Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
But the first trace of this practice, now obnoxious to many under
the phrase quoted, dates back to 1327, when King Edward III found it
necessary to adopt some more effectual measures of police than those
which already existed. For this purpose justices of the peace were
first instituted throughout the country with power to take security
for the peace and bind over parties who threatened offence.[1] Fifty
years later, in the reign of Richard II, it was found necessary to
provide further measures for repressing forcible entries on lands.
The course of justice was interrupted and all these provisions were
rendered in a great degree ineffectual by the lawless spirit of the
times. The Statute of 1379 recites that "our Sovereign Lord the King
hath perceived ... that divers of his Liege People claiming to have
Right to divers Lands, Tenements, and other Possessions, and some
espying Women and Damsels unmarried ... do gather them together to a
great Number of Men of Arms and Archers ... not having Consideration
to God, but refusing and setting apart all Process of the Law, do ride
in great Routs ... and take Possession of Lands and in some Places
do ravish Women and Damsels, and bring them into strange Countries."
Therefore the Statute of Northampton, the 2d of Edward III, is recited
and confirmed and the justices of the king's commission ordered to
arrest such persons incontinent without tarrying for indictment or
other process of law. But that this summary process was already
obnoxious to the people was shown by the fact that it was repealed the
very following year because the articles "seemeth to the said Commons
very grievous." Only the Statute of Northampton is preserved, and
those who had been so taken and imprisoned by virtue of said article
without other indictment "shall be utterly delivered."
[Footnote 1: See "Injunctions in Conspiracy Cases," Senate Document
No. 190, 57th Congress, 1st Session, p. 117.]
(1384) It is noteworthy that at the same time that this
extra-common-law process begins in the statutes, we have other
statutes vindicating the power of the common-law courts. For instance,
six years later, in the 8th of Richard II is a clause complaining that
"divers Pleas concerning the Common Law, and which by the Common Law
ought to be examined and discussed, are of late drawn before the
Constable and Marshal of England, to the great Damage and Disquietness
of the People." Such jurisdiction is forbidden and the common law
"shall be executed and used, and have that which to it belongeth ...
as it was accustomed to be in the time of King Edward." Again, four
years later, it is ordained "that neither Letters of the Signet, nor
of the King's Privy Seal, shall be from henceforth sent in Damage or
Prejudice of the Realm, nor in Disturbance of the Law."
Public-domain text, read in full here on John Shaqi.
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