Popular Law-making. Frederic Jesup Stimson
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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