(1514) The abuse of monopolies begins to be shown this year (but see also 1503, above) in a statute complaining of the grant of second patents of a matter already granted; and avoiding in such cases the later patent unless the king express that "he hath determined his pleasure against the first."
The appearance of the gypsies in England is marked by a statute of 1530, describing them as "outlandish people called Egyptians," complaining of their robberies, and requiring them to depart the realm. In the same year first appeared the celebrated Act for the punishment of beggars and vagabonds and forbidding beggary, and requiring them to labor or be whipped. Herbert Spencer states in his "Descriptive Sociology" that it punishes with loss of an ear the third conviction for joining a trades-union, which, if true, would justify much of the bitterness of modern labor unions against the common law. The provision evidently referred to (22 Henry VIII, chapter 12, section 4) applies, however, not to guilds, but to "Scolers of the Universities of Oxford and Cambridge that go about begging not being authorized under the seal of the said Universities" as well as to other beggars or vagabonds playing "subtile, crafty and unlawful games such as physnomye or palmestrye." The same year is an Interesting statute against foreign artificers exercising handicrafts in England, not without example in the labor legislation of our modern States; but exempting beggars, brewers, surgeons, and scriveners as not handicraftsmen, possibly the origin of the vulgar notion that those trades are more genteel than skilled labor.
(1535) Another statute against sturdy vagabonds and "rufflers found idling after being assigned to labor," and already having their ears so slit, are punishable with death. This year Wales was joined to England; and we see the first act for the suppression of monasteries; the next year came the statute extinguishing the authority of the Bishop of Rome. With the struggle against the Roman Church went the contest for freedom; inter arma silent leges; sociological legislation came to an end for the rest of the reign and arbitrary laws passed at the king's desire; in 1536, the act authorizing kings of England, on arriving at the age of twenty-four, to repeal any act of Parliament made during their minority, and in 1539 the "Act that Proclamations made by the King shall be obeyed"—the high-water mark of executive usurpation in modern times. Proclamations made by the king and council were to have the force of acts of Parliament, yet not to prejudice estates, offices, liberties, goods or lives, or repeal existing laws; the cardinal constitutional rights were thus preserved, even as against this royal aggression.
(1548) Under Edward VI and Elisabeth we may expect more enlightened legislation, and are not disappointed. Indeed, no one can read the statutes of the great queen without seeing that modern times here begin. Nevertheless, while trade is becoming free, labor is no less severely, if more intelligently, regulated. We first note a short but important statute touching victuallers and handicraftsmen, worth quoting in part: "Forasmuche as of late dayes divers sellers of vittayles, not contented withe moderate and reasonable gayne ... have conspyred and covenanted together to sell their vittels at unreasonable price; and lykewise Artyficers handycrafte men and laborers have made confederacyes and promyses and have sworne mutuall othes, not onlye that they shoulde not meddle one withe an others worke, and performe and fynishe that an other hathe begone, but also to constitute and appoynt howe muche worke they shoulde doe in a daye and what bowers and tymes they shall work, contrarie to the Lawes and Statutes of this Realme" (It is extraordinary how closely this old statute sets forth some practices of the modern trades-union.) "Everie person so conspiring covenantinge swearing or offendinge ... shall forfeyt for the firste offence tenne pounds ... or twentie dayes ymprisonment" with bread and water; for the second offence, twenty pounds or the pillory, and for the third offence forty pounds, or the pillory and lose one of his ears. After that he is to be taken as a man infamous and his oath not to be credited at any time, and if there be a corporation of dealers in victuals or of handicraftsmen so conspiring, it shall be dissolved—the origin and precedent of the Sherman Act! This, of course, is the statute which Herbert Spencer cites as making a "third conviction for joining a trades-union punished with loss of an ear"; but he places the date at 1535 instead of 1548. The statute, however, goes on to provide absolute freedom of employment or trade for all skilled mechanics in any town, although not freemen thereof, whether they dwell there or not, any town or guild by-law to the contrary notwithstanding; so that this important statute may be said to establish the most enlightened view that there must be absolute liberty of employment granted any one, only that they must not conspire to the injury of others. Unfortunately, in the very next year this last part is repealed as to the city of London, "Artificers and Craftmen of that ancient City complaining that it was contrary to their ancient privilege," a view as modern as is the law itself. Immediately after this law is one providing that journeymen, clothiers, weavers, tailors, and shoemakers shall not be hired for less than a quarter of a year on penalty of Imprisonment to them and the employer, the statute reciting that, once out of their apprenticehood, they "will not commonly be retained in service by the year, but at their liberty by the day, week or otherwise, to the intent that they will live idly, and at their pleasure flee and resort from place to place, whereof ensuith more incovenyencies then can be at this present expressed and declared"—an inconvenience not unknown in modern intelligence offices. All employers having more than three apprentices shall keep at least one journeyman, and unmarried servants in husbandry must serve by the year.
(1550) In the 3d of Edward VI we find the first Riot Act, aimed at persons to the number of twelve or above assembling together and proposing to alter the laws and not dispersing when so required by the sheriff, and even persons more than two and less than twelve assembling for such purpose are subject to fine and imprisonment with treble damages to parties injured, and if forty persons so assemble and do not disperse in three hours, they are declared felons. This statute was re-enacted and made more severe in the reign of Queen Mary.
(1562) In the 5th of Elizabeth comes the last and greatest Statute of Laborers. This statute is a consolidation of all previous laws, and it begins by recognizing the principle that the fixing of wages is a mistake and all such laws are repealed so far as they relate to terms of hiring and wages. Servants in certain employments, generally speaking the tailoring and shoemaking trades, may still be hired by the year, and persons unmarried, not having an income of forty shillings a year, may be compelled to serve in their own handicraft. Such yearly servants may not be dismissed or depart during the year except by cause allowed by two justices, nor at the end of a year, without a quarter's warning. Unmarried persons under thirty, not having any trade and not belonging to a nobleman's household, may be compelled to labor at the request of any person using an art or mystery, and all persons between twelve and sixty not otherwise employed may be compelled to serve by the year in husbandry. The masters may not dismiss, nor the servants unduly depart; nor leave the city or parish of their service without a testimonial; that is to say, a certificate of due cause under the seal of the town or constable and two honest householders. The hours of labor are still fixed from 5 A.M. to 7 P.M., between March and September, with two and one-half hours for meal times, drink times, and sleep. From September to May, from dawn to sunset, and sleep times only allowed from May to August. A penalty of one month's imprisonment and fine is imposed on artificers and laborers leaving their work unfinished. Wages are still to be fixed by the justices of the peace, and it is made a penal offence to give or receive higher wages than the lawful rate, and all contracts for higher wages are void. Unmarried women between twelve and forty may be compelled to serve in like manner, and everybody has to work at harvest time, that is to say, artificers as well as laborers. The elaborate law of apprenticeship dates also from this great statute, and no one can use a manual art who has not been apprenticed to the same for seven years. One journeyman shall be kept for each three apprentices; disputes are to be settled by the justices of the peace, and indeed the whole labor contract is regulated as carefully as the most statute-mad of modern labor leaders could desire, though hardly, perhaps, then, in the sole interest of the workingman. If this statute was ever repealed, it was in very recent times.
(1571) The year of the statute against fraudulent conveyances, and of another poor law, with provisions for the punishment of "rogues, vagabonds and sturdy beggars," who are defined to include those going about the country "using sybtyll craftye and unlawfull Games or Playes ... Palmestrye ... or fantasticall Imaginacons.... Fencers Bearewardes and Common Players," and the penalty for harboring such vagabonds was twenty shillings. We are a long time from the knighting of Sir Henry Irving. In 1575 comes another act for setting the poor to work, and the punishing of tramps and beggars.
In 1571 also is the first formal complaint of monopolies by the Commons. Coal, oil, salt, vinegar, starch, iron, glass, and many other commodities were all farmed out to individuals and monopolies; coal, mentioned first, is still, to-day, the subject of our greatest monopoly; while oil, mentioned fourth, is probably the subject of our second greatest monopoly; and iron, mentioned seventh, is probably the third. Conditions have not changed. The only reason we don't have salt still a monopoly is on account of the numerous sources and processes for obtaining it from mines and from the sea; Fugger, the John D. Rockefeller of the sixteenth century (whose portrait in Munich strongly resembles him), had a monopoly of the salt mines of all Germany. The conditions have maintained themselves, even as to the very articles. This grievance was first mooted in Parliament in 1571 by a Mr. Bell, "who was at once summoned before the Council." This council was the King's Council, or Privy Council—a body roughly corresponding to our United States Senate. He was summoned before the council for objecting because coal, oil, salt, vinegar, starch, iron, glass, were the subjects of monopoly; and he "returned to the House with such an amazed countenance that it daunted all the rest." That is very much the fate of the tariff reformer to-day, if we may credit the tales of those returning from Washington.
After a lapse of twenty-six years the Commons ventured again. This time the queen replied that she hoped her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden, but promised to examine all patents and abide the touchstone of the law. Nevertheless, four years later the list of articles subject to monopoly was so numerous that when it was read over to the House in 1601 an indignant member exclaimed: "Is not bread amongst them? Nay, if no remedy is found for these, bread will be there before the next Parliament." The Populists openly cursed the monopolies and declared that the prerogatives should not be suffered to touch the old liberties of England. Seeing that resistance was no longer politic, Elizabeth sent a message to the House saying that some of these monopolies should be presently repealed, some superseded, and none put in execution but such as should first have a trial according to law for the good of the people; and Robert Cecil, the secretary, added an assurance that all existing patents should be revoked and no others granted for the future. The Commons waited upon the queen with an address of thanks, to which she replied almost affectionately that never since she had been queen "did I put my pen to any grant but upon pretence made to me that it was good and beneficial to the subjects in general, though a private profit to some of my ancient servants who had deserved well. Never thought was cherished in my heart which tended not to my people's good." Notwithstanding these fair words, the House of Commons found it necessary to enact the Great Statute against Monopolies.
(1623) In the beginning, the statute recites that "Your most excellent Majestie in your Royall Judgment ... did In the yeare ... 1610 ... publish in Print to the whole Realme and to all Posteritie, that all Graunt of Monapolyes and of the benefitt of any penall Lawes, or of power to dispence with the Lawe ... are contrary to your Majesties Lawes, which your Majesties Declaracon is truly consonant and agreeable to the auncient and fundamentall Lawes of this your Realme.... Nevertheles ... many such Graunts have bene undulie obteyned ... For avoyding whereof and preventinge of the like in tyme to come, May it please your most excellent Majestic ... that it may be declared and enacted, and be it declared and enacted by the authoritie of this present Parliament That all Monapolies and all Commissions Graunts Licenses Charters and lettres patents heretofore made or graunted, or hereafter to be made or graunted to any person or persons Bodies Politique or Corporate whatsoever of or for the sole buyinge sellinge makinge workinge or usinge of any things within this Realme or the Dominion of Wales, or of any other Monopolies, or of Power Libertie or Facultie to dispence with any others, or to give Licence or Toleracon to doe use or exercise any thinge against the tenor or purport of any Lawe or Statute ... are altogether contrary to the laws of this realm and so are or shall be utterly void and in no wise to be put in use or execution." Section 2 provides that all such monopolies and the force and validity of them ought to be and should forever hereafter be examined, tried, and determined by and according to the common law; section 4, that a party aggrieved might have treble damages, as in our modern Sherman Act. There followed provisos for exempting existing patents for twenty-one years or less for new inventions or like future patents for fourteen years or less, the charters of the city of London, or any custom or customs of London, or any other city or town, for corporations, companies, or fellowships of any art, trade, occupation, or mystery; that is to say, exempting the guilds, but these guilds by this time had long ceased to be societies of actual journeymen or handicraftsmen. This great statute may fairly be classed among the constitutional documents of England, and it left the great fabric of the English common law guaranteeing freedom of labor and liberty of trade, Magna Charta itself recognizing this principle, and the Statute of Westminster I forbidding forestalling and excessive toll contrary to the laws of England, as it has remained until the present day—only rediscovered in the statutes of our Southern and Western States aimed against trusts, and reapplied by Congress, in the Sherman Act, to interstate commerce; but in neither case added to, nor, possibly, improved.
Two years before this great statute, the process of impeachment, not employed for nearly two hundred years, had been revived against Sir Giles Mompesson and Sir Francis Mitchell, who in the Parliament of 1621 were impeached "for fraud and oppression committed as patentees for the exclusive manufacture of gold and silver thread, for the inspection of inns and hostelries, and for the licensing of ale-houses. While no definite articles were presented according to modern forms, an accusation was made by the Commons and a judgment rendered by the Lords, condemning both to fine, imprisonment, and degradation from the honor of knighthood." Nevertheless, Charles I revived the system of monopolies and raised revenue by their application to almost every article of ordinary consumption as well as by enormous fines inflicted through the Star Chamber, both important matters leading to his dethronement. Elizabeth granted monopolies on the perfectly madern pretence that a monopoly, be it made by law or by tariff, is for the benefit of the public good, though at the same time possibly a private profit to certain individuals, friends of the sovereign.
[Footnote 1: See Dowell, "History of Taxation," vol. I, pp. 204-209.]
But all this early legislation of England was far better and more advanced than our own; for in all these questions of duties on exports and duties on imports and monopolies, they never consider the man who has the monopoly, the producer; but always they are avowed to be, petitioned for, declared to be, only in the interests of the consumer; which cannot be said to be the case with ourselves.
OTHER LEGISLATION IN MEDIAEVAL ENGLAND
(1275) The Statute of Westminster I has sometimes been termed a great English code; it is certainly a comprehensive statement by statute of a considerable portion of existing law. In our consideration of labor and conspiracy laws we have had to include statutes of later centuries. Now, returning to the year of the Statute of Westminster, we found, in 1275, also the Statute of Bigamy, aimed against priests with more than one wife. It is to be noted that this was centuries before the celibacy of priests became one of the doctrines of the Roman Catholic Church. It is also interesting that this early statute refers to the pope as "the Bishop of Rome"—but only as printed since 1543.
(1279) The Statute of Mortmain, aimed at the holding of land in large quantities by religious corporations, was a true constructive statute, and the principle it establishes has grown ever since. The law regards with jealousy the ownership of land by any corporation; the presumption is against the power, and it extends to-day to all corporations, and particularly to alien corporations (see chapter 7); and in 1283 came the Statute of Acton Burnel, re-enacted in 1285 and called the "Statute Merchant," equally important. It provides for the speedy recovery of debts due merchants, and is the foundation of all our modern law of pledge, sales of collateral, etc. It is distinctly an innovation on the common law; for in those days there was no method of collecting ordinary money debts. You could levy on a man's land, but there really seems to have been no method of recovering a debt contracted in trade; and this is the first of many statutes adopting foreign ideas as to matters of trade, and the customs of merchants, drawn frequently from the Lombard or Jew traders of the Continent, which, by statute law, custom, or court decision, has since become such a considerable body of the English law as to have a name to itself—the "Law Merchant." This first statute provides for imprisonment for debt; "if he have no goods to be seized the debtor is to be imprisoned, but the creditor shall find him bread and water." A foreigner coming to England to recover a debt may also recover the expenses of his trip; and the statute is further liberal in that it does away with the Droit d'Aubaine, that narrow-minded custom by which the goods or personal property of any person who died passing through the kingdom were seized by the authorities and could not be recovered by his heirs. This mediaeval injustice continued for some centuries in Germany and France, and we can hardly say that the notion is extinct in this country when a State like California, by her system of public administrators, practically impounds a large proportion of all personal property owned by non-residents at their death. Cases have been known where it cost the executor more than one-third of the money to collect a mortgage, owned by a deceased citizen of Massachusetts, in California; and for that reason, among others, Eastern lawyers have advised against investments in that State; for the public administrators are usually petty politicians in search of a job. The increasing burden of our State inheritance tax laws, whereby every State wherein a corporation exists besides the State of the deceased seizes its percentage of the stock of such corporation in the hands of the executors, is another step in this direction. This early Statute Merchant, liberal in other respects, still excludes Jews from its benefits.
(1284) Jury trial was well established by this time, for the Statute of Wales includes it in its code of procedure for that principality. The great Statute De Donis, or Westminster II, came the following year; most interesting to lawyers as the foundation of estates tail; but it also regulates "assizes or juries" that "rich men do not abide at home by reason of their bribes." It also specifically requires indictment "of twelve lawful men at least," and gives an action against sheriffs imprisoning without such warrant "as they should have against any other person." Rape, ten years before made punishable only by two years' imprisonment, is now made an offence punishable by loss of life or member; showing how our ancestors treated a burning question, at least in our Southern States, of to-day. Finally, it confirms and explains the writ de odio et atia, the predecessor of the modern habeas corpus. Some writers have doubted whether this writ existed as a practical remedy much before the Statute of Charles II; but here it says that parties indicted, etc., are to have the writ de odio et atia "lest they be kept long in prison, like as it is declared in Magna Charta." This can only refer to C. 36 of John's Charter, "the writ of inquest of life or limb to be given gratis and not denied"; and taken in connection with the action for damages just given affords a fairly complete safeguard to personal liberty. It also contains the first game law, protecting "salmons." "There are salmons in Wye," says Shakespeare, and we are reminded of it because the Statute of Winchester in the same year contains a provision that is almost literally quoted by Dogberry in "Twelfth Night." It provides for the gates of great towns to be shut at sunset, and that no citizen should bear arms, and no tavern sell drink after 9 P.M., and then it comes to the duties of the watch, which are described in such like manner that Dogberry's language seems a mere paraphrase. Whoever wrote the play certainly had read the Statutes of the Realm for the year 1285, but so far as I am aware, the Baconians have not yet called attention to this. And the same statute shows us how much better police protection the England of 1285 gave than the New York or Chicago of 1909; for all the people dwelling in the hundred or country (county) if they do not deliver the body of the offender, "shall be answerable for the robberies done and also the damages." The same year was a statute of "The common customs of the City of London," among which was one that "taverns should not be open after 9 P.M. for the selling of wine or ale," a regulation for their "tenderloin," which itself is described in quite modern terms; "none shall walk the streets after curfew." Possibly the same year is the Statute of Bakers, with careful provisions against putrid meat, worthy of consideration by our cold-storage plants. Butchers selling unwholesome flesh, or buying it of the Jews, were severely punished.
(1289) The Statute of Quo Warranto is another historical landmark, showing the jealousy our ancestors felt of officials, bureaucracy; a writ specially devised to enable them to challenge the right of any magnate who pretended to power by virtue of holding office, and the predecessor of our modern quo warranto, which we still use at all times for that purpose, not only as against officers but to test any special privileges or charters claimed, such as the right to a monopoly, a franchise, a ferry, etc. These may be still tried by quo warranto; meaning, by what warrant do you claim to exercise this office, this monopoly, this privilege?
About this time is another statute forbidding usury, and permitting Christian debtors to retain half of all debts they may owe to the Jews, who are required to wear the mark of two cables joined on their coats; and there is the great Statute of Westminster III, Quia Emptores, affecting land tenures, still of importance to the conveyancers. In 1295 we have the famous Model Parliament; that is to say, the first one where kings, lords, and commons were joined, the legislative branches sitting separately and the Commons represented. Two years later Edward I, carrying on the war in Flanders, was compelled to grant that great confirmation of the charters already referred to, that no aid or tax should be taken but by the common consent of the realm and for the common profit; restoring thus into the recognized charter that important provision of the original Charter of John; and it provides that the great charter shall be read twice a year in every cathedral in England. In our country I am aware of no provision for reading the Constitution, though the Declaration of Independence, an obsolete document, is occasionally read upon the Fourth of July.
In 1305 the Anglo-Norman law reports begin, the Year Books. From then to now, at least, we have continuous written reports of all important cases decided in England. This is not to say that we do not have them before (our people, first in the world's history, has the records of all its cases in high courts for nigh a thousand years), but they are now for the first time systematic.
(1309) On the accession of Edward II came the Summary of Grievances, recited in the Statute of Stamford as recognized by Edward I at the close of his reign. The seizure of supplies by the king without due payment; the maintenance of courts at the gates of the king's castles in derogation of the common-law courts; the taking of "new customs," two shillings per tun of wine, two shillings for cloth and other imports, "whereby the price to the people is enhanced"; the debasement of current coin; that petitions of the Commons to Parliament were not received, etc., etc. All duties were then suspended, in order to know and be advised "what Profit and Advantage will accrue to him and his People by ceasing the taking of those Customs"—a precedent it were to be wished we might have the intelligence to follow to-day—surely better than a tariff commission!
Two years later came the New Ordinances, which contain a most interesting precedent, hitherto almost unnoted, of the American principle of having the courts construe the Constitution. Section VI: "It is Ordained, That the Great Charter be kept in all its points in such manner, that if there be in the said Charter any point obscure or doubtful, it shall be declared by the said Ordainours, and others whom they will, for that purpose, call to them, when they shall see occasion and season during their power." Section XXXVIII: "That the Great Charter ... and the Points which are doubtful in it be explained by the advice of the Baronage and of the Justices, and of other sage Persons of the Law." It was ordained that the king should not go out of the realm, a precedent never violated until modern times, and even followed by our own presidents, except for Roosevelt's trip to Panama and Taft's to the borders of Mexico. Again we find "new customs" abolished, "as upon Wools, Cloths, Wines, Avoir de pois, and other Things, whereby the Merchants come more seldom, and bring fewer Goods into the Land, and the Foreign Merchants abide longer than they were wont to do, by which abiding things become more dear," saving only to the king his duty on wool and leather, half a mark for a sack of wool and one mark for a last of leather. "The king shall hold a Parliament once in the year or twice if need be, and that in a convenient place." This principle has maintained itself in the English mind, still more in the American mind, ever since. To this day, in Massachusetts, for instance, we cannot get a constitutional amendment to have the legislature sit only once in two years, though it would probably be a very wise reform, on account of this old inherited feeling that there is something peculiarly free about an annual parliament, as indeed there is. The Anglo-Norman kings called parliaments once a year or oftener. Most of the States in this country now have their legislatures sit every two years. Alabama and some other States have recently changed, that they only sit once in four years. But the conservative old States, like Massachusetts and New Jersey, have still the rule that the legislature sits every year; and the prejudice in favor of the annual legislature goes back at least as far as this law of 1330, where the Commons succeeded in getting a law that Parliament should sit as often as once in a year, and is incorporated in England's and Massachusetts' Bill of Rights.
And then we find the first statute restraining what we should now call chancery jurisdiction, complaining that the law of the land and common right was delayed by letters issued under the king's will, and ordaining that henceforth they shall not be disturbed by said letters and nothing done in any of the places of the court of the king or elsewhere by such letters against right or the law of the land shall avail.
In 1313 the coming armed to Parliament is forbidden. These were troublous times and there was little legislation in consequence, and in 1322 Edward II secured the revocation of the New Ordinances themselves, but as in all such cases of royal grant and withdrawal the principles shown are even the more important historically. Of uncertain period is the Statute of Jewrie forbidding usury to the Jews, and Christians from living among them, but permitting them freedom of trade and exempting them from taxation except to the king; and a statute of the usages and customs of the men of Kent beginning with the statement that "all the Bodies of Kentishmen be free, as well as the other free Bodies of England," which dates at least as late as the early part of the fourteenth century, but still exemplifying the notion that a statute should only express law or custom previously existing.
(1327) The Statute of Northampton, at the beginning of the reign of Edward III, confirms many of the earlier statutes, but abolishes all staples beyond the sea and on this side, on the ground that they tended to monopoly, and provided that all merchants, strangers, and citizens may go and come with their merchandises into England after the tenor of the great charter (cap. IX). In the next year is another provision for annual parliaments, and in 1335 the Statute of York again allows merchants to buy and sell freely except only enemies, and giving double damages for the disturbance by any one of such freedom of trade, and the Statute de Moneta, forbidding carrying money abroad; which is notable to the student of economics as showing how early what we now call the fallacy of the mercantile system appeared. Our ancestors thought that there was something peculiarly advantageous in a tariff or system of duties which put all the money into a country and allowed only goods to go out; and that opinion is perhaps not yet extinct.
There always seems to have been a notion that there is something peculiarly sacred about wool. So we find that in 1337 they made it a felony to carry wool out of England, or to wear cloth made out of England; and no clothes made beyond the seas were to be brought into England. That notion that a man ought to dress on home products lies behind our present McKinley tariff. Then, in 1340, you will find another statute for the liberties of merchants, that they should be allowed the freedom of the kingdom; and a new duty is imposed on wool. Then we find the abolition of the laws of "the staple"; foreign staple towns had been abolished just before. The "staple" was the town in which one commodity was mainly dealt in. Every commodity in England had some particular town, where the principal market was for it; just as, with us, the boot and shoe market of the United States is supposed to be in Boston, the money market in New York, beef and hogs in Chicago. In England, in the Middle Ages, they really provided that a certain trade should have its home in a certain town; not necessarily the only one, but very often in that one only. Thus there were certain towns for the carrying on of the wool industry; you could only trade in wool in those towns. The word "staple," from meaning the town or market, got applied by an easy process to the commodity dealt in; so that when we now say that the Vermont staple is hay, we mean that this is the main crop raised in Vermont. But the staple—like the modern stockyard or exchange—tended to monopoly and was abolished for this reason.
In 1340 and 1344 we find two picturesque statutes showing how the English were getting jealous of the Norman kings: "The realm and people of England shall not be subject to the King or people of France"—that is, that the customs and law of France, although their kings were French, were not to be applied to England. Then in the royal edict that year when King Edward assumed the title, King of France, they caused him to put in a statement that no inference was to be drawn from his assuming the flower de luces in the first quarter of his arms. The present English coat of arms is modern; instead of having the Norman leopards in the upper right hand and lower left hand, they then had the blue field and the fleurs de lys of France in the upper, and the Norman leopards only in the lower corner; and this lasted until the time of Charles I. In that part of Normandy which now still remains to the English crown, that is, in Guernsey and Jersey, you find to-day that only the leopards, not the arms of Great Britain, are in use. But then again, in 1344, we have a statute (which, by the way, itself is written in French) complaining that the French king is trying to destroy the English language. They were getting very jealous of anything French; the Normans had already been absorbed; modern England was beginning to appear.
(1344) And now comes a liberal statute, repealing those restrictions on wool, and allowing it to be exported; and another statute that "the Sea be open to all manner of merchants." Now this is the origin of the great English notion of freedom to trade with foreign parts; and was principally relied upon three centuries later in the great case of monopoly (7 State Trials) brought against the East India Company. And England has assumed dominion of the sea ever since; "the boundaries of Great Britain are the high-water mark upon every other country."
(1348) This year was the plague of the Black Death, and the following year is the first Statute of Laborers discussed in an earlier chapter and elaborately amended in the following year. In 1350 also we find the Statute of Cloths, providing again for free trade in victuals, cloths, and any other manner of merchandise in all the towns and ports of England, and punishing forestalling of any merchandise with two years' imprisonment and forfeiture of the goods, one-half to go to the informer. Two years later the forestalling and engrossing of Gascony wines is forbidden and even the selling of them at an advanced price, and this offence is made capital!—and the next year we have the most elaborate of the Statutes of the Staple re-established. This ordinance (1353) provides for a staple of wools, leather, wool fells, and lead in various towns in England, Wales, and Ireland. The safety of merchant strangers is provided for, and it is again made a felony for the king's subjects to export wool; and more important still, all merchants coming to the staple and matters therein "shall be ruled by the Law-Merchant and not by the common Law of the Land nor by Usage of Cities, Boroughs or other Towns," and any plaintiff is given the option whether he will sue his action or quarrel before the justices of the staple by the law thereof, or in the common-law court. Merchandise may be sold in gross or by parcels, but may not be forestalled; and the goods of strangers suffering shipwreck shall be restored to their owners on payment of salvage. Houses in staple towns must be let at a reasonable rate, and conspiracies or combinations against the law of the staple made criminal. Again our ancestors showed themselves more civilized than we, this time in their Custom-house proceedings; for Article 26 of this statute provides that "whereas a Duty is payable of three pence in the pound by all merchant strangers coming into the kingdom, they may show their letters or invoices to prove the value of their goods, and if they have no letters, they shall be believed by their oath ... and now of late we understand by the Complaint of the said Merchants that although they have Letters or have made oath, nevertheless after the Oath made the bailiffs of the customs do unseal their Barrels, Fardels, and Bales for which they have taken their oath. We, not willing that Strangers that come into our Realm be in such Manner grieved, establish that when the Letters or the oath be taken their Goods shall be delivered to them without delay and the bailiffs meddle no more of the same Goods upon Pain of Imprisonment and pay the Party grieved quatreple Damages." As is well known, it is the United States custom to insist upon the oath of the importer, and notwithstanding that, rummage open his trunks. Or are we to infer that people were more truthful in those days?
(1354) The export of iron is forbidden, and the justices given power to punish them that sell iron at too dear a price, but it does not appear how the prices are to be determined; and the Statute of the Staple is again re-enacted and the provision made that duty shall be paid only upon those goods which are actually sold in England and the merchant may re-export the balance—the first precedent of our laws of importing under bond. It is notable that this year the Statute of Laborers is extended to the city of London.
(1357) The Ordinance of Herrings is a most interesting example of early intelligence in dealing with a modern abuse. It provides "that no herring shall be bought or sold in the Sea, till the Fishers be come into the Haven with their Herring, and that the Cable of the Ship be drawn to the Land." That thereupon they may sell freely, but only between sunrise and sunset. "The Hundred of Herring shall be ... six score, and the Last by ten Thousand and all Merchants must sell the Thousand of Herring after the Rate of the Price of the Last, and the people of Yarmouth shall sell the last [that is, the ten thousand red herring], bought for forty shillings for half a mark of gain and not above; and so the people of London for one mark of gain"; and the destruction of fish is prevented, but all caught must be sold. It is well known that the custom was to destroy all the fish brought into Billingsgate market above a certain quantity, which led Ruskin to cry out furiously that the real prices of the world were regulated by Rascals, while the fools are bleating their folly of Supply and Demand. One may guess to-day that most of the proceedings in the ports of Boston, New York, or Gloucester would be highly criminal under this ancient law. So, in the Statute of Dogger (this ancient word meaning the ships that carry fish for salting to Blakeney, Cromer, and other ports in the east of England), the price of dogger fish is settled at the beginning of the day and must be sold at such price "openly, and not by covin, or privily," nor can fish be bought for resale, but must be sold within the bounds of the market. To-day there is not a quart of milk that goes into Boston that is not forestalled, nor possibly a fish that is not sold at sea or even before its capture; and the number of middlemen is many—when, indeed, they all are not consolidated into a trust. The destruction, directly or by cold storage, of milk, fish, eggs, or other food in order solely to maintain the price should to-day be a misdemeanor; and these early doctrines of forestalling and restraining trade should be to-day more intelligently applied by our judges—or by the legislatures, if our lawyers have forgotten them—for they all are "highly criminal at the common law."
In the reign of Edward III appears one of many cruel ordinances for Ireland. Although the Roman Church was then, of course, universal, the statute is addressed to "the Archbishops, Bishops, Abbots, Priors and our Officers both great and small of our land of Ireland," and recites that "through default of good government and the neglect and carelessness of the royal officers there [this is probably true enough] our land of Ireland and the Clergy and People thereof have been manifoldly disturbed and grieved; and the Marches of said Land situate near the Enemy, laid waste by Hostile Invasions, the Marches being slain and plundered and their Dwellings horribly burnt." The Marchers were, of course, mainly of English descent; and one notes that the Irish are frankly termed the Enemy. As a method of meeting this evil, the Saxon intelligence of the day could find no better remedy than to lay it to "marriages and divers other Ties and the nursing of Infant Children among the English and the Irish, and Forewarnings and Espyals made on both Sides by the Occasions aforesaid," and it therefore forbids such marriages to be contracted between English and Irish, "and other private Ties and nursing of Infant Children." The statute notes that these dissensions do not occur only between the English and those of Irish blood, but as well between the English of birth and the English of descent living in Ireland; a condition which has, indeed, continued till to-day, Parneil and a host of famous Irishmen being of pure English descent.
In 1360 the exportation of corn is forbidden. We now, therefore, have that principle applied to wool, iron, and bread-stuffs—corn, of course, meaning all kinds of grain. There is another statute requiring Parliament to be held once a year; and, more interesting, that pleas should be made in the English language, for "the French tongue is much unknown in said Realm of England," but the judgments are to be enrolled in Latin. In 1363 another statute concerning diet and apparel fixes the price of poultry, a young capon three pence, an old one four pence, a hen two pence, and a pullet one penny "for the great Dearth that is in many Places." Department stores are anticipated by a clause complaining that the merchants called grocers do engross all manner of merchandise "by Covin and Ordinance made betwixt them, called the Fraternity and Gild of Merchants," and anticipates the prejudice against the modern department store by ordaining that merchants shall deal in only one sort of merchandise; and furthermore handicraftsmen are allowed to "use only one Mystery," that is, trade—which also anticipates a principle dear to modern trades-unions. The statute then regulates the diet and apparel of servants. They may eat once a day of flesh or fish, but the rest of their diet must be milk or vegetarian. Their clothing may not exceed two marks in value. People of handicraft and yeomen, however, are allowed to wear clothing worth forty shillings, but not silk, silver, nor precious stones. Squires and gentlemen of a landed estate less than one hundred pounds a year may wear clothing to the value of four marks and a half, but not gold nor silver, precious stones nor fur. Merchants having goods to the value of five hundred pounds may dress like esquires and gentlemen to a value of six marks. Clerks, that is to say, persons having degrees from colleges, may dress like knights of the same income and may wear fur in winter and lawn in summer, and clothiers make clothes accordingly and drapers and tailors charge proportionately. This most interesting effort to interfere with private life stops short of regulating the use of wine or beer; and tobacco had not yet been discovered. It is all the more interesting to note that it was found so intolerable that it was repealed the following year; and little effort since then has been made to regulate the diet or dress or expenditure of Englishmen; it was declared in memorable language that "which was ordained at the last Parliament, of Living and of Apparel, and that no English Merchant should use but one Merchandise" be repealed, and "It is ordained, That all People shall be as free as they were before the said Ordinance," and "all Merchants, as well Aliens as Denizens, may sell and buy all Manner of Merchandises, and freely carry them out of the Realm ... saving the Victuallers of Fish that fish for Herring and other Fish, and they that bring Fish within the Realm." Thus, after trying the opposite, we find triumphantly established in the middle of the fourteenth century the great English principle of freedom of life and trade. The legislation of this great reign ends with the prohibition of practising lawyers from sitting in Parliament and an ordinance that women might not practise law or "sue in court by way of Maintenance or Reward, especially Alice Perrens," Alice Perrers or Pierce having become unpopular as the mistress of the elderly king. Our courts have usually held that there is no common-law principle forbidding women to practise law, but from this ancient statute it would appear that such decisions are erroneous.
(1381) In 5 Richard II is a law absolutely forbidding the sale of sweet wines at retail. This law, with the testimony of Shakespeare, goes to show that England liked their wines dry (sack), but the act is repealed the following year, only that sweet wines must be sold at the same price as the wines of the Rhine and Gascony; and in the same year, more intelligent than we, is a statute permitting merchants to ship goods in foreign ships when no English ships are to be had. In 1383, according to Spence, the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common-law tribunals. The rest of the statutes of Richard II are taken up with the important statutes concerning riots and forcible entries, and regulating labor, as set forth in the last chapter.
The troublesome reign of Richard II closes with an interesting attempt to make its legislation permanent, as has sometimes been attempted in our State constitutions. The last section of the last law of King Richard declares "That the King by the Assent of the said Lords and Knights [note it does not say by consent of the Commons], so assigned by the said Authority of Parliament, will and hath ordained that ... to repeal or to attempt the repeal of any of the said Statutes is declared to be high treason," and the man so doing shall have execution as a traitor. Notwithstanding, in the following year the first act of Henry IV repeals the whole Parliament of the 21st of Richard II and all their statutes; that it be "wholly reversed, revoked, voided, undone, repealed, and adnulled for ever"—so we with the States in rebellion, and so Charles II with the acts of Cromwell.
(1400) Under Henry IV is the first secular law against heresy, making it a capital offence. Upon conviction by the ordinary the heretic is to be delivered to the secular arm, i.e., burnt. Note that the trial, however, still remains with the ordinary, i.e., the clerical court. Under Henry IV also we find a statute banishing all Welshmen and forbidding them to buy land or become freemen in England; and under Henry VI the same law is applied to Irishmen, and in the next reign to Scotchmen as well. The Irishmen complained of, however, were only those attending the University of Oxford. In 1402 we find Parliament asserting its right to ratify treaties and to be consulted on wars; matters not without interest to President Roosevelt's Congress, and in 1407 we find definite recognition of the principle that money bills must originate in the lower house.
For the purpose of his Chicago speech, it is a pity that Mr. Bryan's attention was never called to the Statute of the 8th of Henry VI, which forbids merchants from compelling payment in gold and from refusing silver, "which Gold they do carry out of the Realm into other strange Countries." An enlightened civic spirit is shown in the Statute of 1433, which prohibits any person dwelling at the Stews in Southwark from serving on juries in Surrey, whereby "many Murderers and notorious Thieves have been saved, great Murders and Robberies concealed and not punished." And the statute sweepingly declares everybody inhabiting that part of Southwark to be thieves, common women, and other misdoers. Fortunately, this was before the time that John Harvard took up his residence there.
In 1430 was the first statute imposing a property qualification upon voters.
In 1452 is a curious statute reciting that "Whereas in all Parts of this Realm divers People of great Power, moved with unsatiable Covetousness ... have sought and found new Inventions, and them continually do execute, to the Danger, Trouble and great abusing of all Ladies, Gentlewomen, and having any Substance ... perceiving their great Weakness and Simplicity, will take them by Force, or otherwise come to them seeming to be their great Friends ... and so by great Dissimulation ... get them into their Possession; also they will many Times compell them to be married by them, contrary to their own liking." A writ of chancery is given to persons so constrained of their liberty to summon the person complained of, and if he make default be outlawed—an early example of "government by injunction" applied to other than labor disputes! I know no example of an American statute to this effect; presumably our women are lacking in "weakness and simplicity."
In 1463 is another curious sumptuary law prescribing with great care the apparel of knights, bachelors, gentlemen and their wives, making it criminal for tailors to make cloths not according to this fashion, and for shoemakers to make boots or shoes having pikes more than two inches long. No draper shall sell or women wear hose to the value of more than fourteen pence, nor kerchiefs worth more than ten shillings, but scholars of the universities "may wear such Array as they may," nor does the ordinance extend to judges or soldiers. The provision against long pikes to shoes appears to be considered of importance, for it was re-enacted in 1464. I have searched in vain for a statute relating to hatpins. Again in 1482 there is another long statute concerning apparel which seems to have been considered under the reign of Edward IV quite the most important thing in life. A more manly clause of the statute is concerned with the benefits of archery to England, reciting that "In the Time of the victorious Reign ... the King's Subjects have virtuously occupied and used shooting with their Bows, whereby and under the Protection of Almighty God, victorious acts have been done in Defence of this Realm," and the price of long bows of yew is limited to three and four pence. The statutes now begin to be in English.
In 1488 the Isle of Wight is to be repeopled with English people for "defence of the King's auncien ennemyes of the realme of Fraunce."
In 1491 all Scots are to depart the realm within forty days upon pain of forfeiture of all their goods; it is not recorded that any remained in England. In 1491 Henry VII levied an amazingly heavy tax upon personal property, that is to say, two fifteenths and tenths upon all "movable goodes cattales and othre thinges usuelly to suche xvmes and xmes contributory," with the exception of Cambridge and a few other favored towns. In 1495 the famous Oklahoma statute is anticipated by a law regulating abuses in the stuffing of feather beds.
In 1503 a statute recites that the "Longe Bowes hathe ben moche used in this his Realme, wherby Honour & Victorie hathe ben goten ... and moche more drede amonge all Cristen Princes by reasone of the same, whiche shotyng is now greatly dekayed." So this mediaeval Kipling laments that they now delight in cross-bows to the great hurt and enfeebling of the Realm and to the comfort of outward enemies, wherefore cross-bows are forbidden except to the lords, on penalty of forfeiture of the bow.
(1509) The reign of Henry VIII was one of personal government; and in those days personal government resulted in a small output of law-making by Parliament. Indeed, after 1523, under Cardinal Wolsey, Parliament was not summoned for seven years. In 1539 the attempt to do without popular legislation is shown in the act already referred to, giving royal proclamations of the king and council the force of law, a definite attempt at personal government which might have resulted in the establishment of an administrative law fashioned by the executive, had it not been for the sturdy opposition of the people under weaker reigns. But under the reign of Henry VIII also the great right of free speech in Parliament was established; and in 1514 the king manumitted two villeins with the significant words "Whereas God created all men free," vulgarly supposed to be original with our Declaration of Independence.
The important principle of a limitation for prosecutions by the government for penal offences dates from the first year of Henry VIII, the period being put, as it still is, at three years; and it is expressed to be for better peace and justice and to avoid the taking up of old charges after the evidence has disappeared.
In 1515 is another act of apparel providing, among other things, that the king only shall wear cloth-of-gold or purple color, or black fur, and that no man under the degree of a knight may wear "pinched Shirts." In this reign also comes the famous Statute of Wills, permitting the disposal of land by devise, the Statute of Uses and other matters primarily of interest to the lawyer; the first Bankruptcy Act and the first legislation recognizing the duty of the secular law to support the poor, perfected only under Queen Elizabeth; but in the latter part of his reign there is little law-making that need concern us. The Statutes of Apparel continue, and the statutes fixing the price of wine, which, indeed, seems to have been the last subject so regulated. There is the "Bloody Statute" against heresy, and the first act against witchcraft, Tindale's translation of the Bible is prohibited, and women and laborers forbidden to read the New Testament. There is the first act for the preservation of the river Thames, and also for the cleaning of the river at Canterbury; and the first game law protecting wild-fowl, and a law "for the breeding of horses" to be over fifteen hands. The king is allowed to make bishops and dissolve monasteries; physicians are required to be licensed. The regrating of wools and fish is again forbidden, and finally there is an act for the true making of Pynnes; that is to say, they are to be double headed and the heads "soudered fast to the Shanke."
We are now approaching the end of our task, for the legislation after James I, with the exception of a few great acts, such as the Statute of Frauds and the Habeas Corpus Act, hardly concerns us as not being part of our inherited common law. The reigns of Elizabeth and James are to us principally notable for the increase of the feeling against monopolies, ending in the great Statute of James I. While we still find restrictions upon trade in market towns or in the city of London, they always appear as local restrictions and are usually soon repealed. The prejudice against regrating, that is to say, middlemen, continues, as is shown in a Statute of Edward VI, providing that no one shall buy butter or cheese unless to sell the same only by retail in open shop. That is to say, there must be no middleman between the producer and the retailer, and a definition of the word "retail" is given. In 1552, the 7th of Edward VI is a celebrated statute called the Assize of Fuel, applied to the city of London, notable because it forbids middlemen and provides that no one shall buy wood or coal except such as will burn or consume the same, "Forasmuche as by the gredye appetite and coveteousnes of divers persons, Fuell Coles and Woodd runethe many times throughe foure or fyve severall handes or moe before it comethe to thandes of them that for their necessite doo burne ... the same"—under penalty of treble value.
In 1551 is the last elaborate act against regrators, forestallers, and engrossers, made perpetual by 13 Elizabeth, and only repealed in 1772. It recognizes all previous laws against them, but recites that they have not had good effect, and therefore in the first section gives a precise definition. Forestalling—the buying of victuals or other merchandise on their way to a market or port, or contracting to buy the same before they arrive at such market or city, or making any motion for the enhancing of the price thereof, or to prevent the supply, that is, to induce any person coming to the market, etc., to stay away. Regrating is narrowed to victuals, alive or dead, and to the reselling them at the fair or market where they were bought or within four miles thereof; and engrossing is given a definition very similar to our "buying of futures." That is to say, it is the buying or contracting to buy any corn growing in the fields or any other victuals within the Realm of England with intent to sell the same again. The penalty for all such offences is two months' imprisonment and forfeiture of the value of the goods, but for a third offence the person suffers forfeiture and may be imprisoned. There is an important recognition of modern political economy made in the proviso that persons may engross corn, etc., when it sells at or below a certain price, not, however, forestalling it.
In 1554 is a statute for the relief of weavers, prohibiting "the engrossing of looms," thus anticipating one of the principal doctrines of Lassalle. In the same year, 1st of Philip and Mary, is a statute prohibiting countrymen from retailing goods in cities, boroughs, or market towns, but selling by wholesale is allowed, and they may sell if free of a corporation; and so cloth may be retailed by the maker, and the statute only applies to cloth and grocery wares, not apparently to food.
(1562) From the reign of Elizabeth dates the great Poor Law, enacted and re-enacted in 1562, 1572, and finally in 1601, recognizing fully the duty of the parishes to support their poor, but providing a system of organized charity and even licensing beggars in towns too poor to support all their paupers. Side by side with this, however, went the severe statutes against idlers and vagabonds recited in the last chapter. The first game laws date from about this period, prohibiting the snaring of birds and establishing close seasons, and also in 1584 we find the first forestry law for the preservation of timber in the southern counties. There is no provision for seeding, but the use in the iron works of wood for fuel is carefully regulated, and in order to preserve the forests in Sussex, Surrey, and Kent, it is provided that no new iron mills, furnaces, etc., shall be erected in those counties, showing the relative value that our forefathers placed upon these matters. The first incorporation of a trading company seems also to date from the time of Elizabeth. That is to say, the Muscovy Company was chartered in 1564, and the Merchant Adventurers for the discovery of new trades in 1566. In this same year is the celebrated act of Speaker Onslow, in telling Elizabeth that she is subject to the common law; from henceforward we are in modern times. In 1534 Henry VIII declared himself supreme head of the Church of England; five years later with the dissolution of monasteries came the "Bloody Statute," whereby he attempted to vindicate his orthodoxy. The act was entitled "An Act abolishing diversity of opinion on certain articles concerning the Christian Religion," and insisted upon the sacraments, celibacy, masses, and confessions, but in 1548 the marriage of priests was made lawful, and in 1566 the pope forbade attendance at the English Church. Thus, Roman law was expelled in the first two or three centuries after the Conquest, the Roman Church in the sixteenth century, and it remained for the seventeenth to struggle with the last serious attempt at the Roman or Continental theory of personal government.
(1602) King James at his accession asserted the divine right, and his legislation, other than special bills for the restoration of attainted persons, or the confirmation of titles, is scanty, his reign being principally occupied with the conflict with Parliament, which he forbade from meddling with affairs of state. In the first year of his reign, the Statute of Laborers of Elizabeth was confirmed, as well as that against rogues and vagabonds; the ninth act of his first Parliament was "To restraine the inordinate hauntinge and tiplinge in Innes and Alehouses," and, indeed, much of his legislation is aimed at what should properly be called "sins" rather than "crimes"; the next act after this was one to restrain "all persons from Marriage until their former Wyves and former Husbandes be deade." And next came a statute against witchcraft. In 1603 is an act to prohibit people from eating anything but fish in Lent, entitled "An Acte to encourage the Seamen of England to take Fishe, wherebie they may encrease to furnishe the Navie of England." There was an act for the relief of skinners, and a charter given by Queen Elizabeth in the twenty-first year of her reign to the Eastland merchants for a monopoly of trade in those countries; it would be interesting could these early corporation charters and monopoly grants be printed, for they are not usually found in the statutes of the realm. In 1605 stage players are forbidden from swearing on the stage. In 1606 is an elaborate act for the regulation of the spinning, weaving, dyeing, and width of woollen cloth, and the same year is an act for "repressinge the odious and loathsome synne of Drunckennes," imposing a penalty or fine and the stocks. In 1609 an act of Edward IV is revived, forbidding the sale of English horns unwrought, that people of strange lands do come in and carry the same over the sea and there work them, one of the latest statutes against the export of raw material. In the last year of his reign comes the great Statute of Monopolies noted in the last chapter, and an act extending the benefit of clergy to women convicted of small felonies, for which they had previously suffered death, and another act for the repression of drunkenness. And the last statute we shall note, like the first, is concerned with regrating and engrossing; that is to say, it re-enacts the Statute of Edward VI prohibiting the engrossing of butter and cheese, and prohibiting middlemen. Thus restraint of trade and freedom of labor begin and end as the most usual subjects of English popular law-making.
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A few words upon Cromwell's legislation may be of interest; for though it was all repealed and left no vestige in the laws of England, it had some effect upon the legislation of Massachusetts, Rhode Island, and Connecticut. Under the Commonwealth there was but one legislative chamber, and over that the protector exercised far more control than had been ventured by the maddest Stuart or Tudor. One would suppose that a period which represented the supremacy of the common people would be marked by a mass of popular legislation. Quite the contrary is the fact. In the first place, the Instrument of Government, prepared by the so-called Barebones Parliament, was supposed to be a sort of constitution; as a symbol of the change from absolute personal government to constitutional government under this Instrument, Cromwell exchanged his military sword for the civil common sword carried by General Lambert, who was at the head of the deputation praying the Lord General to accept the office of protector. It vested the supreme power in him, acting with the advice of the Council, with whose consent alone he could make war, and that Council was to choose future protectors. The legislative power resided in a single chamber, upon which he had a veto. There was an ordinary property qualification for voting, and religious liberty was guaranteed, except as to the papists. Only one Parliament, as a matter of fact, assembled under this Instrument of Government, and the very first legislative function it endeavored to exercise seemed to offend Cromwell, who promptly dissolved it with a file of soldiers. That was the end of constitutional government under the protector. The laws of the Rump Parliament, and the Barebones Parliament, are entirely omitted from the official Statutes of England, and only to be found in a rather rare volume. They mostly concern military affairs. The real reforms of government, like the abolition of the Star Chamber and feudal tenures, had in fact been carried out under Charles I.
A further word should be given to the origin of the business corporation, an almost accidental event, which has affected the world of trade and affairs more than the invention of printing, of the bill of exchange, and the Law Merchant combined. It would have been perfectly possible for the world to get on and do business without the modern corporation—without the invention of a fictitious person clothed with the enormously powerful attributes of immortality and irresponsibility. That is to say, men can act together or in partnership, but they are mortal, and at their death their personal powers end. The corporation may be immortal, and its powers, as well as its acquisitions, increase forever. Men are liable with all their estates for their contracts and obligations. Men in corporations are only liable to the amount of their aliquot share of stock, or often not at all. Corporations may dissolve, and be reborn, divide, and reunite, swallow up other corporations or often other persons. Individuals cannot do so except by the easily broken bond of co-partnership.
Trading corporations for profit were practically unknown to the Romans, or even to Continental countries—scholastic precedents and the Venetian commendam to the contrary notwithstanding. They developed in England first out of the guild or out of the monastery; but the religious corporation, although regarded with great jealousy in the Statutes against Mortmain, which show that from the earliest times our ancestors feared the attribute of immortality that characterizes the corporation, have never had the principle of limited, or no, personal liability. That, indeed, is said to have been invented by the State of Connecticut (see below, chapter 10). They were, however, often clothed with monopoly. In 1643 we find the Fellowship of Merchant Adventurers of England, a business corporation, with power to levy money on the members, and exclusive powers to trade in its own products, which seem to have been clothing and woollen manufactures. We have already mentioned the earlier charter to the Eastland merchants. Mr. James Bryce has pointed out to me that the objection of monopoly would not have been felt so much to apply to a corporation chartered only for purposes of trade out of England. It would seem, therefore, that the invention and growth of the secular corporation was an accident of the legislation of Queen Elizabeth's time; and arose rather from this desire to get a monopoly, than from any conscious copying of the trade guilds, still less the religious corporations of earlier dates; for the trade guilds were nothing but a more or less voluntary association of men bound together in a very indefinite bond, hardly more of a permanent effective body than any changing group of men, such as a political party is, from year to year; the only bond between them being that they happen at some particular time to exercise a certain claim at a certain place; and even the trade guilds, as we know, had somewhat the course of a modern corporation. They became overgrown, aristocratic, swollen in fortune, and monopolistic in tendency. To some extent in the English cities and towns, and still more in France, they became tyrannous. And in the previous reign of Henry VIII all religious corporations had been dissolved.
Not much, perhaps, remained for Cromwell's Parliament to do. The abuses of law-making, of the Star Chamber, and other non-common-law courts, of personal government, had been swept away under Charles I. In 1644 the Book of Common Prayer was abolished. In 1646 the bishops were abolished, in 1648 the king and the House of Peers, and in 1649 the king was beheaded. Cromwell's Parliament was more interested in the raising of money and the dividing up royal lands than in constructive legislation. They did find time to forbid the planting of tobacco in England, and to pass an act furthering the religion of Jesus Christ in New England; also a society for the foundation of the gospel in New England, with power to raise money or make collections for that purpose, provided always, they did not carry any gold, silver, plate, or money outside of England. An act claiming that "the Indians are renouncing their heathen sorceries and betaking themselves to English schools and universities," possibly refers to one Indian graduate of Harvard, Caleb Cheeshahteaumuck, of the class of 1665. There are statutes concerning the impressing of seamen; a bankruptcy act, a statute authorizing secular marriage without a priest or church ceremony, and the act for preferring veterans in the Spanish War in civil service, a statute which gives a respectable antiquity to our laws making a privileged class of veterans or the descendants of veterans of the Civil and Spanish Wars. Under Cromwell they could exercise any trade without apprenticeship; a recent South Carolinian statute providing that Confederate veterans could exercise any trade without paying the usual license tax was held unconstitutional by the Supreme Court of South Carolina itself.
AMERICAN LEGISLATION IN GENERAL
Before approaching the actual field of American legislation, it may be wise to make a few general statements concerning it. It was some fifty years after the adoption of the Federal Constitution before it began in great bulk, but to-day we find in the States alone forty-six legislative bodies, and two of Territories, besides the Federal Congress and the limited legislatures of our insular possessions. Nearly all of these turn out laws every year; even when the legislatures meet biennially, they frequently have an annual session. Only in one or two Southern States have recent constitutions restricted them to once in four years. It would be a fair estimate that they average five hundred statutes a year, which would make, roughly speaking, twenty-five thousand annual laws. It has been well doubted by students of modern democracy, by Lecky and Carlyle, if this immense mass of legislation is a benefit at all. Carlyle, indeed, is recorded to have taken Emerson down to the House of Commons and showed him that legislative body in full function, only taking him away when he was sufficiently exhausted, with the query whether Emerson, though a Unitarian, did not now believe in a personal devil. Administrative law-making for the machinery of government there must always be, but for the rest, if we rely on the common law and its natural development alone, our condition will be far less hopeless than most of us might imagine. Indeed, as we shall so often find, it is the very ease and frequency of legislation that has caused our courts and law-makers to forego the well-tried doctrines of the common law. Many of our statutes but re-enact it; when they go beyond it, it is frequently to blunder. Moreover, it is a commonplace that no law is successful that does not fairly express the thought and customs, the conditions, of the mass of the people. Professor Jenks of Oxford applies to all other legislation the term "fancy legislation," or, as we might say, freak legislation—the caprices and desires of the present legislature or their constituents, carried immediately into law; and we may say at the outset that such legislation has rarely proved wise, and hardly ever effective. It is needless to state that many modern statutes—like prohibition laws, for instance—are passed for that very reason. Yet whatever the fact may have been in the past, there is no doubt that for the future, legislation by the people, constructive law-making at the popular behest, is the great new fact of Anglo-American civilization. There has just been brought out an immense index, under the auspices of the British Government, called "The Legislation of the Empire, being a Survey of the Legislative Enactments of the British Dominions, from 1897 to 1907." This work fills four huge volumes, and gives but the briefest possible index-headings of the statutes of the British Empire for that period. Our excellent "Index of Legislation," published by the New York State Library, contains about six hundred pages, and even this is hardly more than an index, as the title suggests.
Now, this tremendous increase in legislative output, most notable in the States of the United States, did not begin with us at once. For some forty or fifty years after the Revolution our State legislatures made as little constructive legislation as did the Parliament of George III. It was with the end of the first quarter of the nineteenth century that the great increase began. It seems to have taken democratic legislatures some fifty years to become conscious that they had this new unlimited power, and not only that they possessed it but were expected to exercise it; the power of making absolutely new laws, statutes which did not exist before as law, either by the common law or by the custom of the people. It is true, our ancestors had some taste of radical legislation during the Revolution, and the checks of the State constitutions were adopted for that reason; but subject only to this limitation, it was the first modern experiment in popular legislation. The great wave of radical law-making that began with the moral movements—the prohibition movement, the anti-slavery movement, and the women's rights movement—of the second quarter of the nineteenth century, lasted down until the Civil War. After that there was a conservative reaction, followed by a new radical wave in reconstruction times, which ended with another conservative reaction at the time of the first election of President Cleveland. Since then, new moral or social movements, mainly those concerned with the desire to benefit labor and repress the trusts, with the desire to protect women and children, seem to have brought up a new radical wave, the progress of which has hardly ended yet. Before the Civil War, the women's rights movement and the anti-slavery movement always worked together. They were in great part composed of the same persons. In fact, the historical origin of the women's suffrage movement was a large abolition meeting held in England, but attended by many women delegates from America, where they excluded a leading American woman abolitionist and would only allow her husband to take her seat in her place. We shall, of course, consider this precise question later, and pause now merely to note the fact that with the anti-slavery movement, ending with the adoption of the war amendments and the women's suffrage movement, ceasing to progress soon after, there came the period of conservative reaction, or, at least, of quiescence, which lasted down to the recent labor and social movements that have caused our increasing mass of constructive legislation in the last few years. It is true that some of the far Western Territories adopted women's suffrage soon after being made States, or at the time they were admitted; but no other State, even of those surrounding them, has followed their example, though the people have repeatedly voted on the point. Whatever progress the cause may have made in England, or in the larger cities of the East, I think that no unprejudiced observer would say that it looks so near to accomplishment as it did in the twenty years preceding the Civil War. Then, also, there was during the same decades a great increase in personal property; that is to say, in corporate stocks and bonds, the kind of property most easily attacked by legislation; but the very possession of such securities by large numbers of the people tended to make them more conservative in ordinary property matters. It is in the times when you have but farmers on the one side, as in the Shay Rebellion in Massachusetts after the Revolution, or when the proletariat on the one side is opposed to the bourgeoisie on the other, as in certain Continental countries, that you find radical legislation. We were fortunate in that a large number of our citizens were thus arrayed on both sides of the question. Property rights, of course, have been granted to women most completely throughout the Union, but in twenty years they have made little progress toward the vote.
Blackstone says that democracy is peculiarly fitted to the making of laws, and calls attention to the importance of legislation, with the regret that there should be no other state of life, arts, or science, in which no preliminary instruction is looked upon as requisite; but by "democracy" Blackstone really meant representative government, which still acts quite differently from the referendum and the initiative. Democracies, he says, are usually the best calculated to direct the end of a law. But in no sense, says Professor Jenks, was the British Parliament the result of a democracy; while our State legislatures during the Revolution were, indeed, democratic, and practically omnipotent, and for that very reason were promptly curbed by the State constitutions, which were adopted even before the Federal. And of late the distrust of our legislatures is shown by the most exaggerated list of restrictions we find placed upon them in the newer constitutions of the Southern and Western States. Another thing Blackstone oddly says, is that in legislation by the people they will show great caution in making new laws that may interfere with their rights and liberties. Precisely the contrary is experienced. Nobody is so willing to interfere with the rights or liberties of the people as the people themselves, or their supposed representatives in the legislature; and a body or faction of the people is far more ready and reckless to impose its will upon the others than have been the most masterful English monarchs.
The recklessness of legislatures has two or three most evil consequences. They pass foolish or unconstitutional laws, relying on the governor to veto them, or the courts to declare them void—which has the effect of shirking their responsibility and imposing unjust and obnoxious duties on the other branches of government, to which they do not fairly belong; increases the growing disrespect for all law, and deteriorates the moral and intellectual fibre of the legislature itself. Finally, also, it provokes that hypertrophic modern State constitution of the South and West, which tries to bind down future legislatures in infinite particulars, thereby again diminishing their importance and responsibility, making it more difficult to get able men to serve in them, and, by the frequent necessary amendment of State constitutions, resulting in a continual referendum, which nearly does away with representative government itself.
Moreover, when a law is unconstitutional it should ever be only because it violates some great natural right of humanity, personal liberty, property, or the right to common law. When constitutions go into details which are not substantially connected with these cardinal rights, they bring themselves into contempt, and justify the growing prejudice of our labor leaders against them. The people should believe, as I think they do believe under the Federal Constitution and under the older ones of the States, that when a law is declared no law by a high court for being counter to the higher will of the people as expressed in their permanent constitution, it is not on a technicality, but because some great liberty right is infringed by it. Yet it is a curious thing that whereas our people only got the power to legislate by democratic assemblies freely and completely from the year 1776, in hardly more than a hundred years after their conscious possession of that power we find a respectably strong popular movement attempting to reverse it, or, at least, to limit its field. Most of our advocates of direct legislation by the people assume that a great mass of law-making would result in practice; probably the contrary is true; the referendum would destroy more than the initiative would create. They would go back to a condition of things which, in theory at least, existed in the England of the early Saxon times; although, of course, in those days only the freemen, and no women, had the law-making vote. Anyhow, it is curious that that representative government upon which we have been priding ourselves as the one great Anglo-Saxon political invention should be precisely the thing that we are now urged to give up. In the Federalist there is much discussion as to whether it is possible to have so big a democracy as the United States, and the answer made by Hamilton was; "Yes, because we shall have representative government." But detailed discussion of the initiative we must leave for a later chapter.
Perhaps we begin to detect the prejudice in the general mind, which is notable in the works of a few earlier theorists, to prefer statute law to what is known as judge-made law, on that ground alone. The writer is not of the school that admits there is such a thing as judge-made law, but believes the phrase to be a misnomer, at least in ninety-nine cases out of a hundred. The whole theory of the English law is that it exists in and by the people and is known of them before it is announced by a judge, and although the extreme of this theory be somewhat metaphysical, it is certainly true that a judge is a very bad judge who does not decide a point of law apparently new or doubtful according to the entire body of English-American precedent, experience, rather than by his own way of looking at things. If judges really made new law, particularly if they made it consciously, it would be more than "aristocratic"—it would be simply tyrannical, and, of course, be unconstitutional as well as being an interference with the legislative branch of government. But it is doubtless this theory, that it is the statute law that is the democratic kind, which has given form and body to the vast mass of statutes we are here to consider. Certain of our legislators seem to be horrified when a court applies a precedent a hundred years old, still more when it is a thousand years old, although to the jurist, in most cases at least, if never since questioned and never grown obsolete, it is entitled to all the more respect for that reason. Both the labor interests and the "special interests" resent excessively the recent tendency of intelligent judges to look at precedent and history. Mr. Debs will tell you that such matters are aristocratic and reactionary; Mr. Rockefeller, or his lawyer, that they are both visionary and obsolete. Yet a statute may only represent the sudden will of a small body of mediocre intelligence on a new subject (or an old one) which they have never studied. It is true that if they make a mistake they can amend it to-morrow; but so, also, may be amended the decisions of the court.
AMERICAN LEGISLATION ON PROPERTY RIGHTS
When we come to the vast field of legislation in the United States, comprising the law-making of forty-six States, two Territories, the National Congress, and the Federal District, it is difficult to decide how to divide the subject so as to make it manageable. The division made by State codes and revisions, and the United States Revised Statutes, hardly suits our purpose, for it is made rather for lawyers than sociologists or students in comparative legislation. The division made by the valuable "Year Book of Legislation," published by the New York State Library, comprises some twenty subjects: Constitutional Law; Organic Law; Citizenship and Civil Rights; Elections; Criminal Law; Civil Law; Property and Contracts; Torts; Family; Corporations; Combinations and Monopolies; Procedure; Finance; Public Order; Health and Safety; Land and Waters; Transportation; Commerce and Industry; Banking; Insurance; Navigation and Waterways; Agriculture; Game and Fish; Mines and Mining; Labor; Charities; Education; Military Matters; and Local Government. This division, however convenient in practice, crosscuts the various fields of legislation as divided in any logical manner. The same criticism may be applied to a somewhat simpler division I have used in tabulating State legislation for the last twenty years into thirteen columns, the titles of these being, roughly speaking, Property and Taxation; Regulation of Trades and Commercial Law; Personal Liberty and Civil Rights; Labor; Criminal Law, Health and Morality; Government; Elections and Voting; Courts and Procedure; Militia and Military Law; Women, Children, Marriage and Divorce; Charities, Education, Religion and Jails; Agriculture, Mining and Forestry; Corporations, Trusts and Interstate Commerce. Is it not possible to begin with a broader and more simple division?
Now, all statutes are limitations on a state of pure individualism, defining this latter word to mean a state of society recognizing personal liberty and private property, and allowing all possible freedom of action and contract relating thereto; with a court administration for the purpose of protecting such liberty and enforcing such contracts in the courts. The usual rough division of our constitutional rights, following the phraseology of the Fourteenth Amendment, is that of life, liberty, and property; but the rights to life and liberty obviously belong to the same broad field. Our first division, therefore, may well be that which divides life and liberty rights from property rights; although in some cases, notably in the earnings of labor, they would be found to run together. Liberty rights are multifarious and indefinite; we may, therefore, first take the field of property as presenting, after all, a more simple subject. Considering all possible organizations of human society from this point of view, we shall find that all may be expressed, all at least that have hitherto been conceived, under the systems of anarchism, individualism, and socialism, these words expressing all possible states of human society when expressed in terms of individual liberty, that is to say, the free exercise of the individual will. Either one of these may exist either with or without the notion of private property; though, of course, one's action as to property would be controlled under a system of socialism, and property itself would have no legal protection under a system of anarchism. Nevertheless, the notion of property might still exist and be recognized by the custom of mankind without any sanction or enforcement from the entire community, i.e., what people call the state. When we are speaking in terms of property, we use the word communism—meaning that state of society where the conception of property exists, but the law or custom will not recognize individualism. Communism, therefore, usually implies ownership by the entire community, while in anarchism there is no property at all. There has been much confusion in the use of these terms in the popular mind, and even in ordinary writing. Many people have confounded, for instance, socialism with anarchism or nihilism, when the two things are whole poles apart. In the same manner, communism has been confounded with socialism, although the term should be used in entirely different connections—communism when we are speaking in terms of property, socialism when we are speaking in terms of individual liberty. The word individualism was used by the present writer in a series of articles entitled "The Ethics of Democracy," beginning in 1887, as the most convenient term for describing that state of society where the greatest possible individual liberty is conjoined with a strong recognition of the right of private property, substantially the laissez faire school as it existed in England in the first half of the last century; "the distinction between communistic and socialistic laws being, that the former are concerned solely with the taking or redistribution of money or property; the latter regulate or prohibit men's mode of life, acts, or contracts, either among themselves or as concerning the state."