Читать книгу Popular Law-making - Frederic Jesup Stimson - Страница 35

Going on with the statutes, the next thing we will note is a matter that concerns the personal relations. It shows again how eagerly our English common law overruled the church law, the canon law. Although the church under the pope always pretended that it alone had authority to regulate relations between the sexes, marriage and divorce, we found Henry I interfering with the priests themselves, and we now find as early as 1235, a secular statute which extends the interference of the secular law over the relations between parent and child; that is, as to when a child should be legitimate and when not. We shall have a great deal to say later about marriage and divorce laws, particularly divorce laws as they exist in this country and as they apparently are going to be. As early as 1235 the secular courts interfered with the marriage relation; and the importance of that is here: there is one great school to-day, including largely clergymen and the divorce reformers, so-called, who hold substantially that marriage is a sacrament, or at least a status; that the secular law has nothing to do with it and should not be allowed to grant a divorce except for canonical causes, i.e., causes recognized by the church; that it is not like any other contract, which can be set aside with mutual consent; when a marriage takes place, they say, it is a sacrament, or, at least, a status ensues which cannot in future be altered. Consequently, it is not like a contract; for all contracts can be abrogated by mutual consent. On the other hand, the most radical people go to the other extreme, and say that marriage is like any other contract; it is purely a civil contract, not a sacrament, not a status; just like any other, and some of them go to what is the logical conclusion of that position and say that therefore marriage, like any other contract, ought to be ended at any time by the consent of both parties. The extreme radical view leads to the conclusion that a man and woman ought to be divorced any time by merely saying that they want to be; and some States have almost got to this position in their statutes. This may seem a very far cry from this early statute, which does not directly concern marriage but the status of children; nevertheless it has this bearing—it is an interference by Parliament, by the secular, legislative branch of government, with a relation which the church believed to belong only to the church. It so happens that in this instance the secular law instead of being liberal and kindly was extremely cruel and the reverse of liberal. Under the church law, when a man married a woman by whom he already had children, all those children were thereby made legitimate, and that certainly seems the kindly and the Christian law. But the secular barons who constituted the Parliament, in their jealousy for the common law, took the harsher view, that any children born of parents who are not married at the time they are born shall be illegitimate, although their parents may marry afterward. Beaumont and Fletcher, in one of their plays, make a punning reference to that. It seems to have struck Beaumont and Fletcher as it does us, that it was a cruel law for the Parliament to make; when the church for once was liberal, it was queer that the Parliament should be illiberal; so Beaumont and Fletcher, in one of their plays, say: "The children thou shalt get by this civilian cannot inherit by the law." This is interesting, because they use all the words I have been trying to define; when they say "the children thou shalt get by this civilian," they mean by this civilian a person who is under the civil, or Roman, or church law; that is, they mean to say, although you marry a woman who is a church member and under the jurisdiction of the bishop, etc., nevertheless the church law won't help you; your children by her cannot inherit by the law, and the law as used by Beaumont and Fletcher and as used by me and as used in English books means the common law, the common secular law, the law of England, not the civil or canon law.[1] Beaumont and Fletcher evidently thought it was a very illiberal statute; and our modern American States have all come to Beaumont and Fletcher's conclusion; they have universally reversed the old English statute and gone back to the church law, so that throughout the United States to-day a child born before the marriage of its parents is legitimate if its parents afterward marry. That is true, no matter how late it is; if the man marries her even on his death-bed, all his children are legitimized.

[Footnote 1: "And so all the earls and barons answered with one voice, that they would not change the laws of England."]

In the same Statute of Merton there is a sentence against usury, "no usury permitted against minors"; and there are two things to note here. One is, that the secular legislature is also taking jurisdiction of minors, who were claimed at that time to be solely under the jurisdiction of the church; and the other is the reference to usury. Mind you, usury is interest. It didn't mean excessive interest, as it does now. As you probably know, the notion prevailed in the early Middle Ages that all usury—interest—was a sin and wrong; and even Ruskin has chapter after chapter arguing that principle, that it is wrong to take interest for money. I should perhaps add another reason why interest was so disliked in early England: There was very little money in early England; and it mostly belonged to the Jews. It was a good deal as it is in Russia to-day; the Jews were persecuted in Russia as in early England, because, in the country districts of Russia, the Jews have all the money, and money-lenders are always unpopular. So in early England. The great barons had their land and their cattle and crops, but they had little money. When they wanted money they got the value of it out of their tenants. Nobody carried large sums of money around with him then, any more than a woman does to-day—she relies on her husband or father; they went to the nearest Jew. When the king wanted cash, he also extorted it from the Jews. One of the early Henrys said seriously, that he regarded the Jews as a very convenient sponge! That is, they sucked all the money in the kingdom and got it into a place whence he could easily get it out. But it made the Jews very unpopular with the masses of the people and with the Parliament; hence, their great dislike of usury. I doubt very much if they would have cared much about usury if one gentleman had been in the habit of loaning money to another; but all the money came from the Jews, who were very unpopular; and the statutes against usury were really made against them, and that is why it was so easy to pass them—they based it, doubtless, on the references to usury in the Bible. Thus they got the notion that it was wrong to charge interest, or at least extortionate interest; more than a certain definite per cent.; and this is the origin of all our interest and usury statutes to-day. Although most economists will tell you that it is ridiculous to have any limit on the rate of interest, that the loan of money may well be worth only four per cent. to one man and twenty-five to another, and that the best way for everybody would be to leave it alone; nevertheless, nearly all our States have usury laws. We shall discuss that later; but here is the first statute on the subject, and it really arose because of the feeling against the Jews. To show how strong that prejudice was, there was another statute passed in the interest of liberality to protect the Jews—a statute which provided liberally that you must not take from a Jew "more than one-half his substance." And a very early commentator tells us of a Jew who fell into a privy on a Friday, but refused to be helped out on Saturday because it was his Sunday; and on Sunday he besought the Earl of Gloucester to pull him out, but the Earl of Gloucester refused because it was his Sunday; so the Jew remained there until Monday morning, when he was found dead. There is no prejudice against Hebrews to-day anywhere in Europe stronger than existed even in England for the first three or four centuries after the Norman Conquest; and had it not been for the protection given them by the crown, probably they would have been exterminated or starved out, and in 1289 they were all banished to the number of 16,160, and their movables seized.

In 1264 citizens of towns were first represented in the Parliament (in the Great Council, that is, for the word parliament is not yet used), originally only composed of the great barons, who were the only land-owners. The notion of there being freemen in towns was slowly established, but it was fully recognized by 1264, and in that year citizens of towns first appeared in the Council. To-day, under the various Reform Acts, tenants or even lodgers in towns are just as much represented as the land-owners; but the reform which began in 1264 took six hundred years to be thoroughly established.

And now we find the first statutory origin of that utterly fallacious principle—although alive to-day—that the state, in a free country, a legislature-governed country, has the right, when expedient, to fix the price of anything, wages or other commodities; fallacious, I say, except possibly as to the charges of corporations, which are given special privileges by the government; the principle, which prevailed throughout the Middle Ages, of fixing the prices of all things. In this case the price was on bread; but you find now for many centuries an attempt to fix the price of almost everything; and of labor, too, what wages a man should be paid. It lasted persistently for centuries and centuries, and it was only under the influence of modern political economy, Adam Smith and other quite modern writers, that the principle that it was possible to fix prices of commodities was utterly eradicated from the English mind. And you hardly got it out of England before it reappeared in the United States. It is not a new-fangled principle. You find the newspapers commonly talk about fixing prices by law as if it were something utterly unheard of and utterly new. It is not so. It Is on the contrary as old as almost any legislation we have, and you can make no argument against it on that ground. It has always been the custom of our ancestors to regulate the prices of wages by law, and the notion that it was either unconstitutional or inexpedient dates from a very few years back; yet all such attempts at legislation have utterly disappeared from any modern statute-book. In no State of our forty-six States is any one so unintelligent, even in introducing bills in the legislature, as to-day to propose that the price of a ton of coal or a loaf of bread shall be so much. Nor is any modern legislature so unintelligent or so oppressive as to propose sumptuary laws; that is, to prescribe how expensively a man or woman must dress; but in the mediaeval times those were thought very important. Every class in England was then required by law to have exactly so many coats, to spend so much money on their dress, so much on their wives' dress, and certain men could have fine cloth and others coarse cloth; everything was graded, even to the number of buttons on clothes, and they went so far even as to try in some early legislation to say what men should have to eat; the number of courses a man should have for his dinner were prescribed by law at one time in England, varying according to the man's rank. All such legislation has absolutely vanished and probably no one need know that it existed—but that when efforts are made, as they sometimes are, by our more or less uneducated members of legislatures to introduce bills of such a kind, it is very important for us to know that those experiments have been tried and have failed, having proved to be either impracticable or oppressive or not for the general benefit. This is the importance of these early laws, even when obsolete; because we never know when some agitator may not pop up with some new proposal—something he thinks new—which he thinks, if adopted, will revolutionize society. If you can show him that his new discovery is not only not new, but was tried, and tried in vain, during two or three centuries in the life of our own ancestors, until an enraged public abolished it, it will destroy any effect that he is likely to make upon the average legislature.

The first general example of an English law fixing the price of a commodity is in 1266, the Assize of Bread and Beer. That fixed the price of bread according to the cost of wheat, a sliding scale, in other words; when a bushel of wheat cost so much, a loaf weighing a certain amount must cost so much, etc. But you must not confound that with the modern law that still exists in England, and in some States and cities here, merely regulating the size of a loaf. That is perfectly proper, reasonable legislation, done merely for the purpose of protecting the public and preventing fraud. In England, for instance, there is a certain standard loaf known as a quartern loaf, and in order to prevent poor people being cheated it is prescribed by city ordinance that the quartern loaf shall weigh so much, shall contain so many ounces of flour. We do have similar laws saying how much a bushel of potatoes shall weigh, how much a barrel of flour shall weigh. That isn't fixing the price; it is only fixing a uniform size so that the public may not be cheated in its dealings, and one must not take such a law as justifying the fixing of prices.

In the year 1266 I find the first statute in the French language, Norman French; before that they were all in Latin; and they lasted in French for some four or five hundred years, and then they were put in English. The Statute of Marlborough, 1267, is a very important one historically, but it does not concern us, because it mainly had to do with the ownership of land, the tenure of land in England, an extremely important subject, but one that is obsolete here. Then we have something about the trial of clerks for murder. Of course the word clerk there means not what we mean by a clerk, but a person who could read and write; and nothing more than that. It originally meant persons in holy orders, who were called clerks (clerics), but there got to be clerks who were not in holy orders. Originally only priests could read and write. No one else knew how, except possibly great personages like kings, and consequently it was the same thing whether, when you said a clerk, you meant a person who could read and write or a priest. But when there got to be people who could read and write and who were not priests, it became an important distinction. There was a privilege in England known as the "benefit of the clergy"; if any clerk was tried for a criminal offence, no matter what, all he had to do was to state that he was a priest and he was at once set free. In other words, he could not be punished. That doesn't concern us; but, I suppose, it resulted from the old notion that all priests were subject only to Rome, and to the church courts, and not to the civil law courts; and consequently when a priest was attempted to be tried in a civil law court, it was a way of doing what we should call "pleading to the jurisdiction" of the court. Later, as time went on, in England it was greatly abused, especially when there got to be clerks who were not priests. When it meant anybody who could read and write, and anybody who had committed a murder had only to say, "I can read and write," and be set free, it led to an extraordinary state of things. So, from time to time, they modified the benefit of the clergy, until ultimately it was abolished entirely; first by not allowing it in high offences like murder; then by imposing certain slight punishment—they were "burned in the hand"; then by applying it only to the first offence, and so on, until they got rid of it entirely; and this Statute of Marlborough is simply one of the first of that long chain of statutes which finally did away with it and prevented people from getting rid of a criminal prosecution merely because they knew how to read and write or were priests.

In 1275 I note the first use of the word parliament. I have used it from the beginning, but it is important to remember that the thing was not called parliament until 1275. Before that it was called the Great Council or the King's Council, and in Saxon times the Witenagemot.

Then we come down to the Statute of Westminster I. That is considered a great landmark in statutory legislation mainly because it is the first attempt to establish a code, or, at least, a large collection of the laws of England. It is an attempt to put what they supposed to be a good part of them into writing. We have no codes in this country, as a rule; nor to-day in England; the ordinary Anglo-Saxon does not believe in codes. It is the French and Germans who have codes. Nevertheless, you often find collections of statutes. It is important not to confound these things with codes, because they never pretend to be complete. Many States in this country never make revision of the statutes. Nevertheless, every ten or twenty years they will print a collection of the statutes arranged alphabetically. In some States, as in Massachusetts, those collections are official; but in other States they are simply matters of private enterprise. They are of no authority, and if they are wrong it is no protection to you. You are bound to know the laws. These early so-called codes, especially this code of Edward I, although it caused him to be called the English Justinian, because it was the first attempt of putting any large body of the Anglo-Saxon laws in writing at all, are still not at all codes in the technical sense. This one was merely a collection of a certain number of laws reduced to writing and re-enacted by Edward I. We note here the phrase "common right shall be done to rich and poor," rather an interesting landmark; it shows what progress was being made by the people in establishing their rights as freemen and to equal laws. For the laws of Norman England mainly applied to land-owners, and were made by the barons, the only people that had property; there was but a small class in those early days between the land-owners and actual serfs, villeins, who were practically attached to the soil, in a condition almost of servitude; they did service, were not paid wages, and couldn't leave the place where they were born—and both these are tests of slavery. But in the first two centuries after the Conquest the number of freemen very rapidly increased; men who were not property owners, not land-owners, but still freemen. Especially it increased in the towns, for the towns very early established their right to be free, far earlier than the country. It was very early established that the citizens of any town, that is, the members of the guild of the town, duly admitted to the guild, were freemen, and probably before this statute. But this is interesting as a recognition of the fact that there were free poor people—people without property, who nevertheless were neither villeins nor serfs—and that they were entitled to equality before the law, just as we are to-day, as early as 1275. Otherwise, the Statute of Westminster concerns mainly the criminal law. There is one very important provision—because it has been historically followed from then down to now—that there shall be no disturbance of the elections. Elections shall be free and unimpeded, uncontrolled by any power, either by the crown, or Parliament, or any trespasser. That has been a great principle of English freedom ever since, and passed into our unwritten constitution over here, and of course has been re-enacted in many of our laws. That is the feeling which lay behind those statutes which we enacted after our slaves were freed, for the making of elections free in the South; for protecting negroes in the act of voting and preventing interference with them by the Ku Klux Klan. The Democratic party strongly objected and objects still to such legislation on the part of the government, on the ground that the right of regulating elections belongs to the States and not to the Federal government; which, constitutionally speaking, before the Fifteenth Amendment at least, was true. They do not, of course, deny this great old English principle that elections must be free and must not be intimidated or controlled by anybody; but, they say, we left the machinery of the elections in the hands of the States when we adopted the Federal Constitution; and although at our State elections some of the officers elected are Federal officers—as, for instance, the President of the United States, or rather the presidential electors, and members of Congress—nevertheless, when we adopted the Federal Constitution, the founders chose to rely for the machinery of a fair and free election upon the officers of States; so that the Federal government has nothing to do with it, and has no business to send Federal troops to the South; and they called such bills the "force" bill. In theory, of course, those elections were controlled in these bills just as much in the North as in the South; but there being practically no complaint in the North that the negroes were not allowed to vote, as a matter of fact the strength of the Federal government was only invoked in the Southern States.

"Fines are to be reasonable." You find that principle in all our constitutions to-day in the clause that there shall be no cruel or unusual punishments, and that fines shall be proportionate to the offence; this principle is expressed also in Magna Charta.

Then slander and rape were made criminal at common law; before this only the church took jurisdiction. Slander Is the imputing of crime to a person by speech, by word of mouth. If it be a written imputation, it is libel and not slander. Then in this statute also we find the first import tax upon wool. The constitutionality of revenue taxes, duties, or taxes on imports, was once disputed by our parties; one party denying the constitutional right to impose any tax upon imports except for the strict purpose of raising necessary revenue; the argument being perfectly logical and based upon the constitutional principle we already have had that all taxation must be for the common benefit. Democrats argued that if a tax upon imports was imposed to raise the necessary revenue, that is for the common benefit; but if it was imposed, as it avowedly is imposed in Republican legislation, for the purpose of benefiting certain industries or classes, why that, of course, is not for the common or general benefit and therefore unconstitutional. The trouble with this position is that early English laws were prohibitive of imports—that is, they were imposed for prohibition before they allowed importation on payment of duties. This Statute of Westminster is a landmark, as showing how slow the Commons were in even allowing taxation upon imports at all. They earlier allowed the ordinary direct taxes. All that the Norman kings got they got with the consent of Parliament, direct taxes, for the common benefit; but they struggled for two centuries before they got the permission of Parliament to impose duties, taxes upon imports; here first they finally got it on wool, the thing produced of most value of anything in England; and consequently an important protective duty. It is a curious historical fact that this article, wool, seems to be the chief bone of contention ever since; in our tariffs nothing has been more bitter than the dispute on wool; the duty on wool is the shibboleth of the extreme protectionist.[1] Ohio, which is the home of the strong protection feeling, regards the duty on wool as the corner-stone to the whole fabric. It is argued that "a cheap coat makes a cheap man." In the East the feeling is that the duty on wool makes clothing poor and shoddy, and the prices excessively high for the poor. It is odd to find that the very first thing that did make trouble was the duty on wool, and it is still making the same trouble to-day.

[Footnote 1: The "ancient" customs were on wool, woolfels and leather; all other were "evil" customs. Holt, afterward C.J., in "The Great Case of Monopolies."]

There is another interesting clause in this statute; I don't know whether in this country so much as there, but it is in England the almost universal custom of ships to have a dog or cat on board. You never will find a coasting vessel without a dog or cat, usually both; and I believe it is for this strange historical reason, as shown in this Statute of Westminster I: In those days all wrecks belonged to the king. (Pretty much everything, in fact, did belong to the king, except the land that was held by book or charter, or such personal property as a man had in his own house—all mines, all franchises, all monopolies, even all whales and sturgeons that were thrown up on the beach—the head to the king and the tail to the queen.) So all wrecks belonged to the king. The result was, that whenever any vessel went ashore the king's officers seized it; and naturally the owner of the vessel didn't like that, because it very often happened that the vessel was perfectly good and could be easily repaired and the cargo saved. It is still a great principle in marine law that if one-half of the cargo is good, the man who owns the vessel cannot surrender and claim from the insurance company as a total loss; it is important still how much of a wreck a wreck is. But in those days the king, even if the vessel was stranded and could be raised, would seize it on the plea it was a wreck. The man who owned the ship would say she is perfectly seaworthy; and then would come the dispute as to what a wreck was. Or even when the vessel was destroyed, a great part of the cargo might be saved, and the owner of the vessel thought it very unjust that the king should claim it all. So the Parliament of England established as part of the liberties of the English merchant or trader that he should still have a property in his wreck; and then the question came up as to what was a wreck. It was generally admitted that when all hands were lost, that was a wreck; but they wanted to get as narrow a definition as they could, so they got Parliament to establish this law, that in future nothing shall be considered a wreck out of which a cat or a dog escapes alive; and from that time until the present day no vessel coasts about England without carrying a cat or dog.

But the great achievements of legislation up to 1300 remain the re-establishment of English law, as shown in the great charters of John, Henry III, and the confirmation of Edward I. And Magna Charta had to be read once a year (like our Declaration of Independence), and for breach of it a king might be excommunicated; and Henry III himself, according to Cobbet, feared that the Archbishop of Canterbury was about to do so.