Popular Law-making. Frederic Jesup Stimson
Читать онлайн книгу.
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