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
(1284) Jury trial was well established by this time, for the Statute
of Wales includes it in its code of procedure for that principality.
The great Statute _De Donis_, or Westminster II, came the following
year; most interesting to lawyers as the foundation of estates tail;
but it also regulates "assizes or juries" that "rich men do not abide
at home by reason of their bribes." It also specifically requires
indictment "of twelve lawful men at least," and gives an action
against sheriffs imprisoning without such warrant "as they should have
against any other person." Rape, ten years before made punishable only
by two years' imprisonment, is now made an offence punishable by
loss of life or member; showing how our ancestors treated a burning
question, at least in our Southern States, of to-day. Finally, it
confirms and explains the writ _de odio et atia_, the predecessor of
the modern _habeas corpus_. Some writers have doubted whether this
writ existed as a practical remedy much before the Statute of Charles
II; but here it says that parties indicted, etc., are to have the writ
_de odio et atia_ "lest they be kept long in prison, like as it is
declared in Magna Charta." This can only refer to C. 36 of John's
Charter, "the writ of inquest of life or limb to be given gratis and
not denied"; and taken in connection with the action for damages just
given affords a fairly complete safeguard to personal liberty. It also
contains the first game law, protecting "salmons." "There are salmons
in Wye," says Shakespeare, and we are reminded of it because the
Statute of Winchester in the same year contains a provision that is
almost literally quoted by Dogberry in "Twelfth Night." It provides
for the gates of great towns to be shut at sunset, and that no citizen
should bear arms, and no tavern sell drink after 9 P.M., and then it
comes to the duties of the watch, which are described in such like
manner that Dogberry's language seems a mere paraphrase. Whoever wrote
the play certainly had read the Statutes of the Realm for the year
1285, but so far as I am aware, the Baconians have not yet called
attention to this. And the same statute shows us how much better
police protection the England of 1285 gave than the New York or
Chicago of 1909; for all the people dwelling in the hundred or country
(county) if they do not deliver the body of the offender, "shall be
answerable for the robberies done and also the damages." The same year
was a statute of "The common customs of the City of London," among
which was one that "taverns should not be open after 9 P.M. for the
selling of wine or ale," a regulation for their "tenderloin," which
itself is described in quite modern terms; "none shall walk the
streets after curfew." Possibly the same year is the Statute of
Bakers, with careful provisions against putrid meat, worthy of
consideration by our cold-storage plants. Butchers selling unwholesome
flesh, or buying it of the Jews, were severely punished.
Public-domain text, read in full here on John Shaqi.
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