slow and gradual process changes creep into the law, unheeded and unknown except as comparisons can be made at intervals of several generations. This tendency may be supplemented by strained interpretations of ancient customs and by the aid of the legal fiction. Judges even in modern times in their anxiety to satisfy 'The Balkan states furnish many illustrations of this process. |