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 The legislation under Cromwell was all repealed; but the bulk, both under him and after, was far greater.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 passed. 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 mass 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 constitution 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 Constitutions," 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 documents 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 assume 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 assumed 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 assume a knowledge of existing law, they are often hard to understand. Here are some of the laws of Wessex:

A.D. 690. WESSEX 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 class, 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 shire, 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 pass 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. WESSEX. 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 circumstanced, 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. WESSEX. 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 nobility.

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, noblemen and agricultural laborers or yeomanry; these were the two estates besides the church, always a class 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 ennobling 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 nobleman or even be emancipated. 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 emancipation 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 God 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."

CAP. 81. "And I will that every man be entitled to his hunting in wood and in field, on his own possession. And let every one forego my hunting: take notice where I will have it untrespaesed on under penalty of the full 'wite.'"

But even the great code of Edward the Confessor has, for the most part, to do only with political divisions, what shall be a shire, what a parish, etc., and certain technical matters that have now grown obsolete. So we may conclude with the statement, substantially accurate, that there was practically no new legislation, no constructive legislation under the Saxons; their social law was all unwritten.

And Parliament did not begin by being a law-making body. Its legislative functions were not very active, as they were confined to declaring what the law was; more important were its executive and judicial functions. In modern English government, particularly in our own, one of the basic principles is that of the three departments, executive, legislative, and judicial; the Norman or Roman theory rather reposed all power in one; that is, in the sovereign, commonly, of course, the king, the others being theoretically his advisers or servants. In England, to-day, the real sovereign is the Parliament; the merest shadow of sovereignty is left to the executive, the king, and none whatever given the judicial branch. In this country we preserve the three branches distinct, though none, not all three together, are sovereign; it is the people who are that. And each department is of equal dignity; although at one period there was a certain amount of public complaint that Congress was usurping more power than belongs to it, and recently that power was being usurped by the president, there has hardly been (except from Mr. Gompers and Mr. Hearst) any complaint that power is usurped by the judicial branch, however unpopular its decisions. But in England there is no pretence of maintaining the three branches uniform either in importance or in power. Starting with the Great Council, which had originally only a certain amount of executive power and a great deal of judicial power, they have retained and added to the former, while practically giving up the latter; and, moreover, they have divided into the two houses, the House of Lords and the House of Commons, with a division of sovereignty between them, the Commons, of course, getting the lion's share. The only judicial power substantially now remaining in the English Parliament is the power of impeachment, which is rarely exercised in England, and the appellate jurisdiction of the House of Lords, of the "law" lords, that is, those peers who held legal offices. On the other hand the legislative function of Parliament, which began merely in the way of saying what the law was, has enormously developed, and still more so the executive. Thus the legislative branch of the three divisions in the English government has increased out of all proportion to both the others, having now all the legislative power and most of the executive. And legislatively it is omnipotent; it is confined by no constitution; even the king cannot withhold his consent. Parliament can make any law, although against what was the Constitution; the Constitution may be modified by a simple statute. So their legislative function is infinite; and their executive function has, in substance, grown very large, because the British government is carried on by the cabinet, which is practically a committee of the House of Commons. But of the judicial function, which was the principal function of the Great Council at the time of the Conquest, hardly a shred remains. It is the history of all countries that people are not jealous of the judicial power, while they are extremely anxious to seize the legislative and executive. With us, however, we are supposed to have all three functions co-ordinate and in good working activity. But in both countries, money bills, bills imposing taxes, are the function of the lower house. That principle grew historically from the principle that all taxation must be voted by the people, directly or indirectly; must be with the common consent and for the common benefit. That principle was established by the House of Commons, 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 the Charter of Liberties 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 rise to an immense deal of commercial law, which has always existed independent of any act of Parliament. Chapter 17 provided that the common pleas court—that is, the ordinary trial court—should not follow the king about, but be held at a place and time certain. That was the beginning of our legal liberty; because before that the king used to travel about his realm with his justiciar, as they called his chief legal officer, and anybody who wanted to have a lawsuit had to travel around England and get the king to hear his case. But the uncertainty of such a thing made justice very difficult, so it was a great step when the leading court of the kingdom was to be held in a place certain, which was at once established in Westminster. Minor courts were, of course, later established in various counties, though usually the old Saxon county or hundred-motes continued to exist. Chapter 12 is the one relating to scutage, from the word scutum, shield—meaning the service of armed men. Just as, to-day, a man who does not pay his taxes can in some States work them out on the road, so conversely in England they very early commuted the necessity of a knight or land-owner furnishing so many armed men into a money payment. "The three customary feudal aids" were for the defence of the kingdom, the building of forts, and the building of bridges—all the taxes usually imposed upon English citizens in these earliest times—all other taxation to be only by the Common Council of the kingdom. This is the first word, council; later, it became "consent"; the word conseil meaning both consent and council. "Council of England" means, of course, the Great Council. We are still before the time when the word Parliament was used. Thus Magna Charta expresses it that there should be no taxation without "the advice" of Parliament, without legislation; and as Parliament was a representative body, it is the equivalent of "taxation without representation." This also was omitted in Henry III's charter, 1217, and only restored under Edward I in 1297, a most significant omission. And it is also expressed in early republications of the Great Charter that taxation must be for the benefit of all, "for public purposes only," for the people and not for a class. On this latter principle of Anglo-American constitutional law one of our great political parties bases its objection to the protective tariff, or to bounties; as, for instance, to the sugar manufacturers; or other modern devices for extorting wealth from all the people and giving it to the few. All taxation shall be for the common benefit. Any taxation imposed for the sole benefit of the land-owning class, for instance, or even for the manufacturing class, is against the original principles of constitutional liberty.

Then we come to chapter 39, the great "Liberty" statute. "No freeman shall be taken or imprisoned or be disseised of his freehold or his liberties or his free customs [these important words added in 1217] or be outlawed or exiled or otherwise destroyed but by lawful judgment of his peers, or by the law of the land." This, the right to law, is the cornerstone of personal liberty. Any government in any country on the Continent can seize a man and keep him as long as it likes; it is only Anglo-Saxons that have an absolute right not to have that happen to them, and not only are they entitled not to be imprisoned, but their liberty of free locomotion may not be impeded. An American citizen has a constitutional right to travel freely through the whole republic and also not to be excluded therefrom. Punishment by banishment beyond the four seas was forbidden in very early times in England. "Disseised of his freehold, of his liberties or his free customs"—that is the basis of all our modern law of freedom of trade, against restraint of trade, and the basis on which our actions against the modern trusts rest; the right to freely engage in any business, to be protected against monopoly either of the state or brought about by competitors, to freely make one's own contracts, for labor or property, to work as long as one chooses, for what wages one wills, and all the other liberties of labor and trade. "Or be outlawed or exiled or otherwise destroyed"—that is a broad general phrase for any interference with a man's property, life, or liberty. "Nor will we go upon him"—that has been translated in various ways, but it means what it says; it means that the king won't descend upon a man personally or with his army; nor will we "send upon him"—a law officer after him; "but by the lawful judgment of his peers, or by the law of the land"—that means jury trial, or at least the law of the land, as it then was; and that phrase, or its later equivalent—due process of law—is discussed to-day probably in one case out of every ten that arise in our highest courts. Many books have been written upon it. To start with, it means that none of these things can be done except under law; that is, except under a lawsuit; except under a process in a court, having jury trial if it be a civil case, and also an indictment if it be a criminal case, with all the rights and consequences that attend a regularly conducted lawsuit. It must be done by the courts, and not by the executive, not by the mere will of the king; and, still more important to us to-day, not by legislatures, not even by Parliament. "We will sell to no man, we will deny or delay to no man, either right or justice," needs no explanation; it is equality before the law, repeated in our own Fourteenth Amendment.

Lastly, we have in cap. 41: "Merchants shall have safe conduct in England, subject only to the ancient and allowed customs, not to evil tolls"—a forecast of the allowable tariff as well as of the spirit of modern international law. Finally, there is a chapter on mortmain, recognizing that land might not be given to monasteries or religious houses, and particularly under a secret trust; the object being to keep the land, which made the power of the realm, out of the hands of the church. As far as that part of it goes, it is merely historical to us, but it developed into the principle that corporations "which have no souls," and do not die, should not own too much land, or have too much power—and that is a very live question in the United States to-day.

One must not be misled by the generality of the phrase used in chapter 39, and think it unimportant because it looks simple. It is hard for an American or Englishman to get a fresh mind on these matters. We all grow up with the notion that nobody has the right to arrest us, nobody has the right to deprive us of our liberty, even for an hour. If anybody, be he President of the United States or be he a police officer, chooses to lay his hand on our shoulder or attempts to confine us, we have the same right to try him, if he makes a mistake, as if he were a mere trespasser; and that applies just as much to the highest authority, to the president, to the general of the army, to the governor, as it does to a tramp. But one cannot be too often reminded that this principle is peculiar to English and American civilization. Throughout the Continent any official, any judge, anybody "who has a red band around his cap," who, in any indirect way, represents the state—a railway conductor, a spy, a station agent—not only has the right to deprive you of your freedom, but you have no right to question him; the "red band around the cap" is a final answer. Hence that extraordinary incident, at which all England laughed, the Kupenick robbery. A certain crook who had been a soldier and was familiar with the drill and the passwords, obtained possession of an old captain's uniform, walked into a provincial town of some importance, ordered the first company of soldiers he met to follow him, and then with that retinue, appeared before the town hall and demanded of the mayor the keys of the treasury. These were surrendered without question and he escaped with the money, representing, of course, that he had orders from the Imperial government. It never occurred to any one to question a soldier in full uniform, and it was only some days later, when the town accounts were sent to Berlin to be approved, that the robbery was discovered.

Such a thing could by no possibility have happened in England or with us; the town treasurer would at once have demanded his authority, his order from the civil authorities; the uniform would have failed to impress him. Moreover, under our local self-government, under our decentralized system, nobody is above even a town officer, or a State or city official at the head of his department, however small it be, except the courts. State officers may not command town officers, nor Federal officers State officers; nor soldiers give orders to policemen. The president, the governor, may perhaps remove them; but that is all. And even the policeman acts at his peril, and may be sued in the ordinary courts, if he oversteps his authority. The notion that a free citizen has a right absolutely to question his constraint by any State officer is peculiar to the English and American people, and this cannot be too often repeated; for it is what foreigners simply fail to understand. And it rests on this chapter in the Great Charter, originally, as amplified and explained by the courts and later acts of Parliament, such, as the Habeas Corpus Act. If a man is arrested by any official, that person, however great, has to justify the arrest. In theory, a man arrested has a right to sue him for damages, and to sue him criminally for trespass; and if that man, be he private individual or be he an official or president, cannot show by a "due course of law"—that is, by a due lawsuit, tried with a jury—that he did it under a duly enacted law, and that the facts of the case were such as to place the man under that law—then that official, however high, is just as much liable in the ordinary courts, as if he were the merest footpad trying to stop a man on the highway—a doctrine almost unknown to any country in the world outside of England, the United States, and English colonies.