OUR LEGAL HERITAGE

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

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No attorney may practice law and also be a justice of assize.

Champerty [an outsider supporting or maintaining litigation in
which there is an agreement for him to share in the award] is
forbidden because court officials have maintained and defended
a party which has resulted in another party being cheated out of
his land.

Whereas it is contained in the Magna Carta that none shall be
imprisoned nor put out of his freehold, nor of his franchises
nor free custom, unless it be by the law of the land; it is
established that from henceforth none shall be taken by petition
or suggestion made to the King unless by indictment of good and
lawful people of the same neighborhood where such deeds be done,
in due manner, or by process made by writ original at the common
law; nor that none be out of his franchise, nor of his
freeholds, unless he be duly brought into answer and forejudges
of the same by the course of law. (forerunner of indictment grand
juries and trial juries for criminal cases)

There were so many cases that were similar to, but not in
technical conformity with, the requirements of the common law
for a remedy by the reign of Edward III, that litigants were
flowing into the Chancery, which had the power to give swift and
equitable relief.

The King will fine instead of seize the land of his tenants who
sell or alienate their land, such fine to be determined by the
Chancellor by due process.

The King's coroner and a murderer who had taken sanctuary in a
church often agreed to the penalty of confession and perpetual
banishment from the nation as follows: "Memorandum that on July
6, [1347], Henry de Roseye abjured the realm of England before
John Bernard, the King's coroner, at the church of Tendale in
the County of Kent in form following: 'Hear this, O lord the
coroner, that I, Henry de Roseye, have stolen an ox and a cow of
the widow of John Welsshe of Retherfeld; and I have stolen
eighteen beasts from divers men in the said county. And I
acknowledge that I have feloniously killed Roger le Swan in the
town of Strete in the hundred of Strete in the rape of Lewes and
that I am a felon of the lord King of England. And because I
have committed many ill deeds and thefts in his land, I abjure
the land of the Lord Edward King of England, and [I
acknowledge] that I ought to hasten to the port of Hastings,
which thou hast given me, and that I ought not to depart from
the way, and if I do so I am willing to be taken as a thief and
felon of the lord King, and that at Hastings I will diligently
seek passage, and that I will not wait there save for the flood
and one ebb if I can have passage; and if I cannot have passage
within that period, I will go up to the knees into the sea every
day, endeavoring to cross; and unless I can do so within forty
days, I will return at once to the church, as a thief and a
felon of the lord King, so help me God."

Property damage by a tenant of a London building was assessed in
a 1374 case: "John Parker, butcher, was summoned to answer
Clement Spray in a plea of trespass, wherein the latter
complained that the said John, who had hired a tavern at the
corner of St. Martin-le-Grand from him for fifteen months, had
committed waste and damage therein, although by the custom of the
city no tenant for a term of years was entitled to destroy any
portion of the buildings or fixtures let to him. He alleged that
the defendant had taken down the doorpost of the tavern and also
of the shop, the boarded door of a partition of the tavern, a
seat in the tavern, a plastered partition wall, the stone
flooring in the chamber, the hearth of the kitchen, and the
mantelpiece above it, a partition in the kitchen, two doors and
other partitions, of a total value of 21s. four pounds, 1s.
8d., and to his damage, 400s. 20 pounds. The defendant denied
the trespass and put himself on the country. Afterwards a jury
... found the defendant guilty of the aforesaid trespass to the
plaintiff's damage, 40d. Judgment was given for that amount and
a fine of 1s. to the King, which the defendant paid immediately
in court."

The innkeeper's duty to safeguard the person and property of his
lodgers was applied in this case:

"John Trentedeus of Southwark was summoned to answer William
Latymer touching a plea why, whereas according to the law and
custom of the realm of England, innkeepers who keep a common inn
are bound to keep safely by day and by night without reduction
or loss men who are passing through the parts where such inns
are and lodging their goods within those inns, so that, by
default of the innkeepers or their servants, no damage should in
any way happen to such their guests ...

On Monday after the Feast of the Purification of the Virgin Mary
in the fourth year of the now King by default of the said John,
certain malefactors took and carried away two small portable
chests with 533s. and also with charters and writings, to wit
two writings obligatory, in the one of which is contained that a
certain Robert Bour is bound to the said William in 2,000s. and
in the other that a certain John Pusele is bound to the same
William in 800s. 40 pounds ... and with other muniments
[writings defending claims or rights] of the same William, to
wit his return of all the writs of the lord King for the counties
of Somerset and Dorset, whereof the same William was then
sheriff, for the morrow of the Purification of the Blessed Mary
the Virgin in the year aforesaid, as well before the same lord
the King in his Chancery and in his Bench as before the justices
of the King's Common Bench and his barons of his Exchequer,
returnable at Westminster on the said morrow, and likewise the
rolls of the court of Cranestock for all the courts held there
from the first year of the reign of the said lord the King until
the said Monday, contained in the same chests being lodged
within the inn of the same John at Southwark

And the said John ... says that on the said Monday about the
second hour after noon the said William entered his inn to be
lodged there, and at once when he entered, the same John
assigned to the said William a certain chamber being in that
inn, fitting for his rank, with a door and a lock affixed to the
same door with sufficient nails, so that he should lie there and
put and keep his things there, and delivered to the said William
the key to the door of the said chamber, which chamber the said
William accepted...

William says that ... when the said John had delivered to him the
said chamber and key as above, the same William, being occupied
about divers businesses to be done in the city of London, went
out from the said inn into the city to expedite the said
businesses and handed over the key of the door to a certain
servant of the said William to take care of in meantime,
ordering the servant to remain in the inn meanwhile and to take
care of his horses there; and afterwards, when night was
falling, the same William being in the city and the key still in
the keeping of the said servant, the wife of the said John
called unto her into her hall the said servant who had the key,
giving him food and drink with a merry countenance and asking
him divers questions and occupying him thus for a long time,
until the staple of the lock of the door aforesaid was thrust on
one side out of its right place and the door of the chamber was
thereby opened and his goods, being in the inn of the said John,
were taken and carried off by the said malefactors ... The said
John says ...[that his wife did not call the servant into the
hall, but that] when the said servant came into the said hall and
asked his wife for bread and ale and other necessaries to be
brought to the said chamber of his master, his wife immediately
and without delay delivered to the same servant the things for
which he asked ... protesting that no goods of the same William
in the said inn were carried away by the said John his servant or
any strange malefactors other than the persons of the household
of the said William."

On the Coram Rege Roll of 1395 is a case on the issue of whether
a court-crier can be seized by officers of a staple:

"Edmund Hikelyng, 'criour', sues William Baddele and wife Maud,
John Olney, and William Knyghtbrugge for assault and
imprisonment at Westminster, attacking him with a stick and
imprisoning him for one hour on Wednesday before St. Martin, 19
Richard II.

Baddele says Mark Faire of Winchester was prosecuting a bill of
debt for 18s. against Edmund and John More before William
Brampton, mayor of the staple of Westminster, and Thomas Alby
and William Askham, constables of the said staple, and on that
day the Mayor and the constables issued a writ of capias against
Edmund and John to answer Mark and be before the Mayor and the
constables at the next court. This writ was delivered to Baddele
as sergeant of the staple, and by virtue of it he took and
imprisoned Edmund in the staple. Maud and the others say they
aided Baddele by virtue of the said writ.

Edmund does not acknowledge Baddele to be sergeant of the staple
or Mark a merchant of the staple or that he was taken in the
staple. He is minister of the King's Court of his Bench and is
crier under Thomas Thorne, the chief crier, his master. Every
servant of the court is under special protection while doing his
duty or on his way to do it. On the day in question, he was at
Westminster carrying his master's staff of office before Hugh
Huls, one of the King's justices, and William took him in the
presence of the said justice and imprisoned him.

The case is adjourned for consideration from Hilary to Easter."

Chapter 10

The Times: 1399-1485

This period, which begins with the reign of the usurper King,
Henry IV, is dominated by war: the last half of the 100 year war
with France, which, with the help of Joan of Arc, took all
English land on the continent except the port of Calais, and the
War of the Roses in England. The barons and earls returned from
France with their private fighting units. Nobles employed men who
had returned from fighting to use their fighting skill in local
defense. All the great houses kept bands of armed retainers.
These retainers were given land or pay or both as well as
liveries [uniforms or badges] bearing the family crest. They came
to fight for the cause of one of the two royal family lines
competing for the throne. In the system of "livery and
maintenance", if the retainer was harassed by the law or by
enemies, the lord gave him protection [maintenance].

In both wars, the musket was used as well as the long-bow. Cannon
were used to besiege castles and destroy their walls, so many
castles were allowed to deteriorate. The existence of cannon
also limited the usefulness of town walls for defense.

Barons and earls settled their disputes in the field rather than
in the royal courts. And men relied increasingly on the
protection of the great men of their neighborhood and less on
the King's courts for the safety of their lives and land. Local
men involved in court functions usually owed allegiance to a lord
which compromised the exercise of justice. Men serving in an
assize often lied to please their lord instead of telling the
truth. Lords maintained, supported, or promoted litigation with
money or aid supplied to one party to the detriment of justice.
It was not unusual for lords to attend court with a great force
of retainers behind them. Royal justices were flouted or bribed.
The King's writ was denied or perverted. For 6-8s., a lord could
have the King instruct his sheriff to impanel a jury which would
find in his favor. A statute against riots, forcible entries,
and, excepting the King, magnates' liveries of uniform, food,
and badges to their retainers, except in war outside the nation,
was passed, but was difficult to enforce because the offenders
were lords, who dominated the Parliament and the council.

Since the power of the throne changed from one faction to
another, many bills of attainder caused lords to lose their
lands to the King. Fighting between lords and gangs of ruffians
holding the roads, breaking into and seizing manor houses, and
openly committing murders continued. The roads were not safe.
People turned to mysticism to escape from the everyday violent
world. They had no religious enthusiasm, but believed in magic
and sorcery.

With men so often gone to fight, their wives managed the
household alone. The typical wife had maidens of equal class to
whom she taught household management, spinning, weaving, carding
wool with iron wool-combs, heckling flax, embroidery, and making
garments. There were foot-treadles for spinning wheels. She
taught the children. Each day she scheduled the activities of
the household including music, conversation, dancing, chess,
reading, playing ball, and gathering flowers. She organized
picnics, rode horseback and went hunting, hawking to get birds,
and rabbit-ferreting. She was nurse to all around her. If her
husband died, she usually continued in this role because most
men named their wives as executors of their wills with full
power to act as she thought best.

For ladies, close-fitting jackets came to be worn over
close-fitting long gowns with low, square-cut necklines and
flowing sleeves, under which was worn a girdle. All her hair was
confined by a hair net. Headdresses were very elaborate and
heavy, trailing streamers of linen. Some were in the shape of
hearts, butterflies, crescents, double horns, or long cones. Men
also were wearing hats rather than hoods. They wore huge hats of
velvet, fur, or leather. Their hair was cut into a cap-like
shape on their heads, and later was shoulder-length. They wore
doublets with thick padding over the shoulders or short tunics
over the trucks of their bodies and tightened at the waist to
emphasize the shoulders. Their collars were high. Their sleeves
were long concoctions of velvet, damask, and satin, sometimes
worn wrapped around their arms in layers. Their legs were
covered with hose, often in different colors. Shoes were pointed
with upward pikes at the toes. At another time, shoes were broad
with blunt toes. Both men and women wore much jewelry and
ornamentation.

Cooking and the serving of meals was also elaborate. There were
many courses of a variety of meats, fish, stews, and soups, with
a variety of spices. The standard number of meals was three:
breakfast, dinner, and supper. The diet of an ordinary family
such as that of a small shopholder or yeoman farmer included
beef, mutton, pork, a variety of fish, both fresh and salted,
venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and
fresh vegetables. Cattle and sheep were driven from Wales to
English markets. This droving lasted for five centuries.

Many types of people besides the nobility and knights now had
property and thus were considered gentry: female lines of the
nobility, merchants and their sons, lawyers, auditors, squires,
and peasant-yeomen. The burgess grew rich as the knight dropped
lower. The great merchants lived in mansions which could occupy
whole blocks. Typically, there would be an oak-paneled great
hall, with adjoining kitchen, pantry, and buttery on one end and
a great parlor to receive guests, bedrooms, wardrobes, servants'
rooms, and a chapel on the other end or on a second floor. The
beds were surrounded by heavy draperies to keep out cold drafts.
Master and servants ceased to eat together in the same hall. In
towns these mansions were entered through a gate through a row
of shops on the street. A lesser dwelling would have these rooms
on three floors over a shop on the first floor. An average
Londoner would have a shop, a storeroom, a hall, a kitchen, and
a buttery on the first floor, and three bedrooms on the second
floor. Artisans and shopkeepers of more modest means lived in
rows of dwellings, each with a shop and small storage room on
the first floor, and a combination parlor-bedroom on the second
floor. The humblest residents crowded their shop and family into
one 6 by 10 foot room for rent of a few shillings a year. All
except the last would also have a small garden. The best gardens
had a fruit tree, herbs, flowers, a well, and a privy. There
were common and public privies for those without their own.
Kitchen slops and casual refuse continued to be thrown into the
street. Floors of stone or planks were strewn with rushes. There
was some tile flooring. Most dwellings had glass windows. Candles
were used for lighting at night. Torches and oil-burning
lanterns were portable lights. Furnishings were still sparse.
Men sat on benches or joint stools and women sat on cushions on
the floor. Hall and parlor had a table and benches and perhaps
one chair. Bedrooms had a curtained bed and a chest. On the
feather bed were pillows, blankets, and sheets. Better homes had
wall hanging and cupboards displaying plate. Laundresses washed
clothes in the streams, rivers, and public conduits. Country
peasants still lived in wood, straw, and mud huts with earth
floors and a smoky hearth in the center or a kitchen area under
the eaves of the hut.

In 1442, bricks began to be manufactured in the nation and so
there was more use of bricks in buildings. Chimneys were
introduced into manor houses where stone had been too expensive.
This was necessary if a second floor was added, so the smoke
would not damage the floor above it and would eventually go out
of the house.

Nobles and their retinue moved from manor to manor, as they had
for centuries, to keep watch upon their lands and to consume the
produce thereof; it was easier to bring the household to the
estate than to transport the yield of the estate to the
household. Also, at regular intervals sewage had to be removed
from the cellar pits.

Jousting tournaments were held for entertainment purposes only
and were followed by banquets of several courses of food served
on dishes of gold, silver, pewter, or wood on a linen cloth
covering the table. Hands were washed before and after the meal.
People washed their faces every morning after getting up. Teeth
were cleaned with powders. Fragrant leaves were chewed for bad
breath. Garlic was used for indigestion and other ailments. Feet
were rubbed with salt and vinegar to remove calluses. Good
manners included not slumping against a post, fidgeting,
sticking one's finger into one's nose, putting one's hands into
one's hose to scratch the privy parts, spitting over the table
or too far, licking one's plate, picking one's teeth, breathing
stinking breath into the face of the lord, blowing on one's
food, stuffing masses of bread into one's mouth, scratching
one's head, loosening one's girdle to belch, and probing one's
teeth with a knife.

Fishing and hunting were reserved for the nobility rather than
just the King.

As many lords became less wealthy because of the cost of war,
some peasants, villein and free, became prosperous, especially
those who also worked at a craft, e.g. butchers, bakers, smiths,
shoemakers, tailors, carpenters, and clothworkers.

An agricultural slump caused poorer soils to fall back into
waste. The better soils were leased by peasants, who, with their
families, were in a better position to farm it than a great
lord, who found it hard to hire laborers at a reasonable cost.
Further, peasants' sheep, hens, pigs, ducks, goats, cattle,
bees, and crop made them almost self-sufficient in foodstuffs.
They lived in a huddle of cottages, pastured their animals on
common land, and used common meadows for hay-making. They
subsisted mainly on boiled bacon, an occasional chicken, worts
and beans grown in the cottage garden, and cereals. They wore
fine wool cloth in all their apparel. Brimless hats were
replacing hoods. They had an abundance of bed coverings in their
houses. And they had more free time. Village entertainment
included traveling jesters, acrobats, musicians, and bear-
baiter. Playing games and gambling were popular pastimes.

Most villeins were now being called "customary tenants" or
"copy-holders" of land because they held their acres by a copy
of the court-roll of the manor, which listed the number of
teams, the fines, the reliefs, and the services due to the lord
for each landholder. The Chancery court interpreted many of these
documents to include rights of inheritance. The common law courts
followed the lead of the Chancery and held that copyhold land
could be inherited as was land at common law. Evictions by lords
decreased.

The difference between villein and free man lessened but
landlords usually still had profits of villein bondage, such as
heriot, merchet, and chevage.

A class of laborers was arising who depended entirely on the
wages of industry for their subsistence. The cloth workers in
rural areas were isolated and weak and often at the mercy of
middle-men for employment and the amount of their wages.

Rural laborers went to towns to seek employment in the new
industries. They would work at first for any rate. This deepened
the cleavage of the classes in the towns.

The townspeople did not take part in the fighting of the War of
the Roses. Many boroughs sought and obtained formal
incorporation with perpetual existence, the right to sue and be
sued in their own name. Often, a borough would have its own
resident Justice of the Peace. Each incorporation involved a
review by a Justice of the Peace to make sure the charter of
incorporation rule didn't conflict with the law of the nation.
Henry IV granted the first charter of incorporation. A borough
typically had a mayor accompanied by his personal sword-bearer
and serjeants-at-mace bearing the borough regalia, bailiffs, a
sheriff, and chamberlains or a steward for financial
assistance. At many boroughs, aldermen, assisted by their
constables, kept the peace in their separate wards. There might
be coroners, a recorder, and a town clerk, with a host of lesser
officials including beadles, aletasters, sealers, searchers
[inspectors], weighers and keepers of the market, ferrymen and
porters, clock-keepers and criers, paviors [maintained the
roads], scavengers and other street cleaners, gatekeepers and
watchmen of several ranks and kinds. A wealthy borough would have
a chaplain and two or three minstrels.

In all towns, the wealthiest and most influential guilds were the
merchant traders of mercers, drapers, grocers, and goldsmiths.
From their ranks came most of the mayors. Next came the
shopholders of skinners, tailors, ironmongers, and corvisors
[shoemakers]. Thirdly came the humbler artisans, the sellers of
victuals, small shopkeepers, apprentices, and journeymen on the
rise. Lastly came unskilled laborers, who lived in crowded
tenements and hired themselves out. The first three groups were
the free men who voted, paid the scot and lot, and belonged to
guilds.

In the towns, many married women had independent businesses and
wives also played an active part in the businesses of their
husbands. Wives of well-to-do London merchants embroidered,
sewed jewelry onto clothes, and made silk garments. Widows often
continued in their husband's businesses, such as managing a
large import-export trade, tailoring, brewing, and metal shop.
Socially lower women often ran their own breweries, bakeries,
and taverns. It was possible for wives to be free burgesses in
their own right in some towns.

Some ladies were patrons of writers. Some women were active in
prison reform in matters of reviews to insure that no man was in
jail without due cause, overcharges for bed and board,
brutality, and regulation of prisoners being placed in irons.
Many men and women left money in their wills for food and
clothing for prisoners.

There was much overlapping in the two forms of association: the
craft guild and the religious fraternity.

Paved roads in towns were usually gravel and sometimes cobble.
They were frequently muddy because of rain and spillage of water
being carried. Iron-shod wheels and overloaded carts made them
very uneven. London was the first town with paviors. They
repaired and cleaned the streets. Pot-holes were usually just
filled up with wood chips and compacted with hand rams. They were
organized as a city company in 1479. About 1482, towns besides
London began appointing salaried road paviors to repair roads
and collect their expenses from the householders because the
policy of placing the burden on individual householders didn't
work well. London streets were lighted at night by public
lanterns, under the direction of the mayor. There were
fire-engines composed of a circular cistern with a pump and six
feet of inflexible hose on wheels pulled by two men on one end
and pushed by two men on the other end.

The King granted London all common soils, improvements, wastes,
streets, and ways in London and in the adjacent waters of the
Thames River and all the profits and rents to be derived
therefrom. Later the King granted London the liberty to purchase
lands and tenements worth up to 2,667 s. yearly. Each ward
nominated two men for alderman, the final choice being made by
the mayor and the other aldermen.

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