POPULAR LAW-MAKING

A STUDY OF THE ORIGIN,

HISTORY, AND PRESENT TENDENCIES

OF LAW-MAKING BY STATUTE

BY

FREDERIC JESUP STIMSON

PROFESSOR OF COMPARATIVE LEGISLATION IN HARVARD UNIVERSITY

"NOW, MY LORD, I DO THINK, THAT PRACTICE AND USAGE IS A GREAT EVIDENCE OF THE LAW."—CHIEF JUSTICE HOLT, IN "THE GREAT CASE OF MONOPOLIES."—7 STATE TRIALS, 497

1911

I. THE ENGLISH IDEA OF LAW

    Proper Field of Legislation; Meaning of the Word "Law,"; Modern
    Importance of Statute Law; Representative Government and the Right
    to Law; Enforcement of the Common Law; Origin of Representative
    Legislatures; Customary or Natural Law; No Sanction Necessary;
    The Unwritten Law and Outlawry; Early Parliament Merely Judicial;
    Contrast of Common Law with Roman Law; Theory that the King Makes
    Law; Parliament Retains the Right to Tax; Parliament Recovers
    Legislative Powers.

II. EARLY ENGLISH LEGISLATION AND MAGNA CHARTA

    Constructive Legislation a New Idea; Statutes Increase of Late
    Years; Sociological Legislation only Considered; Early Legislation
    Political; English Law not Codified; Early Anglo-Saxon Laws;
    Freedom Gained in Guilds; Threefold Division of Government; No
    Constitution Controls Parliament; Restoration of English Law After
    the Conquest; Taxation by Common Consent; Earliest Social Statute;
    Recognition of Personal Property; Law of Land Tenure; The Charter
    of Liberties; Early Methods of Trial; Distinction Between Sin and
    Crime; Church Law Governs Sin; Important Clauses of Magna Charta;
    Freedom of Trade; Taxation for the Common Benefit; The Great
    "Liberty" Clause; "Administrative" Law not English; No Government
    Above Law.

III. RE-ESTABLISHMENT OF ANGLO-SAXON LAW.

Common Law Against Civil Law; "We Are Unwilling to Change the Laws of England;" Usury and the Jews; Towns Represented in Parliament; The Fixing of Prices; Sumptuary Laws; The Benefit of Clergy; Partial Codification; The Statute of Westminster I; Law Extended to All People; Labor Makes Men Free; The Freedom of Elections; "Cruel and Unusual Punishment"; Sexual Offences Made Secular Crimes; Earliest Duties on Imports; Early Duties on Wool; The Law of Wrecks.

IV. EARLY LABOR LEGISLATION, AND LAWS AGAINST RESTRAINT OF TRADE AND "TRUSTS"

Extortion and Discrimination; Forestalling, Regrating, Engrossing; The Statute of Bakers; Origin of Law of Conspiracy; The Law of Combination; The Modern Definition; Combinations Against Individuals; Intent Makes the Guilt; Conspiracy More Heinous than the Act Committed; Combinations to Injure Trade; Individual Injuries to Business; Definition of Forestalling; "The Iowa Idea"; The Statutes of Labor; First Statute of Laborers; A Fixed Wage; Early Law of Strikes; Early Law of Trades-Unions; Labor Conditions in Early Times; Combinations to Fix Prices; Unlawful By-Laws of Unions; Restraint of Trade; The Eight to Labor; The Earliest

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