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attention to this. And the same statute shows us how much better
police protection the England of 1285 gave than the New York or
Chicago of 1909; for all the people dwelling in the hundred or country
(county) if they do not deliver the body of the offender, "shall be
answerable for the robberies done and also the damages." The same year
was a statute of "The common customs of the City of London," among
which was one that "taverns should not be open after 9 P.M. for the
selling of wine or ale," a regulation for their "tenderloin," which
itself is described in quite modern terms; "none shall walk the
streets after curfew." Possibly the same year is the Statute of
Bakers, with careful provisions against putrid meat, worthy of
consideration by our cold-storage plants. Butchers selling unwholesome
flesh, or buying it of the Jews, were severely punished.

(1289) The Statute of Quo Warranto is another historical landmark,
showing the jealousy our ancestors felt of officials, bureaucracy; a
writ specially devised to enable them to challenge the right of any
magnate who pretended to power by virtue of holding office, and the
predecessor of our modern _quo warranto_, which we still use at all
times for that purpose, not only as against officers but to test
any special privileges or charters claimed, such as the right to a
monopoly, a franchise, a ferry, etc. These may be still tried by _quo
warranto_; meaning, by what warrant do you claim to exercise this
office, this monopoly, this privilege?

About this time is another statute forbidding usury, and permitting
Christian debtors to retain half of all debts they may owe to the
Jews, who are required to wear the mark of two cables joined on their
coats; and there is the great Statute of Westminster III, _Quia
Emptores_, affecting land tenures, still of importance to the
conveyancers. In 1295 we have the famous Model Parliament; that is to
say, the first one where kings, lords, and commons were joined, the
legislative branches sitting separately and the Commons represented.
Two years later Edward I, carrying on the war in Flanders, was
compelled to grant that great confirmation of the charters already
referred to, that no aid or tax should be taken but by the common
consent of the realm and for the common profit; restoring thus into
the recognized charter that important provision of the original
Charter of John; and it provides that the great charter shall be read
twice a year in every cathedral in England. In our country I am aware
of no provision for reading the Constitution, though the Declaration
of Independence, an obsolete document, is occasionally read upon the
Fourth of July.

In 1305 the Anglo-Norman law reports begin, the Year Books. From then
to now, at least, we have continuous written reports of all important
cases decided in England. This is not to say that we do not have them
before (our people, first in the world's history, has the records of
all its cases in high courts for nigh a thousand years), but they are
now for the first time systematic.

(1309) On the accession of Edward II came the Summary of Grievances,
recited in the Statute of Stamford as recognized by Edward I at the
close of his reign. The seizure of supplies by the king without due
payment; the maintenance of courts at the gates of the king's castles
in derogation of the common-law courts; the taking of "new customs,"
two shillings per tun of wine, two shillings for cloth and other
imports, "_whereby the price to the people is enhanced"_; the
debasement of current coin; that petitions of the Commons to
Parliament were not received, etc., etc. All duties were then
suspended, in order to know and be advised "what Profit and Advantage
will accrue to him and his People by ceasing the taking of those
Customs" - a precedent it were to be wished we might have the
intelligence to follow to-day - surely better than a tariff commission!

Two years later came the New Ordinances, which contain a most
interesting precedent, hitherto almost unnoted, of the American
principle of having the courts construe the Constitution. Section VI:
"It is Ordained, That the Great Charter be kept in all its points in
such manner, that if there be in the said Charter any point obscure or
doubtful, it shall be declared by the said Ordainours, and others
whom they will, for that purpose, call to them, when they shall see
occasion and season during their power." Section XXXVIII: "That the
Great Charter ... and the Points which are doubtful in it be explained
by the advice of the Baronage and of the Justices, and of other sage
Persons of the Law." It was ordained that the king should not go out
of the realm, a precedent never violated until modern times, and even
followed by our own presidents, except for Roosevelt's trip to Panama
and Taft's to the borders of Mexico. Again we find "new customs"
abolished, "as upon Wools, Cloths, Wines, Avoir de pois, and other
Things, whereby the Merchants come more seldom, and bring fewer Goods
into the Land, and the Foreign Merchants abide longer than they were
wont to do, by which abiding things become more dear," saving only to
the king his duty on wool and leather, half a mark for a sack of wool
and one mark for a last of leather. "The king shall hold a Parliament
once in the year or twice if need be, and that in a convenient place."
This principle has maintained itself in the English mind, still more
in the American mind, ever since. To this day, in Massachusetts,
for instance, we cannot get a constitutional amendment to have the
legislature sit only once in two years, though it would probably be a
very wise reform, on account of this old inherited feeling that there
is something peculiarly free about an annual parliament, as indeed
there is. The Anglo-Norman kings called parliaments once a year
or oftener. Most of the States in this country now have their
legislatures sit every two years. Alabama and some other States have
recently changed, that they only sit once in four years. But the
conservative old States, like Massachusetts and New Jersey, have still
the rule that the legislature sits every year; and the prejudice in
favor of the annual legislature goes back at least as far as this law
of 1330, where the Commons succeeded in getting a law that Parliament
should sit as often as once in a year, and is incorporated in
England's and Massachusetts' Bill of Rights.

And then we find the first statute restraining what we should now call
chancery jurisdiction, complaining that the law of the land and
common right was delayed by letters issued under the king's will, and
ordaining that henceforth they shall not be disturbed by said letters
and nothing done in any of the places of the court of the king or
elsewhere by such letters against right or the law of the land shall
avail.

In 1313 the coming armed to Parliament is forbidden. These were
troublous times and there was little legislation in consequence,
and in 1322 Edward II secured the revocation of the New Ordinances
themselves, but as in all such cases of royal grant and withdrawal
the principles shown are even the more important historically. Of
uncertain period is the Statute of Jewrie forbidding usury to the
Jews, and Christians from living among them, but permitting them
freedom of trade and exempting them from taxation except to the king;
and a statute of the usages and customs of the men of Kent beginning
with the statement that "all the Bodies of Kentishmen be free, as well
as the other free Bodies of England," which dates at least as late as
the early part of the fourteenth century, but still exemplifying the
notion that a statute should only express law or custom previously
existing.

(1327) The Statute of Northampton, at the beginning of the reign of
Edward III, confirms many of the earlier statutes, but abolishes all
staples beyond the sea and on this side, on the ground that they
tended to monopoly, and provided that all merchants, strangers, and
citizens may go and come with their merchandises into England after
the tenor of the great charter (cap. IX). In the next year is another
provision for annual parliaments, and in 1335 the Statute of York
again allows merchants to buy and sell freely except only enemies, and
giving double damages for the disturbance by any one of such freedom
of trade, and the Statute _de Moneta_, forbidding carrying money
abroad; which is notable to the student of economics as showing how
early what we now call the fallacy of the mercantile system appeared.
Our ancestors thought that there was something peculiarly advantageous
in a tariff or system of duties which put all the money into a country
and allowed only goods to go out; and that opinion is perhaps not yet
extinct.

There always seems to have been a notion that there is something
peculiarly sacred about wool. So we find that in 1337 they made it
a felony to carry wool out of England, or to wear cloth made out of
England; and no clothes made beyond the seas were to be brought into
England. That notion that a man ought to dress on home products lies
behind our present McKinley tariff. Then, in 1340, you will find
another statute for the liberties of merchants, that they should be
allowed the freedom of the kingdom; and a new duty is imposed on wool.
Then we find the abolition of the laws of "the staple"; foreign staple
towns had been abolished just before. The "staple" was the _town_ in
which one commodity was mainly dealt in. Every commodity in England
had some particular town, where the principal market was for it; just
as, with us, the boot and shoe market of the United States is supposed
to be in Boston, the money market in New York, beef and hogs in
Chicago. In England, in the Middle Ages, they really provided that a
certain trade should have its home in a certain town; not necessarily
the only one, but very often in that one only. Thus there were certain
towns for the carrying on of the wool industry; you could only trade
in wool in those towns. The word "staple," from meaning the town or
market, got applied by an easy process to the commodity dealt in; so
that when we now say that the Vermont staple is hay, we mean that this
is the main crop raised in Vermont. But the staple - like the modern
stockyard or exchange - tended to monopoly and was abolished for this
reason.

In 1340 and 1344 we find two picturesque statutes showing how the
English were getting jealous of the Norman kings: "The realm and
people of England shall not be subject to the King or people of
France" - that is, that the customs and law of France, although their
kings were French, were not to be applied to England. Then in the
royal edict that year when King Edward assumed the title, King of
France, they caused him to put in a statement that no inference was to
be drawn from his assuming the flower de luces in the first quarter
of his arms. The present English coat of arms is modern; instead of
having the Norman leopards in the upper right hand and lower left
hand, they then had the blue field and the fleurs de lys of France in
the upper, and the Norman leopards only in the lower corner; and this
lasted until the time of Charles I. In that part of Normandy which now
still remains to the English crown, that is, in Guernsey and Jersey,
you find to-day that only the leopards, not the arms of Great Britain,
are in use. But then again, in 1344, we have a statute (which, by the
way, itself is written in French) complaining that the French king is
trying to destroy the English language. They were getting very jealous
of anything French; the Normans had already been absorbed; modern
England was beginning to appear.

(1344) And now comes a liberal statute, repealing those restrictions
on wool, and allowing it to be exported; and another statute that "the
Sea be open to all manner of merchants." Now this is the origin of the
great English notion of freedom to trade with foreign parts; and was
principally relied upon three centuries later in the great case of
monopoly (7 State Trials) brought against the East India Company. And
England has assumed dominion of the sea ever since; "the boundaries of
Great Britain are the high-water mark upon every other country."

(1348) This year was the plague of the Black Death, and the following
year is the first Statute of Laborers discussed in an earlier chapter
and elaborately amended in the following year. In 1350 also we find
the Statute of Cloths, providing again for free trade in victuals,
cloths, and any other manner of merchandise in all the towns and ports
of England, and punishing forestalling of any merchandise with two
years' imprisonment and forfeiture of the goods, one-half to go to the
informer. Two years later the forestalling and engrossing of Gascony
wines is forbidden and even the selling of them at an advanced price,
and this offence is made capital! - and the next year we have the most
elaborate of the Statutes of the Staple re-established. This ordinance
(1353) provides for a staple of wools, leather, wool fells, and
lead in various towns in England, Wales, and Ireland. The safety of
merchant strangers is provided for, and it is again made a felony for
the king's subjects to export wool; and more important still, all
merchants coming to the staple and matters therein "shall be ruled by
the Law-Merchant and not by the common Law of the Land nor by Usage
of Cities, Boroughs or other Towns," and any plaintiff is given the
option whether he will sue his action or quarrel before the justices
of the staple by the law thereof, or in the common-law court.
Merchandise may be sold in gross or by parcels, but may not be
forestalled; and the goods of strangers suffering shipwreck shall be
restored to their owners on payment of salvage. Houses in staple towns
must be let at a reasonable rate, and conspiracies or combinations
against the law of the staple made criminal. Again our ancestors
showed themselves more civilized than we, this time in their
Custom-house proceedings; for Article 26 of this statute provides that
"whereas a Duty is payable of three pence in the pound by all merchant
strangers coming into the kingdom, they may show their letters or
invoices to prove the value of their goods, and if they have no
letters, they shall be believed by their oath ... and now of late we
understand by the Complaint of the said Merchants that although they
have Letters or have made oath, nevertheless after the Oath made the
bailiffs of the customs do unseal their Barrels, Fardels, and Bales
for which they have taken their oath. We, not willing that Strangers
that come into our Realm be in such Manner grieved, establish that
when the Letters or the oath be taken their Goods shall be delivered
to them without delay and the bailiffs meddle no more of the same
Goods upon Pain of Imprisonment and pay the Party grieved quatreple
Damages." As is well known, it is the United States custom to insist
upon the oath of the importer, and notwithstanding that, rummage open
his trunks. Or are we to infer that people were more truthful in those
days?

(1354) The export of iron is forbidden, and the justices given power
to punish them that sell iron at too dear a price, but it does not
appear how the prices are to be determined; and the Statute of the
Staple is again re-enacted and the provision made that duty shall be
paid only upon those goods which are actually sold in England and the
merchant may re-export the balance - the first precedent of our laws
of importing under bond. It is notable that this year the Statute of
Laborers is extended to the city of London.

(1357) The Ordinance of Herrings is a most interesting example of
early intelligence in dealing with a modern abuse. It provides "that
no herring shall be bought or sold in the Sea, till the Fishers be
come into the Haven with their Herring, and that the Cable of the Ship
be drawn to the Land." That thereupon they may sell freely, but only
between sunrise and sunset. "The Hundred of Herring shall be ... six
score, and the Last by ten Thousand and all Merchants must sell the
Thousand of Herring after the Rate of the Price of the Last, and the
people of Yarmouth shall sell the last [that is, the ten thousand red
herring], bought for forty shillings for half a mark of gain and not
above; and so the people of London for one mark of gain"; and the
destruction of fish is prevented, but all caught must be sold. It is
well known that the custom was to destroy all the fish brought into
Billingsgate market above a certain quantity, which led Ruskin to cry
out furiously that the real prices of the world were regulated by
Rascals, while the fools are bleating their folly of Supply and
Demand. One may guess to-day that most of the proceedings in the ports
of Boston, New York, or Gloucester would be highly criminal under this
ancient law. So, in the Statute of Dogger (this ancient word meaning
the ships that carry fish for salting to Blakeney, Cromer, and other
ports in the east of England), the price of dogger fish is settled at
the beginning of the day and must be sold at such price "openly, and
not by covin, or privily," nor can fish be bought for resale, but must
be sold within the bounds of the market. To-day there is not a quart
of milk that goes into Boston that is not forestalled, nor possibly
a fish that is not sold at sea or even before its capture; and
the number of middlemen is many - when, indeed, they all are not
consolidated into a trust. The destruction, directly or by cold
storage, of milk, fish, eggs, or other food in order solely to
maintain the price should to-day be a misdemeanor; and these early
doctrines of forestalling and restraining trade should be to-day more
intelligently applied by our judges - or by the legislatures, if our
lawyers have forgotten them - for they all are "highly criminal at the
common law."

In the reign of Edward III appears one of many cruel ordinances for
Ireland. Although the Roman Church was then, of course, universal, the
statute is addressed to "the Archbishops, Bishops, Abbots, Priors and
our Officers both great and small of our land of Ireland," and
recites that "through default of good government and the neglect
and carelessness of the royal officers there [this is probably true
enough] our land of Ireland and the Clergy and People thereof have
been manifoldly disturbed and grieved; and the Marches of said Land
situate near the Enemy, laid waste by Hostile Invasions, the Marches
being slain and plundered and their Dwellings horribly burnt." The
Marchers were, of course, mainly of English descent; and one notes
that the Irish are frankly termed the Enemy. As a method of meeting
this evil, the Saxon intelligence of the day could find no better
remedy than to lay it to "marriages and divers other Ties and the
nursing of Infant Children among the English and the Irish, and
Forewarnings and Espyals made on both Sides by the Occasions
aforesaid," and it therefore forbids such marriages to be contracted
between English and Irish, "and other private Ties and nursing of
Infant Children." The statute notes that these dissensions do not
occur only between the English and those of Irish blood, but as well
between the English of birth and the English of descent living in
Ireland; a condition which has, indeed, continued till to-day, Parneil
and a host of famous Irishmen being of pure English descent.

In 1360 the exportation of corn is forbidden. We now, therefore, have
that principle applied to wool, iron, and bread-stuffs - corn, of
course, meaning all kinds of grain. There is another statute requiring
Parliament to be held once a year; and, more interesting, that pleas
should be made in the English language, for "the French tongue is
much unknown in said Realm of England," but the judgments are to be
enrolled in Latin. In 1363 another statute concerning diet and apparel
fixes the price of poultry, a young capon three pence, an old one four
pence, a hen two pence, and a pullet one penny "for the great Dearth
that is in many Places." Department stores are anticipated by a clause
complaining that the merchants called grocers do engross all manner
of merchandise "by Covin and Ordinance made betwixt them, called the
Fraternity and Gild of Merchants," and anticipates the prejudice
against the modern department store by ordaining that merchants shall
deal in only one sort of merchandise; and furthermore handicraftsmen
are allowed to "use only one Mystery," that is, trade - which also
anticipates a principle dear to modern trades-unions. The statute then
regulates the diet and apparel of servants. They may eat once a day of
flesh or fish, but the rest of their diet must be milk or vegetarian.
Their clothing may not exceed two marks in value. People of handicraft
and yeomen, however, are allowed to wear clothing worth forty
shillings, but not silk, silver, nor precious stones. Squires and
gentlemen of a landed estate less than one hundred pounds a year may
wear clothing to the value of four marks and a half, but not gold nor
silver, precious stones nor fur. Merchants having goods to the value
of five hundred pounds may dress like esquires and gentlemen to a
value of six marks. Clerks, that is to say, persons having degrees
from colleges, may dress like knights of the same income and may
wear fur in winter and lawn in summer, and clothiers make clothes
accordingly and drapers and tailors charge proportionately. This most
interesting effort to interfere with private life stops short of
regulating the use of wine or beer; and tobacco had not yet been
discovered. It is all the more interesting to note that it was found
so intolerable that it was repealed the following year; and little
effort since then has been made to regulate the diet or dress or
expenditure of Englishmen; it was declared in memorable language that
"which was ordained at the last Parliament, of Living and of Apparel,
and that no English Merchant should use but one Merchandise" be
repealed, and "It is ordained, That all People shall be as free as
they were before the said Ordinance," and "all Merchants, as well
Aliens as Denizens, may sell and buy all Manner of Merchandises, and
freely carry them out of the Realm ... saving the Victuallers of Fish
that fish for Herring and other Fish, and they that bring Fish within
the Realm." Thus, after trying the opposite, we find triumphantly
established in the middle of the fourteenth century the great English
principle of freedom of life and trade. The legislation of this great
reign ends with the prohibition of practising lawyers from sitting in
Parliament and an ordinance that women might not practise law or "sue
in court by way of Maintenance or Reward, especially Alice Perrens,"
Alice Perrers or Pierce having become unpopular as the mistress of the
elderly king. Our courts have usually held that there is no common-law
principle forbidding women to practise law, but from this ancient
statute it would appear that such decisions are erroneous.

(1381) In 5 Richard II is a law absolutely forbidding the sale of
sweet wines at retail. This law, with the testimony of Shakespeare,
goes to show that England liked their wines dry (sack), but the act is
repealed the following year, only that sweet wines must be sold at
the same price as the wines of the Rhine and Gascony; and in the same
year, more intelligent than we, is a statute permitting merchants to
ship goods in foreign ships when no English ships are to be had. In
1383, according to Spence, the barons protested that they would never
suffer the kingdom to be governed by the Roman law, and the judges
prohibited it from being any longer cited in the common-law tribunals.
The rest of the statutes of Richard II are taken up with the important
statutes concerning riots and forcible entries, and regulating labor,
as set forth in the last chapter.

The troublesome reign of Richard II closes with an interesting attempt
to make its legislation permanent, as has sometimes been attempted
in our State constitutions. The last section of the last law of King
Richard declares "That the King by the Assent of the said Lords and
Knights [note it does not say by consent of the Commons], so assigned
by the said Authority of Parliament, will and hath ordained that ...
to repeal or to attempt the repeal of any of the said Statutes
is declared to be high treason," and the man so doing shall have
execution as a traitor. Notwithstanding, in the following year the
first act of Henry IV repeals the whole Parliament of the 21st of
Richard II and all their statutes; that it be "wholly reversed,



Online LibraryFrederic Jesup StimsonPopular Law-making → online text (page 9 of 34)