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Hence a type of mind which found it equally easy to make the concrete into the abstract and then to turn the abstract so made into a kind of concrete again, is par excellence the legal mind, and no better proof of the instinctive tendency to law-making on the part of the Romans can be found than in the fact that the same habits of mind which make laws also governed the development of their religion.
This is not to say that one must not recognize the meaning and the need of law-making by statute; of law made by the people themselves to suit present conditions.
That Amendment imbeds Prohibition in the organic law of the country, and thus not only imposes it upon the individual States regardless of what their desires may be, but takes away from the nation itself the right to legislate upon the subject by the ordinary processes of law-making.
Out of these two underlying principles of law had gradually developed a third principle, destined to be of incalculable force in modern governments, the conception of a superior law, higher even than the law-making body. In England there was no written constitution, but there was a succession of grants or charters, in which certain rights were assured to the individual.
Law-making was also influenced by the idea of woman as property. For a long time there was a hesitancy to prohibit wife-beating on account of the feeling that the wife was the husband's possession, to be dealt with as he desired. The laws of coverture also perpetuated the old property taboos, and gave to the husband the right to dispose of his wife's property.
"It is not denied that the States in question have each of them an actual government, with all the powers, executive, judicial, and legislative which properly belong to a free State. They are organized like the other States of the Union, and like them they make, administer, and execute the laws which concern their domestic affairs. An existing de facto government, exercising such functions as these, is itself the law of the State upon all matters within its jurisdiction. To pronounce the supreme law-making power of an established State illegal is to say that law itself is unlawful.
On the contrary, the failure of the American legislative to command an increasing public confidence, while both natural and obvious, is, if my observation guides me to conclusions in any degree correct, traceable to two reasons. So far as government is concerned, the law-making branch is assumed to be made up of the wisest and the most expert.
Having shown that the abolition of slavery is within the competency of the law-making power, when unrestricted by constitutional provisions, and that the legislation of Congress over the District is thus unrestricted, its power to abolish slavery there is established. We argue it further, from the fact, that slavery exists there now by an act of Congress.
The third weakness in our system, and in some respect the most dangerous, as it is in all respects the most pestiferous, is the insanity of law-making. All parliamentary governments suffer from this malady, but that of the United States most grievously, and this is true of the national government, the states and the municipalities.
You may say that this should be done, and yet the other should not be left undone; but, as matter of fact and history, the doing of the one has always gone with the neglect of the other, and ascetic law-making in the interests of virtue has never been accompanied either by law-making or any other kinds of activity for making virtue easier or more attractive.
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