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Popular Law making by Frederic Jesup Stimson

F >> Frederic Jesup Stimson >> Popular Law making



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




TABLE OF CONTENTS


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
Boycott; Origin of the Injunction in Labor Cases; The Common Law
Vindicated; Compulsory Labor in England; Free Trade to Merchants;
Jealousy of Chancery Power; Guilds and Corporations; Chancery and
the Star Chamber; By-Laws Tending to Monopoly; Hours of Labor
Laws; Idlers and Vagabonds; Trusts and Labor Combinations; Riots
and Assemblies; The Statute of Elizabeth; Early Labor Regulations;
The First Poor Law; The First Complaint of Monopolies; Growth
of Monopolies; The Statute of Monopolies; The Impeachment of
Monopolists.

V. OTHER LEGISLATION IN MEDIAEVAL ENGLAND

The Statute of Mortmain; The Law Merchant; Origin of Habeas
Corpus; Early Police Regulation; Opposition to Customs Duties;
Interpretation of the Great Charter; Statute Against Chancery
Jurisdiction; Early Tariffs on Wool; The English Language Replaces
French; Freedom of Trade at Sea; Laws of the Staple; Early Food
Laws Forbidding Trusts, etc.; The Statutes of Dogger; Department
Stores and Double Trading; Freedom of Trade Restored; Jealousy of
the Roman Law; Laws Against Scotch, Welsh, and Irish; Injunctions
Issued Against Seduction; The First Statute of Limitations;
Personal Government Under Henry VIII; Laws Against Middlemen;
Final Definitions of Forestalling, Regrating, Engrossing; The
First Poor Law and Forestry Law; The First Trading Corporations;
The Heresy Statutes; James I, Legislation Against Sins; Cromwell's
Legislation; The First Business Corporation; Corporations Invented
to Gain Monopoly; Growth of the Trade Guilds; Veterans' Preference
Legislation.

VI. AMERICAN LEGISLATION IN GENERAL.

Early Increase of State Legislation; The State Constitutions; When
Statutes Should Be Unconstitutional; Effect of the Initiative and
Referendum; The True Value of Precedent.

VII. AMERICAN LEGISLATION ON PROPERTY RIGHTS

Proper Classification of Statutes; Anarchism, Individualism,
Socialism; Definition of Communism; Definition of Nationalism;
Property a Constitutional Right; Not a Natural Right; Socialism
Unconstitutional; Eminent Domain; What Are Public Uses;
Irrigation, Drainage, etc.; Internal Improvements; Bounties;
Exemptions from Taxation; Limits Upon Tax Rate; Income Taxes;
Inheritance Taxes; License Taxes; Betterment Taxes; Double
Taxation; The Police Power; Government by Commission; Noxious
Trades, Signs, etc.; Modern Extensions of Police Power; Pure Food
and Drug Laws; Prohibition Laws; Oleomargarine Laws; Examinations
for Professions; Christian Science and Osteopathy; Trading Stamps
and Department Stores; Usury Laws; Negotiable Instrument Laws;
Bills of Lading and Warehouse Receipts; Sales in Bulk; Intestate
Succession; Laws for Protection of Debtors; Mechanics' Lien Laws;
Mortgage Foreclosures; Nuisances; The Buying of Futures; Tips and
Commissions; Weights and Measures; Laws Against Middlemen.

VIII. REGULATION OF RATES AND PRICES

Laws Fixing the Rate of Wages; Wages in Public Work; Logic of
Rate Regulation; The Granger Cases; Theory of Rate Regulation;
Regulation by the States; Constitutional Difficulties of Rate
Regulation; The Railway Rate Act of 1910; The Long and Short Haul
Clause.

IX. TRUSTS AND MONOPOLIES

The Trusts at Common Law; The Sherman Act; State Laws Against
Trusts; Federal Incorporation; Other Remedies of the States; Class
Legislation and Organized Labor; Recent Decisions and Laws Against
Trusts; Constitutional Provisions Against Trusts; Growth and
Decline of Anti-Trust Legislation; Best Remedy for Trusts; Only
Three Courses Possible; Centralization and Federal Control.

X. CORPORATIONS

History of Trading Corporations; Two Theories of Corporation Law;
The Massachusetts Commissioners' Report; The Payment Up of Stock;
The Massachusetts Law; The "Business Corporation" Act; Corporation
Laws of All the States; Publicity and Other Remedies; Laws
Regulating "Holding" Companies and Stock Ownership by
Corporations; Corporations of Other States; States May Exclude;
Summary of the Trust Question; Public Service Companies.

XI. LABOR LAWS

English Law Does not Enforce the Labor Contract; Freedom to
Trade and Labor; Sources of Reform Legislation; Constitutional
Difficulties; Minimum Wage Laws; The Rate of Wages in Public Work;
Equal Wages for Women; The New York Constitutional Amendment;
Hours of Labor Laws for Men; Hours of Labor Laws for Women;
Prohibited Employments to Women; Hours of Labor of Children; Laws
of All the States To-day; Hours of Labor in Factories, etc.; Child
Labor Prohibited; Hours of Labor in Mines; Age Limit for Child
Labor, Dangerous and Immoral Trades, Protection of Young
Girls, Labor in Mines, Hours of Labor in Peculiar Trades, The
Constitutional Difficulty, Farms and Domestic Labor, Continental
Legislation, Sanitary Restrictions on Female Labor, Sweatshop
Laws, The Factory Acts, Employers' Liability, Anti-Truck
Legislation, Factory Stores and Dwellings, Benefit Funds and
Compulsory Insurance, The Regime of Contract, Compulsory Labor and
Peonage, Statutes Against Intimidation, Blacklists, Picketing,
Armed Guards, Political and Militia Duties, Miscellaneous Matters,
Profit-Sharing, etc., Discrimination Against Union Labor, Twenty
Years of Labor Legislation, Foreign Labor Legislation, Employers'
Liability, Old Age Pensions, Minimum Wage Laws, Co-operation and
Profit-Sharing, Arbitration Laws, Labor Legislation in Europe.

XII. COMBINATIONS IN LABOR MATTERS

The Law of Combination and Conspiracy, Intent the Test, The
English Conspiracy Act, Modern Reforms Desired by Organized Labor,
Boycotts and Blacklists, Intimidation, Interference with Political
Rights, The Oklahoma Labor Code, European Law of Combination.

XIII. MILITARY AND MOB LAW, AND THE RIGHT TO ARMS

The Right to Civil Law, Martial Law, Military Law, The Right to
Arms, Military Service, The Struggle Against Martial Rule in
England, Standing Armies, Mobs, Riots, Lynching, The Use of the
Army in Labor Troubles,

XIV. OF POLITICAL RIGHTS

The Right to Assembly and Free Elections; The Suffrage, 28;
The Force Bills; Interference with Voting; Bribery and Corrupt
Practices; Lobbying Acts; The Form of the Ballot; Direct Primaries
and Nominations; The Distrust of Representative Government;
Corrupt Elections Laws; Direct Election of U.S. Senators; Women's
Suffrage; Municipal Elections, The Initiative, Referendum, and
Recall; The Judicial System.

XV. OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS

Freedom of Speech and of the Press; The "Unfair" List; Prohibition
of Anarchistic Propaganda; The Right to Privacy; Search Warrants
and Self-Incrimination; Religious Rights.

XVI. LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS

The Race Question; Races Capable of Citizenship; The War
Amendments and Their Effect; The Negro's Social and Property
Rights; The Privileged Classes.

XVII. SEX LEGISLATION, MARRIAGE AND DIVORCE

A Woman Is a Citizen; Her Right to Labor and Property; Marriage,
Divorce, and Children; Women in Politics and Education; Reform of
Divorce Procedure; Uniformity of Law in Divorce; The Secular Law
in Sexual Matters; Marriage a Contract; The "Single Standard"
and Free Divorce; Control of Marriage by the State; Recent
Legislation; Radical Statutes in Sexual Matters; Legal Separation;
The Married Woman's Privileges; The "Age of Consent"; Female
Suffrage by Property-Owners; Kidnapping, Curfew, Rape; Statistics
of Divorce; Industrial Liberty of Women; Female Labor in England
and U.S.A.

XVIII. CRIMINAL LAW AND POLICE

Common Law Prevails; New Crimes and Penalties; Self-Regardant
Actions; Reform in Punishment; Procedure in the Courts; Lynching
and Mob Law; Interstate Commerce in Liquor, etc.; Physicians'
Privilege; Prohibition Laws; City Ordinances; Juvenile Courts and
Laws; Present Needs.

XIX. OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE
PUBLIC DOMAIN

Government by Commission; Taxes, Debt, and Franchises; Municipal
Socialism; Internal Improvements; State Farms and Forests;
Education; Taxation and State Aid; Present Questions.

XX. FINAL

The Form of Our Statutes; Need of Authorized Revisions; Reforms
Recommended; Indexing and Arrangement; Need of a Parliamentary
Draughtsman; Recommendations of the State Librarians; Purpose of
this Book.

INDEX




POPULAR LAW-MAKING




I

THE ENGLISH IDEA OF LAW


My object in the lectures upon which this work is based was to give
some notion of the problems of the time (in this country, of course,
particularly) which are confronting legislators primarily, political
parties in the second place, but finally all good citizens. The
treatment was as untechnical as possible. The lectures themselves were
for men who meant to go into business, for journalists, or political
students; a general view--an elemental, broad general view--of the
problems that confront legislation to-day. So is the book not one for
lawyers alone; it seeks to cover both what has been accomplished
by law-making in the past, and what is now being adopted or even
proposed; the history of statutes of legislation by the people as
distinct from "judge-made" law; how far legislatures can cure the
evils that confront the state or the individual, and what the future
of American legislation is likely to be. Constitutional difficulties
I had merely mentioned, as there was another course of lectures on
American constitutional principles, which supplemented it.[1] In those
I tried to show what we _cannot_ do by legislation; in these I merely
discussed what had been done, and tried to show what we are now doing.
What we may _not_ do may sound, perhaps, like a narrow field; but the
growth of constitutional law in this country is so wide--in the first
place including all the English Constitution, and more than that,
so many principles of human liberty that have been adopted into our
Constitution, either at the time it was adopted, or which have crept
into it through the Fourteenth Amendment, with all the innovations
of State constitutions as well--that really the discussion of what
_cannot_ be done by statute takes one almost over the entire range of
constitutional law and even into the discussion of what cannot be done
in a free country or under ordinary principles of human liberty.

[Footnote 1: "The Law of the Federal and State Constitutions of
the United States," Boston Book Company, 1908. "The American
Constitution," Scribners, New York, 1907.]

How many of us have ever formulated in our minds what _law_ means? I
am inclined to think that the most would give a meaning that was never
the meaning of the word _law_, at least until a very few years
ago; that is, the meaning which alone is the subject of this book,
_statute_ law. The notion of law as a _statute_, a thing passed by a
legislature, a thing enacted, made new by representative assembly, is
perfectly modern, and yet it has so thoroughly taken possession of our
minds, and particularly of the American mind (owing to the forty-eight
legislatures that we have at work, besides the National Congress,
every year, and to the fact that they try to do a great deal to
deserve their pay in the way of enacting laws), that statutes have
assumed in our minds the main bulk of the concept of law as we
formulate it to ourselves. I guess that the ordinary newspaper reader,
when he talks about "laws" or reads about "law," thinks of statutes;
but that is a perfectly modern concept; and the thing itself, even
as we now understand it, is perfectly modern. There were no statutes
within the present meaning of the word more than a very few centuries
ago. But statutes are precisely the subject of this book; legislation,
the tendency of statute-making, the spirit of statutes that we have
made, that we are making, and that we are likely to make, or that are
now being proposed; so it is concerned, in a sense, with the last and
most recent and most ready-made of all legal or political matters. The
subject of statute-making is not thought difficult; it is supposed
to be perfectly capable of discussion by any one of our State
legislators, with or without legal training; and sometimes with
lamentable consequences. For the subject is of the most immense
importance, now that the bulk of all our law is, or is supposed to be,
statutes.

In order to understand, therefore, what a statute is, and why it has
grown important to consider statute-making, it is necessary to have
some knowledge of the meaning of the word _law_, and of the origin
both of representative government and of legislatures, before we come
to statutes, as we understand them; for parliaments existed centuries
before they made statutes as we now use this word. _Statutes_ with
us are recent; _legislatures_ making statutes are recent everywhere;
legislatures themselves are fairly recent; that is, they date only
from the end of the Dark Ages, at least in Anglo-Saxon countries.
Representative government itself is supposed, by most scholars, to be
the one invention that is peculiar to the Anglo-Saxon people.

And there is another invention--if we can call it one--to my mind of
far greater importance, which I should urge was also peculiar to the
Anglo-Saxon people; that is, the invention or the idea of personal
liberty; which is understood, and always has been understood, by
Anglo-Saxons in a sense in which it never existed before, so far as I
know, in any people in the history of the world. It is that notion of
personal liberty which was the cause of representative government, not
representative government that was the cause of personal liberty. In
other words, the people did not get up a parliament for the sake of
having that parliament enact laws securing personal liberty. It was
the result of a condition of personal liberty which prevailed among
them and in their laws that resulted in representative government, and
in the institution of a legislature, making, as we now would say, the
laws; though a thousand years ago they never said that a legislature
_made_ laws, they only said that it _told what the laws were_. This is
another very important distinction. The "law" of the free Anglo-Saxon
people was regarded as a thing existing by itself, like the sunlight,
or at least as existing like a universally accepted custom observed by
every one. It was five hundred years before the notion crept into the
minds, even of the members of the British Parliaments, that they could
make a _new_ law. What they supposed they did, and what they were
understood by the people to do, was merely to _declare_ the law, as it
was then and as it had been from time immemorial; the notion always
being--and the farther back you go and the more simple the people are,
the more they have that notion--that their free laws and customs were
something which came from the beginning of the world, which they
always held, which were immutable, no more to be changed than the
forces of nature; and that no parliament, under the free Anglo-Saxon
government, or later under the Norman kings, who tried to make them
unfree, no king, could ever _make_ a law, but could only declare what
the law was. The Latin phrase for that distinction is _jus dare_, and
_jus dicere_. In early England, in Anglo-Saxon times, the Parliament
never did anything but tell what the law was; and, as I said, not
only what it was then, but what it had been, as they supposed, for
thousands of years before. The notion of a legislature to make _new_
laws is an entirely modern conception of Parliament. How did it arise?
The English Parliament,[1] as you doubtless know, was the successor,
or grew out of the old Witenagemot, the old Saxon Great Council, and
that Great Council originally--and I am now talking of centuries
before the Conquest--the Witenagemot, included in theory all the free
inhabitants of the realm, just as a modern town meeting does. Mind
you, they were then tribes, living in "Hundreds." They were not
nations, not even states and counties, and in early times it probably
was possible to have a popular assembly which should include at least
all the warriors, all the fighting men, and consequently all the men
whose votes counted. No man who could not fight could share in the
government--an historical fact which our suffragists tend to ignore
when they talk of "rights." The Witenagemot, undoubtedly, was
originally a universal assembly of the tribe in question. But as
the tribes got amalgamated, were associated together, or at least
localized instead of wandering about, and particularly when they got
localized in England--where before they had been but a roaming people
on account of their struggles with the Britons--the necessity of
greater organization probably became obvious to them at once, and the
Witenagemot readily assumed a somewhat more formal form; and that
resulted in representation. For we are talking of early England;
that is, of the eastern half of what is now England, the Saxon part;
obviously you couldn't put all the members even of East Anglia in one
hall or in one field to discuss laws, so they invented representation.
All the authorities appear to be agreed that there is no prototype
for what seems to us such a very simple thing as representation,
representative government, among the Greeks or the Romans, or any
of the older civilizations of which we have knowledge. It is very
surprising that it is so, and I am always expecting that some one will
discover, either in the Achaian League or somewhere, that it is not
so, that there is a prototype; but there doesn't seem to be any
regular system of representative government until you get to
Anglo-Saxon peoples. So that was the second stage of the Witenagemot,
and then it properly begins to be called the Great Assembly or
Council of the people. This representative assembly was then not only
legislative, it was also executive, to some extent, and entirely
judicial; for we are a thousand years before the notion of the
threefold division of government has occurred to any one. The early
Saxon Witenagemot, as later the Norman kings tried to, did unite all
three functions in themselves. Their main function was judicial; for
the reason that there was very little notion as yet of _legislation_,
in a people or tribe whose simple customs and simple property demanded
very few laws, where the first remedy for any man for any attack on
his family or property was the remedy of his own good, right hand.
When you really only got into a lawsuit, at least as concerning
property, as a result of a killing of somebody or other, albeit in
defence of one's own chattels, it is obvious that there need not be
much legislation; the laws were too well known, the unwritten law too
well enforced. It probably would have surprised the early Englishman
if he had been told that either he or anybody else didn't _know_ the
law--still more that there was ever any need for any parliament or
assembly to tell him what it was. They all knew the law, and they all
knew that they knew the law, and the law was a thing that they knew as
naturally as they knew fishing and hunting. They had grown up into it.
It never occurred to them as an outside thing.

[Footnote 1: Gneist, "The English Parliament," and Skottowe, "History
of Parliament," perhaps best summarize this view.]

So it has been found that where you take children, modern children,
at least boys who are sons of educated parents, and put them in large
masses by themselves, they will, without apparently any reading,
rapidly invent a notion of law; that is, they will invent a certain
set of customs which are the same thing to them as law, and which
indeed are the same as law. They have tried in Johns Hopkins
University experiments among children, to leave them entirely alone,
without any instruction, and it is quite singular how soon customs
will grow up, and it is also quite singular and a thing that always
surprises the socialist and communist, that about the earliest concept
at which they _will_ arrive is that of private property! They will
soon get a notion that one child owns a stick, or toy, or seat,
and the others must respect that property. This I merely use as an
illustration to show how simple the notion of law was among our
ancestors in England fifteen hundred years ago, and how it had grown
up with them, of course, from many centuries, but in much the same way
that the notion of custom or law grows up among children. The English
had acquired naturally, but with the tradition of centuries, the
notion of law a _sexisting_; and that brings us to the next point.

Here again we are so confused with our modern notions of law that it
is very important not to be misled by them at the beginning. I am
quite sure that all the American people when they think of law in
the sense I am now speaking of, even when they are not thinking
necessarily of statute law, do mean, nevertheless, a law which is
enforced by somebody with power, somebody with a big stick. They
mean a law, an ordinance, an order or dictate addressed to them by
a sovereign, or by at least a power of some sort; and they mean an
ordinance which if they break they are going to suffer for, either in
person or in property. In other words, they have a notion of law as a
written command addressed by the sovereign to the subject, or at least
by one of the departments of government to the citizen. Now, that, I
must caution you, is in the first place rather a modern notion of law,
quite modern in England; it is really Roman, and wasn't law as it was
understood by our Anglo-Saxon ancestors. He didn't think of law as
a thing written, addressed to him by the king. Neither did he
necessarily think of it as a thing which had any definite punishment
attached or any code attached, any _sanction_, as we call it, or thing
which enforces the law; a penalty, or fine, or imprisonment. There are
just as good "sanctions" for law outside of the sanctions that our
people usually think of as there are inside of them; and often very
much better. For instance, the sanction of a strong custom. Take any
example you like; there are many States where marriage between blacks
and whites is not made unlawful, but where practically it is made
tremendously unlawful by the force of public opinion. Take the case of
debts of honor, so-called, debts of gambling; they are paid far more
universally than ordinary commercial debts, even by the same people;
but there is no _law_ enforcing them--there is no _sanction_ for the
collection of gambling debts. And take any custom that grows up. We
know how strong our customs in college are. Take the mere custom of a
club table; no one dares or ventures to supplant the members at that
table. That kind of sanction is just as good a law as a law made
by statute and imposing five or ten dollars penalty or a week's
imprisonment. And judges or juries recognize those things as laws,
just as much as they do statute laws; when all other laws are lacking,
our courts will ask what is the "custom of the trade." These be laws;
and are often better enforced than the statute law; the rules of the
New York Stock Exchange are better enforced than the laws of the State
legislature. Now all our early Anglo-Saxon law was law of that kind.
And it was not written down for a great many centuries, and even after
being first written it wasn't usual to affix any _penalty_; they were
mere customs, but of an iron-bound nature--customs that were followed
far more devoutly than the masses of our people follow any of our
written laws to-day. And their "sanction" was twofold: In the first
place, the sanction I have mentioned, universal custom, social
ostracism for breach. A second and very obvious sanction, that if you
do a thing that I don't like and think is against the law, I am going
to knock you down or kill you if I can! That was a sanction, and a
perfectly good one; and the question that arose, therefore, was not at
all as to penalty for the law-breaker; it was whether there should be
a penalty for the law-breaker's being killed. That is the reason they
didn't have to have any penalty! In those days if there was a custom
that a certain tribe had a certain pasture, and a man of another tribe
pastured his cattle in that pasture, the first man would go to him and
they would have a fight, and if he killed him he would be, as we say,
arrested; then the matter would be inquired into by the kin of the
murdered man or neighbors, and if the killer could prove that the
murdered man had committed a breach of the law, he went off scot
free--so, as a matter of fact he would to-day, if it were justifiable
homicide. In other words, it was a question of whether it was
justifiable homicide; and that brought in the question what the
law was, and it was usually only in that way. For the law was but
universal custom, and that custom had no _sanction_; but for breach
of the custom anybody could make personal attack, or combine with his
friends to make attack, on the person that committed the breach, and
then, when the matter was taken up by the members of both tribes, and
finally by the Witenagemot as a judicial court, the question was, what
the law was; and if it was proved, for instance, that the law was that
there _was_ private property in that pasture belonging to the man who
committed the murder he went off scot free. That was the working of
the old Anglo-Saxon law, and it was a great many centuries before the
notion of law changed in their minds from that. And this "unwritten
law" perdures in the minds of many of the people to-day.