OUR LEGAL HERITAGE

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

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No sheep may be exported, because being shorn elsewhere would
deprive the King of customs.

No wheat, rye, or barley may be imported unless the prices are
such that national agriculture is not hurt.

Clothmakers must pay their laborers, such as carders and
spinsters, in current coin and not in pins and girdles and the
like.

The term "freemen" in the Magna Carta includes women.

The election of a knight from a shire to go to Parliament shall
be proclaimed by the sheriff in the full county so all may
attend and none shall be commanded to do something else at that
time. Election results will be sealed and sent to Parliament.

To be elected to Parliament, a knight must reside in the county
and have free land or tenements to the value of 40s. per year,
because participation in elections of too many people of little
substance or worth had led to homicides, assaults, and feuds.
(These "yeomen" were about one sixth of the population. Most
former voters and every leaseholder and every copyholder were
excluded. The requirement lasted for 400 years.)

London ordinances forbade placing rubbish or dung in the Thames
River or any town ditch or casting water or anything else out of
a window. The roads were maintained with tolls on carts and
horses bringing victuals or grains into the city and on
merchandise unloaded from ships at the port. No carter shall
drive his cart more quickly when it is unloaded than when it is
loaded. No pie bakers shall sell beef pies as venison pies, or
make any meat pie with entrails. To assist the poor, bread and
ale shall be sold by the farthing.

Desertion by a soldier is penalized by forfeiture of all land and
property.

The common law held that a bailee is entitled to possession
against all persons except the owner of the bailed property.

Former judge Sir Thomas Littleton wrote a legal textbook
describing tenancies in dower; the tenures of socage, knight's
service, serjeanty, and burgage; estates in fee simple, fee
tail, and fee conditional. For instance, "Also, if feoffment be
made upon such condition, that if the feoffor pay to the feofee
at a certain day, etc., 800s. forty pounds of money, that then
the feoffor may re-enter, etc., in this case the feoffee is
called tenant in mortgage, ... and if he doth not pay, then the
land which he puts in pledge upon condition for the payment of
the money is gone from him for ever, and so dead as to the
tenant, etc."

Joint tenants are distinguished from tenants in common by
Littleton thus: "Joint-tenants are, as if a man be seised of
certain lands or tenements, etc., and thereof enfeoffeth two, or
three, or four, or more, to have and to hold to them (and to
their heirs, or letteth to them) for term of their lives, or for
term of another's life; by force of which feoffment or lease they
are seised, such are joint-tenants. ... And it is to be
understood, that the nature of joint-tenancy is, that he that
surviveth shall have solely the entire tenancy, according to
such estate as he hath, ..." "Tenants in common are they that
have lands or tenements in fee-simple, fee-tail, or for term of
life, etc., the which have such lands and tenements by several
title, and not by joint title, and neither of them knoweth
thereof his severalty, but they ought by the law to occupy such
lands or tenements in common pro indiviso, to take the profits in
common. ...As if a man enfeoff two joint-tenants in fee, and the
one of them alien that which to him belongeth to another in fee,
now the other joint-tenant and the alienee are tenants in
common, because they are in such tenements by several titles,
..."

Judicial Procedure

People took grievances outside the confines of the rigid common
law to the Chancellor, who could give equitable remedies under
authority of a statute of 1285 (described in Chapter 8). The
Chancery heard many cases of breach of faith in the "use", a
form of trust in which three parties were involved: the holder
of land, feofees to whom the holder had made it over by
conveyance or "bargain and sale", and the beneficiary or
receiver of the profits of the land, who was often the holder,
his children, relatives, friends, an institution, or a
corporation. This system of using land had been created by the
friars to get around the prohibition against holding property.
Lords and gentry quickly adopted it. The advantages of the use
were that 1) there was no legal restriction to will away the
beneficial interest of the use although the land itself could
not be conveyed by will; 2) it was hard for the King to collect
feudal incidents because the feoffees were often unknown 3) the
original holder was protected from forfeiture of his land in
case of conviction of treason if the Crown went to someone he
had not supported. Chancery gave a remedy for dishonest or
defaulting feofees.

Chancery also provided the equitable relief of specific
performance in disputes over agreements, for instance,
conveyance of certain land, whereas the common law courts
awarded only monetary damages by the writ of covenant.

Chancery ordered accounts to be made in matters of foreign trade
because the common law courts were limited to accounts pursuant
to transactions made within the nation. It also involved itself
in the administration of assets and accounting of partners to
each other.

The Chancellor took jurisdiction of cases of debt, detinue, and
account which had been decided in other courts with oathhelping
by the defendant. He did not trust the reliance on friends of
the defendant swearing that his statement made in his defense
was true. An important evidentiary difference between procedures
of the Chancery and the common law courts was that the Chancellor
could orally question the plaintiff and the defendant under
oath. He also could order persons to appear at his court by
subpoena [under pain of punishment, such as a heavy fine].

Whereas the characteristic award of the common law courts was
seisin of land or monetary damages, Chancery often enjoined
certain action. Because malicious suits were a problem, the
Chancery identified such suits and issued injunctions against
taking them to any court.

The Chancery was given jurisdiction by statute over men of great
power taking by force women who had lands and tenements or goods
and not setting them free unless they bound themselves to pay
great sums to the offenders or to marry them. A statute also
gave Chancery jurisdiction over servants taking their masters'
goods at his death.

Justices of the Peace, appointed by the Crown, investigated all
riots and arrested rioters, by authority of statute. If they had
departed, the Justices certified the case to the King. The case
was then set for trial first before the King and his council and
then at the King's Bench. If the suspected rioters did not
appear at either trial, they could be convicted for default of
appearance. If a riot was not investigated and the rioters
sought, the Justice of the Peace nearest forfeited 2,000s.
Justices of the peace were not paid and need not have a legal
background. For complex cases and criminal cases with defendants
of high social status, they deferred to the Justices of Assize,
who rode on circuit once or twice a year.

Manor courts still formally admitted new tenants, registered
titles, sales of land and exchanges of land, and commutation of
services, enrolled leases and rules of succession, settled
boundary disputes, and regulated the village agriculture.

All attorneys shall be examined by the royal judges for their
learnedness in the law and, at their discretion, those that are
good and virtuous shall be received to make any suit in any
royal court. The attorneys shall be sworn to serve well and
truly in their offices.

Attorneys may plead on behalf of parties in the hundred courts.

A qualification for jurors was to have an estate to one's own use
or one of whom other persons have estates of fee simple, fee
tail, freehold in lands and tenements, or freehold, which was at
least 40s. per year in value. In a plea of land worth at least
40s. yearly or a personal plea with relief sought at least
800s., jurors had to have land in the bailiwick to the value of
at least 400s., because perjury was considered less likely in
the more sufficient men.

Jurors were separated from witnesses.

Justices of the Peace were to have lands worth 267s. yearly,
because those with less used the office for extortion and lost
the respect and obedience of the people.

A Sheriff was not to arrest, but to transfer indictments to the
Justices of the Peace of the county. He had to reside in his
bailiwick. The sheriff could be sued for misfeasance such as
bribery in the King's court.

Court of "Pie Powder" [French pie poudre: dust on the feet] were
established at the great fairs to decide conflicts of commercial
law there.

Chapter 11

The Times: 1485-1509

Henry Tudor and other exiles defeated and killed Richard III on
Bosworth field, which ends the War of the Roses. As King, Henry
VII restored order to the nation. He was readily accepted as
King because he was descended from both royal lines who were
fighting each other and married a woman who also was in the royal
bloodline. Henry was intelligent and sensitive. He weighed
alternatives and possible consequences before taking action. He
was convinced by reason on what plans to make. His primary
strategy was enacting and enforcing statutes to shore up the
undermined legal system, which includes the establishment of a
new court: the Court of the Star Chamber, to obtain punishment
of persons whom juries were afraid to convict. It had no jury.
The Star Chamber was the room in which the King's council had
met since the 1300s. In his reign of 24 years, Henry applied
himself diligently to the details of the work of government to
make it work well. He strengthened the monarchy, shored up the
legal system to work again, and provided a peace in the land in
which can later flourish a renaissance of the arts and sciences,
culture, and the intellectual life.

The most prevalent problems were: murder, robbery, rape or forced
marriage of wealthy women, counterfeiting of coin, extortion,
misdemeanors by sheriffs and escheators, bribing of sheriffs and
jurors, perjury, livery and maintenance agreements, idleness,
unlawful plays, and riots. Interference with the course of
justice was not committed only by lords on behalf of their
retainers; men of humbler station were equally prone to help
their friends in court or to give assistance in return for
payment. Rural juries were intimidated by the old baronage and
their armed retinues. Juries in municipal courts were subverted
by gangs of townsmen. Justices of the Peace didn't enforce the
laws. The agricultural work of the nation had been adversely
affected.

Henry made policy with the advice of his council and implemented
it by causing Parliament to enact it into legislation. He
dominated Parliament by having selected most of its members.
Many of his council were sons of burgesses and had been trained
in universities. He chose competent and especially trusted men
for his officers and commanders of castles and garrison. The
fact that only the King had artillery deterred barons from
revolting. Also, the baronial forces were depleted due to war.
If Henry thought a magnate was exercising his territorial power
to the King's detriment, he confronted him with an army and
forced him to bind his whole family in recognizances for large
sums of money to ensure future good conduct. Since the King had
the authority to interpret these pledges, they were a formidable
check on any activity which could be considered to be disloyal.
The earl of Kent, whose debts put him entirely at the King's
mercy, was bound to "be seen daily once in the day within the
King's house". Henry also required recognizances from men of all
classes, including clergy, captains of royal castles, and
receivers of land. The higher nobility now consisted of about
twenty families. The heavy fines by the Star Court put an end to
conspiracies to defraud, champerty [an agreement with a litigant
to pay costs of litigation for a share in the damages awarded],
livery, and maintenance. The ties between the nobility and the
Justices of the Peace had encouraged corruption of justice. So
Henry appointed many of the lesser gentry and attorneys as
Justices of the Peace. Also he appointed a few of his councilors
as non-resident Justices of the Peace. There were a total of
about thirty Justices of the Peace per county. Their
appointments were indefinite and most remained until retirement
or death. Henry had yeomen serve as personal bodyguards night
and day.

Many bills of attainder caused lords to lose their land to the
King. Most of these lords had been chronic disturbers of the
peace. Henry was also known to exhaust the resources of barons
he suspected of disloyalty by accepting their hospitality for
himself and his household for an extended period of time.

Henry built up royal funds by using every available procedure of
government to get money, by maximizing income from royal estates
by transferring authority over them from the Exchequer to
knowledgeable receivers, and from forfeitures of land and
property due to attaints of treason. He also personally reviewed
all accounts and initialed every page, making sure that all
payments were made. He made a regular practice of ordering all
men with lands with 800s. 40 pounds per year to receive
knighthoods or pay a high fee. As a result, the Crown became
rich and therefore powerful.

Queen Elizabeth was a good influence on Henry's character. Her
active beneficence was a counteracting influence to his
avaricious predisposition. When Henry and his Queen traveled
through the nation, they often stopped to talk to the common
people. They sometimes gave away money, such as to a man who had
lost his hand. Henry paid for an intelligent boy he met to go to
school.

Henry had the first paper mill erected in the nation. He fostered
the reading of books and the study of Roman law, the classics,
and the Bible. He had his own library and gave books to other
libraries.

The age of entry to university was between 13 and 16. It took
four years' study of grammar, logic, and rhetoric to achieve the
Bachelor of Arts degree and another five before a master could
begin a specialized study of the civil law, canon law, theology,
or medicine. Arabic numbers replaced Roman numerals, making
multiplication and division possible. Humanist studies were
espoused by individual scholars at the three centers of higher
learning: Oxford University, Cambridge University, and the Inns
of Court in London. The Inns of Court attracted the sons of
gentry and merchants pursuing practical and social
accomplishments. The text of 'readings' to members of the inns
survive from this time. In the legalistic climate of these
times, attorneys were prosperous.

The enclosure of land by hedges for sheep farming continued,
especially by rich merchants who bought country land for this
purpose. Often this was land under the plough. The tenants at
will were thrown off it immediately. That land held by
copyholders of land who had only a life estate, was withheld from
their sons. Only freeholders and copyholders with the custom of
the manor in their favor were secure against eviction. The real
line of distinction between rural people was one of material
means instead of legal status: free or unfree. On one extreme
was the well-to-do yeoman farmer farming his own land. On the
other extreme was the agricultural laborer working for wages.

Other land put to use for sheep breeding was waste land. There
were three sheep to every person. The nearby woodlands no longer
had wolves or lynx who could kill the sheep. Bears and elk are
also gone.

There were still deer, wild boar, wildcats and wild cattle in
vast forests for the lords to hunt. Wood was used for houses,
arms, carts, bridges, and ships.

The villages were still isolated from each other, so that a
visitor from miles away was treated as warily as a foreigner.
Most people lived and died where they had been born. A person's
dialect indicated his place of origin. The largest town, London,
had a population of about 70,000. Other towns had a population
less than 20,000. The population was increasing, but did not
reach the level of the period just before the black death.

In most large towns, there were groups of tailors and hatmakers,
glovers, and other leatherworkers. Some towns had a
specialization due to their proximity to the sources of raw
materials, such as nails, cutlery, and effigies and altars.
Despite the spread of wool manufacturing to the countryside,
there was a marked increase of industry and prosperity in the
towns. The principal streets of the larger towns were paved with
gravel. Gild halls became important and imposing
architecturally.

London had some houses of stone and timber and some mansions of
brick and timber clustered around palaces. In these, bedrooms
increased in number, with rich bed hangings, linen sheets, and
bolsters. Bedspreads and nightgowns were introduced. Fireplaces
became usual in all the rooms. Tapestries covered the walls.
Carpets were used in the private rooms. Some of the great halls
had tiled floors. The old trestle tables were replaced by tables
with legs. Benches and stools had backs to lean on. Women and
men wore elaborate headdresses. There are guilds of ironmongers,
salters, and haberdashers [hats and caps]. On the outer periphery
are mud and straw taverns and brothels.

The Tailors' and Linen Armorers' Guild received a charter in 1503
from the King as the "Merchant Tailors" to use all wares and
merchandise, especially wool cloth, as well wholesale as retail,
throughout the nation. Some schooling was now being made
compulsory in certain trades; the goldsmiths' company made a rule
that all apprentices had to be able to read and write.

A yeoman was the second-rank person of some importance, below a
knight, below a gentleman, below a full member of a guild. In
London, it meant the journeyman or second adult in a small
workshop. These yeomen had their own fraternities and were often
on strike. Some yeomen in the large London industries, e.g.
goldsmiths, tailors, clothworkers, who had served an
apprenticeship started their own businesses in London suburbs
outside the jurisdiction of their craft to search them.

The Merchant Adventurers created a London fellowship confederacy
to make membership of their society and compliance with its
regulations binding on all cloth traders. Membership could be
bought for a large fee or gained by apprenticeship or by being
the son of a member.

Foreign trade was revived because it was a period of comparative
peace. The nation sought to sell as much as possible to foreign
nations and to buy at little as possible and thereby increase
its wealth in gold and silver, which could be used for currency.

Ships weighed 200 tons and had twice the cargo space they had
previously. Their bows were more pointed and their high prows
made them better able to withstand gales. The mariners' compass
with a pivoted needle and compass card was introduced. Ships had
three masts. On the first was a square sail. On the second was a
square sail with a small rectangular sail above it. On the third
was a three cornered lateen sail. These sails make possible the
use of almost any direction of wind to go in the direction
sought. This opened the seas of the world to navigation.
Adventurous seamen went on voyages of discovery, such as John
Cabot to North America in 1497, following Italian Christopher
Columbus' discovery of the new world in 1492. There are more
navy ships, and they have some cannon.

There were morality plays in which the seven deadly sins: pride,
covetousness, lust, anger, gluttony, envy, and sloth, fought the
seven cardinal virtues: faith, hope, charity, prudence,
temperance, justice, and strength, respectively, for the human
soul. The play "Everyman" demonstrates that every man can get to
heaven only by being virtuous and doing good deeds in his
lifetime. It emphasized that death may come anytime to every
man, when his deeds will be judged as to their goodness or
sinfulness. Card games were introduced.

The Law

Royal proclamations clarifying, refining or amplifying the law
had the force of parliamentary statutes. One of the first things
Henry did as King was make this proclamation against false
rumors in 1486: "Forasmuch as many of the King our sovereign
lord's subjects [have] been disposed daily to hear feigned,
contrived, and forged tidings and tales, and the same tidings
and tales, neither dreading God nor his Highness, utter and tell
again as though they were true, to the great hurt of divers of
his subjects and to his grievous displeasure: Therefore, in
eschewing of such untrue and forged tidings and tales, the King
our said sovereign lord straitly chargeth and commandeth that no
manner person, whatsoever he be, utter nor tell any such
tidings or tales but he bring forth the same person the which was
author and teller of the said tidings or tales, upon pain to be
set on the pillory, there to stand as long as it shall be
thought convenient to the mayor, bailiff, or other official of
any city, borough, or town where it shall happen any such person
to be taken and accused for any such telling or reporting of any
such tidings or tales. Furthermore the same our sovereign lord
straitly chargeth and commandeth that all mayors, bailiffs, and
other officers diligently search and inquire of all such persons
tellers of such tidings and tales not bringing forth the author
of the same, and them set on the pillory as it above said."

Statutes included:

Lords holding castles, manors, lands and tenements by knight's
service of the King shall have a writ of right for wardship of
the body as well as of the land of any minor heir of a deceased
person who had the use [beneficial enjoyment] of the land for
himself and his heirs as if the land had been in the possession
of the deceased person. And if such an heir is of age, he shall
pay relief to the lord as if he had inherited possession of the
land. An heir in ward shall have an action of waste against his
lord as if his ancestor had died seised of the land. That is,
lands of "those who use" shall be liable for execution of his
debt and to the chief lord for his relief and heriot, and if he
is a bondsman, they may be seized by the lord.

Any woman who has an estate in dower, or for a term of life, or
in tail, jointly with her husband, or only to herself, or to her
use, in any manors, lands, tenements, or other hereditaments of
the inheritance or purchase of her husband, or given to the said
husband and wife in tail, or for term of life, by any of the
ancestors of the said husband, or by any other person seised to
the use of the said husband, or of his ancestors, who, by
herself or with any after taken husband; discontinue, alienate,
release, confirm with warranty or, by collusion, allow any
recovery of the same against them or any other seised to their
use, such action shall be void. Then, the person to whom the
interest, title, or inheritance would go after the death of such
woman may enter and possess such premises. This does not affect
the common law that a woman who is single or remarried may give,
sell, or make discontinuance of any lands for the term of her
life only.

All deeds of gift of goods and chattels made of trust, to the use
of the giver [grantor and beneficiary of trust], to defraud
creditors are void.

It is a felony to carry off against her will, a woman with lands
and tenements or movable goods, or who is heir-apparent to an
ancestor. This includes taking, procuring, abetting, or
knowingly receiving a woman taken against her will.

A vagabond, idle, or suspected person shall be put in the stocks
for three days with only bread and water, and then be put out of
the town. If he returns, he shall spend six days in the stocks.
(A few years later this was changed to one and three days,
respectively.) Every beggar who is not able to work, shall
return to the hundred where he last dwelled, is best known, or
was born and stay there.

No one may take pheasants or partridges by net snares or other
devices from his own warren [breeding ground], upon the freehold
of any other person, or forfeit 200s., one half to the owner of
the land and the other half to the suer. No one may take eggs of
any falcon, hawk, or swan out of their nest, whether it is on
his land or any other man's land, on pain of imprisonment for one
year and fine at the King's will, one half to the King, and the
other half to the holder of the land, or owner of the swan. No
man shall bear any English hawk, but shall have a certificate
for any hawk imported, on pain for forfeiture of such. No one
shall drive falcons or hawks from their customary breeding place
to another place to breed or slay any for hurting him, or pay
200s. after examination by a Justice of the Peace, one half
going to the King and one half to the suer.

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