OUR LEGAL HERITAGE

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Fishermen and their guides may continue to use the coastland for
their fishing activities despite the trespass to landowners.

Since sails for ships in recent years have been made in the realm
instead of imported, none shall make such cloth unless he has
been apprenticed in such or brought up in the trade for seven
years. This is to stop the badness of such cloth.

Any person killing any pheasant, partridge, dove, pigeon, duck or
the like with any gun, crossbow, stonebow, or longbow, or with
dogs and nets or snares, or taking the eggs of such from their
nests, or tracing or taking hares in the snow shall be
imprisoned for three months unless he pays 20s. per head or,
after one month's imprisonment, have two sureties bound for
400s. This is because the past penalty of payment hasn't
deterred offenders, who frequently cannot pay.

Persons affected by the plague may not leave their houses or be
deemed felons and suffer death. This is to avoid further
infection. The towns may tax their inhabitants for the relief of
infected persons.

Tonnage [tax per ton] and poundage [tax per pound] on goods
exported and imported shall be taken to provide safeguard of the
seas for such goods.

Judicial Procedure

Jurors shall be selected from those people who have at least 80s.
annual income instead of 40s. because sheriffs have been taking
bribes by the most able and sufficient freeholders to be spared
at home and the poorer and simpler people, who are least able to
discern the causes in question, and most unable to bear the
charges of appearance and attendance in such cases have been the
jurors.

Defendants sued or informed against upon penal statutes may
appear by attorney so that they may avoid the inconvenience of
traveling a long distance to attend and put to bail.

No only sheriffs, but their employees who impanel juries or
execute process in the courts shall take an oath of office.

A hundred shall answer for any robbery therein only if there has
been negligence or fault in pursuit of the robber after a hue
and cry is made because the past law has been too harsh and
required payment for offenses from people unable to pay who have
done everything reasonable to catch the robber.

The Star Chamber became the central criminal court after 1560,
and punished perjury, corruption, malfeasance throughout the
legal system such as jury corruption and judicial bribery,
rioting, slander, and libel. Punishments were imprisonment,
fines, the pillory, ear-cropping, whipping, but not death. This
court interrogated the accused, with torture is necessary, and
heard witnesses in camera [not in the presence of the accused].

The court of High Commission took over criminal cases formerly
heard by the church courts.

Suits on titles to land were restricted to the common law courts
and no longer to be heard in the Star Chamber, Chancery Court,
or in the Court of Requests (equity for poor people).

The Queen's Privy Council frequently issued orders to Justices of
the Peace, for instance to investigate riots and crimes, to
enforce the statutes against vagrancy and illegal games, to
regulate alehouses, to ensure that butchers, innkeepers, and
victuallers did not sell meat on fish days, and to gather
information needed from the counties.

The Judges of Assize rode on circuit twice a year to enforce the
criminal law and reported their assessment of the work of the
Justices of the Peace back to the Privy Council. Accused people
could wait for years in jail before their case was heard.

The Privy Council investigated sedition and treason, security of
the regime, major economic offenses, international problems,
civil commotion, officials abusing their positions, and persons
perverting the course of justice. The formal trials of these
offenses would be held elsewhere.

The duty to hear and determine felonies was taken from Justices
of the Peace by 1590. The Judges of Assize did this work.
Felonies included breach of prison, hunting by night with
painted faces, taking horses to Scotland, stealing of hawks'
eggs, stealing cattle, highway robbery, robbing on the sea,
robbing houses, letting out of ponds, cutting of purses,
deer-stealing at night, conjuring and witchcraft, diminution of
coin, counterfeiting of coins, and impenitent roguery and
idleness. The penalty was beheading.

The Justices of the Peace decided misdemeanors such as abduction
of heiresses, illegal entry, petty thievery, damage to crops,
fence-breaking, brawling, personal feuds, drunken pranks,
swearing, profanation of the Sabbath, alehouse nuisances,
drunkenness, perjury, and malfeasance by officials. They held
petty and quarter sessions. Many people were hanged for the
felony of theft over 12d. Some bold men accused of felony
refused to plead so that they could not be tried and found
guilty. They died of heavy weights being placed on their bodies.
But then their property could go to their heirs.

The Justices of the Peace had administrative duties in control of
vagrancy, upkeep of roads and bridges, and arbitration of
lawsuits referred to them by courts. They listed the poor in
each parish community, assessed rates for their maintenance, and
appointed overseers to administer the welfare system, deploying
surplus funds to provide houses of correction for vagrants. Raw
materials such as wool, flax, hemp, and iron were bought upon
which the able-bodied unemployed could be set to work at the
parochial level. They determined wages in their districts, with
no statutory ceiling on them, for all laborers, weavers,
spinsters, workmen and workwomen working by the day, week,
month, or year, or taking any work at any person's hand,. There
were about 50 Justices of the Peace per county. All were unpaid.
They performed these duties for the next 200 years.

The Court of Queen's Bench and Exchequer indirectly expanded
their jurisdiction to include suits between citizens, formerly
heard only the Court of Common Pleas or Chancery. Chancery
interrogated defendants. Chancery often issued injunctions
against suits in the common law courts. Trial by battle was very
rare.

Pleadings had to be in writing and oral testimony was given by
sworn witnesses. Case decisions are in books compiled by various
reporters who sit in on court hearings rather than in year
books.

In the common law courts, the action of assumpsit for enforcing
certain promises is used more than the action of debt in those
cases where there is a debt based on an agreement. The essential
nature of "consideration" in contract is evolving from the
procedural requirements for the action of assumpsit.
Consideration may consist in mutual promises, a precedent debt,
or a detriment incurred by one who has simultaneously received a
promise related to the detrimental action. Consideration must be
something, an act, or forbearance of an act that is of value.
For instance, forbearance to sue a worthless claim is not
consideration.

The abstract concept of contract as an agreement between two
parties which is supported by consideration is developing as the
number of various agreements that are court enforceable expands.
For instance the word "consideration" is used in Hayward's Case
in 1595 in the Court of Wards on the construction of a deed. Sir
Rowland Hayward was seised in fee of the Doddington manor and
other lands and tenements, whereof part was in demesne, part in
lease for years with rents reserved, and part in copyhold, by
indenture, "in consideration of a certain sum of money" paid to
him by Richard Warren and others, to whom he demised, granted,
bargained and sold the said manor, lands and tenements, and the
reversions and remainders of them, with all the rents reserved
upon any demise, to have and to hold to them and their assigns,
presently after the decease of Sir Rowland, for the term of 17
years. It was held that the grantees could elect to take by
bargain and sale or by demise, each of which had different
consequences.

In another case, A delivered 400s. to B to the use of C, a woman,
to be delivered to her on the day of her marriage. Before this
day, A countermanded it, and called home the money. It was held
in the Chancery Court that C could not recover because "there is
no consideration why she should have it".

In a case concerning a deed, A sold land to B for 400s., with
confidence, that it would be to the use of A. This bargain "hath
a consideration in itself ... and such a consideration is an
indenture of bargain and sale". It was held that the transaction
was not examinable except for fraud and that A was therefore
estopped.

A court reporter at the King's Bench formulated two principles on
consideration of the case of Wilkes against Leuson as: "The heir
is estopped from falsifying the consideration acknowledged in
the deed of feoffment of his ancestor. Where a tenant in capite
made a feoffment without consideration, but falsely alleged one
in the deed on an office finding his dying seised, the master of
the wards cannot remove the feoffees on examining into the
consideration, and retain the land until &c. and though the heir
tended, still if he do not prosecute his livery, the Queen must
admit the feoffees to their traverse, and to have the farm, &c."
The court reporter summarized this case as follows: Wilkes, who
was merchant of the staple, who died in February last past, made
a feoffment in the August before his death to one Leuson, a
knight, and his brother, and another, of the manor of Hodnel in
the county of Warwick; and the deed,(seen) for seven thousand
pounds [140,000s.] to him paid by the feoffees, of which sum he
made acquittance in the same deed (although in fact and in truth
not a half-penny was paid), gave, granted, and confirmed &c
"habendum eir et hoeredibus suis in perpetuum, ad proprium opus
et usum ipsorum A. B. et C. in perpetuum," and not "hoeredum
suorum," together with a clause of warranty to them, their heirs
and assigns, in forma proedicta: and notwithstanding this
feoffment he occupied the land with sheep, and took other
profits during his life; and afterwards his death was found on a
diem clausit extremum by office, that he died seised of the said
manor in fee, and one I. Wilkes his brother of full age found his
next heir, and a tenure in capite found, and now within the
three months the said feoffees sued in the court of wards to be
admitted to their traverse, and also to have the amnor in farm
until &c. And although the said I. Wilkes the brother had
tendered a livery, yet he had not hitherto prosecuted it, but for
cause had discontinued. And whether now the master of the
wards at his discretion could remove the feoffees by injunction
out of possession upon examination of the said consideration of
the said feoffment which was false, and none such in truth, and
retain it in the hands of the Queen donec et quousque &c. was a
great question. And by the opinion of the learned counsel of
that court he cannot do it, but the Queen is bound in justice to
give livery to him who is found heir by the office, or if he
will not proceed with that, to grant to the tenderers the
traverse, and to have the farm, &c. the request above mentioned.
And this by the statutes ... And note, that no averment can be
allowed to the heir, that the said consideration was false
against the deed and acknowledgment of his ancestor, for that
would be to admit an inconvenience. And note the limitation of
the use above, for divers doubted whether the feoffees shall
have a fee-simple in the sue, because the use is not expressed,
except only "to themselves (by their names) for ever;" but if
those words had been wanting, it would have been clear enough
that the consideration of seven thousand pounds had been
sufficient, &c. for the law intends a sufficient consideration
by reason of the said sum; but when the use is expressed
otherwise by the party himself, it is otherwise. And also the
warranty in the deed was "to them, their heirs, and assigns, in
form aforesaid," which is a declaration of the intent of Wilkes,
that the feoffees shall not have the use in fee simple; and it
may be that the use, during their three lives, is worth seven
thousand pounds, and more &c. And suppose that the feoffment had
been "to have to them and their heirs to the proper use and
behoof of them the feoffees for the term of their lives for
ever for seven thousand pounds," would they have any other
estate than for the term of their lives in the use? I believe
not; and so in the other case.

A last example of a case concerning consideration is that of
Assaby and Others against Lady Anne Manners and Others. The
court reporter characterized the principle of the case as: "A.
in consideration of his daughter's marriage covenants to stand
seised to his own use for life, and that at his death she and
her husband shall have the land in tail, and that all persons
should stand seised to those uses, and also for further
assurance. After the marriage he bargains and sell with fine and
recovery to one with full notice of the covenants and use; this
is of no avail, but on the death of A. the daughter and her
husband may enter." The court reporter summarized this case as
follows: A. was seised of land in fee, and in consideration of a
marriage to be had between his daughter and heir apparent, and
B. son and heir apparent of C. he covenanted and agreed by
indenture with C. that he himself would have, hold, and retain
the land to himself, and the profits of during his life, and
that after his decease the said son and daughter should have the
land to them and to the heirs of their two bodies lawfully
begotten, and that all persons then or afterwards seised of the
land should stand and be seised immediately after the marriage
solemnized to the use of the said A. for the term of his life,
and after his death to the use of the said son and daughter in
tail as above, and covenanted further to make an assurance of
the land before a certain day accordingly &c. and then the
marriage took effect; and afterwards A. bargained and sold the
land for two hundred marks [2,667s.](of which not a penny is
paid) to a stranger, who had notice of the first agreements,
covenants, and use, and enfeoffed divers persons to this last
use, against whom a common recovery was had to his last use; and
also A. levied a fine to the recoverers before any execution
had, and notwithstanding all these things A. continued
possession in taking the profits during his life; and afterwards
died; and the son and daughter entered, and made a feoffment to
their first use. And all this matter was found in assize by
Assaby and others against Lady Anne Manners and others. And
judgment was given that the entry and feoffment were good and
lawful, and the use changed by the first indenture and agreement.
Yet error was alleged. The judgment in the assize is
affirmed.

The famous Shelley's Case stands for the principle that where in
any instrument an estate for life is given to the ancestor, and
afterwards by the same instrument, the inheritance is limited
whether mediately, or immediately, to his heirs, or heirs of his
body, as a class to take in succession as heirs to him, the word
"heirs" is a word of limitation, and the ancestor takes the whole
estate. For example, where property goes to A for life and the
remainder goes to A's heirs, A's life estate and the remainder
merge into a fee in A.

Edward Shelley was a tenant in tail general. He had two sons. The
older son predeceased his father, leaving a daughter and his
wife pregnant with a son. Edward had a common recovery (the
premises being in lease for years) to the use of himself for
term of his life, after his decease to the use of the male heirs
of his body, and of the male heirs of the body of such heirs,
remainder over. After judgment and the awarding of the writ of
seisin, but before its execution, Edward died. After his death,
and before the birth of his older son's son, the writ of seisin
was executed. The younger son entered the land and leased it to a
third party. Afterwards, the son of the older son was born. He
entered the land and ejected the third party. It was held that
the younger son had taken quasi by descent until the birth of
the older son's son. The entry by the older son's son was
lawful. The third party was lawfully ejected. (Shelley's Case,
King's Bench, 1581, English Reports - Full Reprint, Vol. 76,
Page 206.)

Chapter 14: Epilogue

William Brewster and William Bradford and other puritans and
pilgrims sailed on ships such as the Mayflower to found a colony
in North America in 1607. England developed a commonwealth of
countries around the world, including Canada, Australia, New
Zealand, and India.

In the time period after 1600, there developed free trade,
democracy, political parties, secret ballots, policemen, Francis
Bacon's advocating of induction in science, Periodic Chart of
chemical elements, calculus and differential equations, college
degrees in biology, chemistry, and physics, Isaac Newton's
theory of gravity, Albert Einstein's theory of relativity, the
experimental method, computers, decoding of the DNA sequence,
Charles Darwin's evolution, Louis Pasteur's germ theory of
disease, Galileo's telescope, Hubble telescope, Big Bang Theory,
antibiotics to cure and surgery to replace body parts, quantum
theory, cold water in pipes to homes, central heating, apartment
high rises, business skyscrapers, electricity, electric lights,
electric sewing machines, industrial revolution factories, labor
strikes, cars, tractors, ice boxes and refrigerators,
telephones, central heating with radiators, heated water in taps,
hot water heaters by gas, gas ovens, humidifiers, upholstered
couches and chairs, canned food, zippers, velcro, trains, ships
by steam and then motors, wall-to-wall carpeting, microscope,
microwave ovens, umbrellas, contraceptive pill, popular
elections, airplanes, photography, record players, potatoes,
corn, chocolate, frozen food, radio, television, plastics, ready
to wear clothes, political parties, submarines, statistics,
economics, multinational corporations, weather forecasting,
braille, airplanes, space ship to moon, banks, annuities,
factory assembly lines, washing machines, dishwashers, sewing
machine, microwave ovens, copier machines, DNA evidence, daily
newspapers, nuclear bomb and nuclear energy, guided missiles,
stock market, quartz watches, museums, bicycles, popular
election, frozen sperm for artificial insemination, investment
advice, retirement planning, pensions, amusement parks, catelogue
buying, labor contracts, dictionaries, childrens' summer camps,
stocks and bonds, teenage culture, concrete, synthetic
materials, typewriters, cardboard boxes, advertising, invitro
fertilization, factory assembly line, gene-mapping, animal
cloning, internet, hiking and camping trips, world travel
vacations, telegraph, word processing, gas, oil, couches,
research, television, radio, credit cards, toothbrushes, dental
floss, buses, subways, chinaware, telephones, camcorders, mass
production, nursing homes, cameras, copy machines, wheelchairs,
hospital operations, artificial limbs, organ transplants,
pharmacies, public libraries, children's playgrounds, cosmetic
surgery, wrist watches, physical exercising equipment, vitamin
pills, sports clubs, condominiums, anesthetics, physical exams,
microscopes, observatories, radar, sonar, opera, nutrition,
psychiatry, supermarkets, disability and life insurance,
magazines, daily newspapers, liability insurance, chemical
fertilizers, DDT, trash pick-up, electronic mail, record
players, video tape recorders, retirement homes, movies;,
planned obsolence, boxspring mattresses, brain scans, xrays,
innoculations, vaccines, penicillin, organized professional
sports, dry cleaners, railroads, foreign embassies,
veterinarians, drug abuse, wage garnishment, fire engines,
tractors, lawnmowers, breeding zoos, museums, world wars,
nuclear deterrence, fingerprinting, forensic evidence, toxic
waste, acid rain, archeology, zippers,

In this time period the development of law includes abolition of
feudal wardships, married women's property act, mandamus,
statute of frauds, rule against perpetuities, mandatory
secondary education, the tort of negligence, the concept of duty
of due care, kidnapping, false impersonation, liens, obscenity,
partnership, pensions, trademarks and unfair competition,
privacy, freedom of thought, freedom of speech, freedom of the
press, copyrights and patents, bankruptcy, civil rights, union
organizing laws, laws on discrimination due to race, sex, ethnic
or national origin, disability, age, and sexual preference,
sexual harassment and staulking laws, product liability,
international law, no- fault divorce, best interest of child in
custody disputes, child labor laws, environmental laws
protecting air and water quality, workers compensation,
unemployment compensation, controlled substances, intellectual
property law, Coke's treatise on law, and Blackstone's treatise
on law.

Judicial procedure includes grand juries, which hear evidence,
court transcript by court stenographers, discovery, and
depositions.

***

Appendix

Sovereigns of England

Name Accession

Egbert 802
AEthelwulf 839
AEthelbald 858
AEthelbert 860
AEthelred 865
Alfred the Great 871
Edward the Elder 899
AEthelstan 924
Edmund 939
Eadred 946
Eadwig 955
Edgar 959
Edward the Martyr 975
AEthelred the Unready 978
Edmund Ironside 1016
Canute 1016
Harold I Harefoot 1035
Hardicanute 1040
Edward the Confessor 1042
Harold II 1066
William I of Normandy 1066
William II 1087
Henry I (and Matilda) 1100
Stephen 1135
Henry II (and Eleanor) 1154
Richard I 1189
John 1199
Henry III 1216
Edward I (and Eleanor) 1272
Edward II 1307
Edward III 1327
Richard II 1377
Henry IV 1399
Henry V 1413
Henry VI 1422
Edward IV 1461
Edward V 1483
Richard III 1483
Henry VII (and Elizabeth) 1485
Henry VIII 1509
Mary 1553
Elizabeth I 1558
James I 1603

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