A STUDY OF THE ORIGIN,
HISTORY, AND PRESENT TENDENCIES
OF LAW-MAKING BY STATUTE
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
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.
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.
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.
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. 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, 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.
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; 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.
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."
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"; 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...."
[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." In his charter to the citizens of London 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." 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," 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. 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.