OUR LEGAL HERITAGE

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

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More plead for proportion between punishment and crime. He urged
that theft no longer be punished by death because this only
encouraged the thief to murder his victim to eliminate evidence
of the theft. He opined that the purpose of punishment was to
reform offenders. He advocated justice for the poor to the
standard of justice received by the rich.

Erasmus, a former monk, visited the nation for a couple of years
and argued that reason should prevail over religious belief. He
wrote the book "In Praise of Folly", which noted man's elaborate
pains in misdirected efforts to gain the wrong thing. For
instance, it questioned what man would stick his head into the
halter of marriage if he first weighed the inconveniences of that
life? Or what woman would ever embrace her husband if she
foresaw or considered the dangers of childbirth and the drudgery
of motherhood? Childhood and senility are the most pleasant
stages of life because ignorance is bliss. Old age forgetfulness
washes away the cares of the mind. A foolish and doting old man
is freed from the miseries that torment the wise and has the
chief joy of life: garrulousness. The seekers of wisdom are the
farthest from happiness; they forget the human station to which
they were born and use their arts as engines with which to attack
nature. The least unhappy are those who approximate the naiveness
of the beasts and who never attempt what is beyond men. As an
example, is anyone happier than a moron or fool? Their cheerful
confusion of the mind frees the spirit from care and gives it
many-sided delights. Fools are free from the fear of death and
from the pangs of conscience. They are not filled with vain
worries and hopes. They are not troubled by the thousand cares
to which this life is subject. They experience no shame, fear,
ambition, envy, or love. In a world where man are mostly at
odds, all agree in their attitude towards these innocents. They
are sought after and sheltered; everyone permits them to do and
say what they wish with impunity. However, the usual opinion is
that nothing is more lamentable than madness. The Christian
religion has some kinship with folly, while it has none at all
with wisdom. For proof of this, notice that children, old people,
women, and fools take more delight than anyone else in holy and
religious things, led no doubt solely by instinct. Next, notice
that the founders of religion have prized simplicity and have
been the bitterest foes of learning. Finally, no people act more
foolishly than those who have been truly possessed with
Christian piety. They give away whatever is theirs; they overlook
injuries, allow themselves to be cheated, make no distinction
between friends and enemies, shun pleasure, and feast on hunger,
vigils, tears, labors, and scorn. They disdain life, and utterly
prefer death. In short, they have become altogether indifferent
to ordinary interests, as if their souls lived elsewhere and not
in their bodies. What is this, if not to be mad? The life of
Christians is run over with nonsense. They make elaborate
funeral arrangements, with candles, mourners, singers, and
pallbearers. They must think that their sight will be returned to
them after they are dead, or that their corpses will fall ashamed
at not being buried grandly. Christian theologians, in order to
prove a point, will pluck out four or five words from different
places, even falsifying the sense of them if necessary, and
disregard the fact that the context is irrelevant or even
contradicts the point, They do this with such brazen skill that
our lawyers are often jealous of them.

Lawyer Christopher St. German wrote the legal treatise "Doctor
and Student", in which he deems the law of natural reason to be
supreme and eternal. The law of God and the law of man, as
enunciated by the church and royalty, merely supplement the law
of natural reason and may change from time to time. Examples of
the law of reason are: It is good to be loved. Evil is to be
avoided. Do onto others as you would have them do unto you. Do
nothing against the truth. Live peacefully with others. Justice
is to be done to every man. No one is to wrong another. A
trespasser should be punished. From these is deduced that a man
should love his benefactor. It is lawful to put away force with
force. It is lawful for every man to defend himself and his
goods against an unlawful power.

Like his father, Henry VIII dominated Parliament. He used this
power to reform the church of England in the 1530's. The
Protestant reformation cause had become identified with his
efforts to have his marriage of eighteen years to the virtuous
Catherine annulled so he could marry a much younger woman: Anne.
His purported reason was to have a son. The end of his six
successive wives was: divorced, beheaded, died; divorced,
beheaded, survived. Henry VIII was egotistical, arrogant, and
self-indulgent. This nature allowed him to declare himself the
head of the church of England instead of the pope.

Henry used and then discarded officers of state e.g. by executing
them for supposed treason. One such was Thomas Wolsey, the son
of a town butcher, was another supporter of classical learning.
He rose through the church, the gateway to advancement in a
diversity of occupations of clergy such as secretary, librarian,
teacher, lawyer, doctor, author, civil servant, diplomat, and
statesman. He was a court priest when he aligned himself with
Henry, both of whom wanted power and glory and dressed
extravagantly. But he was brilliant and more of a strategist
than Henry. Wolsey was a reformer by name and started a purge of
criminals, vagrants and prostitutes within. London, bringing many
before the council. But most of his reforming plans were not
brought to fruition, but ended after his campaign resulted in
more power for himself. Wolsey rose to be Chancellor to the King
and Archbishop of York. As the representative of the Pope for
England, he exercised almost full papal authority there. But he
controlled the church in England in the King's interest. He was
second only to the King. He also came to control the many courts.
Wolsey centralized the church in England and dissolved the
smaller monasteries, the proceeds of which he used to build
colleges at Oxford and his home town. He was an impartial and
respected judge.

When Wolsey was not able to convince the pope to give Henry a
divorce, Henry dismissed him and took his property, shortly
after which Wolsey died.

The King replaced Wolsey as Chancellor with Thomas More, after
whom he made Thomas Cromwell Chancellor. Cromwell was the son of
a clothworker and a self- taught lawyer, arbitrator, merchant,
and accountant. Like Wolsey, he was a natural orator. He drafted
and had passed legislation that created a new church of England.
He had all men swear an oath to the terms of the succession act.
Thomas More was known for his honesty and was a highly respected
man. More did not yield to Henry's bullying for support for his
statute declaring the succession to be vested in the children of
his second marriage, and his statute declaring himself the
supreme head of the church of England, instead of the pope. He
did not expressly deny the supremacy act, so was not guilty of
treason under its terms. But silence did not save him. He was
attainted for treason on specious grounds and beheaded. He
conviction rested on the testimony of one perjured witness, who
misquoted More as saying that Parliament did not have the power
to require assent to the supremacy act because it was repugnant
to the common law of Christendom.

Through his host of spies, Cromwell heard what men said to their
closest friends. Words idly spoken were tortured into treason.
Henry had many bills of attainder passed by Parliament. Silence
was a person's only possibility of safety. Fear spread through
the people.

Cromwell developed a technique for the management of the House of
Commons which lasted for generations. He promulgated books in
defense of royal spiritual authority, which argued that canon
law was not divine but merely human and that clerical authority
had no foundation in the Bible. A reformed English Bible was put
in all parish churches. Reformers were licensed to preach.
Cromwell ordered sermons to be said which proclaimed the
supremacy of the King. He instituted registers to record
baptisms, marriages, and burials in every county, for the
purpose of reducing disputes over descent and inheritance. He
dissolved all the lesser monasteries.

When Cromwell procured a foreign wife for Henry whom Henry found
unattractive, he was attainted and executed.

Thomas Cranmer, Archbishop of Canterbury, wrote the first English
Common Book of Prayer. With its use beginning in 1549, Church
services were to be held in English instead of Latin. The mass,
thought to be a miracle performed by priests, was to be replaced
by communion shared by all. The mass, prayers for souls in
purgatory, miracles, the worship of saints, and pilgrimages to
shrines such as that of Thomas Becket, were all to be
discontinued. Imprisonment or exile rather than death was made
the penalty for heresy and blasphemy, and also for adultery.

After the King dissolved the greater monasteries, he took and
sold their ornaments, silver plate and jewelry, lead from roofs
of their buildings, and finally much of the land itself. Three
monasteries were converted into the first three treating
hospitals in London, one for the diseased, one for the poor, and
one, Bethlehem (or "Bedlam" for short), for the mentally ill.

Henry used the proceeds from the sale of the monasteries for
building many new palaces and wood ships for his navy. In war,
these navy ships had heavy guns which could sink other ships. In
peace time, these ships were hired out to traders. Large ships
were constructed in docks, made partly by digging and partly by
building walls.

The former land of the monasteries, about 30% of the country's
land, was sold and resold or leased. Some went to
entrepreneurial cloth manufacturers, who converted the buildings
for the manufacture of cloth. They bought the raw wool and hired
craftsmen for every step of the manufacturing process to be done
in one continuous process. This was faster than buying and
selling the wool material between craftsmen who lived in
different areas. Also, it was more efficient because the amount
of raw wool bought could be adjusted to the demand for cloth.

Many landowners now could live in towns exclusively off the rents
of their rural land. Rents were increased so much that tenants
could not pay and were evicted. They usually became beggars or
thieves. Much of their former land was converted from crop
raising to pasture for large herds of sheep. Arable farming
required many workers, whereas sheep farming required only one
shepherd and herdsman. There were exceptional profits made from
the export of wool cloth. But much raw wool was still exported.
It's price went up from 6s.8d. per tod in 1840 to 20s.8d. in
1546.

Villeinage was now virtually extinct. A lord could usually claim
a small money- rent from the freeholder, sometimes a relief when
his land was sold or passed at death, and occasionally a heriot
from his heir.

There was steady inflation. Landlords made their leases short
term so that they could raise rents as prices rose.

At least 85% of the population still lived in the country. Rich
traders built town or country houses in which the emphasis was
on comfort and privacy. There was more furniture, bigger windows
filled with glass, wallpaper, and formal gardens. Some floors
were tiled instead of stone or wood. They were still strewn with
straw. The owners ate in a private dining room and slept in their
own rooms with down quilts. Their soap was white. They had
clothing of white linen and white wool, leather slippers, and
felt hats. Men wore long tunics open at the neck and filled in
with pleated linen and enormous puffed sleeves.

Most people dressed according to the apparel laws, which were
updated from time to time. The used tin or pewter dishes,
platters, goblets, saucers, spoons, saltcellars, pots, and
basins. They used soap to wash themselves, their clothes, and
their dishes. They had bedcovers on their beds. Cloth bore the
mark of its weaver and came in many colors. Cloth could be held
together with pins that had a shank with a hook by which they
were closed. People went to barbers to cut their hair and to
extract teeth. They went to people experienced with herbs,
roots, and waters for treatment of skin conditions such as sores,
cuts, burns, swellings, irritated eyes or scaly faces. For more
complicated ailments, they went to physicians, who prescribed
drugs and medicines. They bought drugs and medicines from
apothecaries and pharmacists. They burned wood logs in the
fireplaces in their houses. So much wood was used that young
trees were required by statute to be given enough lateral space
to spread their limbs and were not cut down until mature.

The King, earls, who ruled counties, and barons, who had land and
a place in the House of Lords, still lived in the most comfort.
The King's house had courtyards, gardens, orchards, wood-yards,
tennis courts, and bowling alleys.

Lawyers had more work with the new laws passed to replace the
canons of the church. They played an important role in town
government and many became wealthy. They acquired town houses in
addition to their rural estates.

The walls of the towns were manned by the citizens themselves,
with police and watchmen at their disposal. In inns, travelers
slept ten to a bed and there were many fleas and an occasional
rat or mouse running through the rushes strewn on the floor. The
inn provided a bed and ale, but travelers brought their own food.
Each slept with his purse under his pillow.

In markets, sellers set up booths for their wares. They sold
grain for making oatmeal or for sowing one's own ground. Wine,
butter, cheese, fish, chicken, and candles could also be bought.
Butchers bought killed sheep, lambs, calves, and pigs to cut up
for selling. Tanned leather was sold to girdle-makers and
shoemakers. Goods bought in markets were presumed not to be
stolen, so that a purchaser could not be dispossessed of goods
bought unless he had knowledge that they were stolen.

The ruling group of the towns came to be composed mostly of
merchants, manufacturers, lawyers, and physicians. Some
townswomen were independent traders. The governed class
contained small master craftsmen and journeyman artisans, small
traders, and dependent servants. The major streets of London
were paved with stone, with a channel in the middle. More water
conduits from hills, heaths, and springs were built to provide
the citizens of London with more water.

The idea of competition appeared. Each man sought to be richer
than his neighbors.

The cloth, mining, iron, and woodcraft industries employed
full-time workers on wages.

Land held in common was partitioned. There were leases of mansion
houses, smaller dwelling houses, houses with a wharf having a
crane, houses with a timber yard, houses with a garden, houses
with a shed, shops, warehouses, cellars, and stables. Land with
a dye-house or a brew-house were devised by will along with
their dying or brewing implements. There were dairies making
butter and cheese.

The knights had 70% of the land, the nobles 10%, the church 10%,
and the King 5%.

Citizens paid taxes to the King amounting to one tenth of their
annual income from land or wages. The national government was
much centralized and had full- time workers on wages. A national
commission of sewers continually surveyed walls, ditches, banks,
gutters, sewers, ponds, bridges, rivers, streams, mills, locks,
trenches, fish-breeding ponds, and flood-gates. When low places
were threatened with flooding, it hired laborers, bought timber,
and hired carts with horses or oxen for necessary work. Mayors
of cities repaired water conduits and pipes under the ground in
their cities.

The organ and harp, precursor to the piano, were played.

All people generally had enough food because of the
commercialization of agriculture. Also, roads were good enough
for the transport of foodstuffs thereon. Four-wheeled waggons
were in general use as well as two-wheeled carts. They were used
for carrying people as well as goods. Goods were also
transported by the pulling of barges on the rivers from paths
along the river. A plough with wheels was used as well as those
without.

The matchlock musket came into use, but did not replace the bow
because rainy weather made it unusable.

Church reforms included abolishing church sanctuaries. Benefit of
clergy was restricted. Archbishops were selected by the King.
Decisions by archbishops in testamentary, matrimonial, and
divorce matters were appealable to the Court of Chancery instead
of to the pope. The clergy's canons were subject to the King's
approval.

The Law

A person having land in socage or fee simple may will and devise
his land by will or testament in writing.

A person holding land by knight's service may will and devise by
his last will and testament in writing part of his land to his
wife and other parts of his land to his children, as long as 1/3
of entailed land is left to the King.

Anyone serving the King in war may alienate his lands for the
performance of his will, and if he dies, his feoffees or
executors shall have the wardship of his heir and land.

A person who leases land for a term of years, even if by
indenture or without a writing, may have a court remedy as do
tenants of freehold for any expulsion by the lessor which is
contrary to the lease, covenant, or agreement. These termers,
their executors and assigns, shall hold and enjoy their terms
against the lessors, their heirs and assigns. The lessor shall
have a remedy for rents due or waste by a termer after
recovering the land as well as if he had not recovered the land.

A lord may distrain land within his fee for rents, customs, or
services due without naming the tenant, because of the existence
of secret feoffments and leases made by their tenants to unknown
persons.

Anyone seised of land to the use or trust of other persons by
reason of a will or conveyance shall be held to have lawful
seisin and possession of the land, because by common law, land
is not devisable by will or testament, yet land has been so
conveyed, which has deprived married men of their courtesy, women
of their dower, the King of the lands of persons attainted, the
King of a year's profits of the of felons, and lords their
escheats.

A woman may not have both a jointure and dower of her husband's
land. (Persons had purchased land to hold jointly with their
wives)

A sale of land must be in writing, sealed, and registered in its
county with the clerk of that county. If the land is worth less
than 40s. per year, the clerk is paid 12d. If the land exceeds
40s. yearly, the clerk is paid 2s.6d.

An adult may lease his lands or tenements only by a writing under
his seal for a term of years or a term of life, because many
people who had taken leases of lands and tenements for a term of
years or a term of lives had to spend a lot for repair and were
then evicted by heirs of their lessors.

A husband may not lease out his wife's land.

No woman covert, child, idiot, or person of insane memory may
devise land by will or testament.

The land of tenants-in-common may be partitioned by them so that
each holds a certain part.

No bishop or other official having authority to take probate of
testaments may take a fee for probating a testament where the
goods of the testator are under 100s., except that the scribe
writing the probate of the testament may take 6d., and for the
commission of administration of the goods of any man dying
intestate, being up to 100s, may be charged 6d. Where the goods
are over 100s. but up to 800s. sterling, probate fees may be
3s.6d. at most, whereof the official may take 2s.6d. at most,
with 12d. residue to the scribe for registering the testament.
Where the goods are over 800s. sterling, probate fees may be 5s.
at most, whereof the official may take 2s.6d. at most, with
2s.6d. residue to the scribe, or the scribe may choose to take
1d. per 10 lines of writing of the testament. If the deceased
had willed by his testament any land to be sold, the money
thereof coming nor the profits of the land shall not be counted
as the goods or chattel of the deceased. Where probate fees have
customarily been less, they shall remain the same. The official
shall approve and seal the testament without delay and deliver
it to the executors named in such testaments for the said sum.
If a person dies intestate or executors refuse to prove the
testament, then the official shall grant the administration of
the goods to the widow of the deceased person, or to the next of
kin, or to both, in the discretion of the official, taking
surety of them for the true administration of the goods,
chattels, and debts. Where kin of unequal degree request the
administration, it shall be given to the wife and, at his
discretion, other requestors. The executors or administrators,
along with at least two persons to whom the deceased was
indebted, or to whom legacies were made, or, upon their refusal
or absence, two honest kinsmen, shall make an inventory of the
deceased's goods, chattels, ware, merchandise, as well moveable
as not moveable, and take it upon their oaths to the official.

No parish priest or other spiritual person shall take a mortuary
or money from a deceased person with moveable goods under the
value of 133s., a deceased woman covert baron, a child, a person
keeping no house, or a traveler. Only one mortuary may be taken
of each deceased and that in the place where he most dwelled and
lived. Where the deceased's moveable goods are to the value of
133s. or more, above his debts paid, and under 600s., a mortuary
up to 3s. 4d. may be taken. Where such goods are 600s. or more
and under 800s., mortuary up to 6s.8d. may be taken. Where such
goods are 800s. or above, mortuary up to 10s. may be taken. But
where mortuaries have customarily been less, they shall remain
the same.

Executors of a will declaring land to be sold for the payment of
debts, performance of legacies to wife and children, and
charitable deeds for the health of souls, may sell the land
despite the refusal of other executors to agree to such sale.

A man may not marry his mother, step-mother, sister, niece, aunt,
or daughter.

Only marriages which have not been consummated may be dissolved
by annulment.

The entry of an apprentice into a craft shall not cost more than
2s.6d. After his term, his entry shall not be more than 3s.4d.
This replaced the various fees ranging from this to 40s.

No master of a craft may require his apprentice to make an oath
not to compete with him by setting up a shop after the term of
his apprenticeship.

No alien may take up a craft or occupation in the nation.

No brewer of ale or beer to sell shall make wood vessels or
barrels, and coopers shall use only good and seasonable wood to
make barrels and shall put their mark thereon. Every ale or beer
barrel shall contain 32 of the King's standard gallons. The
price of beer barrels sold to ale or beer brewers or others shall
be 9d.

An ale-brewer may employ in his service one cooper only to bind,
hoop and pin, but not to make, his master's ale vessels.

No butcher may keep a tanning-house.

Tanned leather shall be sold only in open fairs and markets and
after it is inspected and sealed.

Only people living in designated towns may make cloth, to prevent
the ruin of these towns by people taking up both agriculture and
cloth-making outside these towns.

No one shall shoot in or keep in his house any hand-gun or
cross-bow unless he has 2,000s. yearly.

No one may hunt or kill rabbits in the snow since their killing
in great numbers by men other than the King and noblemen has
depleted them.

No one shall take an egg or bird of any falcon or hawk out of its
nest on the King's land. No one may disguise himself with hidden
or painted face to enter a forest or park enclosed with a wall
for keeping deer to steal any deer or rabbit.

Ducks and geese shall not be taken with any net or device during
the summer, when they haven't enough feathers to fly. But a
freeholder of 40s. yearly may hunt and take such with long bow
and spaniels.

No one may sell or buy any pheasant except the King's officers
may buy such for the King.

No butcher may kill any calf born in the spring.

No grain, beef, mutton, veal, or pork may be sold outside the
nation.

Every person with 36 acres of agricultural land, shall sow one
quarter acre with flax or hemp-feed.

All persons shall kill crows on their land to prevent them from
eating so much grain at sowing and ripening time and destroying
hay-stacks and the thatched roofs of houses and barns. They
shall assemble yearly to survey all the land to decide how best
to destroy all the young breed of crows for that year. Every
village and town with at least ten households shall put up and
maintain crow nets for the destruction of crows.

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