Popular Law-making
by
Frederic Jesup Stimson
Part 1 out of 8
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POPULAR LAW-MAKING
A STUDY OF THE ORIGIN,
HISTORY, AND PRESENT TENDENCIES
OF LAW-MAKING BY STATUTE
BY
FREDERIC JESUP STIMSON
PROFESSOR OF COMPARATIVE LEGISLATION IN HARVARD UNIVERSITY
"NOW, MY LORD, I DO THINK, THAT PRACTICE AND USAGE IS A GREAT
EVIDENCE OF THE LAW."--CHIEF JUSTICE HOLT, IN "THE
GREAT CASE OF MONOPOLIES."--7 STATE TRIALS, 497
1911
TABLE OF CONTENTS
I. THE ENGLISH IDEA OF LAW
Proper Field of Legislation; Meaning of the Word "Law,"; Modern
Importance of Statute Law; Representative Government and the Right
to Law; Enforcement of the Common Law; Origin of Representative
Legislatures; Customary or Natural Law; No Sanction Necessary;
The Unwritten Law and Outlawry; Early Parliament Merely Judicial;
Contrast of Common Law with Roman Law; Theory that the King Makes
Law; Parliament Retains the Right to Tax; Parliament Recovers
Legislative Powers.
II. EARLY ENGLISH LEGISLATION AND MAGNA CHARTA
Constructive Legislation a New Idea; Statutes Increase of Late
Years; Sociological Legislation only Considered; Early Legislation
Political; English Law not Codified; Early Anglo-Saxon Laws;
Freedom Gained in Guilds; Threefold Division of Government; No
Constitution Controls Parliament; Restoration of English Law After
the Conquest; Taxation by Common Consent; Earliest Social Statute;
Recognition of Personal Property; Law of Land Tenure; The Charter
of Liberties; Early Methods of Trial; Distinction Between Sin and
Crime; Church Law Governs Sin; Important Clauses of Magna Charta;
Freedom of Trade; Taxation for the Common Benefit; The Great
"Liberty" Clause; "Administrative" Law not English; No Government
Above Law.
III. RE-ESTABLISHMENT OF ANGLO-SAXON LAW.
Common Law Against Civil Law; "We Are Unwilling to Change the Laws
of England;" Usury and the Jews; Towns Represented in Parliament;
The Fixing of Prices; Sumptuary Laws; The Benefit of Clergy;
Partial Codification; The Statute of Westminster I; Law Extended
to All People; Labor Makes Men Free; The Freedom of Elections;
"Cruel and Unusual Punishment"; Sexual Offences Made Secular
Crimes; Earliest Duties on Imports; Early Duties on Wool; The Law
of Wrecks.
IV. EARLY LABOR LEGISLATION, AND LAWS AGAINST RESTRAINT OF TRADE
AND "TRUSTS"
Extortion and Discrimination; Forestalling, Regrating, Engrossing;
The Statute of Bakers; Origin of Law of Conspiracy; The Law
of Combination; The Modern Definition; Combinations Against
Individuals; Intent Makes the Guilt; Conspiracy More Heinous
than the Act Committed; Combinations to Injure Trade; Individual
Injuries to Business; Definition of Forestalling; "The Iowa Idea";
The Statutes of Labor; First Statute of Laborers; A Fixed Wage;
Early Law of Strikes; Early Law of Trades-Unions; Labor Conditions
in Early Times; Combinations to Fix Prices; Unlawful By-Laws of
Unions; Restraint of Trade; The Eight to Labor; The Earliest
Boycott; Origin of the Injunction in Labor Cases; The Common Law
Vindicated; Compulsory Labor in England; Free Trade to Merchants;
Jealousy of Chancery Power; Guilds and Corporations; Chancery and
the Star Chamber; By-Laws Tending to Monopoly; Hours of Labor
Laws; Idlers and Vagabonds; Trusts and Labor Combinations; Riots
and Assemblies; The Statute of Elizabeth; Early Labor Regulations;
The First Poor Law; The First Complaint of Monopolies; Growth
of Monopolies; The Statute of Monopolies; The Impeachment of
Monopolists.
V. OTHER LEGISLATION IN MEDIAEVAL ENGLAND
The Statute of Mortmain; The Law Merchant; Origin of Habeas
Corpus; Early Police Regulation; Opposition to Customs Duties;
Interpretation of the Great Charter; Statute Against Chancery
Jurisdiction; Early Tariffs on Wool; The English Language Replaces
French; Freedom of Trade at Sea; Laws of the Staple; Early Food
Laws Forbidding Trusts, etc.; The Statutes of Dogger; Department
Stores and Double Trading; Freedom of Trade Restored; Jealousy of
the Roman Law; Laws Against Scotch, Welsh, and Irish; Injunctions
Issued Against Seduction; The First Statute of Limitations;
Personal Government Under Henry VIII; Laws Against Middlemen;
Final Definitions of Forestalling, Regrating, Engrossing; The
First Poor Law and Forestry Law; The First Trading Corporations;
The Heresy Statutes; James I, Legislation Against Sins; Cromwell's
Legislation; The First Business Corporation; Corporations Invented
to Gain Monopoly; Growth of the Trade Guilds; Veterans' Preference
Legislation.
VI. AMERICAN LEGISLATION IN GENERAL.
Early Increase of State Legislation; The State Constitutions; When
Statutes Should Be Unconstitutional; Effect of the Initiative and
Referendum; The True Value of Precedent.
VII. AMERICAN LEGISLATION ON PROPERTY RIGHTS
Proper Classification of Statutes; Anarchism, Individualism,
Socialism; Definition of Communism; Definition of Nationalism;
Property a Constitutional Right; Not a Natural Right; Socialism
Unconstitutional; Eminent Domain; What Are Public Uses;
Irrigation, Drainage, etc.; Internal Improvements; Bounties;
Exemptions from Taxation; Limits Upon Tax Rate; Income Taxes;
Inheritance Taxes; License Taxes; Betterment Taxes; Double
Taxation; The Police Power; Government by Commission; Noxious
Trades, Signs, etc.; Modern Extensions of Police Power; Pure Food
and Drug Laws; Prohibition Laws; Oleomargarine Laws; Examinations
for Professions; Christian Science and Osteopathy; Trading Stamps
and Department Stores; Usury Laws; Negotiable Instrument Laws;
Bills of Lading and Warehouse Receipts; Sales in Bulk; Intestate
Succession; Laws for Protection of Debtors; Mechanics' Lien Laws;
Mortgage Foreclosures; Nuisances; The Buying of Futures; Tips and
Commissions; Weights and Measures; Laws Against Middlemen.
VIII. REGULATION OF RATES AND PRICES
Laws Fixing the Rate of Wages; Wages in Public Work; Logic of
Rate Regulation; The Granger Cases; Theory of Rate Regulation;
Regulation by the States; Constitutional Difficulties of Rate
Regulation; The Railway Rate Act of 1910; The Long and Short Haul
Clause.
IX. TRUSTS AND MONOPOLIES
The Trusts at Common Law; The Sherman Act; State Laws Against
Trusts; Federal Incorporation; Other Remedies of the States; Class
Legislation and Organized Labor; Recent Decisions and Laws Against
Trusts; Constitutional Provisions Against Trusts; Growth and
Decline of Anti-Trust Legislation; Best Remedy for Trusts; Only
Three Courses Possible; Centralization and Federal Control.
X. CORPORATIONS
History of Trading Corporations; Two Theories of Corporation Law;
The Massachusetts Commissioners' Report; The Payment Up of Stock;
The Massachusetts Law; The "Business Corporation" Act; Corporation
Laws of All the States; Publicity and Other Remedies; Laws
Regulating "Holding" Companies and Stock Ownership by
Corporations; Corporations of Other States; States May Exclude;
Summary of the Trust Question; Public Service Companies.
XI. LABOR LAWS
English Law Does not Enforce the Labor Contract; Freedom to
Trade and Labor; Sources of Reform Legislation; Constitutional
Difficulties; Minimum Wage Laws; The Rate of Wages in Public Work;
Equal Wages for Women; The New York Constitutional Amendment;
Hours of Labor Laws for Men; Hours of Labor Laws for Women;
Prohibited Employments to Women; Hours of Labor of Children; Laws
of All the States To-day; Hours of Labor in Factories, etc.; Child
Labor Prohibited; Hours of Labor in Mines; Age Limit for Child
Labor, Dangerous and Immoral Trades, Protection of Young
Girls, Labor in Mines, Hours of Labor in Peculiar Trades, The
Constitutional Difficulty, Farms and Domestic Labor, Continental
Legislation, Sanitary Restrictions on Female Labor, Sweatshop
Laws, The Factory Acts, Employers' Liability, Anti-Truck
Legislation, Factory Stores and Dwellings, Benefit Funds and
Compulsory Insurance, The Regime of Contract, Compulsory Labor and
Peonage, Statutes Against Intimidation, Blacklists, Picketing,
Armed Guards, Political and Militia Duties, Miscellaneous Matters,
Profit-Sharing, etc., Discrimination Against Union Labor, Twenty
Years of Labor Legislation, Foreign Labor Legislation, Employers'
Liability, Old Age Pensions, Minimum Wage Laws, Co-operation and
Profit-Sharing, Arbitration Laws, Labor Legislation in Europe.
XII. COMBINATIONS IN LABOR MATTERS
The Law of Combination and Conspiracy, Intent the Test, The
English Conspiracy Act, Modern Reforms Desired by Organized Labor,
Boycotts and Blacklists, Intimidation, Interference with Political
Rights, The Oklahoma Labor Code, European Law of Combination.
XIII. MILITARY AND MOB LAW, AND THE RIGHT TO ARMS
The Right to Civil Law, Martial Law, Military Law, The Right to
Arms, Military Service, The Struggle Against Martial Rule in
England, Standing Armies, Mobs, Riots, Lynching, The Use of the
Army in Labor Troubles,
XIV. OF POLITICAL RIGHTS
The Right to Assembly and Free Elections; The Suffrage, 28;
The Force Bills; Interference with Voting; Bribery and Corrupt
Practices; Lobbying Acts; The Form of the Ballot; Direct Primaries
and Nominations; The Distrust of Representative Government;
Corrupt Elections Laws; Direct Election of U.S. Senators; Women's
Suffrage; Municipal Elections, The Initiative, Referendum, and
Recall; The Judicial System.
XV. OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS
Freedom of Speech and of the Press; The "Unfair" List; Prohibition
of Anarchistic Propaganda; The Right to Privacy; Search Warrants
and Self-Incrimination; Religious Rights.
XVI. LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS
The Race Question; Races Capable of Citizenship; The War
Amendments and Their Effect; The Negro's Social and Property
Rights; The Privileged Classes.
XVII. SEX LEGISLATION, MARRIAGE AND DIVORCE
A Woman Is a Citizen; Her Right to Labor and Property; Marriage,
Divorce, and Children; Women in Politics and Education; Reform of
Divorce Procedure; Uniformity of Law in Divorce; The Secular Law
in Sexual Matters; Marriage a Contract; The "Single Standard"
and Free Divorce; Control of Marriage by the State; Recent
Legislation; Radical Statutes in Sexual Matters; Legal Separation;
The Married Woman's Privileges; The "Age of Consent"; Female
Suffrage by Property-Owners; Kidnapping, Curfew, Rape; Statistics
of Divorce; Industrial Liberty of Women; Female Labor in England
and U.S.A.
XVIII. CRIMINAL LAW AND POLICE
Common Law Prevails; New Crimes and Penalties; Self-Regardant
Actions; Reform in Punishment; Procedure in the Courts; Lynching
and Mob Law; Interstate Commerce in Liquor, etc.; Physicians'
Privilege; Prohibition Laws; City Ordinances; Juvenile Courts and
Laws; Present Needs.
XIX. OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE
PUBLIC DOMAIN
Government by Commission; Taxes, Debt, and Franchises; Municipal
Socialism; Internal Improvements; State Farms and Forests;
Education; Taxation and State Aid; Present Questions.
XX. FINAL
The Form of Our Statutes; Need of Authorized Revisions; Reforms
Recommended; Indexing and Arrangement; Need of a Parliamentary
Draughtsman; Recommendations of the State Librarians; Purpose of
this Book.
INDEX
POPULAR LAW-MAKING
I
THE ENGLISH IDEA OF LAW
My object in the lectures upon which this work is based was to give
some notion of the problems of the time (in this country, of course,
particularly) which are confronting legislators primarily, political
parties in the second place, but finally all good citizens. The
treatment was as untechnical as possible. The lectures themselves were
for men who meant to go into business, for journalists, or political
students; a general view--an elemental, broad general view--of the
problems that confront legislation to-day. So is the book not one for
lawyers alone; it seeks to cover both what has been accomplished
by law-making in the past, and what is now being adopted or even
proposed; the history of statutes of legislation by the people as
distinct from "judge-made" law; how far legislatures can cure the
evils that confront the state or the individual, and what the future
of American legislation is likely to be. Constitutional difficulties
I had merely mentioned, as there was another course of lectures on
American constitutional principles, which supplemented it.[1] In those
I tried to show what we _cannot_ do by legislation; in these I merely
discussed what had been done, and tried to show what we are now doing.
What we may _not_ do may sound, perhaps, like a narrow field; but the
growth of constitutional law in this country is so wide--in the first
place including all the English Constitution, and more than that,
so many principles of human liberty that have been adopted into our
Constitution, either at the time it was adopted, or which have crept
into it through the Fourteenth Amendment, with all the innovations
of State constitutions as well--that really the discussion of what
_cannot_ be done by statute takes one almost over the entire range of
constitutional law and even into the discussion of what cannot be done
in a free country or under ordinary principles of human liberty.
[Footnote 1: "The Law of the Federal and State Constitutions of
the United States," Boston Book Company, 1908. "The American
Constitution," Scribners, New York, 1907.]
How many of us have ever formulated in our minds what _law_ means? I
am inclined to think that the most would give a meaning that was never
the meaning of the word _law_, at least until a very few years
ago; that is, the meaning which alone is the subject of this book,
_statute_ law. The notion of law as a _statute_, a thing passed by a
legislature, a thing enacted, made new by representative assembly, is
perfectly modern, and yet it has so thoroughly taken possession of our
minds, and particularly of the American mind (owing to the forty-eight
legislatures that we have at work, besides the National Congress,
every year, and to the fact that they try to do a great deal to
deserve their pay in the way of enacting laws), that statutes have
assumed in our minds the main bulk of the concept of law as we
formulate it to ourselves. I guess that the ordinary newspaper reader,
when he talks about "laws" or reads about "law," thinks of statutes;
but that is a perfectly modern concept; and the thing itself, even
as we now understand it, is perfectly modern. There were no statutes
within the present meaning of the word more than a very few centuries
ago. But statutes are precisely the subject of this book; legislation,
the tendency of statute-making, the spirit of statutes that we have
made, that we are making, and that we are likely to make, or that are
now being proposed; so it is concerned, in a sense, with the last and
most recent and most ready-made of all legal or political matters. The
subject of statute-making is not thought difficult; it is supposed
to be perfectly capable of discussion by any one of our State
legislators, with or without legal training; and sometimes with
lamentable consequences. For the subject is of the most immense
importance, now that the bulk of all our law is, or is supposed to be,
statutes.
In order to understand, therefore, what a statute is, and why it has
grown important to consider statute-making, it is necessary to have
some knowledge of the meaning of the word _law_, and of the origin
both of representative government and of legislatures, before we come
to statutes, as we understand them; for parliaments existed centuries
before they made statutes as we now use this word. _Statutes_ with
us are recent; _legislatures_ making statutes are recent everywhere;
legislatures themselves are fairly recent; that is, they date only
from the end of the Dark Ages, at least in Anglo-Saxon countries.
Representative government itself is supposed, by most scholars, to be
the one invention that is peculiar to the Anglo-Saxon people.
And there is another invention--if we can call it one--to my mind of
far greater importance, which I should urge was also peculiar to the
Anglo-Saxon people; that is, the invention or the idea of personal
liberty; which is understood, and always has been understood, by
Anglo-Saxons in a sense in which it never existed before, so far as I
know, in any people in the history of the world. It is that notion of
personal liberty which was the cause of representative government, not
representative government that was the cause of personal liberty. In
other words, the people did not get up a parliament for the sake of
having that parliament enact laws securing personal liberty. It was
the result of a condition of personal liberty which prevailed among
them and in their laws that resulted in representative government, and
in the institution of a legislature, making, as we now would say, the
laws; though a thousand years ago they never said that a legislature
_made_ laws, they only said that it _told what the laws were_. This is
another very important distinction. The "law" of the free Anglo-Saxon
people was regarded as a thing existing by itself, like the sunlight,
or at least as existing like a universally accepted custom observed by
every one. It was five hundred years before the notion crept into the
minds, even of the members of the British Parliaments, that they could
make a _new_ law. What they supposed they did, and what they were
understood by the people to do, was merely to _declare_ the law, as it
was then and as it had been from time immemorial; the notion always
being--and the farther back you go and the more simple the people are,
the more they have that notion--that their free laws and customs were
something which came from the beginning of the world, which they
always held, which were immutable, no more to be changed than the
forces of nature; and that no parliament, under the free Anglo-Saxon
government, or later under the Norman kings, who tried to make them
unfree, no king, could ever _make_ a law, but could only declare what
the law was. The Latin phrase for that distinction is _jus dare_, and
_jus dicere_. In early England, in Anglo-Saxon times, the Parliament
never did anything but tell what the law was; and, as I said, not
only what it was then, but what it had been, as they supposed, for
thousands of years before. The notion of a legislature to make _new_
laws is an entirely modern conception of Parliament. How did it arise?
The English Parliament,[1] as you doubtless know, was the successor,
or grew out of the old Witenagemot, the old Saxon Great Council, and
that Great Council originally--and I am now talking of centuries
before the Conquest--the Witenagemot, included in theory all the free
inhabitants of the realm, just as a modern town meeting does. Mind
you, they were then tribes, living in "Hundreds." They were not
nations, not even states and counties, and in early times it probably
was possible to have a popular assembly which should include at least
all the warriors, all the fighting men, and consequently all the men
whose votes counted. No man who could not fight could share in the
government--an historical fact which our suffragists tend to ignore
when they talk of "rights." The Witenagemot, undoubtedly, was
originally a universal assembly of the tribe in question. But as
the tribes got amalgamated, were associated together, or at least
localized instead of wandering about, and particularly when they got
localized in England--where before they had been but a roaming people
on account of their struggles with the Britons--the necessity of
greater organization probably became obvious to them at once, and the
Witenagemot readily assumed a somewhat more formal form; and that
resulted in representation. For we are talking of early England;
that is, of the eastern half of what is now England, the Saxon part;
obviously you couldn't put all the members even of East Anglia in one
hall or in one field to discuss laws, so they invented representation.
All the authorities appear to be agreed that there is no prototype
for what seems to us such a very simple thing as representation,
representative government, among the Greeks or the Romans, or any
of the older civilizations of which we have knowledge. It is very
surprising that it is so, and I am always expecting that some one will
discover, either in the Achaian League or somewhere, that it is not
so, that there is a prototype; but there doesn't seem to be any
regular system of representative government until you get to
Anglo-Saxon peoples. So that was the second stage of the Witenagemot,
and then it properly begins to be called the Great Assembly or
Council of the people. This representative assembly was then not only
legislative, it was also executive, to some extent, and entirely
judicial; for we are a thousand years before the notion of the
threefold division of government has occurred to any one. The early
Saxon Witenagemot, as later the Norman kings tried to, did unite all
three functions in themselves. Their main function was judicial; for
the reason that there was very little notion as yet of _legislation_,
in a people or tribe whose simple customs and simple property demanded
very few laws, where the first remedy for any man for any attack on
his family or property was the remedy of his own good, right hand.
When you really only got into a lawsuit, at least as concerning
property, as a result of a killing of somebody or other, albeit in
defence of one's own chattels, it is obvious that there need not be
much legislation; the laws were too well known, the unwritten law too
well enforced. It probably would have surprised the early Englishman
if he had been told that either he or anybody else didn't _know_ the
law--still more that there was ever any need for any parliament or
assembly to tell him what it was. They all knew the law, and they all
knew that they knew the law, and the law was a thing that they knew as
naturally as they knew fishing and hunting. They had grown up into it.
It never occurred to them as an outside thing.
[Footnote 1: Gneist, "The English Parliament," and Skottowe, "History
of Parliament," perhaps best summarize this view.]
So it has been found that where you take children, modern children,
at least boys who are sons of educated parents, and put them in large
masses by themselves, they will, without apparently any reading,
rapidly invent a notion of law; that is, they will invent a certain
set of customs which are the same thing to them as law, and which
indeed are the same as law. They have tried in Johns Hopkins
University experiments among children, to leave them entirely alone,
without any instruction, and it is quite singular how soon customs
will grow up, and it is also quite singular and a thing that always
surprises the socialist and communist, that about the earliest concept
at which they _will_ arrive is that of private property! They will
soon get a notion that one child owns a stick, or toy, or seat,
and the others must respect that property. This I merely use as an
illustration to show how simple the notion of law was among our
ancestors in England fifteen hundred years ago, and how it had grown
up with them, of course, from many centuries, but in much the same way
that the notion of custom or law grows up among children. The English
had acquired naturally, but with the tradition of centuries, the
notion of law a _sexisting_; and that brings us to the next point.
Here again we are so confused with our modern notions of law that it
is very important not to be misled by them at the beginning. I am
quite sure that all the American people when they think of law in
the sense I am now speaking of, even when they are not thinking
necessarily of statute law, do mean, nevertheless, a law which is
enforced by somebody with power, somebody with a big stick. They
mean a law, an ordinance, an order or dictate addressed to them by
a sovereign, or by at least a power of some sort; and they mean an
ordinance which if they break they are going to suffer for, either in
person or in property. In other words, they have a notion of law as a
written command addressed by the sovereign to the subject, or at least
by one of the departments of government to the citizen. Now, that, I
must caution you, is in the first place rather a modern notion of law,
quite modern in England; it is really Roman, and wasn't law as it was
understood by our Anglo-Saxon ancestors. He didn't think of law as
a thing written, addressed to him by the king. Neither did he
necessarily think of it as a thing which had any definite punishment
attached or any code attached, any _sanction_, as we call it, or thing
which enforces the law; a penalty, or fine, or imprisonment. There are
just as good "sanctions" for law outside of the sanctions that our
people usually think of as there are inside of them; and often very
much better. For instance, the sanction of a strong custom. Take any
example you like; there are many States where marriage between blacks
and whites is not made unlawful, but where practically it is made
tremendously unlawful by the force of public opinion. Take the case of
debts of honor, so-called, debts of gambling; they are paid far more
universally than ordinary commercial debts, even by the same people;
but there is no _law_ enforcing them--there is no _sanction_ for the
collection of gambling debts. And take any custom that grows up. We
know how strong our customs in college are. Take the mere custom of a
club table; no one dares or ventures to supplant the members at that
table. That kind of sanction is just as good a law as a law made
by statute and imposing five or ten dollars penalty or a week's
imprisonment. And judges or juries recognize those things as laws,
just as much as they do statute laws; when all other laws are lacking,
our courts will ask what is the "custom of the trade." These be laws;
and are often better enforced than the statute law; the rules of the
New York Stock Exchange are better enforced than the laws of the State
legislature. Now all our early Anglo-Saxon law was law of that kind.
And it was not written down for a great many centuries, and even after
being first written it wasn't usual to affix any _penalty_; they were
mere customs, but of an iron-bound nature--customs that were followed
far more devoutly than the masses of our people follow any of our
written laws to-day. And their "sanction" was twofold: In the first
place, the sanction I have mentioned, universal custom, social
ostracism for breach. A second and very obvious sanction, that if you
do a thing that I don't like and think is against the law, I am going
to knock you down or kill you if I can! That was a sanction, and a
perfectly good one; and the question that arose, therefore, was not at
all as to penalty for the law-breaker; it was whether there should be
a penalty for the law-breaker's being killed. That is the reason they
didn't have to have any penalty! In those days if there was a custom
that a certain tribe had a certain pasture, and a man of another tribe
pastured his cattle in that pasture, the first man would go to him and
they would have a fight, and if he killed him he would be, as we say,
arrested; then the matter would be inquired into by the kin of the
murdered man or neighbors, and if the killer could prove that the
murdered man had committed a breach of the law, he went off scot
free--so, as a matter of fact he would to-day, if it were justifiable
homicide. In other words, it was a question of whether it was
justifiable homicide; and that brought in the question what the
law was, and it was usually only in that way. For the law was but
universal custom, and that custom had no _sanction_; but for breach
of the custom anybody could make personal attack, or combine with his
friends to make attack, on the person that committed the breach, and
then, when the matter was taken up by the members of both tribes, and
finally by the Witenagemot as a judicial court, the question was, what
the law was; and if it was proved, for instance, that the law was that
there _was_ private property in that pasture belonging to the man who
committed the murder he went off scot free. That was the working of
the old Anglo-Saxon law, and it was a great many centuries before the
notion of law changed in their minds from that. And this "unwritten
law" perdures in the minds of many of the people to-day.
So it was that the Witenagemot--this Great Council of the realm--was
primarily judicial, in the first instance always judicial; that is, it
never made new laws. It got together to try people for the breach of
law; and that incidentally brought up the validity of the old law, and
then decided whether old law was valid or not. In a sense, therefore,
you see they told what the law was, they announced it; but they never
supposed they were making new laws. That was the last thing they
intended to do, and the last thing the people would have stood, had
they tried it.
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.
Now the Normans, mind you, had purely Roman law. While they were in
Normandy, being in France, they had imbibed or adopted Roman notions
of law, perhaps because they were then first civilized. They had lost
their old Saxon notions, if they had any, for they were, after all,
of the same _race_ as the Saxons. Nevertheless, when they conquered
England they brought just as much the notion of the Roman law into
England as if they had been Caesar's legions. And that fact must
always be borne in mind, and that led to centuries of conflict in the
making of English constitutional law. The first thing, of course, that
they tried to do, that the Norman kings tried to do, was to use law in
the Roman way; that is, to make the law themselves, from the king. For
that was another consequence of the Roman law, that not only was it an
order by the sovereign power, but that this sovereign power was not in
theory a legislature, as it is with us to-day, but the sovereign; in
France and the Continental countries laws were made in theory and in
practice by the king. So the Normans came over with the Roman notion,
in the first place, as to what law was, that it was a written, newly
made order of a sovereign, not a thing that had grown up and was part
of the lives and customs of the people, but a thing made out of hand
by the king; and, secondly, that it was made by the king and not by
any legislature. And the first two or three centuries of English
parliamentary history were mainly taken up, in the English Parliament,
so far as it concerns the subject of our course here, in the contest
between Parliament and the king as to who should make law and what
law was. It took more than one century for the Parliament, after the
Norman Conquest, to revive as a Parliament at all; then when it
did finally get together it took two or three centuries before it
established the principle that it had anything to do with the making
of law. The Norman kings regarded the Parliament as a mere method of
getting money from the people, hardly even as a Council when they
sought for popular support; and yet it was through the fact that they
so regarded Parliament that Parliament was enabled ultimately to
acquire the law-making or the legislative power which exists in all
our legislatures to-day. The king, in those days, derived his revenue
mainly from his own land. It was not necessary for the government to
have any revenue except for what we should call the king's private
purse. What was wanted for public expense was for two or three
well-recognized purposes, all purposes of defence. The old English
taxation system was in a sense no system. There wasn't any such thing
as taxation. There was the "threefold necessity" as it was called. It
was necessary for the king to have money, horses, grain, supplies,
etc., to defend the kingdom, and to build forts, and to maintain
bridges or defensive works; and that was the only object of taxation
in those times. Those were the only "aids"--they were called
"aids"--those were the only aids recognized. The first word for tax is
an "_aid_", granted voluntarily, in theory at least, by the barons to
the king, and for these three purposes only. The king's private purse
was easily made up by the enormous land he held himself. Even to-day
the crown is probably the largest land-owner in the kingdom, but at
the time of the Conquest, and for many years afterward, he certainly
owned an hundredfold as much, and that gave him enough revenue for his
purse; of course, in those days, money for such things as education,
highways, police, etc., was entirely out of their mind. They were
not as yet in that state of civilization. So the king got along
well enough for his own income with the land he owned himself as
proprietor. But very soon after the Norman Conquest the Norman kings
began to want more money. Nominally, of course, they always said they
wanted it for the defence of the realm. Then they wanted it, very
soon, for crusades; lastly, for their own favorites. They spent an
enormous amount of money on crusades and in the French wars; later
they began to maintain--always abroad--what we should call standing
armies, and they needed money for all those purposes. And money could
yet be only got from the barons, the nobility, or at least the landed
gentry, because the people, the agricultural laborers or serfs,
villeins, owned no land. Knights and barons paid part of the tax by
furnishing armed men, but still, as civilization increased, there was
a growing demand on the part of the Norman kings for money. Now
this money could be got only from the barons, and under the
Constitution--and here we first have to use that phrase--it could only
be got from the barons by their consent. That is, the great barons of
the realm had always given these aids in theory voluntarily. The king
got them together, told them what he wanted, and they granted it; but
still it had to come from them, and in the desire to get money the
Norman kings first called together the Great Council, first consulted
the parliament which afterward became their master. They made a
legislature by calling them together, although only for this purpose,
to give them the power of getting more money; but when the Great
Council was once together and the kings began to be more and more
grasping in their demands for money, the barons naturally wanted
something on their side, and they would say to them: "Well, yes--you
shall have this aid--we will vote you this tax--but the men of England
must have such and such a law as they used to under Anglo-Saxon
times." And they pretty soon got to using the word "people";
the "people" must have "the liberties they had under Edward the
Confessor"; and time after time they would wring from a Norman king a
charter, or a concession, to either the whole realm or a certain part
of the realm, of all the liberties and laws and customs that they
had under the old Saxon domination--and that ultimately resulted in
bringing the whole free English law back. Thus, early law was custom;
Anglo-Saxon law was _free_ custom; the English lost it under the
Conquest; and they got it back because the first Norman kings had to
call the council together, which grew into Parliament, which then,
in voting their aids or taxes, demanded their "old liberties"; and
finally, after getting Magna Charta, after getting all their old Saxon
liberties back, by easy transition, they began to say: "We would make
certain regulations, ordinances, laws of our own"; though we have not
yet got to the time where the notion of making _new_ law, as a statute
is now understood, existed.
II
EARLY ENGLISH LEGISLATION AND MAGNA CHARTA
Parliament began avowedly to make new laws in the thirteenth century;
but the number of such laws concerning private relations--private
civil law--remained, for centuries, small. You could digest them all
into a book of thirty or forty pages. And even to Charles the First
all the statutes of the realm fill but five volumes. The legislation
under Cromwell was all repealed; but the bulk, both under him and
after, was far greater. For legislation seems to be considered a
democratic idea; "judge-made law" to be thought aristocratic. And so
in our republic; especially as, during the Revolution, the sole power
was vested in our legislative bodies, and we tried to cover a still
wider field, with democratic legislatures dominated by radicals. Thus
at first the American people got the notion of law-making; of the
making of new law, by legislatures, frequently elected; and in that
most radical period of all, from about 1830 to 1860, the time of
"isms" and reforms--full of people who wanted to legislate and make
the world good by law, with a chance to work in thirty different
States--the result has been that the bulk of legislation in this
country, in the first half of the last century, is probably one
thousandfold the entire law-making of England for the five centuries
preceding. And we have by no means got over it yet; probably the
output of legislation in this country to-day is as great as it ever
was. If any citizen thinks that anything is wrong, he, or she (as it
is almost more likely to be), rushes to some legislature to get a new
law passed. Absolutely different is this idea from the old English
notion of law as something already existing. They have forgotten
that completely, and have the modern American notion of law, as
a ready-made thing, a thing made to-day to meet the emergency of
to-morrow. They have gotten over the notion that any parliament, or
legislature, or sovereign, should only _sign_ the law--and I say sign
advisedly because he doesn't enact it, doesn't create it, but signs a
written statement of law already existing; all idea that it should be
justified by custom, experiment, has been forgotten. And here is the
need and the value of this our study; for the changes that are being
made by new legislation in this country are probably more important
to-day than anything that is being done by the executive or the
judiciary--the other two departments of the government.
But before coming down to our great mass of legislation here it will
be wise to consider the early English legislation, especially that
part which is alive to-day, or which might be alive to-day. I
mentioned one moment ago thirty pages as possibly containing the bulk
of it. I once attempted to make an abstract of such legislation in
early England as is significant to us to-day in this country;[1] not
the merely political legislation, for ours is a sociological study.
We are concerned with those statutes which affect private citizens,
individual rights, men and women in their lives and businesses; not
matters of state, of the king and the commons, or the constitution of
government. Except incidentally, we shall not go into executive or
political questions, but the sociological--I wish there were some
simpler word for it--let us say, the _human_ legislation; legislation
that concerns not the government, the king, or the state, but each man
in his relations to every other; that deals with property, marriage,
divorce, private rights, labor, the corporations, combinations,
trusts, taxation, rates, police power, and the other great questions
of the day, and indeed of all time.
[Footnote 1: See "Federal and State Constitutions," book II, chap. 2.]
Had it not been for the Conquest, it would hardly have been necessary
to have enacted the legislation of the first two or three centuries at
all. Its object mainly was political, that is, to enforce Saxon law
from Norman kings. No change was made, nothing new was added. There
was, however, a little early Saxon legislation before the Conquest.
The best compilation is contained in Stubbs's "Selected Charters." He
says that the earliest English written laws contained amendments of
older unwritten customs, or qualifications of those customs, when they
were gradually wearing out of popular recollection. Such documents are
generally obscure. They require for their elucidation a knowledge
of the customs they were intended to amend. That is as I told you:
everybody was supposed to know the law, and early written statutes
were either mere compilations of already existing law, slight
modifications of them, or else in the nature of imposing various
penalties--all of which assume that you know the law already. When
they attempted codification, which they did about twice before the
Conquest (especially under Edward the Confessor, for that reason he is
called the Father of English law, the English Justinian, because he
was enough of a civilian to understand what a code was), King Edward
made the attempt to get a certain amount of law written out; but even
that would be very unintelligible if you tried to read it, for he
assumed that one knew it all already, and it also is mainly in the
nature of imposing penalties, not stating the law as it was. However,
that is called the first English code. All the Saxon laws Dr. Stubbs
could find fill only twenty-two pages of his small book; and he says
that English law, from its first to its latest phase, has never
possessed an authoritative, constructive, systematic, or approximately
exhaustive statement, such as was attempted by the great founders of
the civil or Continental law, by Justinian or by Napoleon Bonaparte.
Now this is true, even to-day, of our English and our American law.
That is, the great bulk of the law that is administered in our courts
is not "written," it is not in any code. There are, of course,
text-books on the subject, but they are of no binding authority. It
resides in the learning of the judges. It is what is called court-made
law--"_jus dicere_," not "_jus dare_." Our judges are still supposed
to tell what the law is, and they sometimes, as the common law is a
very elastic thing, have to make new law. That is, if the precise case
isn't covered by any previous decision or by any statute, the judge
or the court will say what the common law ought to be when applied
to that state of facts. So our law is a continually growing law, and
largely made still in the old Saxon way, by custom and the judges, and
still under the theory that the common law is an existing thing; that
the law exists and the judge only expounds. We have never lost sight
of that theory.
These early Anglo-Saxon laws mostly concern only matters of procedure
for the courts, or the scale of punishment. As they assume a knowledge
of existing law, they are often hard to understand. Here are some of
the laws of Wessex:
A.D. 690. WESSEX KING INI.
CAP. 11. "If any one sell his own countryman, bond or free, though
he be guilty, over sea, let him pay for him according to his
'wer.'"
As to "wer." Now there were slaves in England in those days; at the
time of the Conquest the Domesday Book reports twenty-five thousand.
_Slaves_, I mean; not the unfree agricultural laborers, they were in a
higher class, but the regularly bound _slaves_, who were descendants,
either of the early British inhabitants or of the Saxons themselves,
who had been punished in the courts and had been sentenced into
slavery, or men who had voluntarily sold themselves into slavery. For
under early Saxon law a man could sell his child into slavery if the
child were under seven years old, and above fourteen the child could
sell himself. This refers, of course, to that; it is really a kind of
predecessor of our Thirteenth Amendment; that is, it forbids slavery;
it forbids making new slaves. The word "wer" is the word we have in
"wer-wolf," meaning blood; for instance, "weregild" is a man's blood
money. Every man had a price from the king down; if a man killed the
king he had to pay, we will say, fifty thousand pounds; if a thane,
it might be one or two thousand; if an ordinary freeman, one hundred
pounds, and so on.
CAP. 36. "Let him who takes a thief, or to whom one taken is
given, and he then lets him go, or conceals the theft, pay for
the thief according to his 'wer.' If he be an ealdorman, let him
forfeit his shire, unless the king is willing to be merciful to
him."
Now the earliest direct legislation about personal property in a
statute is as late as 1100; but this early Saxon law was a recognition
of personal property, because a man cannot steal a thing unless there
is property. This section, therefore, implies property in personalty;
because a man cannot steal land; but it never occurred to them to pass
a law saying that there _shall be_ private property, because that was
the unwritten law that they were all supposed to know.
A.D. 890. WESSEX. ALFRED.
CAP. 27. "If a man, kinless of paternal relatives, fight and slay
a man, and then if he have maternal relatives, let them pay a
third of the 'wer'; his guild-brethren a third part; for a
third let him flee. If he have no maternal relatives, let his
guild-brethren pay half, for half let him flee."
CAP. 28. "If a man kill a man thus circumstanced, if he have
no relatives, let half be paid to the king, half to his
guild-brethren."
It is very hard for us to understand what that means. One would
infer that the weregild was only paid by a man with relatives on his
father's side. It doesn't say that, but that is the inference. We
shall have plenty to say about the guilds later--the historical
predecessors of the modern trades-unions. We here find the word
_guild_ recognized and spoken of in the law as early as 890.
A.D. 920. WESSEX. EDWARD.
"2. And if a ceorl throve, so that had fully five hides of his
own land, church and kitchen, bell-house and burh-gate-seat,
and special duty in the king's hall, then was he thenceforth of
thegn-right worthy.
"6. And if a merchant throve, so that he fared thrice over the
wide sea by his own means, then was he thenceforth of thegn-right
worthy."
Worldly success has thus always been the foundation of English
nobility.
Then there is a good deal about how much you have to pay for a churl,
and how much for an earl, and so on, leaving out only the slaves; for
all the free people of England in Saxon times were divided into earls
and churls; that is, noblemen and agricultural laborers or yeomanry;
these were the two estates besides the church, always a class by
itself. Later there grew up the thanes, who were merely large
landlords; the law became that a man that had five hides of land, five
or six hundred acres, with a farm, should by the mere fact of having
that land become a thane, an earl. That method of ennobling a man by
land got to be a way, at that time the only way, by which a churl or a
villein could become a nobleman or even be emancipated. Exactly as now
with our American Indians; when an Indian gets one hundred and sixty
acres given to him in severalty he becomes, under the Dawes Act, a
citizen of the United States. Later there grew up emancipation by the
guilds. The word _guild_ meant the members of a certain handicraft,
but that was rather the secondary meaning; it originally meant the
freemen of the town. But the freemen of the towns were made up of
the freemen of the guilds. No one could become a member of the guild
without going through certain ceremonies, much as he would now to join
a trades-union; and no one could become a freeman of the town unless
he was a freeman of the guild. The law grew to be, however, that if a
man succeeded in staying in a town for a year and a day, without being
turned out, plying his handicraft, he became by that mere fact a
freeman of the town; for the citizens of towns established their
liberty, both personal and political, far earlier than the dwellers on
agricultural land.
959-975-EDGAR.
CAP. 1. "_Secular Ordinance_. Now this is the secular ordinance
which I will that it be held. This, then, is first what I will:
that every man be worthy of folk-right, as well poor as rich;
and that righteous dooms be judged to him; and let there be such
remission in the 'bot' as may be becoming before God and tolerable
before the world."
1016. CANUTE.
CAP. 71. "And if any one depart this life intestate, be it through
his neglect, be it through sudden death; then let not the lord
draw more from his property than his lawful heriot. And according
to his direction, let the property be distributed very justly to
the wife and children and relations, to every one according to the
degree that belongs to him."
CAP. 81. "And I will that every man be entitled to his hunting in
wood and in field, on his own possession. And let every one forego
my hunting: take notice where I will have it untrespaesed on under
penalty of the full 'wite.'"
But even the great code of Edward the Confessor has, for the most
part, to do only with political divisions, what shall be a shire, what
a parish, etc., and certain technical matters that have now grown
obsolete. So we may conclude with the statement, substantially
accurate, that there was practically no _new_ legislation, no
constructive legislation under the Saxons; their social law was all
unwritten.
And Parliament did not begin by being a law-making body. Its
legislative functions were not very active, as they were confined to
declaring what the law was; more important were its executive and
judicial functions. In modern English government, particularly in our
own, one of the basic principles is that of the three departments,
executive, legislative, and judicial; the Norman or Roman theory
rather reposed all power in one; that is, in the sovereign, commonly,
of course, the king, the others being theoretically his advisers or
servants. In England, to-day, the real sovereign is the Parliament;
the merest shadow of sovereignty is left to the executive, the king,
and none whatever given the judicial branch. In this country we
preserve the three branches distinct, though none, not all three
together, are sovereign; it is the people who are that. And each
department is of equal dignity; although at one period there was a
certain amount of public complaint that Congress was usurping more
power than belongs to it, and recently that power was being usurped by
the president, there has hardly been (except from Mr. Gompers and Mr.
Hearst) any complaint that power is usurped by the _judicial_ branch,
however unpopular its decisions. But in England there is no pretence
of maintaining the three branches uniform either in importance or in
power. Starting with the Great Council, which had originally only a
certain amount of executive power and a great deal of judicial power,
they have retained and added to the former, while practically giving
up the latter; and, moreover, they have divided into the two houses,
the House of Lords and the House of Commons, with a division of
sovereignty between them, the Commons, of course, getting the lion's
share. The only judicial power substantially now remaining in the
English Parliament is the power of impeachment, which is rarely
exercised in England, and the appellate jurisdiction of the House
of Lords, of the "law" lords, that is, those peers who held legal
offices. On the other hand the legislative function of Parliament,
which began merely in the way of saying what the law was, has
enormously developed, and still more so the executive. Thus the
legislative branch of the three divisions in the English government
has increased out of all proportion to both the others, having now all
the legislative power and most of the executive. And legislatively it
is omnipotent; it is confined by no constitution; even the king cannot
withhold his consent. Parliament can make any law, although against
what _was_ the Constitution; the Constitution may be modified by a
simple statute. So their legislative function is infinite; and their
executive function has, in substance, grown very large, because the
British government is carried on by the cabinet, which is practically
a committee of the House of Commons. But of the judicial function,
which was the principal function of the Great Council at the time
of the Conquest, hardly a shred remains. It is the history of all
countries that people are not jealous of the judicial power, while
they are extremely anxious to seize the legislative and executive.
With us, however, we are supposed to have all three functions
co-ordinate and in good working activity. But in both countries, money
bills, bills imposing taxes, are the function of the lower house. That
principle grew historically from the principle that all taxation must
be voted by the people, directly or indirectly; must be with the
common consent and for the common benefit. That principle was
established by the House of Commons, and consequently they arrogated
to themselves that part of the legislative power. That principle we
have retained in our Federal Constitution, and in most of our State
constitutions; all of which have the double house.
The first functions of Parliament were restricted to voting taxes.
The king called the barons together merely to get "aids," and they
wouldn't give them until he recognized what they chose to call the old
law of England, always a pre-existing law. It was still a long time
before there was constructive legislation. Just as, before the
Conquest, in the seventh century, we find it said of the law of
Wihtred: "Then the great lords with the consent of all came to a
resolution upon these ordinances and added them to the customary
laws of the men of Kent"; and, in the time of King Alfred: "I, then,
Alfred, king, gathered these [laws] together, and commanded many of
those to be written which our forefathers held, those which to me
seemed good; and many of those which seemed to me not good I rejected
them, by the counsel of my 'witan,' and they then said that it seemed
good to them all to be holden";[1] so, after the Conquest, every
Norman king was made on his coronation oath to promise this, the law
of Edward the Confessor, until Magna Charta; after that they promised
to respect Magna Charta instead, which was thus reissued or confirmed
thirty-two times in the eighty-two years which intervened between
Runnymede and the final Confirmation of Charters under Edward I. Thus,
William the Conqueror himself, in his charter to the city of London,
says, in Anglo-Saxon: "_And I do you to wit that I will that ye two be
worthy of all the laws that ye were worthy of in King Edward's day_."
So the Domesday Book records "_the customs_," that is to say,
the laws, of various towns and counties; these bodies of customs
invariably containing a mere list of penalties for the breach of the
established law; while later charters usually give the inhabitants of
a town all the customs and free privileges enjoyed by the citizens of
London.
[Footnote 1: Stubbs's "Charters," p. 62.]
But after the Conquest laws could only be enacted with the concurrence
of the king; and the phrase was, and is still, in form, that "the
king wills it"--_Le Roy le veult_. Nevertheless, Parliament usually
originated laws. The early Norman kings cared nothing about
legislation; their sole desire was to get money from the people. For
two centuries, therefore, Parliament was occupied only with laws
recognizing the old Anglo-Saxon laws previously existing, or laws
removing abuses of the royal power; and the desire of the king to tax
the people was used as the lever to get him to assent to these laws.
With the usual sensible indifference of the English race to mere
matters of form, they allowed the Norman kings to go on declaring the
laws and signing them as if they were made only by the crown, which
was the Norman theory--not caring for the shadow, if they could get
the substance. Thus they established, in the first two or three
centuries, the right to force legislation on the king, and they did it
by the instrument of the taxation power. For taxation must be "by the
common consent of the realm"; no taxation without representation, as
the Declaration of Independence puts it, is probably the earliest
principle of the English Constitution; and it is most significant to
the student of the constitutional law, a most necessary reminder to
those who do not value our Constitution, that it was the departure
by George III from this very earliest of English constitutional
principles that caused the loss of his American empire.
This was six hundred years old, therefore, at the time of our
Revolution. Except those two principles, taxation by common consent
and taxation for the common benefit--which latter was not finally
established until two hundred years later (that is, it was put in the
first Magna Charta, John's, and then quietly dropped out by Henry II,
and kept out of the charter for nearly one hundred years),--we have to
come down to the year 1100 before we find the first _sociological_
statute. "Henry I called another convention of all the estates of the
realm to sit in his royal palace at London ... the prohibiting the
priests the use of their wives and concubines was considered, and the
bishops and clergy granted to the king the correction of them for that
offence; by which means he raised vast sums of money compounding with
the priests...."[1]
[Footnote 1: Cobbett's "Parliamentary History of England," I, 4.]
In 1 Henry, cap. VII, is another recognition of personal property--it
says that at a man's death it is to be divided between his widow and
his heirs. Now that may seem commonplace enough; but it is interesting
to note, as in the law, personal property did not come first; property
in land was many centuries earlier. And this suggests the legal basis
and present tendency of the law of property. "Property exists only
by the law"; and extreme socialists say that all private property is
robbery. No law, no property; this is true. Property is an artificial
thing. It is a creation of law. In other words, where there is now no
law except statute, it is the creation of statute. That may sound a
commonplace, but is not, when you remember that socialists, who are
attacking property, do so on precisely that ground. They say it is a
fictitious thing, it is a matter of expediency, it is a matter which
we can recognize or not, as we like; "no law, no property," and they
ask us to consider whether, on the whole, it is a good thing to have
any property at all, or whether the state had not better own all the
property. But our Federal and State constitutions guard it expressly.
Thus, property is the very earliest legal concept expressed in
statutes, just as it is perhaps the earliest notion that gets into a
child's mind. And ownership of land preceded _personal_ property--for
the perfectly simple reason that there was very little personal
property until comparatively late in civilization, and for the other
more significant reason that an Anglo-Saxon freeman didn't bother with
law when he had his good right hand. In the fifth, sixth, and seventh
centuries, when we were barbarous tribes, a man's personal property
consisted chiefly in his spear, his weapons, or his clothes; enemies
were not very apt to take them, and if they did, he was prepared to
defend them. Then, cattle, in those days, belonged to the tribe and
not to the individual. So, I should fancy, of ships--that is, galleys,
not private "coracles," the earliest British boats. Consequently there
wasn't any need for a law as to personal property. What little there
was could be easily defended. But with land it was different. Property
in land was recognized both among the English and, of course, with the
Normans; and in ways so similar that it was very easy for the Normans
to impose the feudal system upon England. There had been no feudal
system before the Norman Conquest; there were then three kinds of
land: the rare and exceptional _individual_ land, owned by one
man--always a freeman, not a villein or slave--and this was very small
in extent, limited to a very few acres around a man's home. Most of
the land was held in common; the folgland, so-called, which belonged
to the tribe; the land on which the cows of the village were pastured.
And finally there was the public, or unappropriated, or waste land.
Most of this last was seized, after the Conquest, by the big feudal
lords. For they came in with their feudal system; and the feudal
system recognized no absolute ownership in individuals. Under it there
were also three kinds of land, and much the same as the Saxon, only
the names were different: there was the crown land--now I am speaking
English and not Norman-French--which belonged to the king and which he
probably let out most profitably; there was the manor, or the feudal
land, which was owned by the great lords, and was not let by the king
directly; and then there was the vacant land, the waste land, which
was in a sense unappropriated. Now all the Norman kings had to do was
to bring the feudal system over the Saxon law of land, so that the
tribal land remained the only private land--that which is called "boke
land." This is land such as all our land is to-day, except land like
our Cambridge Common. With a very few exceptions, all our land is
"boke" land--freehold land. Then there was the public land; but that
very soon was taken by the lords and let out to their inferiors; this
was the great bulk of land in England after the Norman Conquest.
Lastly again there was the crown land, out of which the king got his
revenue. As something like this threefold system of land existed
before the Conquest, a subtle change to the feudal system was
comparatively easy by a mere change of name.
In the same year--1100--is the Charter of "Liberties" of Henry I. It
restores the laws of Edward the Confessor "with the amendments made by
my father with the counsel of his barons." It promises in the first
section relief to the kingdom of England from all the evil customs
whereby it had lately been oppressed, and finally returns to the
people the laws of Edward the Confessor, "with such emendations as my
father made with the consent of his barons."[1] In his charter to the
citizens of London[2] he promises general freedom from feudal taxes
and impositions, from dane-geld and from the fine for the murder of
a Norman; and the Charter of Liberties issued by Henry II in 1154
confirms their "liberties and free customs to all men in the
kingdom."[3] From this dates the equality of Englishmen before the
law, commons as well as barons. Henry II was the first Norman king who
had the old Saxon blood, and therefore he was looked forward to with a
great deal of enthusiasm by the people of England. For although it is
only one hundred years after the Conquest, the Normans and the Saxons
had pretty well fused, and the Normans, who were inferior in number,
had got thoroughly imbued with the free notion of Anglo-Saxon law. So
they got this charter from him; but there is no legislation to concern
us in it, it is only political. It has a great deal to do with the
church, and with what the king will not do; it binds him, but it does
not state any law directly.
[Footnote 1: Stubbs's "Charters," p. 101 (clause 13).]
[Footnote 2: _Ibid_., p. 108.]
[Footnote 3: _Ibid_., p. 135.]
There is further a continued evidence of the efforts of the people to
restore the common law of England as against the king's law or Roman
law, or later against the law of the church, also a kind of Roman law
known as canon law; and later still against the law of the king's
chancellor, what we should now call chancery jurisdiction; for the
jealousy of chancery procedure was quite as great in the twelfth
century as it is with the most radical labor leaders to-day; but of
this later on.
In 1159 they succeeded in doing away with the Norman method of trying
cases by battle and the Saxon method of trying by oath, and by the
machinery of the Norman Great Assize introduced again trial by jury.
For this in itself is probably an old Saxon institution. And in 1164
came the great Constitutions of Clarendon, the principal object of
which was to free the people from the church law and subject
the priests to the ordinary common law as in times before the
Conquest--for now, "as the influence of the Italian lawyers
increased,"[1] all the priests and clergy were above it. It was the
first great statute which clearly subjected the church--which, of
course, was the Church of Rome--to the common secular law. There was a
vast jurisdiction of church law ("Doctors commons" courts lasted until
a generation ago in England); some of it still remains. But in these
early days all matters concerning marriage, divorce, guardianship of
children, ownership of property after death, belonged to church law.
It is hard to see why, except that the mediaeval church arrogated
to itself anything that concerned _sin_ in any way--anything that
concerned the relation of the sexes, that concerned the Holy
Sacraments, and marriage is a sacrament. Consequently the mediaeval
church claimed that it had jurisdiction over all marriage, and over
all divorce; and also took jurisdiction over a man's children at his
death, and over his property, now exercised by our courts of probate.
This they got out of the notion that when a man was dead, there was
something, in a sense, that went beyond this life in looking after his
property and children. And down until twenty or thirty years ago all
jurisdiction in England in matters which concerned a man's property,
after death, belonged to the church courts and their successors. The
church law was based on the Roman law, but was called _canon_ law,
the technical word, because it is the "canons" of the church. It is a
convenient term to distinguish it from the ordinary civil law of the
Continent. So that the Constitutions of Clarendon began what was
completed only under Henry VIII; they very clearly asserted the claim
of the king to be supreme over the Church of England. The Bishop of
Rome, as Henry VIII called the pope, had no more power than any other
foreign bishop.[2] There still remained the institution known as
benefit of clergy, by which any priest, or later any clerk or cleric
(which word came to mean any one who could read and write) could
get off of any criminal accusation, at first even murder, by simply
pleading his clergy; in which case the worst that could happen to him
was that he was branded in the right hand. But the Constitutions of
Clarendon were a great step toward civil liberty. Taken by us in 1164,
it was followed in so neighboring a country as France only so late as
a few years ago. The priests, however, still managed to retain their
jurisdiction over offences among themselves, as well as over marriage,
the relation between the sexes, slander, usury, and wills--of matters
relating to the sacraments, and of sins.
[Footnote 1: Stubbs, p. 136.]
[Footnote 2: Yet "Peter's Pence" were initiated by Ini, King of the
West Saxons, about 690!]
Now this is a very interesting matter, and were it borne in mind by
our modern legislators they would escape a good deal of unintelligent
legislation; that is, the distinction between a sin and a crime. A sin
is against the church, or against one's conscience; matter, therefore,
for the priest, or one's spiritual adviser. A crime is an offence
against other men; that is, against the state, in which all are
concerned. Under the intelligent legislation of the twelfth century
all matters which were _sins_, which concerned the conscience, were
left to the church to prevent or punish. For the same reason usury was
matter for the priest--because it was regarded under the doctrines
of the Bible as a sin. This notion prevailed down to the early
legislation of the colony of Massachusetts, though doubtless many
things which were then considered sins would now be regarded
as crimes, such as bigamy, for instance. The distinction is,
nevertheless, a valid one, and we shall have occasion frequently to
refer to it. We shall find that the defect of much of our modern
legislation--prohibition laws, for instance--is that they attempt to
treat as crimes, as offences against the state, matters which are
merely sins, offences against the conscience or the individual who
commits them.
To-day, the American constitutions all say that a militia is the
natural defence of a state of free men. It is interesting; therefore,
to find, hardly a century after the Norman Conquest. In 1181, the
Assize of Arms, which revived the ancient Saxon "Fyrd," the word for
what we now call militia; and, twenty years before that, "scutage"
replaced military service. To the burdens of the feudal system,
compulsory military service and standing armies, our ancestors
objected from the very beginning. In a sense, scutage was the
beginning of taxation; but it was only a commutation for military
service, much as a man to-day might pay a substitute to go to war in
times of draft. General taxation first appears in 1188 in the famous
Saladin tithe, the first historical instance of the taxation of
personal property as distinct from a feudal burden laid upon land.
The object of this tax was to raise money for the crusade against
the Sultan Saladin. It was followed, five years later, by a tax of
one-fourth of every person's revenue or goods to ransom the king,
Richard I having gone to this crusade against Saladin, and been
captured on his return by his good friend and Christian ally, the
Emperor of the Holy Roman Empire. It is interesting to note that the
worth of the king in those days was considered exactly one-fourth of
the common wealth of England. John was less expensive; but he was not
captured. He levied a tax ten years later of one-seventh part on the
barons, and one-thirteenth on every man.
In 1213 two important things happened. The high-water mark of
domination by the Roman Church is reached when King John surrendered
England to the pope, and took it back as a fief of the pope for a
tribute of one thousand marks. The same year the other early method
of trial of lawsuits was abolished by the Lateran Council--trial by
ordeal. This was the only remaining Saxon method. The Norman trial by
battle had already been superseded by trial by jury; and from this
time on, in practice, no other method than a jury remains, though
trial by battle was not abolished by statute until the nineteenth
century.
And then we come to Magna Charta. The first time it was granted was in
1215 by John, but the charter always quoted is that promulgated ten
years later under Henry III. They were very nearly identical, but the
important omission in the charter of Henry was in regard to "scutage"
("no aid other than the three customary feudal aids shall be imposed
without the common counsel of the kingdom"); that, of course, is the
principle we have discussed above, first put in writing in the charter
of John. The barons claimed it as part of the unwritten law. But Henry
III in his charter cannily dropped it out--which is a trick still
played by legislatures to-day. This Magna Charta was confirmed and
ratified something like thirty times between the time of its adoption
under John and the time it got established so completely that it
wasn't necessary to ratify it any more. There are four sections of
Magna Charta that are most important. Chapter 7, the establishment of
the widow's dower; of no great importance to us except as showing
how early the English law protected married women in their property
rights. Chapter 13 confirmed the liberties and customs of London and
other cities and seaports--which is interesting as showing how early
the notion of free trade prevailed among our ancestors. It gave
rise to an immense deal of commercial law, which has always existed
independent of any act of Parliament. Chapter 17 provided that the
common pleas court--that is, the ordinary trial court--should not
follow the king about, but be held at a place and time certain. That
was the beginning of our legal liberty; because before that the king
used to travel about his realm with his justiciar, as they called his
chief legal officer, and anybody who wanted to have a lawsuit had
to travel around England and get the king to hear his case. But the
uncertainty of such a thing made justice very difficult, so it was a
great step when the leading court of the kingdom was to be held in a
place certain, which was at once established in Westminster. Minor
courts were, of course, later established in various counties, though
usually the old Saxon county or hundred-motes continued to exist.
Chapter 12 is the one relating to scutage, from the word _scutum_,
shield--meaning the service of armed men. Just as, to-day, a man who
does not pay his taxes can in some States work them out on the road,
so conversely in England they very early commuted the necessity of
a knight or land-owner furnishing so many armed men into a money
payment. "The three customary feudal aids" were for the defence of the
kingdom, the building of forts, and the building of bridges--all
the taxes usually imposed upon English citizens in these earliest
times--all other taxation to be only by the Common Council of the
kingdom. This is the first word, council; later, it became "consent";
the word _conseil_ meaning both consent and council. "Council of
England" means, of course, the Great Council. We are still before the
time when the word Parliament was used. Thus Magna Charta expresses it
that there should be no taxation without "the advice" of Parliament,
without legislation; and as Parliament was a representative body, it
is the equivalent of "taxation without representation." This also was
omitted in Henry III's charter, 1217, and only restored under Edward
I in 1297, a most significant omission. And it is also expressed in
early republications of the Great Charter that taxation must be for
the benefit of _all_, "for public purposes only," for the people
and not for a class. On this latter principle of Anglo-American
constitutional law one of our great political parties bases its
objection to the protective tariff, or to bounties; as, for instance,
to the sugar manufacturers; or other modern devices for extorting
wealth from all the people and giving it to the few. All taxation
shall be for the _common_ benefit. Any taxation imposed for the sole
benefit of the land-owning class, for instance, or even for
the manufacturing class, is against the original principles of
constitutional liberty.
Then we come to chapter 39, the great "Liberty" statute. "No freeman
shall be taken or imprisoned or be disseised of his freehold or _his
liberties or his free customs_ [these important words added in 1217]
or be outlawed or exiled or otherwise destroyed but by lawful judgment
of his peers, or by the law of the land." This, the right to law, is
the cornerstone of personal liberty. Any government in any country on
the Continent can seize a man and keep him as long as it likes; it is
only Anglo-Saxons that have an absolute right not to have that happen
to them, and not only are they entitled not to be imprisoned, but
their liberty of free locomotion may not be impeded. An American
citizen has a constitutional right to travel freely through the
whole republic and also not to be excluded therefrom. Punishment by
banishment beyond the four seas was forbidden in very early times in
England. "Disseised of his freehold, of his liberties or his free
customs"--that is the basis of all our modern law of freedom of trade,
against restraint of trade, and the basis on which our actions against
the modern trusts rest; the right to freely engage in any business, to
be protected against monopoly either of the state or brought about
by competitors, to freely make one's own contracts, for labor or
property, to work as long as one chooses, for what wages one wills,
and all the other liberties of labor and trade. "Or be outlawed or
exiled or otherwise destroyed"--that is a broad general phrase for any
interference with a man's property, life, or liberty. "Nor will we go
upon him"--that has been translated in various ways, but it means what
it says; it means that the king won't descend upon a man personally or
with his army; nor will we "send upon him"--a law officer after
him; "but by the lawful judgment of his peers, or by the law of the
land"--that means jury trial, or at least the law of the land, as it
then was; and that phrase, or its later equivalent--due process of
law--is discussed to-day probably in one case out of every ten that
arise in our highest courts. Many books have been written upon it.
To start with, it means that none of these things can be done except
_under law_; that is, except under a lawsuit; except under a process
in a court, having jury trial if it be a civil case, and also
an indictment if it be a criminal case, with all the rights and
consequences that attend a regularly conducted lawsuit. It must be
done by the courts, and not by the executive, not by the mere will of
the king; and, still more important to us to-day, not by legislatures,
not even by Parliament. "We will sell to no man, we will deny or delay
to no man, either right or justice," needs no explanation; it is
equality before the law, repeated in our own Fourteenth Amendment.
Lastly, we have in cap. 41: "Merchants shall have safe conduct in
England, subject only to the ancient and allowed customs, not to evil
tolls"--a forecast of the allowable tariff as well as of the spirit
of modern international law. Finally, there is a chapter on mortmain,
recognizing that land might not be given to monasteries or religious
houses, and particularly under a secret trust; the object being to
keep the land, which made the power of the realm, out of the hands of
the church. As far as that part of it goes, it is merely historical to
us, but it developed into the principle that corporations "which have
no souls," and do not die, should not own too much land, or have too
much power--and that is a very live question in the United States
to-day.
One must not be misled by the generality of the phrase used in chapter
39, and think it unimportant because it looks simple. It is hard for
an American or Englishman to get a fresh mind on these matters. We all
grow up with the notion that nobody has the right to arrest us, nobody
has the right to deprive us of our liberty, even for an hour. If
anybody, be he President of the United States or be he a police
officer, chooses to lay his hand on our shoulder or attempts to
confine us, we have the same right to try him, if he makes a mistake,
as if he were a mere trespasser; and that applies just as much to the
highest authority, to the president, to the general of the army, to
the governor, as it does to a tramp. But one cannot be too often
reminded that this principle is peculiar to English and American
civilization. Throughout the Continent any official, any judge,
anybody "who has a red band around his cap," who, in any indirect way,
represents the state--a railway conductor, a spy, a station agent--not
only has the right to deprive you of your freedom, but you have no
right to question him; the "red band around the cap" is a final
answer. Hence that extraordinary incident, at which all England
laughed, the Kupenick robbery. A certain crook who had been a soldier
and was familiar with the drill and the passwords, obtained possession
of an old captain's uniform, walked into a provincial town of some
importance, ordered the first company of soldiers he met to follow
him, and then with that retinue, appeared before the town hall and
demanded of the mayor the keys of the treasury. These were surrendered
without question and he escaped with the money, representing, of
course, that he had orders from the Imperial government. It never
occurred to any one to question a soldier in full uniform, and it was
only some days later, when the town accounts were sent to Berlin to be
approved, that the robbery was discovered.
Such a thing could by no possibility have happened in England or with
us; the town treasurer would at once have demanded his authority, his
order from the civil authorities; the uniform would have failed to
impress him. Moreover, under our local self-government, under our
decentralized system, nobody is _above_ even a town officer, or a
State or city official at the head of his department, however small it
be, except the courts. State officers may not command town officers,
nor Federal officers State officers; nor soldiers give orders to
policemen. The president, the governor, may perhaps remove them; but
that is all. And even the policeman acts at his peril, and may be sued
in the ordinary courts, if he oversteps his authority. The notion that
a free citizen has a right absolutely to question his constraint by
any State officer is peculiar to the English and American people, and
this cannot be too often repeated; for it is what foreigners simply
fail to understand. And it rests on this chapter in the Great Charter,
originally, as amplified and explained by the courts and later acts of
Parliament, such, as the Habeas Corpus Act. If a man is arrested by
any official, that person, however great, has to justify the arrest.
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
going to be. As early as 1235 the secular courts interfered with the
marriage relation; and the importance of that is here: there is one
great school to-day, including largely clergymen and the divorce
reformers, so-called, who hold substantially that marriage is a
sacrament, or at least a status; that the secular law has nothing to
do with it and should not be allowed to grant a divorce except for
canonical causes, _i.e._, causes recognized by the church; that it
is not like any other contract, which can be set aside with mutual
consent; when a marriage takes place, they say, it is a sacrament,
or, at least, a status ensues which cannot in future be altered.
Consequently, it is not like a contract; for all contracts can be
abrogated by mutual consent. On the other hand, the most radical
people go to the other extreme, and say that marriage _is_ like any
other contract; it is purely a civil contract, not a sacrament, not
a status; just like any other, and some of them go to what is the
logical conclusion of that position and say that therefore marriage,
like any other contract, ought to be ended at any time by the consent
of both parties. The extreme radical view leads to the conclusion that
a man and woman ought to be divorced any time by merely saying that
they want to be; and some States have almost got to this position in
their statutes. This may seem a very far cry from this early statute,
which does not directly concern marriage but the status of children;
nevertheless it has this bearing--it is an interference by Parliament,
by the secular, legislative branch of government, with a relation
which the church believed to belong only to the church. It so happens
that in this instance the secular law instead of being liberal and
kindly was extremely cruel and the reverse of liberal. Under the
church law, when a man married a woman by whom he already had
children, all those children were thereby made legitimate, and that
certainly seems the kindly and the Christian law. But the secular
barons who constituted the Parliament, in their jealousy for the
common law, took the harsher view, that any children born of parents
who are not married at the time they are born shall be illegitimate,
although their parents may marry afterward. Beaumont and Fletcher, in
one of their plays, make a punning reference to that. It seems to have
struck Beaumont and Fletcher as it does us, that it was a cruel law
for the Parliament to make; when the church for once was liberal, it
was queer that the Parliament should be illiberal; so Beaumont and
Fletcher, in one of their plays, say: "The children thou shalt get
_by this civilian_ cannot inherit by the _law_." This is interesting,
because they use all the words I have been trying to define; when they
say "the children thou shalt get by this _civilian_," they mean by
this civilian a person who is under the civil, or Roman, or church
law; that is, they mean to say, although you marry a woman who is
a church member and under the jurisdiction of the bishop, etc.,
nevertheless the church law won't help you; your children by her
cannot inherit by the _law_, and the law as used by Beaumont and
Fletcher and as used by me and as used in English books means the
_common_ law, the common _secular_ law, the law of _England_, not the
civil or canon law.[1] Beaumont and Fletcher evidently thought it was
a very illiberal statute; and our modern American States have all come
to Beaumont and Fletcher's conclusion; they have universally reversed
the old English statute and gone back to the church law, so that
throughout the United States to-day a child born before the marriage
of its parents is legitimate if its parents afterward marry. That is
true, no matter how late it is; if the man marries her even on his
death-bed, all his children are legitimized.
[Footnote 1: "And so all the earls and barons answered with one voice,
that they would not change the laws of England."]
In the same Statute of Merton there is a sentence against usury, "no
usury permitted against minors"; and there are two things to note
here. One is, that the secular legislature is also taking jurisdiction
of minors, who were claimed at that time to be solely under the
jurisdiction of the church; and the other is the reference to usury.
Mind you, usury is interest. It didn't mean excessive interest, as
it does now. As you probably know, the notion prevailed in the early
Middle Ages that all usury--interest--was a sin and wrong; and even
Ruskin has chapter after chapter arguing that principle, that it is
wrong to take interest for money. I should perhaps add another reason
why interest was so disliked in early England: There was very little
money in early England; and it mostly belonged to the Jews. It was
a good deal as it is in Russia to-day; the Jews were persecuted in
Russia as in early England, because, in the country districts of
Russia, the Jews have all the money, and money-lenders are always
unpopular. So in early England. The great barons had their land and
their cattle and crops, but they had little money. When they wanted
money they got the value of it out of their tenants. Nobody carried
large sums of money around with him then, any more than a woman does
to-day--she relies on her husband or father; they went to the nearest
Jew. When the king wanted cash, he also extorted it from the Jews. One
of the early Henrys said seriously, that he regarded the Jews as a
very convenient sponge! That is, they sucked all the money in the
kingdom and got it into a place whence he could easily get it out. But
it made the Jews very unpopular with the masses of the people and with
the Parliament; hence, their great dislike of usury. I doubt very much
if they would have cared much about usury if one gentleman had been in
the habit of loaning money to another; but all the money came from the
Jews, who were very unpopular; and the statutes against usury were
really made against them, and that is why it was so easy to pass
them--they based it, doubtless, on the references to usury in the
Bible. Thus they got the notion that it was wrong to charge interest,
or at least extortionate interest; more than a certain definite per
cent.; and this is the origin of all our interest and usury statutes
to-day. Although most economists will tell you that it is ridiculous
to have any limit on the rate of interest, that the loan of money
may well be worth only four per cent. to one man and twenty-five to
another, and that the best way for everybody would be to leave it
alone; nevertheless, nearly all our States have usury laws. We shall
discuss that later; but here is the first statute on the subject, and
it really arose because of the feeling against the Jews. To show how
strong that prejudice was, there was another statute passed in the
interest of liberality to protect the Jews--a statute which provided
liberally that you must not take from a Jew "more than one-half his
substance." And a very early commentator tells us of a Jew who fell
into a privy on a Friday, but refused to be helped out on Saturday
because it was his Sunday; and on Sunday he besought the Earl of
Gloucester to pull him out, but the Earl of Gloucester refused because
it was his Sunday; so the Jew remained there until Monday morning,
when he was found dead. There is no prejudice against Hebrews to-day
anywhere in Europe stronger than existed even in England for the first
three or four centuries after the Norman Conquest; and had it not been
for the protection given them by the crown, probably they would have
been exterminated or starved out, and in 1289 they were all banished
to the number of 16,160, and their movables seized.
In 1264 citizens of towns were first represented in the Parliament (in
the Great Council, that is, for the word parliament is not yet used),
originally only composed of the great barons, who were the only
land-owners. The notion of there being freemen in towns was slowly
established, but it was fully recognized by 1264, and in that year
citizens of towns first appeared in the Council. To-day, under the
various Reform Acts, tenants or even lodgers in towns are just as much
represented as the land-owners; but the reform which began in 1264
took six hundred years to be thoroughly established.
And now we find the first statutory origin of that utterly fallacious
principle--although alive to-day--that the state, in a free country,
a legislature-governed country, has the right, when expedient, to fix
the _price_ of anything, wages or other commodities; fallacious, I
say, except possibly as to the charges of corporations, which are
given special privileges by the government; the principle, which
prevailed throughout the Middle Ages, of fixing the prices of all
things. In this case the price was on bread; but you find now for many
centuries an attempt to fix the price of almost everything; and of
labor, too, what wages a man should be paid. It lasted persistently
for centuries and centuries, and it was only under the influence of
modern political economy, Adam Smith and other quite modern writers,
that the principle that it was possible to fix prices of commodities
was utterly eradicated from the English mind. And you hardly got it
out of England before it reappeared in the United States. It is not
a new-fangled principle. You find the newspapers commonly talk about
fixing prices by law as if it were something utterly unheard of and
utterly new. It is not so. It Is on the contrary as old as almost any
legislation we have, and you can make no argument against it on that
ground. It has always been the custom of our ancestors to regulate
the prices of wages by law, and the notion that it was either
unconstitutional or inexpedient dates from a very few years back; yet
all such attempts at legislation have utterly disappeared from any
modern statute-book. In no State of our forty-six States is any one so
unintelligent, even in introducing bills in the legislature, as to-day
to propose that the price of a ton of coal or a loaf of bread shall
be so much. Nor is any modern legislature so unintelligent or so
oppressive as to propose sumptuary laws; that is, to prescribe how
expensively a man or woman must dress; but in the mediaeval times
those were thought very important. Every class in England was then
required by law to have exactly so many coats, to spend so much money
on their dress, so much on their wives' dress, and certain men could
have fine cloth and others coarse cloth; everything was graded, even
to the number of buttons on clothes, and they went so far even as to
try in some early legislation to say what men should have to eat; the
number of courses a man should have for his dinner were prescribed by
law at one time in England, varying according to the man's rank. All
such legislation has absolutely vanished and probably no one need know
that it existed--but that when efforts are made, as they sometimes
are, by our more or less uneducated members of legislatures to
introduce bills of such a kind, it is very important for us to know
that those experiments have been tried and have failed, having proved
to be either impracticable or oppressive or not for the general
benefit. This is the importance of these early laws, even when
obsolete; because we never know when some agitator may not pop up
with some new proposal--something he thinks new--which he thinks, if
adopted, will revolutionize society. If you can show him that his
new discovery is not only not new, but was tried, and tried in vain,
during two or three centuries in the life of our own ancestors, until
an enraged public abolished it, it will destroy any effect that he is
likely to make upon the average legislature.
The first general example of an English law fixing the price of a
commodity is in 1266, the Assize of Bread and Beer. That fixed the
price of bread according to the cost of wheat, a sliding scale, in
other words; when a bushel of wheat cost so much, a loaf weighing a
certain amount must cost so much, etc. But you must not confound that
with the modern law that still exists in England, and in some States
and cities here, merely regulating the _size_ of a loaf. That is
perfectly proper, reasonable legislation, done merely for the purpose
of protecting the public and preventing fraud. In England, for
instance, there is a certain standard loaf known as a quartern loaf,
and in order to prevent poor people being cheated it is prescribed
by city ordinance that the quartern loaf shall weigh so much, shall
contain so many ounces of flour. We do have similar laws saying how
much a bushel of potatoes shall weigh, how much a barrel of flour
shall weigh. That isn't fixing the price; it is only fixing a uniform
size so that the public may not be cheated in its dealings, and one
must not take such a law as justifying the fixing of prices.
In the year 1266 I find the first statute in the French language,
Norman French; before that they were all in Latin; and they lasted in
French for some four or five hundred years, and then they were put in
English. The Statute of Marlborough, 1267, is a very important one
historically, but it does not concern us, because it mainly had to
do with the ownership of land, the tenure of land in England, an
extremely important subject, but one that is obsolete here. Then we
have something about the trial of clerks for murder. Of course the
word clerk there means not what we mean by a clerk, but a person who
could read and write; and nothing more than that. It originally meant
persons in holy orders, who were called clerks (clerics), but there
got to be clerks who were not in holy orders. Originally only priests
could read and write. No one else knew how, except possibly great
personages like kings, and consequently it was the same thing whether,
when you said a clerk, you meant a person who could read and write or
a priest. But when there got to be people who could read and write and
who were not priests, it became an important distinction. There was
a privilege in England known as the "benefit of the clergy"; if any
clerk was tried for a criminal offence, no matter what, all he had to
do was to state that he was a priest and he was at once set free. In
other words, he could not be punished. That doesn't concern us; but, I
suppose, it resulted from the old notion that all priests were subject
only to Rome, and to the church courts, and not to the civil law
courts; and consequently when a priest was attempted to be tried in a
civil law court, it was a way of doing what we should call "pleading
to the jurisdiction" of the court. Later, as time went on, in England
it was greatly abused, especially when there got to be clerks who
were not priests. When it meant anybody who could read and write, and
anybody who had committed a murder had only to say, "I can read and
write," and be set free, it led to an extraordinary state of things.
So, from time to time, they modified the benefit of the clergy, until
ultimately it was abolished entirely; first by not allowing it in high
offences like murder; then by imposing certain slight punishment--they
were "burned in the hand"; then by applying it only to the first
offence, and so on, until they got rid of it entirely; and this
Statute of Marlborough is simply one of the first of that long chain
of statutes which finally did away with it and prevented people from
getting rid of a criminal prosecution merely because they knew how to
read and write or were priests.
In 1275 I note the first use of the word parliament. I have used it
from the beginning, but it is important to remember that the thing
was not _called_ parliament until 1275. Before that it was called
the Great Council or the King's Council, and in Saxon times the
Witenagemot.
Then we come down to the Statute of Westminster I. That is considered
a great landmark in statutory legislation mainly because it is the
first attempt to establish a code, or, at least, a large collection of
the laws of England. It is an attempt to put what they supposed to be
a good part of them into writing. We have no codes in this country,
as a rule; nor to-day in England; the ordinary Anglo-Saxon does
not believe in codes. It is the French and Germans who have codes.
Nevertheless, you often find collections of statutes. It is important
not to confound these things with codes, because they never pretend to
be complete. Many States in this country never make revision of the
statutes. Nevertheless, every ten or twenty years they will print a
collection of the statutes arranged alphabetically. In some States, as
in Massachusetts, those collections are official; but in other
States they are simply matters of private enterprise. They are of no
authority, and if they are wrong it is no protection to you. You are
bound to know the laws. These early so-called codes, especially this
code of Edward I, although it caused him to be called the English
Justinian, because it was the first attempt of putting any large
body of the Anglo-Saxon laws in writing at all, are still not at all
_codes_ in the technical sense. This one was merely a collection of a
certain number of laws reduced to writing and re-enacted by Edward I.
We note here the phrase "common right shall be done to rich and poor,"
rather an interesting landmark; it shows what progress was being made
by the people in establishing their rights as freemen and to equal
laws. For the laws of Norman England mainly applied to land-owners,
and were made by the barons, the only people that had property; there
was but a small class in those early days between the land-owners and
actual serfs, villeins, who were practically attached to the soil,
in a condition almost of servitude; they did service, were not paid
wages, and couldn't leave the place where they were born--and both
these are tests of slavery. But in the first two centuries after the
Conquest the number of freemen very rapidly increased; men who were
not property owners, not land-owners, but still freemen. Especially
it increased in the towns, for the towns very early established their
right to be free, far earlier than the country. It was very early
established that the citizens of any town, that is, the members of
the guild of the town, duly admitted to the guild, were freemen, and
probably before this statute. But this is interesting as a recognition
of the fact that there were free poor people--people without property,
who nevertheless were neither villeins nor serfs--and that they were
entitled to equality before the law, just as we are to-day, as early
as 1275. Otherwise, the Statute of Westminster concerns mainly the
criminal law. There is one very important provision--because it has
been historically followed from then down to now--that there shall
be no disturbance of the elections. Elections shall be free and
unimpeded, uncontrolled by any power, either by the crown, or
Parliament, or any trespasser. That has been a great principle of
English freedom ever since, and passed into our unwritten constitution
over here, and of course has been re-enacted in many of our laws. That
is the feeling which lay behind those statutes which we enacted after
our slaves were freed, for the making of elections free in the
South; for protecting negroes in the act of voting and preventing
interference with them by the Ku Klux Klan. The Democratic party
strongly objected and objects still to such legislation on the part of
the government, on the ground that the right of regulating elections
belongs to the States and not to the Federal government; which,
constitutionally speaking, before the Fifteenth Amendment at least,
was true. They do not, of course, deny this great old English
principle that elections must be free and must not be intimidated or
controlled by anybody; but, they say, we left the machinery of the
elections in the hands of the States when we adopted the Federal
Constitution; and although at our State elections some of the officers
elected are Federal officers--as, for instance, the President of the
United States, or rather the presidential electors, and members of
Congress--nevertheless, when we adopted the Federal Constitution, the
founders chose to rely for the machinery of a fair and free election
upon the officers of States; so that the Federal government has
nothing to do with it, and has no business to send Federal troops to
the South; and they called such bills the "force" bill. In theory, of
course, those elections were controlled in these bills just as much in
the North as in the South; but there being practically no complaint in
the North that the negroes were not allowed to vote, as a matter of
fact the strength of the Federal government was only invoked in the
Southern States.
"Fines are to be reasonable." You find that principle in all our
constitutions to-day in the clause that there shall be no cruel or
unusual punishments, and that fines shall be proportionate to the
offence; this principle is expressed also in Magna Charta.
Then slander and rape were made criminal at common law; before this
only the church took jurisdiction. Slander Is the imputing of crime to
a person by speech, by word of mouth. If it be a written imputation,
it is libel and not slander. Then in this statute also we find the
first import tax upon wool. The constitutionality of revenue taxes,
duties, or taxes on imports, was once disputed by our parties; one
party denying the constitutional right to impose any tax upon imports
except for the strict purpose of raising necessary revenue; the
argument being perfectly logical and based upon the constitutional
principle we already have had that all taxation must be for the common
benefit. Democrats argued that if a tax upon imports was imposed to
raise the necessary revenue, that is for the common benefit; but if it
was imposed, as it avowedly is imposed in Republican legislation, for
the purpose of benefiting certain industries or classes, why that,
of course, is not for the common or general benefit and therefore
unconstitutional. The trouble with this position is that early English
laws were prohibitive of imports--that is, they were imposed for
prohibition _before_ they allowed importation on payment of duties.
This Statute of Westminster is a landmark, as showing how slow the
Commons were in even allowing taxation upon imports at all. They
earlier allowed the ordinary direct taxes. All that the Norman kings
got they got with the consent of Parliament, direct taxes, for the
common benefit; but they struggled for two centuries before they got
the permission of Parliament to impose duties, taxes upon imports;
here first they finally got it on wool, the thing produced of most
value of anything in England; and consequently an important protective
duty. It is a curious historical fact that this article, wool, seems
to be the chief bone of contention ever since; in our tariffs nothing
has been more bitter than the dispute on wool; the duty on wool is the
shibboleth of the extreme protectionist.[1] Ohio, which is the home
of the strong protection feeling, regards the duty on wool as the
corner-stone to the whole fabric. It is argued that "a cheap coat
makes a cheap man." In the East the feeling is that the duty on wool
makes clothing poor and shoddy, and the prices excessively high for
the poor. It is odd to find that the very first thing that did make
trouble was the duty on wool, and it is still making the same trouble
to-day.
[Footnote 1: The "ancient" customs were on wool, woolfels and leather;
all other were "evil" customs. Holt, afterward C.J., in "The Great
Case of Monopolies."]
There is another interesting clause in this statute; I don't know
whether in this country so much as there, but it is in England the
almost universal custom of ships to have a dog or cat on board. You
never will find a coasting vessel without a dog or cat, usually both;
and I believe it is for this strange historical reason, as shown in
this Statute of Westminster I: In those days all wrecks belonged to
the king. (Pretty much everything, in fact, did belong to the king,
except the land that was held by book or charter, or such personal
property as a man had in his own house--all mines, all franchises, all
monopolies, even all whales and sturgeons that were thrown up on the
beach--the head to the king and the tail to the queen.) So all wrecks
belonged to the king. The result was, that whenever any vessel went
ashore the king's officers seized it; and naturally the owner of the
vessel didn't like that, because it very often happened that the
vessel was perfectly good and could be easily repaired and the cargo
saved. It is still a great principle in marine law that if one-half of
the cargo is good, the man who owns the vessel cannot surrender and
claim from the insurance company as a total loss; it is important
still how much of a wreck a wreck is. But in those days the king, even
if the vessel was stranded and could be raised, would seize it on
the plea it was a wreck. The man who owned the ship would say she is
perfectly seaworthy; and then would come the dispute as to what a
wreck was. Or even when the vessel was destroyed, a great part of the
cargo might be saved, and the owner of the vessel thought it very
unjust that the king should claim it all. So the Parliament of England
established as part of the liberties of the English merchant or trader
that he should still have a property in his wreck; and then the
question came up as to what was a wreck. It was generally admitted
that when all hands were lost, that was a wreck; but they wanted to
get as narrow a definition as they could, so they got Parliament to
establish this law, that in future nothing shall be considered a wreck
out of which a cat or a dog escapes alive; and from that time until
the present day no vessel coasts about England without carrying a cat
or dog.
But the great achievements of legislation up to 1300 remain the
re-establishment of English law, as shown in the great charters of
John, Henry III, and the confirmation of Edward I. And Magna Charta
had to be read once a year (like our Declaration of Independence),
and for breach of it a king might be excommunicated; and Henry III
himself, according to Cobbet, feared that the Archbishop of Canterbury
was about to do so.
IV
EARLY LABOR LEGISLATION, AND LAWS AGAINST TRUSTS
(1275) Far the most important phrase to us found in the Statute of
Westminster I, save perhaps that common right should be done to rich
and poor, is to be found in this sentence: "Excessive toll, contrary
to the common custom of the realm," is forbidden. The statute applies
only to market towns, but the principle established there would
naturally go elsewhere, and indeed most towns where there was any
trade were, in those days, market towns. Every word is noticeable:
"Excessive toll"--extortion in rates. As this statute passed into the
common law of England and hence our own, it has probably always been
law in America except, possibly, in those few States which expressly
repealed the whole common law[1] and those where civil law
prevailed.[2] It was therefore equally unnecessary to adopt new
statutes providing against extortion or discrimination, for the last
part of the phrase "contrary to the common custom of the realm" means
discrimination. But this is one of the numerous cases where our
legislatures, if not our bar and bench, erred through simple
historical ignorance. They had forgotten this law, or, more
charitably, they may have thought it necessary to remind the people of
it. There has been a recent agitation in this country with the object
of compelling great public-service companies, such as electric
lighting or gas companies, to make the same rates to consumers, large
or small. This also was very possibly the common law, and required no
new statutes; there are cases reported as far back as the fourteenth
and fifteenth centuries where, for instance, a ferryman was punished
for charging less for the ferriage of a large drove of sheep or cattle
than for a smaller number, "contrary to the common custom of the
realm." Nine years before this statute is the Assize of Bread and
Beer, attempting to fix the price of bread according to the cost
of wheat, but notable to us as containing both the first pure-food
statute and the first statute against "forestalling."
[Footnote 1: Florida, Texas, and the old Territory of Dakota.]
[Footnote 2: Louisiana, New Mexico, and Arizona.]
Now forestalling, regrating, and engrossing are the early English
phrases for most of the unlawful or unmoral actions which we ascribe
to the modern trust. In fact, there is hardly one legal injury which
a trust is said to commit in these days which cannot be ranked under
those three heads, or that of monopoly or that of restraint of trade.
"Forestalling" is the buying up provisions on the way to a market with
intent to sell at a higher price; and the doctrine applied primarily
to provisions, that is to say, necessaries of life. Precisely the same
thing exists to-day, only we term it the buying of futures, or the
attempt to create a corner. We shall find that the buying of futures,
that is to say, of crops not yet grown or outputs not yet created,
is still obnoxious to many of our legislatures to-day, and has been
forbidden, or made criminal, in many States. "Regrating" is defined
in some of the early dictionaries as speculating in provisions; the
offence of buying provisions at a market for the purpose of reselling
them within four miles of the place. The careful regulation of markets
and market towns that existed in early times in England would not
suffer some rich capitalist to go in and buy all that was offered for
sale with intent of selling it to the same neighborhood at a higher
price. Bishop Hatto of the Rhine, you may remember, paid with his life
for this offence. The prejudice against this sort of thing has by no
means ended to-day. We have legislation against speculation in theatre
tickets, as well as in cotton or grain. "Engrossing" is really the
result of a successful forestalling, with or without regrating; that
is to say, it is a complete "corner of the market"; from it our word
"grocer" is derived. Such corners, if completely successful, would
have the public at their mercy; luckily they rarely are; the
difficulty, in fact, begins when you begin to regrate. But in
artificial commodities it is easier; so in the Northern Pacific
corner, a nearly perfect engrossing; the shares of stock went to a
thousand dollars, and might have gone higher but for the voluntary
interference of great financiers. Leiter's Chicago corner in wheat,
Sully's corner in cotton, were almost perfect examples of engrossing,
but failed when the regrating began. All these tend to monopoly, and
act, of course, in restraint of trade; the broader meanings of these
two latter more important principles we leave for later discussion.
(1285) The Statute of Bakers, or Assize of Bread and Ale, is by some
assigned to the 13th of Edward I. If so, we find all these great
modern questions treated by statute in the reign of the same
great law-making king, Edward I, who well was called the "English
Justinian"; for, in 1305, twenty years later, we have the first
Statute of Conspiracy. This statute only applies to the maintaining
of lawsuits; but the Statute of Laborers of 1360 declares void _all_
alliances and covins between masons, carpenters, and guilds, chapters
and ordinances; and from this time on the statutes recognize the
English common law of conspiracy in general words.
As this is one of the most important doctrines of the English law, and
moreover one which is most criticised to-day by large interests, both
of capital and labor, it will be wise to dwell upon its historical and
logical origin in this place, though we shall consider it at length
later as it touches various fields of legislation. It is notable for
two most important principles: first, that it recognizes the great
menace of combined action, and both forbids and punishes combinations
to do an act which might be lawful for the individual; second, of all
branches of civil, as distinct from criminal, law, it is the one which
most largely recognizes intent; that is to say, the ethical purposes
of the combination. It has been urged in some judicial opinions that
in matters of boycotts, strikes, etc., the law cannot go into the
motive; this argument obviously proves too much, for it is no more
easy to examine motives in the criminal law, and this is done all
the time. A homicide, for instance, will vary in all degrees between
justifiable guilt or manslaughter up to murder in the first degree,
according to the motive which prompted the act. It is really no more
difficult, and the reported cases do not show it to be any more
difficult, to consider the motive behind a combination of men or the
motive inspiring a series of related acts. The real trouble comes only
in the Federal anti-trust act, because the machinery of this clumsy
statute, a bill in equity, imposes upon judges the duty of finding the
facts.
This doctrine of conspiracy is so old in England that I am unable to
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