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POPULAR LAW-MAKING A STUDY OF THE ORIGIN, HISTORY, AND PRESENT TENDENCIES OF LAW-MAKING BY STATUTE BY FREDERIC JESUP STIMSON PROFESSOR OF COMPARATIVE HARVARD U 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 LONDON CHAPMAN HALL, LIMITED 1911 TABLE OF CONTENTS CHAPTER PAGE I. THE ENGLISH IDEA OF LAW 1 Proper Field of Legislation, 2 Meaning of the Word Law, 2 Modern Importance of Statute Law, 3 Representative Government and the Right to Law, 3 Enforcement of the Common Law, 4 Origin of Representative Legislatures, 5 Custom ary or Natural Law, 6 No Sanction Necessary, 7 The Unwritten Law and Outlawry, 8 Early Parliament Merely Judicial, 9 Contrast of Com mon Law with Roman Law, 10 Theory that the King Makes Law, 11 Parliament Retains the Right to Tax, 12 Parliament Recovers Leg islative Powers, 13, II. EARLY ENGLISH LEGISLATION AND MAGNA CHARTA 15 Constructive Legislation a New Idea, 15 Statutes Increase of Late Years, 16 Sociological Legisla tion only Considered, 1G Early Legislation Politi cal, 17 English Law not Codified, 18 Early An glo-Saxon Laws, 19 Freedom Gained in Guilds, 20 Threefold Division of Government, 21 No Constitution Controls Parliament, 22 Resto ration of English Law After the Conquest, 24 Taxation by Common Consent, 25 Earliest Social Statute, 25 Recognition of Personal Property, 25 Law of Land Tenure, 27 The Charter ti Liberties, 27 Early Methods of Trial, 28 Dis tinction Between Sin and Crime, 29 Church Law Governs Sin, 30 Important Clauses of Magna Charta, 32 Freedom of Trade, 33 Taxation for vl CONTENTS CHAPTER PA jjf the Common Benefit, 34 The Great LibertyClause, 35 Administrative Law not English, 36 No Government Above Law, 37. III. RE-ESTABLISHMENT OF ANGLO-SAXON LAW . 38 Common Law Against Civil Law, 39 We Are Unwilling to Change the Laws of England, 40 Usury and the Jews, 41 Towns Represented in Parliament, 42 The Fixing of Prices, 43 Sumpt uary Laws, 44 The Benefit of Clergy, 45 Partial Codification, 46 The Statute of Westminster I, 47 Law Extended to All People, 47 Labor Makes Men Free, 47 The Freedom of Elections, 47 Cruel and Unusual Punishment, 48 Sexual Offences Made Secular Crimes, 48 Earliest Duties on Imports, 49 Early Duties on Wool, 49 The Law of Wrecks, 50. IV. EARLY LABOR LEGISLATION, AND LAWS AGAINST RESTRAINT OF TRADE AND TRUSTS 52 Extortion and Discrimination, 52 Forestalling, Re grating, Engrossing, 53 The Statute of Bakers, 54 Origin of Law of Conspiracy, 54 The Law of Combination, 55 The Modern Definition, 56 Combinations Against Individuals, 57 Intent Makes the Guilt, 59 Conspiracy More Heinous than the Act Committed, 59 Combinations to In jure Trade, 60 Individual Injuries to Business, 61 Definition of Forestalling, 62 The Iowa Idea, 63 The Statutes of Labor, 64 First Stat ute of Laborers, 65 A Fixed Wage, 66 Early Law of Strikes, 67 Early Law of Trades-Unions, 68 Labor Conditions in Early Times, 69 Combi nations to Fix Prices, 70 Unlawful By-Laws of Unions, 70 Restraint of Trade, 70 The Right to Labor, 71 The Earliest Boycott, 71 Origin of the Injunction in Labor Cases, 74 The Common Law Vindicated, 75 Compulsory Labor in Eng land, 76 Free Trade to Merchants, 77 Jealousy of Chancery Power, 79 Guilds and Corporations, 79 CONTENTS vii PTES PAGE Chancery and the Star Chamber, 80 By-Laws Tending to Monopoly, 81Hours of Labor Laws, 81 Idlers and Vagabonds, 82 Trusts and Labor Combinations, 83 Riots and Assemblies, 84 The Statute of Elizabeth, 85 Early Labor Regulations, 85 The First Poor Law, 86 The First Complaint of Monopolies, 86 Growth of Monopolies, 87 The Statute of Monopolies, 88 The Impeachment of Monopolists, 89. V...