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
(1279) The Statute of Mortmain, aimed at the holding of land in large
quantities by religious corporations, was a true constructive statute,
and the principle it establishes has grown ever since. The law
regards with jealousy the ownership of land by any corporation;
the presumption is against the power, and it extends to-day to all
corporations, and particularly to alien corporations (see chapter 7);
and in 1283 came the Statute of Acton Burnel, re-enacted in 1285 and
called the "Statute Merchant," equally important. It provides for the
speedy recovery of debts due merchants, and is the foundation of all
our modern law of pledge, sales of collateral, etc. It is distinctly
an innovation on the common law; for in those days there was no method
of collecting ordinary money debts. You could levy on a man's land,
but there really seems to have been no method of recovering a debt
contracted in trade; and this is the first of many statutes adopting
foreign ideas as to matters of trade, and the customs of merchants,
drawn frequently from the Lombard or Jew traders of the Continent,
which, by statute law, custom, or court decision, has since become
such a considerable body of the English law as to have a name
to itself--the "Law Merchant." This first statute provides for
imprisonment for debt; "if he have no goods to be seized the debtor is
to be imprisoned, but the creditor shall find him bread and water."
A foreigner coming to England to recover a debt may also recover the
expenses of his trip; and the statute is further liberal in that it
does away with the _Droit d'Aubaine_, that narrow-minded custom by
which the goods or personal property of any person who died passing
through the kingdom were seized by the authorities and could not be
recovered by his heirs. This mediaeval injustice continued for some
centuries in Germany and France, and we can hardly say that the notion
is extinct in this country when a State like California, by her system
of public administrators, practically impounds a large proportion of
all personal property owned by non-residents at their death. Cases
have been known where it cost the executor more than one-third of
the money to collect a mortgage, owned by a deceased citizen of
Massachusetts, in California; and for that reason, among others,
Eastern lawyers have advised against investments in that State; for
the public administrators are usually petty politicians in search of a
job. The increasing burden of our State inheritance tax laws, whereby
every State wherein a corporation exists besides the State of the
deceased seizes its percentage of the stock of such corporation in the
hands of the executors, is another step in this direction. This early
Statute Merchant, liberal in other respects, still excludes Jews from
its benefits.
Public-domain text, read in full here on John Shaqi.
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