Popular Law-making Part 4

(1284) Jury trial was well established by this time, for the Statute of Wales includes it in its code of procedure for that princ.i.p.ality.

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 "a.s.sizes 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 Const.i.tution, though the Declaration of Independence, an obsolete doc.u.ment, 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 s.h.i.+llings per tun of wine, two s.h.i.+llings for cloth and other imports, "_whereby the price to the people is enhanced"_; the debas.e.m.e.nt of current coin; that pet.i.tions 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 Const.i.tution. 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 x.x.xVIII: "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 Ma.s.sachusetts, for instance, we cannot get a const.i.tutional 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 Ma.s.sachusetts 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 Ma.s.sachusetts' 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 princ.i.p.al 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 a.s.sumed the t.i.tle, King of France, they caused him to put in a statement that no inference was to be drawn from his a.s.suming 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 princ.i.p.ally relied upon three centuries later in the great case of monopoly (7 State Trials) brought against the East India Company. And England has a.s.sumed 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 punis.h.i.+ng 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 s.h.i.+pwreck 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 s.h.i.+p 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 s.h.i.+llings 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 quant.i.ty, 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 s.h.i.+ps 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 antic.i.p.ated 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 antic.i.p.ates 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 antic.i.p.ates 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 s.h.i.+llings, 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 s.h.i.+p goods in foreign s.h.i.+ps when no English s.h.i.+ps 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 const.i.tutions. The last section of the last law of King Richard declares "That the King by the a.s.sent of the said Lords and Knights [note it does not say by consent of the Commons], so a.s.signed 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 banis.h.i.+ng 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 a.s.serting 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 fas.h.i.+on, 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 s.h.i.+llings, 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 G.o.d, 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 antic.i.p.ated 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 fas.h.i.+oned by the executive, had it not been for the st.u.r.dy 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 G.o.d 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 s.h.i.+rts." 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 "b.l.o.o.d.y 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 princ.i.p.ally 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 b.u.t.ter 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 a.s.size 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 appet.i.te 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 antic.i.p.ating one of the princ.i.p.al doctrines of La.s.salle. 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 establis.h.i.+ng 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 Suss.e.x, 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 "b.l.o.o.d.y Statute," whereby he attempted to vindicate his orthodoxy. The act was ent.i.tled "An Act abolis.h.i.+ng diversity of opinion on certain articles concerning the Christian Religion," and insisted upon the sacraments, celibacy, ma.s.ses, 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 a.s.serted the divine right, and his legislation, other than special bills for the restoration of attainted persons, or the confirmation of t.i.tles, is scanty, his reign being princ.i.p.ally 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, ent.i.tled "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 b.u.t.ter 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.

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 Ma.s.sachusetts, 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 ma.s.s 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 const.i.tution; as a symbol of the change from absolute personal government to const.i.tutional 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, a.s.sembled 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 const.i.tutional 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 fict.i.tious person clothed with the enormously powerful attributes of immortality and irresponsibility. That is to say, men can act together or in partners.h.i.+p, 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-partners.h.i.+p.

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 Fellows.h.i.+p 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 a.s.sociation 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 pa.s.s 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 cla.s.s 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 cla.s.s of veterans or the descendants of veterans of the Civil and Spanish Wars. Under Cromwell they could exercise any trade without apprentices.h.i.+p; a recent South Carolinian statute providing that Confederate veterans could exercise any trade without paying the usual license tax was held unconst.i.tutional by the Supreme Court of South Carolina itself.