In theory, a man arrested has a right to sue him for damages, and
to sue him criminally for trespass; and if that man, be he private
individual or be he an official or president, cannot show by a "due
course of law"--that is, by a due lawsuit, tried with a jury--that he
did it under a duly enacted law, and that the facts of the case were
such as to place the man under that law--then that official, however
high, is just as much liable in the ordinary courts, as if he were the
merest footpad trying to stop a man on the highway--a doctrine almost
unknown to any country in the world outside of England, the United
States, and English colonies.




III

RE-ESTABLISHMENT OF ANGLO-SAXON LAW


Going on with the statutes, the next thing we will note is a matter
that concerns the personal relations. It shows again how eagerly our
English common law overruled the church law, the canon law. Although
the church under the pope always pretended that it alone had authority
to regulate relations between the sexes, marriage and divorce, we
found Henry I interfering with the priests themselves, and we now find
as early as 1235, a secular statute which extends the interference of
the secular law over the relations between parent and child; that is,
as to when a child should be legitimate and when not. We shall have a
great deal to say later about marriage and divorce laws, particularly
divorce laws as they exist in this country and as they apparently are