So much for the growth of law, the origin of Anglo-Saxon law, as we understand it, and for representative government, and for the origin of Parliament.  I doubt if there was any giving of new law, anything that we should call legislation, made by the English Parliament, then called the Witenagemot, before the Norman Conquest.  I have never been able to find any.  You find occasional announcements that the men of Kent “shall have their liberties as they used to,” and perhaps there will be a statement of what those liberties were, in brief; but it is always clearly meant that they are stating the law as already existing.  How, then, did they invent a legislature?

The Roman law, the whole Roman system, as you know, was absolutely distinct, and distinct in two great principles which have lasted down really into modern times, and still divide Continental countries from Anglo-Saxon countries.  What I call the first great principle is universal law—­the principle that no officer of government, no high official, no general, no magistrate, no anybody, can do anything against the law without being just as liable, if he infringed upon a subject’s liberty, as the most humble citizen.  That is a notion which does not yet exist on the Continent or any part of the world except England and the United States, and the countries or colonies copying after them.  In Germany, for instance, Dr. Gierke tells me it exists only partially and by a modern constitution.  This is the first great difference; and the second one is the notion that laws are made by the people only, with or without representative government.  The notion of law as a custom is Teutonic; but on the Continent the Germans abandoned it.  The Roman law was always law more as we moderns think of it; it was an order, addressed by the sovereign, or at least by a political superior, to a subject or to a political inferior; addressed in the form of definite writing, that is to say, a statute, and with a sanction, that is to say, a penalty, a threat as to what the sovereign will do if the subject does not obey.  That is the universal notion of Roman law, and it has so far affected certain English writers on jurisprudence that I feel almost one should be warned against them.  Not that their side isn’t arguable, but the weight of English history seems the other way.  Austin, for instance, was so much impressed with the notion of law as an order from the sovereign to an inferior that he practically, even when considering the English Constitution, adopts that notion of law, and therefore arrives to some conclusions, as it seems to me, unwarranted, and certainly omits to note a great many things that would be noted had he kept clearly the Anglo-Saxon theory of law in mind.