OUR LEGAL HERITAGE

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

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There was a standard form of direct taxation voted by Parliament,
which was normally 1/10 of the value of all moveables in towns
and royal domains and 1/15 in the country.

>From 1150 to 1400, resistance was an ordinary remedy for
political disagreements. If a popular leader raised his standard
in a popular cause, an irregular army could be assembled in a
day. (There was no regular army, since England was protected by
the sea from invasion.) So misgovernment by a King would be
quickly restrained. Society recovered quickly from conflict and
civil war because the national wealth consisted chiefly in
flocks and herds and in the simple buildings inhabited by the
people. In a week after armed resistance, the agricultural
worker was driving his team. There was little furniture, stock of
shops, manufactured goods, or machinery that could be destroyed.

The feudal army was summoned for the last time in the 100 year
war with France, which began in 1337. In it the English longbow
was used to pierce French knights' armor. Guns and cannon with
gunpowder were introduced in 1338. They became common by 1372
and foresaw the end to the competition between the strength of
arrows to pierce and the heaviness of armor to resist.
Featherbeds and blooded horses were favorite spoils of war
brought back to England. In th 1300s and 1400s, the King relied
on mercenaries hired directly or by contract with his great
nobles for foreign wars.

Many lords got men to fight with them by livery and maintenance
employment agreements such as this one of 1374: "Bordeaux,
February 15. This indenture, made between our lord King John [of
Gaunt, of Castile, etc.] of the one part and Symkyn Molyneux,
esquire, of the other part, witnesses that the said Symkyn is
retained and will remain with our said lord for peace and for
war for the term of his life, as follows: that is to say, the
said Symkyn shall be bound to serve our said lord as well in time
of peace as of war in whatsoever parts it shall please our said
lord, well and fitly arrayed. And he shall be boarded as well in
time of peace as of war. And he shall take for his fees by the
year, as well in time of peace as of war, 133s. ten marks
[133s.4d] sterling from the issues of the Duchy of Lancaster by
the hands of the receiver there who now is or shall be in time to
come, at the terms of Easter and Michaelmas by even portions
yearly for the whole of his life. And, moreover, our lord has
granted to him by the year in time of war five marks [67s.]
sterling by the hands of the treasurer of war for the time being.
And his year of war shall begin the day when he shall move from
his inn towards our said lord by letters which shall be sent to
him thereof, and thenceforward he shall take wages coming and
returning by reasonable daily [payments] and he shall have
fitting freightage for him, his men, horses, and other harness
within reason, and in respect of his war horses taken and lost
in the service of our said lord, and also in respect to
prisoners and other profits of war taken or gained by him or any
of his men, the said our lord will do to him as to other squires
of his rank."

Forecastles and stern castles on ships were lower and broader.
Underneath them were cabins. The English ship was still
single-masted with a single square sail. A navy was formed with
over 200 ships selected by the English admirals acting for the
King at the ports. Men were seized and pressed into service and
criminals were pardoned from crimes to become sailors in the
fleet, which was led by the King's ship. They used the superior
longbow against the French sailor's crossbow. In 1372, the Tower
of London had four mounted fortress cannon and Dover had six.

The war's disruption of shipping caused trade to decline. But the
better policing of the narrow seas made piracy almost disappear.

In 1363, Calais, a continental town held by the English, became
the staple town for lead, tin, cloth, and wool and was placed
under a group of London capitalists: the Merchants of the
Staple. All exports of these had to pass through Calais, where
customs tax was collected. Merchants who took cloth abroad to
various places to sell, personally or by agents, were called
merchant adventurers to distinguish them from the Merchant of
the Staple.

Waterpower was replacing foot power in driving the mills where
cloth was cleaned and fulled [thickened].

A boundary dispute between two barons resulted in the first true
survey map. Nine cow pastures were divided by a boundary marked
by a shield on a pole which the commission of true and sworn men
had set up.

Bethlehem Hospital was used from 1377 to house the mentally ill.

The Law

After the Black Death of 1348 these statutes were enacted:

High treason was defined by statute in 1352 as levying war
against the King, aiding the King's enemies, compassing or
imagining the death of the King, Queen, or their eldest son and
heir, or violating the Queen or the eldest unmarried daughter or
the wife of the King's eldest son and heir, making or knowingly
using counterfeits of the King's great or privy seal or coinage,
or slaying the Chancellor, Treasurer, or any justice in the
exercise of their duty. The penalty was forfeit of life and
lands. During the reign of King Richard II, who was later
disposed, high treason was extended to include making a riot and
rumor, compassing or purposing to depose the King, revoking
one's homage or liege to the King, and attempting to repeal a
statute. But these extensions were repealed after he was
deposed.

Petit treason was defined by statute and included a servant
slaying his master, a wife her husband, or a man his lord, to
whom was owed faith and obedience.

No one shall tell false news or lies about prelates, dukes,
earls, barons, and other nobles and great men or the Chancellor,
Treasurer, a Justice, Clerk of the Privy Seal, Steward of the
King's house whereby debates and discords might arise between
these lords or between the lords and the commons. Cases shall be
tried by the King's Council, which included the Chancellor,
Treasurer, and chief justices.

Preachers drawing crowds by ingenious sermons and inciting them
to riot shall be arrested by sheriffs and tried by the
ecclesiastical court.

Any stranger passing at night of whom any have suspicion shall be
arrested and taken to the Sheriff.

No man shall ride with a spear, upon pain of forfeiting it.

No servant of agriculture or laborer shall carry any sword or
dagger, or forfeit it, except in time of war in defense of the
nation. He may carry bow and arrow [for practice] on Sundays and
holy days, when he should not play games such as tennis.
football, or dice.

No one may enter another's land and tenements by strong hand nor
with a mob, upon pain of imprisonment and ransom at the King's
will.

Charters, releases, obligations, [quit-claim deeds] and other
deeds burnt or destroyed in uprisings shall be reissued without
fee, after trial by the King and his council. Manumissions,
obligations, releases and other bonds and feoffments in land
made by force, coercion or duress during mob uprisings are void.

Men who rape and women consenting after a rape shall lose their
inheritance and dower and joint feoffments. The husbands, or
father or next of kin of such women may sue the rapist by
inquisition, but not by battle. The penalty is loss of life and
member.

The Statute of Laborers of 1351 required all workers, from
tailors to ploughmen, to work only at pre-plague wage rates and
forced the vagrant peasant to work for anyone who claimed him or
her. It also encouraged longer terms of employment as in the
past rather than for a day at a time. Statutory price controls on
food limited profits to reasonable ones according to the
distance of the supply. Later, wages were determined in each
county by Justices of the Peace according to the dearth of
victuals while allowing a victualler a reasonable profit and a
penalty was specified as paying the value of the excess wages
given or received for the first offense, double this for the
second offense, and treble this or forty days imprisonment for
the third offense.

A fugitive laborer will be outlawed, and when found, shall be
burnt in the forehead with the letter "F" for falsity.

Children who labored at the plough and cart or other agriculture
shall continue in that labor and may not go into a craft.

A statute of 1363 designed to stop hoarding various types of
merchandise until a type became scarce so to sell it at high
prices, required merchants to deal in only one type of
merchandise. It also required craftsmen to work in only one
craft as before (except women who traditionally did several
types of handiwork). This was repealed a year later.

Where scarcity has made the price of poultry high, it shall be
lowered to 8d. for a young capon, 7d. for an old capon or a
goose, 9d. for a hen, and 10d. for a pullet.

The fares for passage on boats on fresh waters and from Dover to
the continent shall remain at their old rate.

Any merchant selling at a fair after it has ended will forfeit to
the King twice the value of that sold.

Anyone finding and proving cloth contrary to the assize of cloth
shall have one- third of it for his labor.

No shoemaker nor cordwainer shall tan their leather and no tanner
shall make shoes, in order that tanning not be false or poorly
done.

The staple was reinstituted by statute of 1353 after an
experiment without it, in which profits of a staple went to
staples outside the nation. The rationale for the staple was to
facilitate inspection of quality and the levy of customs. Wool,
woolfells, leather, and lead sold for export had to go through
the staple town. The penalty was forfeiture of lands, tenements,
goods, and chattel. (The staple statute remained basically
unchanged for the next 200 years.) The mayor and constables of
the staple were elected annually by the native and foreign
merchants of the place. The mayor gave validity to contracts for
a set fee, by seal of his office. He and the constables had
jurisdiction over all persons and things touching the staple,
which was regulated by the Law Merchant in all matters of
contract, covenant, debt, and felonies against foreign merchants.
A Hue and Cry was required to be raised and followed for anyone
taking a cart of merchandise or slaying a merchant, denizen
[resident alien] or alien, or the town would answer for the
robbery and damage done.

All denizen [foreigner permitted to reside in the realm with
certain rights and privileges] and alien merchants may buy and
sell goods and merchandise, in gross, in any part of the
country, despite town charters or franchises, to anyone except
an enemy of the King. They may also sell small wares: victuals,
fur, silk, cover chiefs, silver wire, and gold wire in retail,
but not cloth or wine. They must sell their goods within three
months of arrival. Any alien bringing goods to the nation to
sell must buy goods of the nation to the value of at least
one-half that of his merchandise sold. These merchants must
engage in no collusion to lower the price of merchandise
bought, take merchandise bought to the staple, and promise to
hold no staple beyond the sea for the same merchandise. An
amendment disallowed denizens from taking wools, leather,
woolfells, or lead for export, but only strangers.

Towns failing to bring disturbers of this right to justice shall
forfeit their franchise to the King and pay double damages to
the merchant. The disturber shall be imprisoned for a year.

Cloth may not be tacked nor folded for sale to merchants unless
they are opened to the buyers for inspection, for instance for
concealed inferior wool. Workers, weavers, and fullers shall put
their seals to every cloth. And anyone could bring his own
wools, woolfells, leather, and lead to the staple to sell without
being compelled to sell them in the country. Special streets or
warehouses were appointed with warehouse rent fixed by the mayor
and constables with four of the principal inhabitants. Customs
duties were regulated and machinery provided for their
collection. No one was to forestall or regrate, that is, buy at
one price and sell at a higher price in the same locale.
Forestallers were those who bought raw material on its way to
market. Regrators were those who tried to create a "corner" in
the article in the market itself.

Anyone may ship or carry grain out of the nation, except to
enemies, after paying duties. But the council may restrain this
passage when necessary for the good of the nation. Any merchant,
privy or stranger, who was robbed of goods on the sea or lost
his ship by tempest or other misfortune on the sea banks, his
goods coming to shore could not be declared Wreck, but were to be
delivered to the merchant after he proves ownership in court by
his marks on the goods or by good and lawful merchants.

All stakes and obstacles set up in rivers impeding the passage of
boats shall be removed.

Imported cloth shall be inspected by the King's officials for
non-standard measurements or defects [despite town franchises].

No one shall leave the nation except at designated ports, on pain
of one year's imprisonment.

English merchants may carry their merchandise in foreign ships if
there are no English ships available.

Social distinctions by attire were mandated by statute of 1363. A
servant, his wife, son, or daughter, shall only wear cloth worth
no more than 27s. and shall not have more than one dish of meat
or fish a day. Carters, ploughmen, drivers of the plough,
oxherds, cowherds, shepherds, and all other people owning less
than 40s. of goods and chattels shall only wear blanket and
russet worth no more than 12d. and girdles of linen according to
their estate. Craftsmen and free peasants shall only wear cloth
worth no more than 40s. Esquires and gentlemen below the rank of
knight with no land nor rent over 2,000s. a year shall only wear
cloth worth no more than 60s., no gold, silver, stone, fur, or
the color purple. Esquires with land up to 2,667s. per year may
wear 67s. cloth, cloth of silk and silver, miniver [grey] fur
and stones, except head stones. Merchants, citizens, burgesses,
artificers, and people of handicraft having goods and chattels
worth 10,000s. shall wear cloth the same value as that worn by
esquires and gentlemen with land or rent within 2,000s. per
year. The same merchants and burgesses with goods and chattels
worth 13,333s. and esquires and gentlemen with land or rent
within 400s. per year may not wear gold cloth, miniver fur,
ermine [white] fur, or embroidered stones. A knight with land or
rents within 2,667s. yearly are limited to cloth of 80s., but
his wife may wear a stone on her head. Knights and ladies with
land or rents within 8,000s. to 20,000s. yearly may not wear fur
of ermine or of letuse, but may wear gold, and such ladies may
wear pearls as well as stones on their heads. The penalty is
forfeiture of such apparel. This statute is necessary because of
"outrageous and excessive apparel of diverse persons against
their estate and degree, to the great destruction and
impoverishment of all the land".

If anyone finds a hawk [used to hunt birds, ducks, and pheasant]
that a lord has lost, he must take it to the sheriff for keeping
for the lord to claim. If there is no claim after four months,
the finder may have it only if he is a gentleman. If one steals
a hawk from a lord or conceals from him the fact that it has been
found, he shall pay the price of the hawk and be imprisoned for
two years.

No laborer or any other man who does not have lands and tenements
of the value of 40s. per year shall keep a greyhound [or other
hound or dog] to hunt, nor shall they use nets or cords or other
devices to take [deer, rabbits, conies, nor other gentlemen's
game], upon pain of one year imprisonment.

No man shall eat more than two courses of meat or fish in his
house or elsewhere, except at festivals, when three are allowed
[because great men ate costly meats to excess and the lesser
people were thereby impoverished].

No one may export silver, whether bullion or coinage, or wine
except foreign merchants may carry back the portion of their
money not used to buy English commodities. The penalty for
bringing false or counterfeit money into the nation is loss of
life and member. An assigned searcher [inspector] for coinage of
the nation on the sea passing out of the nation or bad money in
the nation shall have one third of it. No foreign money may be
used in the nation.

Each goldsmith shall have an identifying mark, which shall be
placed on his vessel or work only after inspection by the King's
surveyor.

No one shall give anything to a beggar who is capable of working.

Vagrants begging in London were banned by this 1359 ordinance:
"Forasmuch as many men and women, and others, of divers
counties, who might work, to the help of the common people, have
betaken themselves from out of their own country to the city of
London and do go about begging there so as to have their own ease
and repose, not wishing to labor or work for their sustenance, to
the great damage of the common people; and also do waste divers
alms which would otherwise be given to many poor folks, such as
lepers, blind, halt, and persons oppressed with old age and
divers other maladies, to the destruction of the support of the
same - we do command on behalf of our lord the King, whom may God
preserve and bless, that all those who go about begging in the
said city and who are able to labor and work for the profit of
the common people shall quit the said city between now and
Monday next ensuing. And if any such shall be found begging
after the day aforesaid, the same shall be taken and put in the
stocks on Cornhill for half a day the first time, and the second
time he shall remain in the stocks one whole day, and the third
time he shall be taken and shall remain in prison for forty days
and shall then forswear the said city forever. And every
constable and the beadle of every ward of the said city shall be
empowered to arrest such manner of folks and to put them in the
stocks in manner aforesaid."

The hundred year cry to "let the King live on his own" found
fruition in a 1352 statute requiring consent of the Parliament
before any commission of array for militia could be taken and a
1362 statute requiring purchases of goods and means of
conveyance for the King and his household to be made only by
agreement with the seller and with payment to him before the
King traveled on, instead of at the low prices determined
unilaterally by the King's purveyer.

Every man who has wood within the forest may take houseboot and
heyboot in his wood without being arrested so long as it take
such within the view of the foresters.

English was made the official language of the courts, replacing
French and Latin, and schools in 1362 and of Parliament,
replacing Anglo-Norman, in 1363.

No fecal matter, dung, garbage, or entrails of animals killed
shall be put into ditches or rivers or other waters, so that
maladies and diseases will not be caused by corrupted and
infected air. The penalty is 400s. to the King after trial by
the Chancellor.

Gifts or alienation of land to guilds, fraternities, or towns are
forbidden. Instead, it escheats to its lord, or in his default,
to the King.

No man will be charged to go out of his shire to do military
service except in case of an enemy invasion of the nation. Men
who chose to go into the King's service outside the nation shall
be paid wages by the King until their return.

Admiralty law came into being when ancient naval manners and
customs were written down as the "Black Book of the Admiralty".
This included the organization of the fleet under the Admiral,
sea-maneuver rules such as not laying anchor until the Admiral's
ship had, engagement rules, and the distribution of captured
goods: one-fourth to the vessel owner, one-fourth to the King if
the seamen were paid by the King's wages, and the rest divided
among the crew and Admiral. Stealing a boat or an anchor holding
a boat was punishable by hanging. Stealing an oar or an anchor
was punishable by forty days imprisonment for the first offense,
six months imprisonment for the second, and hanging for the
third. Desertion was punishable by loss of double the amount of
wages earned and imprisonment for one year. Cases were tried by
jury in the Admiral's court.

Wines, vinegar, oil and honey imported shall be gauged by the
King's appointees.

A man may not hire another man to fight in his place in a
quarrel, except one living in his household or his esquire.

Judicial Procedure

The office of Justice of the Peace was developed and filled by
knights, esquires and gentlemen who were closely associated with
the magnates. There was no salary nor any requirement of
knowledge of the law. They were to pursue, restrain, arrest,
imprison, try, and duly punish felons, trespassers, and rioters
according to the law. They were expected to arrest vagrants who
would not work and imprison them until sureties for good
behavior was found for them. They also were empowered to
inspect weights and measures and enforce the new law against
hiring another to fight one's quarrel. Trespass included forcible
offenses of breaking of a fence enclosing private property,
assault and battery, false imprisonment, and taking away goods
and chattels.

Private suits for murder or personal injury were falling into
disuse and being replaced by the action of trespass.

Pardons may be given only for slaying another in one's own
defense or by misfortune [accident], and not for slaying by
lying in wait, assault, or malice aforethought.

Justices of Assize, sheriffs, and Justices of the Peace and
mayors shall have power to inquire of all vagabonds and compel
them to find surety of their good bearing or be imprisoned.

Treason was tried in Parliament, by bill of "attainder". It was
often used for political purposes. Most attaints were reversed
as a term of peace made between factions.

A reversioner shall be received in court to defend his right when
a tenant for a term of life, tenant in dower, or by the Law of
England, or in Tail after Possibility of Issue extinct are sued
in court for the land, so as to prevent collusion by the
demandants.

A person in debt may not avoid his creditors by giving his
tenements or chattels to his friends in collusion to have the
profits at their will.

Where there was a garnishment given touching a plea of land, a
writ of deceit is also maintainable.

Actions of debt will be heard only in the county where the
contract was made. The action of debt includes enforcement of
contracts executed or under seal, e.g. rent due on a lease, hire
of an archer, contract of sale or repair of an item. Thus there
is a growing connection between the actions of debt and
contract.

Executors have an action for trespass to their testators' goods
and chattels in like manner as did the testator when alive.

If a man dies intestate, his goods shall be administered by his
next and most lawful friends appointed. Such administrators
shall have the same powers and duties as executors and be
accountable as are executors to the ecclesiastical court.

Children born to English parents in parts beyond the sea may
inherit from their ancestors in the same manner as those born in
the nation.

A person grieved by a false oath in a town court proceeding may
appeal to the King's Bench or Common Pleas, regardless of any
town franchise.

The Court of the King's Bench worked independently of the King.
It became confined to the established common law. The King
proclaimed that petitions for remedies that the common law
didn't cover be addressed to the Chancellor, who was not bound
by established law, but could do equity. With the backing of the
council, he made decisions implementing the policy of the Statute
of Laborers. Most of these concerned occupational competency,
for instance negligent activity of carriers, builders,
shepherds, doctors, clothworkers, smiths, innkeepers, and
jailers. For instance, the common law action of detinue could
force return of cloth bailed for fulling or sheep bailed for
pasturing, but could not address damages due to faulty work. The
Chancellor addressed issues of loss of wool, dead lambs, and
damaged sheep, as well as dead sheep. He imposed a legal duty on
innkeepers to prevent injury or damage to a patron or his goods
from third parties. A dog bite or other damage by a dog known by
its owner to be vicious was made a more serious offense than
general damage by any dog. A person starting a fire was given a
duty to prevent the fire from damaging property of others. These
new forms of action came to be known as assumpsit, which
provided damages for breach of an oral agreement and a written
agreement without a seal, or trespass on the case, which did not
require the element of force of the trespass offense.

Decisions of the common law courts are appealable to Parliament,
which can change the common law by statute.

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