days. The penalty was at first forfeiture 12d. along with church
punishment, and later, 20 pounds per month and being bound by two
sureties for 200 pounds for good behavior, and if the 20 pounds is
not paid, then forfeiture of all goods to be applied to the amount
due and two-thirds of one's land.
These laws were directed against Catholicism, but were laxly
enforced as long as worship was not open and no one wore priestly
clothes:
The writing, preaching, or maintaining of any foreign spiritual
jurisdiction shall be punished by forfeiture of goods or, if the
goods are not worth 20 pounds, one year imprisonment, for the
first offence; forfeiture of goods and lands and the King's
protection, for the second offence; and the penalty for high
treason for the third offence.
Any person leading others to the Romish [Catholic] religion is
guilty of high treason. The penalty for saying mass is [2,667s.]
200 marks and one year's imprisonment. The penalty for hearing
mass is [1,333s.] 100 marks and one year's imprisonment. If one is
suspected of being a Jesuit or priest giving mass, one must answer
questions on examination or be imprisoned.
Papists [those who in conscience refused to take the oath of
supremacy of the Crown over the church] must stay in their place
of abode and not go five miles from it, unless licensed to do so
for business, or forfeit one's goods and profits of land for life.
If a copyholder, land is forfeited to one's lord. But if the goods
are not worth 800s. or the land is not worth at least 267s., the
realm must be abjured. Otherwise, the papist is declared a felon
without benefit of clergy.
If a child is sent to a foreign land for Catholic education, he
cannot inherit lands or goods or money, unless he conforms to the
established church on his return. There is also a 100 pound
penalty for the persons who sent him.
Devising or speaking seditious rumors are penalized by the pillory
and loss of both ears for the first offense; and 200 pounds and
six months imprisonment for the second offence. Slandering the
Queen is penalized by the pillory and loss of one ear, or by
[1,333s.] 100 marks and three months imprisonment, at the choice
of the offender. The second offence is a felony. Printing,
writing, or publishing seditious books is a felony without benefit
of clergy. Wishing the Queen dead, prophesying when she would die,
or who would succeed her to the Crown is a felony without benefit
of clergy. Attainders for these felonies shall not work corruption
of the blood [heirs may inherit the property of the felon].
Because the publication of many books and pamphlets against the
government, especially the church, had led to discontents with
the established church and to the spreading of sects and schisms,
the Star Chamber in 1585 held that the printing trade was to be
confined to London, except for one press at Oxford and one at
Cambridge. No book or pamphlet could be printed unless the text
was first seen, examined, and allowed by the Archbishop of
Canterbury or the Bishop of London. Book publishers in violation
were to be imprisoned for six months and banned from printing;
their equipment was to be destroyed. Wardens were authorized to
search wherever "they shall have reasonable cause of suspicion",
and to seize all such books and pamphlets printed. But printers
continued to print unlicensed material.
- 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. Also there had been inflation.
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. Its procedure was inquisitory rather than
accusative. It heard witnesses in camera [not in the presence of
the suspected]. Trial was by systematic interrogation of the
suspected on oath, with torture if necessary in treason cases.
Silence could be taken for a confession of guilt. There was no
jury. Queen Elizabeth chose not to sit on this court. Punishments
were imprisonment, fines, the pillory, ear cropping or tacking,
whipping, stigmata on the face, but not death or any dismemberment
except for the ears. (The gentry was exempt from whipping.)
The Ecclesiastical High Commission [later called the Court of High
Commission or High Court of Ecclesiastical Causes] took over
criminal cases formerly heard by the church courts. It also heard
matters of domestic morals. It was led by bishops and Privy
Council members who in 1559 were authorized by a statute of
Parliament to keep order within the church, discipline the clergy,
and punish such lay offenses as were included in the
ecclesiastical jurisdiction. Obstinate heresy is still a capital
crime, but practically the bishops have little power of forcing
heretics to stand trial. If anyone maintains papal authority, he
forfeits his goods; on a third conviction, he is a traitor. The
clergyman who adopts a prayer book other that the prescribed one
commits a crime. Excommunication has imprisonment behind it.
Elizabeth gave this court the power to fine and imprison, which
the former church courts had not had. At first, the chief work was
depriving papists of their benefices.
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 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. It 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 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. 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 Justices 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.
The duty to hear and determine felonies was taken from Justices of
the Peace by 1590. The Justices of Assize did this work. Accused
people could wait for years in gaol before their case was heard.
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 death. 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 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 combat was very rare.
Benefit of clergy may not be had for stabbing a person who has no
weapon drawn, if he dies within six months.
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, trespass has given rise to the offshoot branch
of "ejectment", which becomes the common means of recovering
possession of land, no matter what kind of title the claimant
asserts. Trespass on the case has given rise to the offshoot
branch of "trover" [finding another's goods and converting them to
one's own use]. Trover gradually supplants detinue, in which there
is compurgation.
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. A can sell or devise this interest.
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 - - -
- The Times: 1601-1625 -
Due in part to increasing population, the prices of foodstuffs had
risen sixfold from the later 1400s, during which it had been
stable. This inflation gradually impoverished those living on
fixed wages. Landlords could insist on even shorter leases and
higher rents. London quadrupled in population. Many lands that
were in scattered strips, pasture lands, waste lands, and lands
gained from drainage and disafforestation were enclosed for the
introduction of convertible agriculture (e.g. market-oriented
specialization) and only sometimes for sheep. The accompanying
extinguishment of common rights was devastating to small tenants
and cottagers. Gentry and yeomen benefited greatly. There was a
gradual consolidation of the land into fewer hands and demise of
the small family farm. In towns, the mass of poor, unskilled
workers with irregular work grew. Prices finally flattened out in
the 1620s.
Society became polarized with a wealthy few growing wealthier and
a mass of poor growing poorer. This social stratification became a
permanent fixture of English society. Poverty was no longer due to
death of a spouse or parent, sickness or injury, or a phase in the
life cycle such as youth or old age. Many full-time wage earners
were in constant danger of destitution. More subdivided land
holdings in the country made holdings of cottagers miniscule. But
these were eligible for parish relief under the poor laws. Beside
them were substantial numbers of rogues and vagabonds wandering
the roads. These vagrants were usually young unmarried men. There
were no more licensed liveries of lords.
During the time 1580 to 1680, there were distinct social classes
in England which determined dress, convention in comportment which
determined face-to-face contacts between superiors and inferiors,
order of seating in church, place arrangement at tables, and rank
order in public processions. It was influenced by power, wealth,
life-style, educational level, and birth. These classes lived in
separate worlds; their paths did not cross each other. People
moved only within their own class. Each class had a separate
existence as well as a different life style from the other
classes. So each class developed a wariness of other classes.
However, there was much social mobility between adjacent classes.