Popular Law-making Part 1

Popular Law-making.

by Frederic Jesup Stimson.

I

THE ENGLISH IDEA OF LAW

My object in the lectures upon which this work is based was to give some notion of the problems of the time (in this country, of course, particularly) which are confronting legislators primarily, political parties in the second place, but finally all good citizens. The treatment was as untechnical as possible. The lectures themselves were for men who meant to go into business, for journalists, or political students; a general view--an elemental, broad general view--of the problems that confront legislation to-day. So is the book not one for lawyers alone; it seeks to cover both what has been accomplished by law-making in the past, and what is now being adopted or even proposed; the history of statutes of legislation by the people as distinct from "judge-made" law; how far legislatures can cure the evils that confront the state or the individual, and what the future of American legislation is likely to be. Const.i.tutional difficulties I had merely mentioned, as there was another course of lectures on American const.i.tutional principles, which supplemented it.[1] In those I tried to show what we _cannot_ do by legislation; in these I merely discussed what had been done, and tried to show what we are now doing.

What we may _not_ do may sound, perhaps, like a narrow field; but the growth of const.i.tutional law in this country is so wide--in the first place including all the English Const.i.tution, and more than that, so many principles of human liberty that have been adopted into our Const.i.tution, either at the time it was adopted, or which have crept into it through the Fourteenth Amendment, with all the innovations of State const.i.tutions as well--that really the discussion of what _cannot_ be done by statute takes one almost over the entire range of const.i.tutional law and even into the discussion of what cannot be done in a free country or under ordinary principles of human liberty.

[Footnote 1: "The Law of the Federal and State Const.i.tutions of the United States," Boston Book Company, 1908. "The American Const.i.tution," Scribners, New York, 1907.]

How many of us have ever formulated in our minds what _law_ means? I am inclined to think that the most would give a meaning that was never the meaning of the word _law_, at least until a very few years ago; that is, the meaning which alone is the subject of this book, _statute_ law. The notion of law as a _statute_, a thing pa.s.sed by a legislature, a thing enacted, made new by representative a.s.sembly, is perfectly modern, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the National Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have a.s.sumed in our minds the main bulk of the concept of law as we formulate it to ourselves. I guess that the ordinary newspaper reader, when he talks about "laws" or reads about "law," thinks of statutes; but that is a perfectly modern concept; and the thing itself, even as we now understand it, is perfectly modern. There were no statutes within the present meaning of the word more than a very few centuries ago. But statutes are precisely the subject of this book; legislation, the tendency of statute-making, the spirit of statutes that we have made, that we are making, and that we are likely to make, or that are now being proposed; so it is concerned, in a sense, with the last and most recent and most ready-made of all legal or political matters. The subject of statute-making is not thought difficult; it is supposed to be perfectly capable of discussion by any one of our State legislators, with or without legal training; and sometimes with lamentable consequences. For the subject is of the most immense importance, now that the bulk of all our law is, or is supposed to be, statutes.

In order to understand, therefore, what a statute is, and why it has grown important to consider statute-making, it is necessary to have some knowledge of the meaning of the word _law_, and of the origin both of representative government and of legislatures, before we come to statutes, as we understand them; for parliaments existed centuries before they made statutes as we now use this word. _Statutes_ with us are recent; _legislatures_ making statutes are recent everywhere; legislatures themselves are fairly recent; that is, they date only from the end of the Dark Ages, at least in Anglo-Saxon countries.

Representative government itself is supposed, by most scholars, to be the one invention that is peculiar to the Anglo-Saxon people.

And there is another invention--if we can call it one--to my mind of far greater importance, which I should urge was also peculiar to the Anglo-Saxon people; that is, the invention or the idea of personal liberty; which is understood, and always has been understood, by Anglo-Saxons in a sense in which it never existed before, so far as I know, in any people in the history of the world. It is that notion of personal liberty which was the cause of representative government, not representative government that was the cause of personal liberty. In other words, the people did not get up a parliament for the sake of having that parliament enact laws securing personal liberty. It was the result of a condition of personal liberty which prevailed among them and in their laws that resulted in representative government, and in the inst.i.tution of a legislature, making, as we now would say, the laws; though a thousand years ago they never said that a legislature _made_ laws, they only said that it _told what the laws were_. This is another very important distinction. The "law" of the free Anglo-Saxon people was regarded as a thing existing by itself, like the sunlight, or at least as existing like a universally accepted custom observed by every one. It was five hundred years before the notion crept into the minds, even of the members of the British Parliaments, that they could make a _new_ law. What they supposed they did, and what they were understood by the people to do, was merely to _declare_ the law, as it was then and as it had been from time immemorial; the notion always being--and the farther back you go and the more simple the people are, the more they have that notion--that their free laws and customs were something which came from the beginning of the world, which they always held, which were immutable, no more to be changed than the forces of nature; and that no parliament, under the free Anglo-Saxon government, or later under the Norman kings, who tried to make them unfree, no king, could ever _make_ a law, but could only declare what the law was. The Latin phrase for that distinction is _jus dare_, and _jus dicere_. In early England, in Anglo-Saxon times, the Parliament never did anything but tell what the law was; and, as I said, not only what it was then, but what it had been, as they supposed, for thousands of years before. The notion of a legislature to make _new_ laws is an entirely modern conception of Parliament. How did it arise?

The English Parliament,[1] as you doubtless know, was the successor, or grew out of the old Witenagemot, the old Saxon Great Council, and that Great Council originally--and I am now talking of centuries before the Conquest--the Witenagemot, included in theory all the free inhabitants of the realm, just as a modern town meeting does. Mind you, they were then tribes, living in "Hundreds." They were not nations, not even states and counties, and in early times it probably was possible to have a popular a.s.sembly which should include at least all the warriors, all the fighting men, and consequently all the men whose votes counted. No man who could not fight could share in the government--an historical fact which our suffragists tend to ignore when they talk of "rights." The Witenagemot, undoubtedly, was originally a universal a.s.sembly of the tribe in question. But as the tribes got amalgamated, were a.s.sociated together, or at least localized instead of wandering about, and particularly when they got localized in England--where before they had been but a roaming people on account of their struggles with the Britons--the necessity of greater organization probably became obvious to them at once, and the Witenagemot readily a.s.sumed a somewhat more formal form; and that resulted in representation. For we are talking of early England; that is, of the eastern half of what is now England, the Saxon part; obviously you couldn't put all the members even of East Anglia in one hall or in one field to discuss laws, so they invented representation.

All the authorities appear to be agreed that there is no prototype for what seems to us such a very simple thing as representation, representative government, among the Greeks or the Romans, or any of the older civilizations of which we have knowledge. It is very surprising that it is so, and I am always expecting that some one will discover, either in the Achaian League or somewhere, that it is not so, that there is a prototype; but there doesn't seem to be any regular system of representative government until you get to Anglo-Saxon peoples. So that was the second stage of the Witenagemot, and then it properly begins to be called the Great a.s.sembly or Council of the people. This representative a.s.sembly was then not only legislative, it was also executive, to some extent, and entirely judicial; for we are a thousand years before the notion of the threefold division of government has occurred to any one. The early Saxon Witenagemot, as later the Norman kings tried to, did unite all three functions in themselves. Their main function was judicial; for the reason that there was very little notion as yet of _legislation_, in a people or tribe whose simple customs and simple property demanded very few laws, where the first remedy for any man for any attack on his family or property was the remedy of his own good, right hand.

When you really only got into a lawsuit, at least as concerning property, as a result of a killing of somebody or other, albeit in defence of one's own chattels, it is obvious that there need not be much legislation; the laws were too well known, the unwritten law too well enforced. It probably would have surprised the early Englishman if he had been told that either he or anybody else didn't _know_ the law--still more that there was ever any need for any parliament or a.s.sembly to tell him what it was. They all knew the law, and they all knew that they knew the law, and the law was a thing that they knew as naturally as they knew fis.h.i.+ng and hunting. They had grown up into it.

It never occurred to them as an outside thing.

[Footnote 1: Gneist, "The English Parliament," and Skottowe, "History of Parliament," perhaps best summarize this view.]

So it has been found that where you take children, modern children, at least boys who are sons of educated parents, and put them in large ma.s.ses by themselves, they will, without apparently any reading, rapidly invent a notion of law; that is, they will invent a certain set of customs which are the same thing to them as law, and which indeed are the same as law. They have tried in Johns Hopkins University experiments among children, to leave them entirely alone, without any instruction, and it is quite singular how soon customs will grow up, and it is also quite singular and a thing that always surprises the socialist and communist, that about the earliest concept at which they _will_ arrive is that of private property! They will soon get a notion that one child owns a stick, or toy, or seat, and the others must respect that property. This I merely use as an ill.u.s.tration to show how simple the notion of law was among our ancestors in England fifteen hundred years ago, and how it had grown up with them, of course, from many centuries, but in much the same way that the notion of custom or law grows up among children. The English had acquired naturally, but with the tradition of centuries, the notion of law a _s.e.xisting_; and that brings us to the next point.

Here again we are so confused with our modern notions of law that it is very important not to be misled by them at the beginning. I am quite sure that all the American people when they think of law in the sense I am now speaking of, even when they are not thinking necessarily of statute law, do mean, nevertheless, a law which is enforced by somebody with power, somebody with a big stick. They mean a law, an ordinance, an order or dictate addressed to them by a sovereign, or by at least a power of some sort; and they mean an ordinance which if they break they are going to suffer for, either in person or in property. In other words, they have a notion of law as a written command addressed by the sovereign to the subject, or at least by one of the departments of government to the citizen. Now, that, I must caution you, is in the first place rather a modern notion of law, quite modern in England; it is really Roman, and wasn't law as it was understood by our Anglo-Saxon ancestors. He didn't think of law as a thing written, addressed to him by the king. Neither did he necessarily think of it as a thing which had any definite punishment attached or any code attached, any _sanction_, as we call it, or thing which enforces the law; a penalty, or fine, or imprisonment. There are just as good "sanctions" for law outside of the sanctions that our people usually think of as there are inside of them; and often very much better. For instance, the sanction of a strong custom. Take any example you like; there are many States where marriage between blacks and whites is not made unlawful, but where practically it is made tremendously unlawful by the force of public opinion. Take the case of debts of honor, so-called, debts of gambling; they are paid far more universally than ordinary commercial debts, even by the same people; but there is no _law_ enforcing them--there is no _sanction_ for the collection of gambling debts. And take any custom that grows up. We know how strong our customs in college are. Take the mere custom of a club table; no one dares or ventures to supplant the members at that table. That kind of sanction is just as good a law as a law made by statute and imposing five or ten dollars penalty or a week's imprisonment. And judges or juries recognize those things as laws, just as much as they do statute laws; when all other laws are lacking, our courts will ask what is the "custom of the trade." These be laws; and are often better enforced than the statute law; the rules of the New York Stock Exchange are better enforced than the laws of the State legislature. Now all our early Anglo-Saxon law was law of that kind.

And it was not written down for a great many centuries, and even after being first written it wasn't usual to affix any _penalty_; they were mere customs, but of an iron-bound nature--customs that were followed far more devoutly than the ma.s.ses of our people follow any of our written laws to-day. And their "sanction" was twofold: In the first place, the sanction I have mentioned, universal custom, social ostracism for breach. A second and very obvious sanction, that if you do a thing that I don't like and think is against the law, I am going to knock you down or kill you if I can! That was a sanction, and a perfectly good one; and the question that arose, therefore, was not at all as to penalty for the law-breaker; it was whether there should be a penalty for the law-breaker's being killed. That is the reason they didn't have to have any penalty! In those days if there was a custom that a certain tribe had a certain pasture, and a man of another tribe pastured his cattle in that pasture, the first man would go to him and they would have a fight, and if he killed him he would be, as we say, arrested; then the matter would be inquired into by the kin of the murdered man or neighbors, and if the killer could prove that the murdered man had committed a breach of the law, he went off scot free--so, as a matter of fact he would to-day, if it were justifiable homicide. In other words, it was a question of whether it was justifiable homicide; and that brought in the question what the law was, and it was usually only in that way. For the law was but universal custom, and that custom had no _sanction_; but for breach of the custom anybody could make personal attack, or combine with his friends to make attack, on the person that committed the breach, and then, when the matter was taken up by the members of both tribes, and finally by the Witenagemot as a judicial court, the question was, what the law was; and if it was proved, for instance, that the law was that there _was_ private property in that pasture belonging to the man who committed the murder he went off scot free. That was the working of the old Anglo-Saxon law, and it was a great many centuries before the notion of law changed in their minds from that. And this "unwritten law" perdures in the minds of many of the people to-day.

So it was that the Witenagemot--this Great Council of the realm--was primarily judicial, in the first instance always judicial; that is, it never made new laws. It got together to try people for the breach of law; and that incidentally brought up the validity of the old law, and then decided whether old law was valid or not. In a sense, therefore, you see they told what the law was, they announced it; but they never supposed they were making new laws. That was the last thing they intended to do, and the last thing the people would have stood, had they tried it.

So much for the growth of law, the origin of Anglo-Saxon law, as we understand it, and for representative government, and for the origin of Parliament. I doubt if there was any giving of new law, anything that we should call _legislation_, made by the English Parliament, then called the Witenagemot, before the Norman Conquest. I have never been able to find any. You find occasional announcements that the men of Kent "shall have their liberties as they used to," and perhaps there will be a statement of what those liberties were, in brief; but it is always clearly meant that they are stating the law as already existing. How, then, did they invent a legislature?

The Roman law, the whole Roman system, as you know, was absolutely distinct, and distinct in two great principles which have lasted down really into modern times, and still divide Continental countries from Anglo-Saxon countries. What I call the first great principle is universal law--the principle that no officer of government, no high official, no general, no magistrate, no anybody, can do anything against the law without being just as liable, if he infringed upon a subject's liberty, as the most humble citizen. That is a notion which does not yet exist on the Continent or any part of the world except England and the United States, and the countries or colonies copying after them. In Germany, for instance, Dr. Gierke tells me it exists only partially and by a modern const.i.tution. This is the first great difference; and the second one is the notion that laws are made by the people only, with or without representative government. The notion of law as a custom is Teutonic; but on the Continent the Germans abandoned it. The Roman law was always law more as we moderns think of it; it was an _order_, addressed by the sovereign, or at least by a political superior, to a subject or to a political inferior; addressed in the form of definite writing, that is to say, a statute, and with a sanction, that is to say, a penalty, a threat as to what the sovereign will do if the subject does not obey. That is the universal notion of Roman law, and it has so far affected certain English writers on jurisprudence that I feel almost one should be warned against them.

Not that their side isn't arguable, but the weight of English history seems the other way. Austin, for instance, was so much impressed with the notion of law as an order from the sovereign to an inferior that he practically, even when considering the English Const.i.tution, adopts that notion of law, and therefore arrives to some conclusions, as it seems to me, unwarranted, and certainly omits to note a great many things that would be noted had he kept clearly the Anglo-Saxon theory of law in mind.

Now the Normans, mind you, had purely Roman law. While they were in Normandy, being in France, they had imbibed or adopted Roman notions of law, perhaps because they were then first civilized. They had lost their old Saxon notions, if they had any, for they were, after all, of the same _race_ as the Saxons. Nevertheless, when they conquered England they brought just as much the notion of the Roman law into England as if they had been Caesar's legions. And that fact must always be borne in mind, and that led to centuries of conflict in the making of English const.i.tutional law. The first thing, of course, that they tried to do, that the Norman kings tried to do, was to use law in the Roman way; that is, to make the law themselves, from the king. For that was another consequence of the Roman law, that not only was it an order by the sovereign power, but that this sovereign power was not in theory a legislature, as it is with us to-day, but the sovereign; in France and the Continental countries laws were made in theory and in practice by the king. So the Normans came over with the Roman notion, in the first place, as to what law was, that it was a written, newly made order of a sovereign, not a thing that had grown up and was part of the lives and customs of the people, but a thing made out of hand by the king; and, secondly, that it was made by the king and not by any legislature. And the first two or three centuries of English parliamentary history were mainly taken up, in the English Parliament, so far as it concerns the subject of our course here, in the contest between Parliament and the king as to who should make law and what law was. It took more than one century for the Parliament, after the Norman Conquest, to revive as a Parliament at all; then when it did finally get together it took two or three centuries before it established the principle that it had anything to do with the making of law. The Norman kings regarded the Parliament as a mere method of getting money from the people, hardly even as a Council when they sought for popular support; and yet it was through the fact that they so regarded Parliament that Parliament was enabled ultimately to acquire the law-making or the legislative power which exists in all our legislatures to-day. The king, in those days, derived his revenue mainly from his own land. It was not necessary for the government to have any revenue except for what we should call the king's private purse. What was wanted for public expense was for two or three well-recognized purposes, all purposes of defence. The old English taxation system was in a sense no system. There wasn't any such thing as taxation. There was the "threefold necessity" as it was called. It was necessary for the king to have money, horses, grain, supplies, etc., to defend the kingdom, and to build forts, and to maintain bridges or defensive works; and that was the only object of taxation in those times. Those were the only "aids"--they were called "aids"--those were the only aids recognized. The first word for tax is an "_aid_", granted voluntarily, in theory at least, by the barons to the king, and for these three purposes only. The king's private purse was easily made up by the enormous land he held himself. Even to-day the crown is probably the largest land-owner in the kingdom, but at the time of the Conquest, and for many years afterward, he certainly owned an hundredfold as much, and that gave him enough revenue for his purse; of course, in those days, money for such things as education, highways, police, etc., was entirely out of their mind. They were not as yet in that state of civilization. So the king got along well enough for his own income with the land he owned himself as proprietor. But very soon after the Norman Conquest the Norman kings began to want more money. Nominally, of course, they always said they wanted it for the defence of the realm. Then they wanted it, very soon, for crusades; lastly, for their own favorites. They spent an enormous amount of money on crusades and in the French wars; later they began to maintain--always abroad--what we should call standing armies, and they needed money for all those purposes. And money could yet be only got from the barons, the n.o.bility, or at least the landed gentry, because the people, the agricultural laborers or serfs, villeins, owned no land. Knights and barons paid part of the tax by furnis.h.i.+ng armed men, but still, as civilization increased, there was a growing demand on the part of the Norman kings for money. Now this money could be got only from the barons, and under the Const.i.tution--and here we first have to use that phrase--it could only be got from the barons by their consent. That is, the great barons of the realm had always given these aids in theory voluntarily. The king got them together, told them what he wanted, and they granted it; but still it had to come from them, and in the desire to get money the Norman kings first called together the Great Council, first consulted the parliament which afterward became their master. They made a legislature by calling them together, although only for this purpose, to give them the power of getting more money; but when the Great Council was once together and the kings began to be more and more grasping in their demands for money, the barons naturally wanted something on their side, and they would say to them: "Well, yes--you shall have this aid--we will vote you this tax--but the men of England must have such and such a law as they used to under Anglo-Saxon times." And they pretty soon got to using the word "people"; the "people" must have "the liberties they had under Edward the Confessor"; and time after time they would wring from a Norman king a charter, or a concession, to either the whole realm or a certain part of the realm, of all the liberties and laws and customs that they had under the old Saxon domination--and that ultimately resulted in bringing the whole free English law back. Thus, early law was custom; Anglo-Saxon law was _free_ custom; the English lost it under the Conquest; and they got it back because the first Norman kings had to call the council together, which grew into Parliament, which then, in voting their aids or taxes, demanded their "old liberties"; and finally, after getting Magna Charta, after getting all their old Saxon liberties back, by easy transition, they began to say: "We would make certain regulations, ordinances, laws of our own"; though we have not yet got to the time where the notion of making _new_ law, as a statute is now understood, existed.

II

EARLY ENGLISH LEGISLATION AND MAGNA CHARTA

Parliament began avowedly to make new laws in the thirteenth century; but the number of such laws concerning private relations--private civil law--remained, for centuries, small. You could digest them all into a book of thirty or forty pages. And even to Charles the First all the statutes of the realm fill but five volumes. The legislation under Cromwell was all repealed; but the bulk, both under him and after, was far greater. For legislation seems to be considered a democratic idea; "judge-made law" to be thought aristocratic. And so in our republic; especially as, during the Revolution, the sole power was vested in our legislative bodies, and we tried to cover a still wider field, with democratic legislatures dominated by radicals. Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of "isms" and reforms--full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States--the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law pa.s.sed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow. They have gotten over the notion that any parliament, or legislature, or sovereign, should only _sign_ the law--and I say sign advisedly because he doesn't enact it, doesn't create it, but signs a written statement of law already existing; all idea that it should be justified by custom, experiment, has been forgotten. And here is the need and the value of this our study; for the changes that are being made by new legislation in this country are probably more important to-day than anything that is being done by the executive or the judiciary--the other two departments of the government.

But before coming down to our great ma.s.s of legislation here it will be wise to consider the early English legislation, especially that part which is alive to-day, or which might be alive to-day. I mentioned one moment ago thirty pages as possibly containing the bulk of it. I once attempted to make an abstract of such legislation in early England as is significant to us to-day in this country;[1] not the merely political legislation, for ours is a sociological study.

We are concerned with those statutes which affect private citizens, individual rights, men and women in their lives and businesses; not matters of state, of the king and the commons, or the const.i.tution of government. Except incidentally, we shall not go into executive or political questions, but the sociological--I wish there were some simpler word for it--let us say, the _human_ legislation; legislation that concerns not the government, the king, or the state, but each man in his relations to every other; that deals with property, marriage, divorce, private rights, labor, the corporations, combinations, trusts, taxation, rates, police power, and the other great questions of the day, and indeed of all time.

[Footnote 1: See "Federal and State Const.i.tutions," book II, chap. 2.]

Had it not been for the Conquest, it would hardly have been necessary to have enacted the legislation of the first two or three centuries at all. Its object mainly was political, that is, to enforce Saxon law from Norman kings. No change was made, nothing new was added. There was, however, a little early Saxon legislation before the Conquest.

The best compilation is contained in Stubbs's "Selected Charters." He says that the earliest English written laws contained amendments of older unwritten customs, or qualifications of those customs, when they were gradually wearing out of popular recollection. Such doc.u.ments are generally obscure. They require for their elucidation a knowledge of the customs they were intended to amend. That is as I told you: everybody was supposed to know the law, and early written statutes were either mere compilations of already existing law, slight modifications of them, or else in the nature of imposing various penalties--all of which a.s.sume that you know the law already. When they attempted codification, which they did about twice before the Conquest (especially under Edward the Confessor, for that reason he is called the Father of English law, the English Justinian, because he was enough of a civilian to understand what a code was), King Edward made the attempt to get a certain amount of law written out; but even that would be very unintelligible if you tried to read it, for he a.s.sumed that one knew it all already, and it also is mainly in the nature of imposing penalties, not stating the law as it was. However, that is called the first English code. All the Saxon laws Dr. Stubbs could find fill only twenty-two pages of his small book; and he says that English law, from its first to its latest phase, has never possessed an authoritative, constructive, systematic, or approximately exhaustive statement, such as was attempted by the great founders of the civil or Continental law, by Justinian or by Napoleon Bonaparte.

Now this is true, even to-day, of our English and our American law.

That is, the great bulk of the law that is administered in our courts is not "written," it is not in any code. There are, of course, text-books on the subject, but they are of no binding authority. It resides in the learning of the judges. It is what is called court-made law--"_jus dicere_," not "_jus dare_." Our judges are still supposed to tell what the law is, and they sometimes, as the common law is a very elastic thing, have to make new law. That is, if the precise case isn't covered by any previous decision or by any statute, the judge or the court will say what the common law ought to be when applied to that state of facts. So our law is a continually growing law, and largely made still in the old Saxon way, by custom and the judges, and still under the theory that the common law is an existing thing; that the law exists and the judge only expounds. We have never lost sight of that theory.

These early Anglo-Saxon laws mostly concern only matters of procedure for the courts, or the scale of punishment. As they a.s.sume a knowledge of existing law, they are often hard to understand. Here are some of the laws of Wess.e.x:

A.D. 690. WESs.e.x KING INI.

CAP. 11. "If any one sell his own countryman, bond or free, though he be guilty, over sea, let him pay for him according to his 'wer.'"

As to "wer." Now there were slaves in England in those days; at the time of the Conquest the Domesday Book reports twenty-five thousand.

_Slaves_, I mean; not the unfree agricultural laborers, they were in a higher cla.s.s, but the regularly bound _slaves_, who were descendants, either of the early British inhabitants or of the Saxons themselves, who had been punished in the courts and had been sentenced into slavery, or men who had voluntarily sold themselves into slavery. For under early Saxon law a man could sell his child into slavery if the child were under seven years old, and above fourteen the child could sell himself. This refers, of course, to that; it is really a kind of predecessor of our Thirteenth Amendment; that is, it forbids slavery; it forbids making new slaves. The word "wer" is the word we have in "wer-wolf," meaning blood; for instance, "weregild" is a man's blood money. Every man had a price from the king down; if a man killed the king he had to pay, we will say, fifty thousand pounds; if a thane, it might be one or two thousand; if an ordinary freeman, one hundred pounds, and so on.

CAP. 36. "Let him who takes a thief, or to whom one taken is given, and he then lets him go, or conceals the theft, pay for the thief according to his 'wer.' If he be an ealdorman, let him forfeit his s.h.i.+re, unless the king is willing to be merciful to him."

Now the earliest direct legislation about personal property in a statute is as late as 1100; but this early Saxon law was a recognition of personal property, because a man cannot steal a thing unless there is property. This section, therefore, implies property in personalty; because a man cannot steal land; but it never occurred to them to pa.s.s a law saying that there _shall be_ private property, because that was the unwritten law that they were all supposed to know.

A.D. 890. WESs.e.x. ALFRED.

CAP. 27. "If a man, kinless of paternal relatives, fight and slay a man, and then if he have maternal relatives, let them pay a third of the 'wer'; his guild-brethren a third part; for a third let him flee. If he have no maternal relatives, let his guild-brethren pay half, for half let him flee."

CAP. 28. "If a man kill a man thus circ.u.mstanced, if he have no relatives, let half be paid to the king, half to his guild-brethren."

It is very hard for us to understand what that means. One would infer that the weregild was only paid by a man with relatives on his father's side. It doesn't say that, but that is the inference. We shall have plenty to say about the guilds later--the historical predecessors of the modern trades-unions. We here find the word _guild_ recognized and spoken of in the law as early as 890.

A.D. 920. WESs.e.x. EDWARD.

"2. And if a ceorl throve, so that had fully five hides of his own land, church and kitchen, bell-house and burh-gate-seat, and special duty in the king's hall, then was he thenceforth of thegn-right worthy.

"6. And if a merchant throve, so that he fared thrice over the wide sea by his own means, then was he thenceforth of thegn-right worthy."

Worldly success has thus always been the foundation of English n.o.bility.

Then there is a good deal about how much you have to pay for a churl, and how much for an earl, and so on, leaving out only the slaves; for all the free people of England in Saxon times were divided into earls and churls; that is, n.o.blemen and agricultural laborers or yeomanry; these were the two estates besides the church, always a cla.s.s by itself. Later there grew up the thanes, who were merely large landlords; the law became that a man that had five hides of land, five or six hundred acres, with a farm, should by the mere fact of having that land become a thane, an earl. That method of enn.o.bling a man by land got to be a way, at that time the only way, by which a churl or a villein could become a n.o.bleman or even be emanc.i.p.ated. Exactly as now with our American Indians; when an Indian gets one hundred and sixty acres given to him in severalty he becomes, under the Dawes Act, a citizen of the United States. Later there grew up emanc.i.p.ation by the guilds. The word _guild_ meant the members of a certain handicraft, but that was rather the secondary meaning; it originally meant the freemen of the town. But the freemen of the towns were made up of the freemen of the guilds. No one could become a member of the guild without going through certain ceremonies, much as he would now to join a trades-union; and no one could become a freeman of the town unless he was a freeman of the guild. The law grew to be, however, that if a man succeeded in staying in a town for a year and a day, without being turned out, plying his handicraft, he became by that mere fact a freeman of the town; for the citizens of towns established their liberty, both personal and political, far earlier than the dwellers on agricultural land.

959-975-EDGAR.

CAP. 1. "_Secular Ordinance_. Now this is the secular ordinance which I will that it be held. This, then, is first what I will: that every man be worthy of folk-right, as well poor as rich; and that righteous dooms be judged to him; and let there be such remission in the 'bot' as may be becoming before G.o.d and tolerable before the world."

1016. CANUTE.

CAP. 71. "And if any one depart this life intestate, be it through his neglect, be it through sudden death; then let not the lord draw more from his property than his lawful heriot. And according to his direction, let the property be distributed very justly to the wife and children and relations, to every one according to the degree that belongs to him."