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crime and did not appear for trial his tithing had to pay a fine. It can be imagined that the “ tithingman,” the head of this group of ten or twelve, would keep a close watch over the group. It is interesting that the early New England towns always elected a tithingman whose chief duty seems to have been to keep order in the meeting-house.
(8) The state brought about a Common Law. How Common did it come about that one system of law held for Law the whole country? In early days there were a great many different “customs ” of different places or groups, but no single law of the land. A court was a sort of town meeting or county meeting. There were no lawyers, no judges, no jury, no witnesses. The meeting voted what should be done. Now the king was a great landholder and also had a great many officers. He, then, held a court just as a lord or sheriff held a court.
If the king could not always hold court himself he had representatives to preside for him. The next step was to send these justices around the country to hold court. So long as each village or county held its own court, it would keep its own customs. The northern part where the Danes settled had a Dane law, the county of Kent had its customs, the West had its customs. Some towns would have special tolls and rules. But when the king's justices judged cases they decided by what they called the custom of England. They followed the same rules, no matter where they were holding court. These rules or customs which were common to the whole country were called “ law.”
The king's courts which worked out this common law had a reason for hearing as many cases as they could. It was so poor a reason that it seems quite un
The king's court
dignified, not to say disgraceful. The reason was that it paid. If a man wanted to bring a suit he had to pay a fine, and if a man was found to have broken the peace he had to pay a fine. So the king's court was eager to do a large business.
But if you do not have a monopoly, you cannot have a large business unless you sell what people want. The king's court did not at first have a monopoly even of murder trials. There were other courts. But it was often the case that a man could not get justice in the other courts. Then he would try the king's court, which was often more satisfactory than others. In time it came to be held that any one might purchase a “writ” of the king's court, and by it try to get justice done. Though if a man was not exactly sure what to call the injury that had been done him, he ran a risk of buying the wrong document. It was something like buying shoes for another person without knowing what size would fit. We might think justice should proceed by asking both sides simply to tell their stories, and then having the judge ask questions and decide what is fair. This was not the way the courts got at it. The man who brought the case had to charge the other with some specific kind of wrong, and then prove this. But the important thing was that all the king's subjects had a right to claim his justice.
Why was the common law better than the old customs? There is more authority in law. It comes to us now as the command of the whole people. In early times it came as the command of the king. And because the king was usually believed to be appointed by God to rule, his commands were regarded as sacred. This made men more afraid to break the law. With the king's authority back of it, the common law was thus better
Majesty of the law
adapted to the larger group. Custom could control
who spoke the same language, and were all kin or neighbors. It would not have been equal to the task of controlling large groups made up of different races or tribes, speaking different dialects, not knowing each other, and not having common ancestors or common traditions.
The common law was thus stronger than custom. It Law was of course likely to favor the king and the ruling fairer
than class. But there were two forces at work to make it
custom fairer than the customs of smaller groups.
The very fact that it was national helped to make it fairer. If a law is going to affect a whole realm, people will be more careful in making and executing it, and judges under such a law will also be less likely to be influenced by prejudice against enemies, or by favor for their friends.
And another thing that helped was that judges were appointed to give their time and thought to hearing cases and declaring the law. These judges were at first churchmen,-bishops or clerks (as the clergy were then called). They studied not only the customs of England, but the law which the church used. They studied, many of them, the old Roman law which grew up when Rome ruled the civilized world. And they got from this the idea that cases should be decided not only by custom but by what was reasonable as well. So there was a little element of progress along with the idea that the old customs ought not to be changed. Men are so fond of what is old and so fearful of the new that it is very hard to introduce a change in law, even when it is known that the old way began in savage and barbarous days.
The common law became also a defense of liberty.
Law and liberty
It might be supposed that the judges who were appointed by the king would always be on his side, if there was
a contest between the king and other parties. But strangely enough they came to think much more of following the rules and customs of the realm than of doing what the king wished. The very fact that the law was common to the whole country made it a stronger defense when men relied upon it to aid them in resisting the king, just as at first it was a stronger instrument for enforcing order. The way in which the jury system came to be introduced will be described in a later chapter. But it may be mentioned here as one of the ways in which the king and the state helped on the cause of liberty, although it was not intended for this purpose and was at first stoutly resisted.
The state had a great deal to do with changing the plan of holding land. The early idea was that of holding land in common by a clan or village. Our present plan is what we call private ownership. Except in such cases as parks, public forests, school grounds, and a few other public plots, all land in this country is privately owned. By the old plan it seemed that no one really had a right to sell land, for this would be depriving the children of the clan of their rights. Today we buy and sell land freely; and this is in many ways an advantage. For it certainly stimulates a man to improve land if he knows that he himself will gain by draining, fencing, and enriching it. Moreover, when land is bought and sold freely it is more likely to get into the hands of men who will make some use of it and will not let it lie idle. How has it come about that we now own land? We
do not talk of owning the air, and a private individual cannot own a navigable river, or a plot on the high seas.
When people lived in kindred groups or clans, Clan especially if they lived a hunting or pastoral life, each group might have a district where it hunted, or gathered fruits, or pastured its flocks. It would keep others out of this district if possible, and feel that it was on its own ground. But the individual members of the clan would not have their separate plots.
When groups settled down to cultivate the land it Village was, as we have seen, the custom to have the plow land in open fields with strips of grass between the holdings of the different dwellers. There was besides this a large area of waste which was a common pasture. There was then much land which was simply in common, and some which was “held by the dwellers in the village community in the sense that they plowed it and harvested it. But they could not have sold it.
When the king and his warriors conquered a coun- Lords try, the king considered that it was his. He
appointed his men to rule districts, just as the President land of the United States appoints a governor of Alaska. There were two important differences, however. First the duke or baron collected his own pay from those under him. The amount which his tenants were to pay was largely fixed by custom, but he was not limited to a fixed sum. He got what he could, paid over a fixed sum to the king, and kept the rest. It was not the idea at first that he owned the land; he “ held ” it from the king or from some one superior to himself. In some offices called “ fee offices” still have a survival of the old days when a govern