Page:Yale Law Journal - Volume 27.pdf/36

From Wikisource
Jump to navigation Jump to search
This page has been proofread, but needs to be validated.

12

YALE LAW JOURNAL

to enforce the law. In other words, in such cases, that usually happens which happened long, long ago when one member of a social group was injured by another's breach of a group custom.

Although we have no record of a time when there were communities with laws but without a state to enforce them, there was a time not so very long ago when the machinery for enforcing laws was woefully inefficient in so far as the communities from which we are descended are concerned. The earliest traditions relate to a time when the family was the autonomic group, and at that time, the head of the family exercised more or less authority over its members; but after tribes were evolved from the family, the tribe usually administered its affairs in an assembly composed of the whole body of free men. This is true in so far as the Germans from whom we are descended are concerned, and is probably true of the whole Aryan race. Each of these tribes had a chief who presided over its assembly and exercised more or less authority over tribal affairs. At first the office seems to have been personal; but gradually the chief was able to increase his power, and in time the office became hereditary and he became a king resting his right to rule on the will of God-not on the will of his people. When absolutism had done its work, the people tired of their kings and put them under the law; and in that way the modern constitutional state was evolved to do some of the things kings had done, and such other things as the community which made it thought would promote the community's well-being. In other words, a modern constitutional state is a corporation created by a community to administer its affairs. This is true notwithstanding most European states were evolved from the original group through the family, tribe and kingdom; for, while the community has the right to limit individual freedom of action in so far as that is necessary to effectuate its well-being, no man has or can have that right, if men are equal, except in so far as he acts for the community.

All states, therefore, no matter when or how they were formed, are corporations with such powers and such powers only as their creators gave them. To illustrate my meaning, the people who created the British monarchy vested the supreme legislative power in Parliament; but those who created the United States of America retained that power in their own hands.

If, therefore, we are to understand what a state can and cannot do, we must remember that while the community is