OUR LEGAL HERITAGE

S >> S. A. Reilly, Attorney >> OUR LEGAL HERITAGE

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The common law recognized the tort of false imprisonment if a man
arrested as a felon, a person who was not a felon.

Ecclesiastical courts were successful in their competition with
the secular courts for jurisdiction over testamentary
[concerning wills] and succession [no will] to chattels. It's
law made a woman's chattels the property of her husband upon
marriage. She also lost all power over her land during marriage.
A husband became liable for his wife's torts. Promises under
oath were not recognized for married women.

Land may not be alienated to religious bodies in such a way that
it would cease to render its due service to the King.

Judicial Procedure

The writ of Quo Warranto [by what right] is created, by which all
landholders exercising jurisdictions must bring their ancestors'
charters before a justice in eyre for the Common Pleas for
examination and interpretation as to whether they were going
beyond their charters and infringing upon the jurisdiction of
the Royal Court. As a result, many manor courts were confined to
seigneurial matters and could no longer view frankpledge or hear
criminal cases, which were reserved for the royal courts. In the
manor courts which retained criminal jurisdiction, there was a
reassertion of the obligation to have present a royal coroner,
whose duty it was to see that royal rights were not infringed and
that the goods of felons were given to the Crown and not kept
by the lords.

The supreme court was Parliament. Next were the royal courts of
the King's Bench, Common Pleas, and the Exchequer, which had
become separate, each with its own justices and records. The
Court of Common Pleas had its own Chief Justice and usually met
at Westminster. This disadvantaged the small farmer, who would
have to travel to Westminster to present a case. The Court of the
King's Bench heard criminal cases and appeals from the Court of
Common Pleas. It traveled with the King. There were many
trespass cases so heard by it in the reign of Edward I. In
criminal cases, witnesses acquainted with particular facts were
added to the general assize of twelve men from each hundred and
four men from each town.

The most common cases in the Court of Common Pleas were "detinue"
[wrongful detention of a good or chattel which had been loaned,
rented, or left for safe- keeping with a "bailee", but belonged
to the plaintiff], "debt" [for money due from a sale, for money
loaned, for rent upon a lease for years, from a surety, promised
in a sealed document, or due to arbitrators to whom a dispute had
been submitted] and "account" [e.g. by bailiffs of manors, the
guardian in socage, and partners]. It also heard estovers of
wood, profit by gathering nuts, acorns, and other fruits in
wood, corody [allowance of food], yearly delivery of grain,
toll, tonage, passage, keeping of parks, woods, forests, chases,
warrens, gates, and other bailiwicks, and offices in fee.

The justices in eyre gradually ceased to perform administrative
duties on their eyres because landed society had objected to
their intrusiveness.

Breaches of the forest charter laws were determined by justices
of the King's forest, parks, and chases, along with men of
assize.

Coroners' inquest procedures were delineated by statute and
included describing in detail in the coroner's rolls every wound
of a dead body, how many may be culpable, and people claiming to
have found treasure who might be suspects.

There were local courts of the vill, borough, manor, hundred,
county, sheriff, escheator, and royal bailiff, with overlapping
jurisdictions. The most common plea in the hundred court was
trespass. It also heard issues concerning services arising out
of land, detention of chattels, small debts, maiming of animals,
and personal assaults and brawls not amounting to felony. Twice
a year the sheriff visited each hundred in the shire to hold a
tourn or court for small criminal cases. Everyone who held
freehold land in the hundred except the greater magnates had to
attend or be fined for absence. The sheriff annually viewed
frankpledge, in which every layman without land that could be
forfeited for felony, including villeins, were checked for being
in a tithing, a group of neighbors responsible for each other's
good conduct. This applied to every boy who had reached the age
of twelve. He had to swear on the Bible "I will be a lawful man
and bear loyalty to our lord the king and his heirs, and I will
be justicable to my chief tithing man, so help me God and the
saints." Each tithing man paid a penny to the sheriff.

In the manor courts, actions of debt, detinue, and covenant were
frequent. Sometimes there are questions of a breach of warranty
of title in agreements of sale of land. Accusations of
defamation were frequent; this offense could not be taken to the
King's court, but it had been recognized as an offense in the
Anglo-Saxon laws. In some cases, the damages caused are
specifically stated. For instance, defamation of a lord's grain
cause other purchasers to forbear buying it. There are frequent
cases of ordinary thefts, trespasses, and assaults. The courts
did rough but substantial justice without distinction between
concepts such as tort and contract. In fact, the action of
covenant was the only form of agreement enforceable at common
law. It required a writing under seal and awarded damages. Their
law was not technical, but elastic, and remedies could include
injunctions, salary attachment, and performance of acts.

The precedent for punishment for treason was established by the
conviction of a knight, David ab Gruffydd, who had turned
traitor to the Welsh enemy during the conquest of Wales and
plotted to kill the King. He was condemned to be dragged at the
heels of horses for being a traitor to his knightly vows, hanged
by the neck for his murders, cut down before consciousness left
him to have his entrails cut out for committing his crimes
during the holy week of Easter, and his head cut off and his
body divided into four parts for plotting against the King's
life. The head and body sections were placed in public view at
various locations in the nation. Prior to this the penalty was
imprisonment usually followed by ransom.

Trial by battle is now limited to certain claims of enfeoffment
of large land holding and is barred for land held in socage,
burgage, or by marriage. Assize is the usual manner of trial,
but compurgation remains in the borough court long after it
becomes obsolete in the royal courts. Defendants no longer
request assizes but are automatically put to them.

Numerous statutes protect the integrity of the courts and King's
offices by double and treble damages and imprisonment for
offenses such as bribery, false informers, conspiracy to falsely
move or maintain pleas, champerty [giving an interest in the
outcome of a case to a person for his assistance in litigating
it], conflict of interest by court officers by having a part in
the business or thing at issue. There had been many abuses, the
most common of which was extortion by sheriffs, who jailed
people without cause to make them pay to be released.

The King reserved to himself and his council in its judicial
capacity the correction of all breaches of the law which the
lower courts had failed to remedy, whether from weakness,
partiality, or corruption, and especially when the powerful
barons defied the courts.

The Court of Hustings in London is empowered to award landlords
their tenements for which rent or services are in arrears if the
landlord could not distrain enough tenant possessions to cover
the arrearages.

Wills are proven in the Court of Husting, the oldest court in
London, which went back to the times of Edward the Confessor.
One such proven will is:

"Tour (John de La) - To Robert his eldest son his capital
messuage and wharf in the parish of Berchingechurch near the
land called 'Berewardesland`. To Agnes his wife his house called
'Wyvelattestone', together with rents, reversions, etc. in the
parish of S. Dunstan towards the Tower, for life; remainder to
Stephen his son. To Peter and Edmund his sons lands and rents in
the parish of All Hallows de Berhyngechurch; remainders over in
default of heirs. To Agnes, wife of John le Keu, fishmonger, a
house situate in the same parish of Berhyng, at a peppercorn
[nominal] rent."

The Court of the Mayor of London heard diverse cases, including
disputes over goods, faulty goods, enhancing the price of goods,
using unlawful weighing beams, debts, theft, distraints,
tavern-brawling, bullying, and gambling. The following four
cases pertain to customs, bad grain, surgery, and apprenticeship,
respectively.

"John le Paumer was summoned to answer Richer de Refham, Sheriff,
in a plea that, whereas the defendant and his Society of Bermen
[carriers] in the City were sworn not to carry any wine, by
land or water, for the use of citizens or others, without the
Sheriff's mark, nor lead nor cause it to be led, whereby the
Sheriff might be defrauded of his customs, nevertheless he caused
four casks of wine belonging to Ralph le Mazun of Westminster to
be carried from the City of Westminster without the Sheriff's
mark, thus defrauding the latter of his customs in contempt of
the King etc. The defendant acknowledged the trespass. Judgment
that he remain in the custody of the Sheriff till he satisfy the
King and the Court for offense."

"Walter atte Belhaus, William atte Belhous, Robert le Barber
dwelling at Ewelleshalle, John de Lewes, Gilbert le Gras, John
his son, Roger le Mortimer, William Ballard atte Hole, Peter de
Sheperton, John Brun and the wife of Thomas the pelterer,
Stephen de Haddeham, William de Goryngg, Margery de
Frydaiestrate, Mariot, who dwells in the house of William de
Harwe, and William de Hendone were attached to answer for
forestalling all kinds of grain and exposing it, together with
putrid grain, on the pavement, for sale by the bushel, through
their men and women servants; and for buying their own grain
from their own servants in deception of the people. The
defendants denied that they were guilty and put themselves on
their country. A jury of Richard de Hockeleye and others brought
in a verdict of guilty, and the defendants were committed to
prison til the next Parliament."

"Peter the Surgeon acknowledged himself bound to Ralph de
Mortimer, by Richard atte Hill his attorney, in the sum of 20s.,
payable at certain terms, the said Ralph undertaking to give
Peter a letter of acquittance [release from a debt]. This
Recognizance arose out of a covenant between them with regard to
the effecting of a cure. Both were amerced for coming to an
agreement out of Court. A precept was issued to summon all the
surgeons of the City for Friday, that an enquiry might be made
as to whether the above Peter was fitted to enjoy the profession
of a surgeon."

"Thomas de Kydemenstre, shoemaker, was summoned to answer William
de Beverlee, because he did not clothe, feed and instruct his
apprentice Thomas, William's son, but drove him away. The
defendant said that the apprentice lent his master's goods to
others and promised to restore them or their value, but went
away against his wish; and he demanded a jury. Subsequently, a
jury of William de Upton and others said the apprentice lent two
pairs of shoes belonging to his master and was told to restore
them, but, frightened by the beating which he received, ran
away; further that the master did not feed and clothe his
apprentice as he ought, being unable to do so, to the
apprentice's damage 40d., but that he was now in a position to
look after his apprentice. Thereupon Thomas de Kydemenstre said
he was willing to have the apprentice back and provide for him,
and the father agreed. Judgment that the master take back the
apprentice and feed and instruct him, or that he repay to the
father, the money paid to the latter, and that he pay the father
the 40d. and be in mercy."

A professional class of temporal lawyers is prominent in the
nation. They were educated and certified at the new Inns of
Court in London. Some are employed by the King. Judge tend to be
recruited from among those who had passed their lives practicing
law in court, instead of from the ecclesiastical orders. Men
learned All lawyers were brought under the control of the
judges.

There are two types of attorneys: one appears in the place of his
principal, who does not appear. The appointment of such an
attorney is an unusual and a solemn thing, only to be allowed on
special grounds and with the proper formalities. For instance, a
poor person may not be able to afford to travel to attend the
royal court in person. The other type of attorney accompanies his
client to court and advocates his position with his knowledge of
the law and his persuasiveness.

The great litigation of the nation is conducted by a small group
of men, as is indicated by the earliest Year Books of case
decisions. They sit in court and one will sometimes intervene as
amicus curiae [friends of the court]. Parliament refers
difficult points of law to them as well as to the judges. In
1280, the city of London made regulations for the admission of
both types of attorneys to practice before the civic courts, and
for their due control. In 1292 the King directed the judges to
provide a certain number of attorneys and apprentices to follow
the court, who should have the exclusive right of practicing
before it. This begins the process which will make the attorney
for legal business an "officer of the court" which has appointed
him.

Because the common law and its procedures have become technical
and rigid, the Chancery was given equity jurisdiction by statute
in 1285. In Chancery, if there is a case with no remedy
specified in the law, that is similar to a case for which there
is a writ, then a new writ may be made for that case. These were
called "actions on the case". This added to Chancery's work of
now hearing petitions of misconduct of government officials or
of powerful oppressors, wardship of infants, dower, rent
charges, fraud, accident, and abuse of trust. Also, Parliament
may create new remedies.

Disputes within the royal household were administered by the
King's steward. He received and determined complaints about acts
or breaches of the peace within twelve miles around the King's
person or "verge". He was assisted by the marshall in the "court
of the hall" and by the clerk of the market when imposing fines
for trading regulation violations in the "court of the market".

Chapter 9

The Times: 1348-1399

Waves of the black death, named for the black spots on the body,
swept over the nation. The first wave of this plague, in 1348,
decimated the population by about one half in the towns and one
third in the country. People tried to avoid the plague by
flight. The agony and death of so many good people caused some
question their belief in God. Also, it was hard to understand why
priests who fled were less likely to die than priests who stayed
with the dying to give them the last rites. Thus begins a long
period of disorganization, unrest, and social instability.
Customary ways were so upset that authority and tradition were no
longer automatically accepted. Fields lay waste and sheep and
cattle wandered over the countryside. Local courts could not be
held. Some monasteries in need of cash sold annuities to be paid
in the form of food, drink, clothing, and lodging during the
annuitant's life, and sometimes that of his widow also. Guilds
and rich men made contributions to the poor and ships with
provisions were sent to various parts of the country for the
relief of starving people.

Farm workers were so rare that they were able to demand wages at
double or triple the pre-plague rate. Prices did not go up
nearly as much. The villeins had become nomadic, roaming from
place to place, seeking day work for good wages where they could
get it, and resorting to thievery on the highways or beggary
where they could not. The Robin Hood legends were popular among
them.

They spread political songs among each other, such as: "To seek
silver to the King, I my seed sold; wherefore my land lieth
fallow and learneth to sleep. Since they fetched my fair cattle
in my fold; when I think of my old wealth, well nigh I weep.
Thus breedeth many beggars bold; and there wakeneth in the world
dismay and woe, for as good is death anon as so for to toil."

Groups of armed men took lands, manors, goods, and women by
force. The villeins agreed to assist each other in resisting by
force their lords' efforts to return them to servitude. Justices
became afraid to administer the law. Villeins, free peasants,
and craftsmen joined together and learned to use the tactics of
association and strikes against their employers.

The office of Justice of the Peace was created for every county
to deal with rioting and vagrants. Cooperation by officials of
other counties was mandated to deal with fugitives from its
justice.

When there were attempts to enforce the legal servitude of the
villeins, they spread rhymes of their condition and need to
revolt. A secret league, called the "Great Society" linked the
centers of intrigue. A poll tax for a war with France touched
off a riot all over the nation in 1381. This tax included people
not taxed before, such as laborers, the village smith, and the
village tiler. By this time, the black death had reduced the
population from 5 million to 2 1/2 million. It was to rise to 4
million by 1600.

Mobs overran the counties around London. The upper classes fled
to the woods. But the Chief Justice was murdered while fleeing.
Written records of the servitude of villeins were burned in
their halls, which were also looted. Prisoners were released
from jails. The archbishop, who was a notoriously exploitive
landlord, and the Treasurer were beheaded on Tower Hill and their
heads were posted over London Bridge. The villeins demanded that
service to a lord be by agreement instead of by servitude, a
ceiling on rents of 4d. per acre yearly, abolition of a lord's
right for their work on demand (e.g. just before a hail storm so
only his crops were saved), and the right to hunt and fish.

The revolt was suppressed and its leaders punished. Also, the
duty to deal with rioting and vagrants was given to royal
judges, sheriffs, mayors, bailiffs, and constables as well as
the Justices of the Peace. There was a high constable in each
hundred and a petty constable in each parish. Justices of the
peace could swear in neighbors as unpaid special constables when
disorder broke out.

The sheriff was responsible for seeing that men of the lower
classes were organized into groups of ten for police and surety
purposes, and for holding of hundred and shire courts, arresting
suspects, guarding prisoners awaiting trial, carrying out the
penalties adjudged by the courts, and collecting Crown revenue
through his bailiffs. Royal writs were addressed to the sheriff.
Because many sheriffs had taken fines and ransoms for their own
use, a term limit of one year was imposed. Sheriffs, hundreders,
and bailiffs had to have lands in the same shires or bailiwicks
[so they could be held answerable to the King].

Efforts were made to keep laborers at the plough and cart rather
than learn a craft or entering and being educated by the church.
The new colleges at the universities ceased to accept villeins
as students.

Due to the shortage of labor, landlords' returns had decreased
from about 20% to 5%. But some found new methods of using land
that were more profitable than the customary services of
villeins who had holdings of land or the paid labor of
practically free men who paid a money rent for land holdings.
One method was to turn the land to sheep-breeding. Others leased
their demesne land, which transferred the burden of getting
laborers from the landlord to the lessor- tenant. The payment was
called a "farm" and the tenant a "farmer". First, there were
stock-and-land leases, in which both the land and everything
required to cultivate it were let together. After 50 years, when
the farmers had acquired assets, there were pure land leases.
The commutation of labor services into a money payment developed
into a general commutation of all services. Lords in need of
money gladly sold manumissions to their villeins. The lord and
lady of some manors now ate by themselves in a private parlor
with a fireplace of its own and the great hall was deserted.

Some farmers achieved enough wealth to employ others as laborers
on their farms. The laborers lived with their employer in his
barn, sleeping on hay in the loft, or in mud huts outside the
barn. The farmer's family lived at one end of the barn around an
open fire. Their possessions typically were: a chest, a trestle
table, benches, stools, an iron or bronze cauldron and pots,
brooms, wooden platters, wooden bowls, spoons, knives, wooden or
leather jugs, a salt box, straw mattresses, wool blankets, linen
towels, iron tools, rushlightholders, and livestock. Some
farmers could afford to have a wooden four-posted bedstead,
hens, geese, pigs, a couple of cows, a couple of sheep, or two
plow oxen. They ate dark bread and beans and drank water from
springs. Milk and cheese were a luxury for them. Farming still
occupied the vast majority of the population. Town inhabitants
and university students went into the fields to help with the
harvest in the summer.

Town people had more wealth than country people. Most townspeople
slept in nightgowns and nightcaps in beds with mattresses,
blankets, linen sheets, and pillows. Beds were made every
morning. Bathing was by sponging hot water from a basin over the
body, sometimes with herbs in it, rinsing with a splash of warm
water, and drying off with a towel. Tubs just for baths came into
use. There were drapery-rugs hung around beds, hand-held mirrors
of glass, and salt cellars. The first meal of the day was
breakfast, which broke the fast lasting the night. Meals were
often prepared according to recipes from cook books which
involved several preparation procedures using flour, eggs, sugar,
cheese, and grated bread, rather than just simple seasoning.
Menus were put together with foods that tasted well together and
served on plates in several courses. Table manners included not
making sounds when eating, not playing with one's spoon or
knife, not placing one's elbows on the table, keeping one's mouth
clean with a napkin, and not being boisterous. There were
courtesies such as saying "Good Morning" when meeting someone
and not pointing one's finger at another person. King Richard II
invented the handkerchief for sneezing and blowing one's nose.
There were books on etiquette.

New burgesses were recruited locally, usually from within a 20
mile radius of town. Most of the freemen of the larger boroughs,
like Canterbury and London, came from smaller boroughs. An
incoming burgess was required to buy his right to trade either
by way of a seven year apprenticeship or by payment of an entry
fee. To qualify, he needed both a skill and social
respectability.

Towns started acquiring from the King the right to vacant sites
and other waste places, which previously was the lord's right.
The perpetuality of towns was recognized by statutes of 1391,
which compared town-held property to church-held property. The
right of London to pass ordinances was confirmed by charter. Some
towns had a town clerk, who was chief of full-time salaried
officers. There was a guildhall to maintain, a weigh-house,
prison, and other public buildings, municipal water supplies,
wharves, cranes, quays, wash-houses, and public lavatories.

After the experience of the black death, some sanitary measures
were taken. The notorious offenders in matters of public hygiene
in the towns, such as the butchers, the fishmongers, and the
leather tanners were assigned specific localities where their
trades would do least harm. The smiths and potters were excluded
from the more densely populated areas because they were fire
risks. In the town of Salisbury, there was Butcher Row, Ox Row,
Fish Row, Ironmongers' Row, Wheelwrights' Row, Smiths' Row, Pot
Row, Silver Street, Cheese Market, and Wool Market.

Fresh water was brought into towns by pipe or open conduit as a
public facility, in addition to having public wells. In London,
a conduit piped water underground to a lead tank, from which it
was delivered to the public by means of pipes and brass taps in
the stone framework. This was London's chief water supply. Water
carriers carried water in wooden devices on their backs to
houses. The paving and proper drainage of the streets became a
town concern. Building contracts began specifying the provision
of adequate cesspits for the privies at town houses, whether the
toilets were built into the house or as an outhouse. Also, in
the better houses, there grew a practice of carting human and
animal fecal matter at night to dung heaps outside the city
walls. There was one public latrine in each ward and about
twelve dung-carts for the whole city. Country manor houses had
toilets on the ground floor and/or the basement level.
Stairwells between floors had narrow and winding steps.

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