Chapter II: Front Matter (2)

And Parliament did not begin by being a law-making body. Its legislative functions were not very active, as they were confined to declaring what the law was; more important were its executive and judicial functions. In modern English government, particularly in our own, one of the basic principles is that of the three departments, executive, legislative, and judicial; the Norman or Roman theory rather reposed all power in one; that is, in the sovereign, commonly, of course, the king, the others being theoretically his advisers or servants. In England, to-day, the real sovereign is the Parliament; the merest shadow of sovereignty is left to the executive, the king, and none whatever given the judicial branch. In this country we preserve the three branches distinct, though none, not all three together, are sovereign; it is the people who are that. And each department is of equal dignity; although at one period there was a certain amount of public complaint that Congress was usurping more power than belongs to it, and recently that power was being usurped by the president, there has hardly been (except from Mr. Gompers and Mr. Hearst) any complaint that power is usurped by the _judicial_ branch, however unpopular its decisions. But in England there is no pretence of maintaining the three branches uniform either in importance or in power. Starting with the Great Council, which had originally only a certain amount of executive power and a great deal of judicial power, they have retained and added to the former, while practically giving up the latter; and, moreover, they have divided into the two houses, the House of Lords and the House of Commons, with a division of sovereignty between them, the Commons, of course, getting the lion's share. The only judicial power substantially now remaining in the English Parliament is the power of impeachment, which is rarely exercised in England, and the appellate jurisdiction of the House of Lords, of the "law" lords, that is, those peers who held legal offices. On the other hand the legislative function of Parliament, which began merely in the way of saying what the law was, has enormously developed, and still more so the executive. Thus the legislative branch of the three divisions in the English government has increased out of all proportion to both the others, having now all the legislative power and most of the executive. And legislatively it is omnipotent; it is confined by no constitution; even the king cannot withhold his consent. Parliament can make any law, although against what _was_ the Constitution; the Constitution may be modified by a simple statute. So their legislative function is infinite; and their executive function has, in substance, grown very large, because the British government is carried on by the cabinet, which is practically a committee of the House of Commons. But of the judicial function, which was the principal function of the Great Council at the time of the Conquest, hardly a shred remains. It is the history of all countries that people are not jealous of the judicial power, while they are extremely anxious to seize the legislative and executive. With us, however, we are supposed to have all three functions co-ordinate and in good working activity. But in both countries, money bills, bills imposing taxes, are the function of the lower house. That principle grew historically from the principle that all taxation must be voted by the people, directly or indirectly; must be with the common consent and for the common benefit. That principle was established by the House of Commons, and consequently they arrogated to themselves that part of the legislative power. That principle we have retained in our Federal Constitution, and in most of our State constitutions; all of which have the double house.

The first functions of Parliament were restricted to voting taxes. The king called the barons together merely to get "aids," and they wouldn't give them until he recognized what they chose to call the old law of England, always a pre-existing law. It was still a long time before there was constructive legislation. Just as, before the Conquest, in the seventh century, we find it said of the law of Wihtred: "Then the great lords with the consent of all came to a resolution upon these ordinances and added them to the customary laws of the men of Kent"; and, in the time of King Alfred: "I, then, Alfred, king, gathered these [laws] together, and commanded many of those to be written which our forefathers held, those which to me seemed good; and many of those which seemed to me not good I rejected them, by the counsel of my 'witan,' and they then said that it seemed good to them all to be holden";[1] so, after the Conquest, every Norman king was made on his coronation oath to promise this, the law of Edward the Confessor, until Magna Charta; after that they promised to respect Magna Charta instead, which was thus reissued or confirmed thirty-two times in the eighty-two years which intervened between Runnymede and the final Confirmation of Charters under Edward I. Thus, William the Conqueror himself, in his charter to the city of London, says, in Anglo-Saxon: "_And I do you to wit that I will that ye two be worthy of all the laws that ye were worthy of in King Edward's day_." So the Domesday Book records "_the customs_," that is to say, the laws, of various towns and counties; these bodies of customs invariably containing a mere list of penalties for the breach of the established law; while later charters usually give the inhabitants of a town all the customs and free privileges enjoyed by the citizens of London.

[Footnote 1: Stubbs's "Charters," p. 62.]

But after the Conquest laws could only be enacted with the concurrence of the king; and the phrase was, and is still, in form, that "the king wills it"--_Le Roy le veult_. Nevertheless, Parliament usually originated laws. The early Norman kings cared nothing about legislation; their sole desire was to get money from the people. For two centuries, therefore, Parliament was occupied only with laws recognizing the old Anglo-Saxon laws previously existing, or laws removing abuses of the royal power; and the desire of the king to tax the people was used as the lever to get him to assent to these laws.

With the usual sensible indifference of the English race to mere matters of form, they allowed the Norman kings to go on declaring the laws and signing them as if they were made only by the crown, which was the Norman theory--not caring for the shadow, if they could get the substance. Thus they established, in the first two or three centuries, the right to force legislation on the king, and they did it by the instrument of the taxation power. For taxation must be "by the common consent of the realm"; no taxation without representation, as the Declaration of Independence puts it, is probably the earliest principle of the English Constitution; and it is most significant to the student of the constitutional law, a most necessary reminder to those who do not value our Constitution, that it was the departure by George III from this very earliest of English constitutional principles that caused the loss of his American empire.

This was six hundred years old, therefore, at the time of our Revolution. Except those two principles, taxation by common consent and taxation for the common benefit--which latter was not finally established until two hundred years later (that is, it was put in the first Magna Charta, John's, and then quietly dropped out by Henry II, and kept out of the charter for nearly one hundred years),--we have to come down to the year 1100 before we find the first _sociological_ statute. "Henry I called another convention of all the estates of the realm to sit in his royal palace at London ... the prohibiting the priests the use of their wives and concubines was considered, and the bishops and clergy granted to the king the correction of them for that offence; by which means he raised vast sums of money compounding with the priests...."[1]

[Footnote 1: Cobbett's "Parliamentary History of England," I, 4.]

In 1 Henry, cap. VII, is another recognition of personal property--it says that at a man's death it is to be divided between his widow and his heirs. Now that may seem commonplace enough; but it is interesting to note, as in the law, personal property did not come first; property in land was many centuries earlier. And this suggests the legal basis and present tendency of the law of property. "Property exists only by the law"; and extreme socialists say that all private property is robbery. No law, no property; this is true. Property is an artificial thing. It is a creation of law. In other words, where there is now no law except statute, it is the creation of statute. That may sound a commonplace, but is not, when you remember that socialists, who are attacking property, do so on precisely that ground. They say it is a fictitious thing, it is a matter of expediency, it is a matter which we can recognize or not, as we like; "no law, no property," and they ask us to consider whether, on the whole, it is a good thing to have any property at all, or whether the state had not better own all the property. But our Federal and State constitutions guard it expressly.

Thus, property is the very earliest legal concept expressed in statutes, just as it is perhaps the earliest notion that gets into a child's mind. And ownership of land preceded _personal_ property--for the perfectly simple reason that there was very little personal property until comparatively late in civilization, and for the other more significant reason that an Anglo-Saxon freeman didn't bother with law when he had his good right hand. In the fifth, sixth, and seventh centuries, when we were barbarous tribes, a man's personal property consisted chiefly in his spear, his weapons, or his clothes; enemies were not very apt to take them, and if they did, he was prepared to defend them. Then, cattle, in those days, belonged to the tribe and not to the individual. So, I should fancy, of ships--that is, galleys, not private "coracles," the earliest British boats. Consequently there wasn't any need for a law as to personal property. What little there was could be easily defended. But with land it was different. Property in land was recognized both among the English and, of course, with the Normans; and in ways so similar that it was very easy for the Normans to impose the feudal system upon England. There had been no feudal system before the Norman Conquest; there were then three kinds of land: the rare and exceptional _individual_ land, owned by one man--always a freeman, not a villein or slave--and this was very small in extent, limited to a very few acres around a man's home. Most of the land was held in common; the folgland, so-called, which belonged to the tribe; the land on which the cows of the village were pastured. And finally there was the public, or unappropriated, or waste land. Most of this last was seized, after the Conquest, by the big feudal lords. For they came in with their feudal system; and the feudal system recognized no absolute ownership in individuals. Under it there were also three kinds of land, and much the same as the Saxon, only the names were different: there was the crown land--now I am speaking English and not Norman-French--which belonged to the king and which he probably let out most profitably; there was the manor, or the feudal land, which was owned by the great lords, and was not let by the king directly; and then there was the vacant land, the waste land, which was in a sense unappropriated. Now all the Norman kings had to do was to bring the feudal system over the Saxon law of land, so that the tribal land remained the only private land--that which is called "boke land." This is land such as all our land is to-day, except land like our Cambridge Common. With a very few exceptions, all our land is "boke" land--freehold land. Then there was the public land; but that very soon was taken by the lords and let out to their inferiors; this was the great bulk of land in England after the Norman Conquest. Lastly again there was the crown land, out of which the king got his revenue. As something like this threefold system of land existed before the Conquest, a subtle change to the feudal system was comparatively easy by a mere change of name.

In the same year--1100--is the Charter of "Liberties" of Henry I. It restores the laws of Edward the Confessor "with the amendments made by my father with the counsel of his barons." It promises in the first section relief to the kingdom of England from all the evil customs whereby it had lately been oppressed, and finally returns to the people the laws of Edward the Confessor, "with such emendations as my father made with the consent of his barons."[1] In his charter to the citizens of London[2] he promises general freedom from feudal taxes and impositions, from dane-geld and from the fine for the murder of a Norman; and the Charter of Liberties issued by Henry II in 1154 confirms their "liberties and free customs to all men in the kingdom."[3] From this dates the equality of Englishmen before the law, commons as well as barons. Henry II was the first Norman king who had the old Saxon blood, and therefore he was looked forward to with a great deal of enthusiasm by the people of England. For although it is only one hundred years after the Conquest, the Normans and the Saxons had pretty well fused, and the Normans, who were inferior in number, had got thoroughly imbued with the free notion of Anglo-Saxon law. So they got this charter from him; but there is no legislation to concern us in it, it is only political. It has a great deal to do with the church, and with what the king will not do; it binds him, but it does not state any law directly.

[Footnote 1: Stubbs's "Charters," p. 101 (clause 13).]

[Footnote 2: _Ibid_., p. 108.]

[Footnote 3: _Ibid_., p. 135.]

There is further a continued evidence of the efforts of the people to restore the common law of England as against the king's law or Roman law, or later against the law of the church, also a kind of Roman law known as canon law; and later still against the law of the king's chancellor, what we should now call chancery jurisdiction; for the jealousy of chancery procedure was quite as great in the twelfth century as it is with the most radical labor leaders to-day; but of this later on.

In 1159 they succeeded in doing away with the Norman method of trying cases by battle and the Saxon method of trying by oath, and by the machinery of the Norman Great Assize introduced again trial by jury. For this in itself is probably an old Saxon institution. And in 1164 came the great Constitutions of Clarendon, the principal object of which was to free the people from the church law and subject the priests to the ordinary common law as in times before the Conquest--for now, "as the influence of the Italian lawyers increased,"[1] all the priests and clergy were above it. It was the first great statute which clearly subjected the church--which, of course, was the Church of Rome--to the common secular law. There was a vast jurisdiction of church law ("Doctors commons" courts lasted until a generation ago in England); some of it still remains. But in these early days all matters concerning marriage, divorce, guardianship of children, ownership of property after death, belonged to church law. It is hard to see why, except that the mediaeval church arrogated to itself anything that concerned _sin_ in any way--anything that concerned the relation of the sexes, that concerned the Holy Sacraments, and marriage is a sacrament. Consequently the mediaeval church claimed that it had jurisdiction over all marriage, and over all divorce; and also took jurisdiction over a man's children at his death, and over his property, now exercised by our courts of probate. This they got out of the notion that when a man was dead, there was something, in a sense, that went beyond this life in looking after his property and children. And down until twenty or thirty years ago all jurisdiction in England in matters which concerned a man's property, after death, belonged to the church courts and their successors. The church law was based on the Roman law, but was called _canon_ law, the technical word, because it is the "canons" of the church. It is a convenient term to distinguish it from the ordinary civil law of the Continent. So that the Constitutions of Clarendon began what was completed only under Henry VIII; they very clearly asserted the claim of the king to be supreme over the Church of England. The Bishop of Rome, as Henry VIII called the pope, had no more power than any other foreign bishop.[2] There still remained the institution known as benefit of clergy, by which any priest, or later any clerk or cleric (which word came to mean any one who could read and write) could get off of any criminal accusation, at first even murder, by simply pleading his clergy; in which case the worst that could happen to him was that he was branded in the right hand. But the Constitutions of Clarendon were a great step toward civil liberty. Taken by us in 1164, it was followed in so neighboring a country as France only so late as a few years ago. The priests, however, still managed to retain their jurisdiction over offences among themselves, as well as over marriage, the relation between the sexes, slander, usury, and wills--of matters relating to the sacraments, and of sins.

[Footnote 1: Stubbs, p. 136.]

[Footnote 2: Yet "Peter's Pence" were initiated by Ini, King of the West Saxons, about 690!]

Now this is a very interesting matter, and were it borne in mind by our modern legislators they would escape a good deal of unintelligent legislation; that is, the distinction between a sin and a crime. A sin is against the church, or against one's conscience; matter, therefore, for the priest, or one's spiritual adviser. A crime is an offence against other men; that is, against the state, in which all are concerned. Under the intelligent legislation of the twelfth century all matters which were _sins_, which concerned the conscience, were left to the church to prevent or punish. For the same reason usury was matter for the priest--because it was regarded under the doctrines of the Bible as a sin. This notion prevailed down to the early legislation of the colony of Massachusetts, though doubtless many things which were then considered sins would now be regarded as crimes, such as bigamy, for instance. The distinction is, nevertheless, a valid one, and we shall have occasion frequently to refer to it. We shall find that the defect of much of our modern legislation--prohibition laws, for instance--is that they attempt to treat as crimes, as offences against the state, matters which are merely sins, offences against the conscience or the individual who commits them.

To-day, the American constitutions all say that a militia is the natural defence of a state of free men. It is interesting; therefore, to find, hardly a century after the Norman Conquest. In 1181, the Assize of Arms, which revived the ancient Saxon "Fyrd," the word for what we now call militia; and, twenty years before that, "scutage" replaced military service. To the burdens of the feudal system, compulsory military service and standing armies, our ancestors objected from the very beginning. In a sense, scutage was the beginning of taxation; but it was only a commutation for military service, much as a man to-day might pay a substitute to go to war in times of draft. General taxation first appears in 1188 in the famous Saladin tithe, the first historical instance of the taxation of personal property as distinct from a feudal burden laid upon land. The object of this tax was to raise money for the crusade against the Sultan Saladin. It was followed, five years later, by a tax of one-fourth of every person's revenue or goods to ransom the king, Richard I having gone to this crusade against Saladin, and been captured on his return by his good friend and Christian ally, the Emperor of the Holy Roman Empire. It is interesting to note that the worth of the king in those days was considered exactly one-fourth of the common wealth of England. John was less expensive; but he was not captured. He levied a tax ten years later of one-seventh part on the barons, and one-thirteenth on every man.

In 1213 two important things happened. The high-water mark of domination by the Roman Church is reached when King John surrendered England to the pope, and took it back as a fief of the pope for a tribute of one thousand marks. The same year the other early method of trial of lawsuits was abolished by the Lateran Council--trial by ordeal. This was the only remaining Saxon method. The Norman trial by battle had already been superseded by trial by jury; and from this time on, in practice, no other method than a jury remains, though trial by battle was not abolished by statute until the nineteenth century.

And then we come to Magna Charta. The first time it was granted was in 1215 by John, but the charter always quoted is that promulgated ten years later under Henry III. They were very nearly identical, but the important omission in the charter of Henry was in regard to "scutage" ("no aid other than the three customary feudal aids shall be imposed without the common counsel of the kingdom"); that, of course, is the principle we have discussed above, first put in writing in the charter of John. The barons claimed it as part of the unwritten law. But Henry III in his charter cannily dropped it out--which is a trick still played by legislatures to-day. This Magna Charta was confirmed and ratified something like thirty times between the time of its adoption under John and the time it got established so completely that it wasn't necessary to ratify it any more. There are four sections of Magna Charta that are most important. Chapter 7, the establishment of the widow's dower; of no great importance to us except as showing how early the English law protected married women in their property rights. Chapter 13 confirmed the liberties and customs of London and other cities and seaports--which is interesting as showing how early the notion of free trade prevailed among our ancestors. It gave rise to an immense deal of commercial law, which has always existed independent of any act of Parliament. Chapter 17 provided that the common pleas court--that is, the ordinary trial court--should not follow the king about, but be held at a place and time certain. That was the beginning of our legal liberty; because before that the king used to travel about his realm with his justiciar, as they called his chief legal officer, and anybody who wanted to have a lawsuit had to travel around England and get the king to hear his case. But the uncertainty of such a thing made justice very difficult, so it was a great step when the leading court of the kingdom was to be held in a place certain, which was at once established in Westminster. Minor courts were, of course, later established in various counties, though usually the old Saxon county or hundred-motes continued to exist.