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Two Laws

Excerpt from STAND FAST BY OUR CONSTITUTION, 1978, by J. Reuben Clark (link to Wikipedia).

J. Reuben Clark served as Solicitor for the Department of State, Under Secretary of State, and Ambassador to Mexico.  The J. Reuben Clark Law School at Brigham Young University is named after him.

The contents of this book consist of a number of speeches given by Clark over a number of years in the 1940s.  The speeches generally concerned issues about freedom, proper roles of government, and the Constitution of the United States.

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page 138

Lincoln's Prophecy

I remind you at this point that Lincoln, speaking before the Young Men's Lyceum of Springfield in 1837 (he was then not yet 28 years old), with far-flung vision and prophecy, declared that our country need not fear all the armies of the world, with a Bonaparte at their head, for such could not, he said, "by force take a drink from the Ohio or make a track on the Blue Ridge in a trial of a thousand years." He affirmed our real danger would come from the hands of some ambitious man who would rise up from amongst ourselves and burning and thirsting for distinction, would gratify his ambition, whether by emancipating slaves or enslaving freemen. Events of the past few years have abundantly shown how this tragic fate of enslaving freemen might be brought to us.

Accordingly, I shall discuss briefly certain phases of the executive power under the Constitution, and the present tendency to enhance it.

Two Legal Systems

As of the time of the writing of the Constitution, there were two great systems of law in the world — the Civil Law (the law of continental Europe) and the Common Law (the law of England and her colonies, including the thirteen American Colonies).

Briefly, and stated in general terms, the basic concept of these two systems was as opposite as the poles — in the Civil Law the source of all law is the personal [139] ruler; whether prince, king, or emperor — he is sovereign. In the Common Law, certainly as finally developed in America, the source of all law is the people; they, as a whole, are sovereign.

During the centuries, these two systems have had an almost deadly rivalry for the control of society, the Civil Law, and its fundamental concepts being the instrument through which ambitious men of genius and selfishness have set up and maintained despotisms; the Common Law, with its basic principles, being the instrument through which men of equal genius, but with the love of mankind burning in their souls, have established and preserved liberty and free institutions. The Constitution of the United States embodies the loftiest concepts yet framed of this exalted concept. Because of these different concepts and the presence and reaction amongst us today of the Civil Law concepts, I wish in very general terms, to contrast some of the characteristics of these two systems.

The Civil Law was developed by Rome, with a high genius not since excelled. Its provisions reached deep into the elemental factors that weld men into nations. Rome was called the Mistress of the World, and in the realm of law she retains, today, among the bulk of civilized peoples, that proud position.

The Theodosian Code

Now a little history: Following the pattern of the somewhat earlier private codifications of Gregorius and Hermogenes (of the time of Constantine), the Emperors Theodosius II and Valentinian III (Augustuses) on March 26, 429 A.D., appointed by Imperial Edict (the people were not consulted either directly or through representatives), a committee of jurists to prepare an official code. They prescribed what it was to contain. This [140] Code was prepared and presented to the Roman Senate some nine years and nine months later (Dec. 25, 438).

That Senate, which had long since lost its power and was almost menially subservient to the Emperor, received the Code with shouts of approval: "It is right! So be it!" accompanied by loud exclamations of oriental flattery for the Emperor. There was no debate on the Code by the Senate, no objection, question, or dissent; the Senate did not so much as dot an "i" or cross a "t." The Code was wholly the offspring of the Emperors; the people had no part whatever in it.

We should understand that everything connected with the Emperor was divine or sacred — there was the sacred imperial palace, the sacred imperial bedchamber, the sacred imperial wardrobe, the sacred laws, etc. The government was an absolute autocracy, the state was thoroughly militarized, the Emperor in supreme command. The Emperor was the sole source of law. By the simple issuance of a new law, the Emperor could modify or repeal any previous law. All imperial utterances were considered divine or sacred, the contravention of a given law, as was often proclaimed, was sacrilege, and the punishment for sacrilege was death. The laws issued and codified were designed to keep secure this absolute, unchallenged power and authority of the Emperor.

It is interesting to note that these laws, proclaimed over 1,500 years ago, had provisions covering such so-called modern concepts, which our emigres and fellow travelers would have us believe are new inventions, as price fixing, black markets, excessive taxation, socialized medicine, conscription of labor, anti-Semitism, inflation, corruption in government bureaus, the relationship between Church and State — all phrases familiar to our ears. Under these laws, "the entire population was organized as in one vast army. All, including the highest [141] officials, were strictly classified, and even the least had a station. In substance this meant that everyone did what he was told, and did not act without permission." There was a great body of secret police to report disobedience; there was a "special" secret police appointed to watch the ordinary secret police. These laws were framed to provide security. We of today have heard that same kind of security talk. But, in fact, all this bred not security, but scarcity of grain, of materials, of men. The mere making of laws, even in an absolute despotism, does not change the great laws of nature and economics — neither then nor now, for there can be no permanent stability where men are not free. In fewer than forty years from the issuance of the Theodosian Code (i.e., 476 A.D.) the Empire of the West fell, notwithstanding the operation, under complete autocratic powers, of economic devices enacted to promote the welfare of the people and to preserve the empire; some of these devices were the same ones that we have been told will rebuild our economic structure and preserve our free institutions. These devices failed with Rome; they will ultimately fail with us.

The Code of Justinian

Ninety years later, in 528 A.D. Justinian, Emperor of the Roman Empire of the East, struggling to preserve and build his Empire by complete autocratic authority, called a noted jurist named Tribonian to collect about him a group of other jurists (there were nine others) and with them to compile the laws issued since the time of Constantine, nearly 200 years before (306-337 A.D.). The accumulations of laws were said to be so voluminous as to fill 2,000 books and some 3 million verses, estimated to equal 580 volumes of 400 pages to a volume. Tribonian’s compilations were in four parts: A Code, containing all the imperial statutes thought worthy of preserving from [142] Hadrian (117-138 A.D.) to Justinian; the Institutes, which contain the great elements of the Civil Law, but none of them embodying the principles of a free government; the Pandects, declared to be "the greatest repository of sound legal principles, applied to the private rights and business of mankind, that has ever appeared in any age or nation," (Justinian called it "the temple of human justice") ; the Novels, a collection of new laws passed subsequent to the compilation of the Code, to correct errors and supply omissions in the Code. The new Code was published in 534. All of the sources on which the Justinian compilations were based, except the Theodosian Code, disappeared after the publication of Justinian's Code, Institutes, and Pandects. These works were composed and written in Latin and later translated into Greek.

While the absolute power of the Emperor was implicit in the Theodosian Code, it was boldly announced in the Justinian compilations. The Emperor had all legislative, judicial, and executive power in himself. Some affirm this principle had its origin during the reign of Augustus Caesar, some trace it back to Romulus and the founding of Rome, 753 B.C.

The exact words of the Institute containing this declaration read (in translation): "The constitution of the prince hath also the force of a law; for the people by a law, called lex regia, make a concession to him of their whole power."

This principle seems to have been basic to Roman law in the West, for over 1,200 years, with almost a thousand years more in the East, or until 1453 A.D., when the Turks captured Constantinople. It seems that not always was the principle fully operative, but it seems, also, that there never was a time when the executive power, whoever held it, and howsoever it was secured, [143] was not more or less supreme in all the affairs of state — legislative, executive, and judicial.

Thus it was inevitable that this principle of the autocratic power of the Emperor, the executive, which was basic in the laws of Western and Southern Europe and portions of the Near East for over 2,000 years (sometimes the principle lay dormant, but still there, during the period of the Roman Republics; sometimes it was active, as in the days of the Empire, West and East), should be a vital portion of the warp and woof of the law of continental Europe.

Gothic Influence

The Gothic barbarians, swarming over the countries of the Western Empire, brought with them their governments of mixed or limited and elective monarchies, with their "popular assemblies or national councils of the aristocratic class, which gave their assent to laws, and were the basis of all lawful authority," yet when these barbaric eruptions had spent their force and something of normal life was resumed among the indigenous peoples, the customs and traditions of preceding centuries began to reassert themselves, and people began to look back to the provisions of the Civil Law. By the middle of the 12th century, the study of the Civil Law throughout Italy and Western Europe was ardently taken up.

The Eastern Empire was now being pressed with the peoples resident all along their land boundaries; in three centuries it would fall — a relatively short time in the more than 2,200 years of the life of the Roman Empire, West and East.

Moreover, the end of the 15th century and the beginning of the 16th saw the opening of the Renaissance. The fall of the Eastern Empire scattered the learned men of [144] the Empire over the whole country, learning revived, and once more the law of Rome resumed its sway over the European continental world.

The Code Napoleon

One other code may be mentioned — a modern one — the Code Napoleon. Having been appointed Consul, Napoleon appointed a Committee to make a codification of laws. Napoleon assisted in the deliberations. Here again the people were not consulted. It was compiled in four months, and is said to be the product of the Roman and customary laws, the ordinances of the kings, and the laws of the Revolution. This Code is firmly entrenched in most of the countries of Europe and prevails among most of the Latin races.

This Code Napoleon, like the Theodosian and Justinian Codes, did not originate with the legislative branch of government, nor on the initiative of the people. All these codifications originated with the ruler of the nation; their provisions were dictated by him. The rigors of this system were at times mitigated by a benign sovereign, but only to the extent that he desired; legislative bodies might at times be set up and function as he permitted; but any attempt by those bodies to go contrary to his will was somehow made ineffective; sometimes such efforts were treasonable and so treated.

Rights of People

The people under this system have those rights, powers, and privileges, and those only which the sovereign considers are for their good or for his advantage. He adds or takes away as suits his royal pleasure. All the residuum of power is in the Emperor. Under this system, the people look into the law to see what they may do. They may only do what the Emperor has declared they may do. [145] It may be noted in passing, that under our common law system, we look into the law to see what we may not do, for we may do everything we are not forbidden to do. This civil law concept explains why, over the centuries, it has been possible for the head of a state, operating under this concept, to establish with comparative ease a dictatorship.

We must always remember that despotism and tyranny, with all their attendant tragedies to the people, as in Russia today, come to nations because one man, or a small group of men, seize and exercise by themselves the three great divisions of government — the legislative, the executive, and the judicial. For now a score of centuries, the nations and peoples of Western and Southern Europe — "the bulk of the civilized world until less than two centuries ago — have lived under this concept (sometimes more, sometimes less) and, when the concept has been operative, have suffered the resulting tragedies — loss of liberty, oppression, great poverty among the masses, insecurity, wanton disregard of human life, and a host of the relatives of these evil broods.

Concepts of the Founding Fathers

The Framers of our Constitution knew this history, and planned to make sure that these enemies to human welfare, freedom, and happiness did not come to America. They were trained and experienced in the Common Law. They remembered the Barons and King John at Runnymede. They were thoroughly indoctrinated in the principle that the true sovereignty rested in the people.

Near the beginning of our Revolution, the representatives of the people met in Philadelphia and issued their great proclamation, the Declaration of Independence. They solemnly announced:

[146] "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed .... And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, We mutually pledge to each other our Lives, our Fortunes and our sacred Honor."

They made good the pledge to the last great sacrifice, and independence was won. The representatives of the people were then speaking, and they spoke the things that were in their hearts, for which they were ready to die, and did die. No Emperor ever spoke in these terms. To have done So, would have been his suicide.

Twelve years after the Declaration, spurred by dissensions among the colonies which threatened civil disturbances that would have invited reconquest, the representatives of the people again met in Philadelphia in the same hall and framed the Constitution. The Preamble to that inspired document laid down the great purposes to accomplish which the new government was set up. It declared:

"WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the.United States of America."

Here the people were speaking as sovereign, not an Emperor, nor a small, self-appointed group assuming to be sovereign. The people declared they were so acting and [147] did so act by adopting the Constitution. They formally declared: "We the people … do ordain and establish." This is the difference between liberty and despotism. Deeply read in history, steeped in the lore of the past in human government, and experienced in the approaches of despotism which they had, themselves, suffered at the hands of George the Third, these patriots, assembled in solemn convention, planned for the establishment of a government that would ensure to them the blessings they described in the Preamble. The people were setting up the government. They were bestowing power. They gave to the government the powers they wished to give; they retained what they did not wish to give. The residuum of power was in them. There was no emperor, no lex regia here.