Popular Law-making. Frederic Jesup Stimson
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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.
IV
EARLY LABOR LEGISLATION, AND LAWS AGAINST TRUSTS
(1275) Far the most important phrase to us found in the Statute of Westminster I, save perhaps that common right should be done to rich and poor, is to be found in this sentence: "Excessive toll, contrary to the common custom of the realm," is forbidden. The statute applies only to market towns, but the principle established there would naturally go elsewhere, and indeed most towns where there was any trade were, in those days, market towns. Every word is noticeable: "Excessive toll"—extortion in rates. As this statute passed into the common law of England and hence our own, it has probably always been law in America except, possibly, in those few States which expressly repealed the whole common law[1] and those where civil law prevailed.[2]