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tended to break down the old barriers and introduce competition, just as the desire of a college for success in athletics leads it to give every man a chance to try for the team, and thus to get teams made up of men with ability rather than merely of men whose brothers were football stars or whose fathers are distinguished men. Still, when one race conquers another the military chiefs themselves are apt to begin a new line of families. So“ dukes” are called from " dux," a leader, “counts" from“ comites,” companions of the king—and the idea of noble blood takes a new lease of life. The conquered race would be regarded as base-born, and its occupations, such as plowing or weaving, as not fit for gentlemen. The church was not controlled by the idea of birth so far as its own ranks were concerned. It took peasant boys or town boys or sons of gentle folk, and if they were bright enough they might aspire to any rank. Funds were established to enable poor boys to study at Oxford and Cambridge. The paths to law and to the service of the king as ministers, judges, or chancellor likewise lay open, for all these officers were “ clerks,” that is, “ clerics.” If they could read they could have the “ benefit of clergy."
The path to freedom by gaining wealth was that followed by many. The Danes, who had much influence in early customs of northeastern England, honored the successful trader and merchant. In the early days of Saxon England a “ceorl” (a member of the lower class) might become a “ thegn " if he had five or six hundred acres of land; "and if a merchant throve so that he fared thrice over the wide sea by his own means, then was he thenceforth by thegn-right worthy” (Laws of Wessex, 920 A.D.). Later it was a question of how the villein might become “ free,” that is, free to leave
his native place, and to work for wages instead of
To get the “freedom of a town," the direct way
It is as true now as ever that the individual who
It may seem that in these ways of gaining freedom and rights—by fighting and bargaining, by gaining education and property—the nation was not of any
This would be to forget that in the first place the nation has made order possible, has made it possible to have trade and property, and to make contracts, and thus laid the foundation for securing the various liberties. Yet these are, after all, indirect. In modern times the state works more directly for liberty by conducting schools, by affording opportunities through public lands for people to secure homes of their own, by protecting them from accident and disease. The indirect ways came first because, as we have so often noted, the nation was in the first place a band of warriors and cared little for equal rights.
But there was one part of the national government By law which from the first was working more directly to make
rights equal. This was the system of the king's courts which built up the common law. We are speaking, it is to be kept in mind, of such rights as the right to go and come, to be free from the danger of being seized and placed in some prison, whether of king, or duke, or bishop, and to be safe from having one's property seized. Who would want to do these things, and why? The king might want to put a man in prison to get money from him, or in order to get him out of the way, if he criticised the king's acts. It might be thought that a large body like Parliament would have no grudge against any individual, yet Parliament was quite willing at times to condemn a man unheard by simply passing an “ Act of Attainder" against him— a procedure which is forbidden by the Constitution in this country. Why would the judges be any better than the king or Parliament? Some judges have doubtless been as brutal as any king, and we cannot say that they have cared any more for the particular men who have come before them than either king or Parliament. The difference has been that judges adopted the plan of following general rules.
One circumstance which may have had some part in the change from decisions based on local customs to decisions based on general rules was that under King Henry II the judges were sent about the kingdom from shire to shire to hear complaints of various sorts. If any one is doing such work as this he almost necessarily begins to follow a general rule. He does not know the different people who come before him, and so is more and more inclined to think of his rules and less and less of the particular case. Add to this that after a time the judges were prepared for their work by reading the decisions that others had made, or even
the rules which had come down from the laws of Rome and you have another reason why judges tried to act by rules.
But suppose the rules themselves are hard or cruel, Why a will not this make a government by law worse than a government government by kings or town meetings without any
is a laws? This is a question to which there are two sides.
democratic It is true that a law which is oppressive, like the laws force on the subject of slavery, or villenage, or witchcraft, could be much harder than men would be in dealing with their personal acquaintances; and a judge who was acting under such a law might be obliged to be more severe than if he followed his own feeling as to what would be right in the particular case. In slavery days a master who knew his slaves and had sympathy would be much more humane than the law. The great philosopher Plato discussed this question whether a government by laws or a government by men without laws is better. He decided that if you could have a ruler who was both wise and just he would give a better government without being constrained by laws, but that taking men as we find them, a government by laws is safer.
Why safer? The chief reasons why, on the whole, a government by laws is safer are perhaps two: (a) Laws represent the wisdom of several men, not of one
One man may sometimes have a better idea than is likely to be adopted by a group and be made law, but ordinarily no one man is likely to think of all the interests to be affected and so his ideas are liable to be one-sided.
(b) More important is this: If any rule is followed strictly and impartially in all cases, it is soon perceived whether it is a good rule or a bad one. If it
is a cruel or one-sided law, then the more strictly it is enforced the more people will be injured and the more enemies it will make. And this will tend to get it changed. A king might pull out one by one the teeth of a Jew from whom he wished to squeeze money, and this would not necessarily excite any fear among other rich men. But suppose it were made a law that all men must contribute to the king as much money as he asks for at any time, under penalty of having their teeth drawn one by one each day; then there would soon be powerful opposition. Equality before the law compels men to make common cause with all others affected as they are, whereas without this men tend to want special favors and to let others shift for themselves. It is thus a strong democratic force.