sermon in London, contrary to the statute that only the Church of
England could conduct meetings for worship. The jurors would not
convict him, so were gaoled and fined by the justices. The jurors
filed a writ of habeas corpus in the Court of Common Pleas, which
held in their favor. Thereafter the English jury had full
independence to decide to verdicts. By court decision of 1679,
jurors were held not to be responsible to the justice for their
verdict.
After 1688, hearsay was inadmissible as evidence, which Coke had
recommended. The old system of original writs was abandoned, and
the general concept or a wrong to person or property took its
place.
A person who was sergeant at law, counselor at law, barrister,
advocate, attorney, solicitor, proctor, clerk, or notary in the
courts had to take the required oaths of allegiance and supremacy.
As of 1692, persons outlawed could appear by attorney as well as
in person to argue reversal of such outlawry, except in cases of
treason and felony.
As of 1696, persons accused of high treason where there might be
corruption of the blood or for misprison [concealing knowledge] of
such treason had to be taken before a grand jury for indictment
within three years of the offense. Those indicted or outlawed for
such were given a copy of the whole indictment, but not the names
of witnesses, at least five days before trial in order to prepare
their defense. They could have a copy of the panel of jurors at
least two days before trial. They could be represented in their
defense by not more than two counsel learned in the law and
assigned by the court. Their counsel had free access to them at
all reasonable hours. They could make proof through lawful
witnesses under oath. In a trial of commoners for their lives, a
jury of twelve freeholders had to all agree on acquittal or
conviction. In a trial of a peer, the others peers in Parliament
determined the outcome by a majority vote.
Jurors were required to have at least 20 pounds income from
freehold land or rents in fee, fee tail, or for life. This
increase in the quality of the jury enabled it to better discern
the issues in dispute.
Jury sympathy was determined by the sheriff who chose the jury. So
if a sheriff was popularly elected, as in London, he chose jurors
who favored individual and corporate liberty. If the king selected
the sheriff, he chose tories, who supported the Crown.
Issues of bastardy or lawfulness of marriage had to be tried by a
jury.
Trespass on the case has now branched into assumpsit, trover,
deceit, negligence, and libel and slander. The latter supplements
bad words punished by the local courts and defamation punished by
the church courts. Trover becomes the normal mode of trying the
title to moveable goods as the courts oblige the defendant to
answer the charge of conversion without permitting him to dispute
the loss and finding.
This is an example of a writ for trespass on the case:
The King to the sheriff &c. as in Trespass to show: wherefore
(e.g.:___) he fixed piles across the water of Plim along which,
between the Humber and Gaunt, there is a common passage for ships
and boats, whereby a certain ship, with thirty quarters of malt of
him the said A, was sunk under water, and twenty quarters of the
malt of the price of one hundred shillings perished; and other
wrongs &c. as in trespass.
This is an example of a writ for trespass on the case in
assumpsit:
The King to the sheriff greeting &c. as in Trespass to show:
wherefore whereas he the Said X undertook well and competently to
cure the right eye of the Said A, which was accidentally injured,
for a certain sum of money beforehand received, he the same X so
negligently and carelessly applied his cure to the said eye, that
the said A by the fault of him the said X totally lost the sight
of the said eye, to the damage of him the said A of twenty pounds,
as he saith, and have there &c. wherefore whereas he the said X
undertook to make and build three carriages for conveying victuals
of him the said A to parts beyond the sea for a certain sum of
money beforehand received, within a certain term between them
agreed; he the said X did not take care to make and build the
carriages aforesaid within the term aforesaid, by which he the
said A hath wholly lost divers his goods and chattels, to the
value of one hundred marks, which ought to have been conveyed in
the carriages aforesaid, for want thereof to the great damage of
him the said A as it is said: and have there &c.
This is an example of a writ for case on indebitatus assumpsit:
The King to the sheriff &c. as in Trespass to show: for that,
whereas the said X heretofore, to wit (date and place) was
indebted to the said A in the sum of for divers goods wares and
merchandises by the said A before that time sold and delivered to
the said X at his special instance and request, and being so
indebted, he the said X in consideration thereof afterwards to wit
(date and place aforesaid) undertook and faithfully promised the
said A to pay him the said sum of money when he the said X should
be thereto afterwards requested. Yet the said X, not regarding his
said promise and undertaking but contriving and fraudulently
intending craftily and subtly to deceive and defraud the said A in
this behalf, hath not yet paid the said sum of money or any part
thereof to the said A (although oftentimes afterwards requested).
But the said X to pay the same or any part thereof hath hitherto
wholly refused and still refuses, to the damage of the said A of
------ pounds as it is said. And have you there &c.
This is an example of a writ for case for trover:
The King to the sheriff greeting &c. as in Trespass to show: for
that, whereas the said A heretofore to wit [date and place] was
lawfully possessed as of his own property, of certain goods and
chattels to wit, twenty tables and twenty chairs of great value to
wit of the value of ___ pounds of lawful money of great Britain;
and, being so possessed thereof he the said A afterwards, to wit
(date and place aforesaid) casually lost the said goods and
chattels out of his possession: and the same afterward, to wit
(date and place aforesaid) came into the possession of the said X
by finding; Yet the said X well knowing the said goods and
chattels to be the property of the said A and of right to belong
and appertain to him, but, contriving and fraudulently intending
craftily and subtly to deceive and defraud the said A in this
behalf, hath not as yet delivered the said goods and chattels, or
any part thereof, to the said A (although often requested so to
do) but so to do hath hitherto wholly refused and still refuses;
and afterwards to wit (date and place aforesaid) converted and
disposed of the said goods and chattels to his the said X's own
use, to the damage of the said A of ____ pounds as it is said; and
have you there &c.
The rigid writs with specific forms of action for common law cases
start to fall into disuse. Later, trespass on the case bifurcates
into misdemeanor and the tort of trespass.
Persons in prison on suspicion of treason could not be released on
bail as of 1688.
If one of several defendants of a case was acquitted, all
defendants recovered their costs from the plaintiffs. A person
found guilty of malicious prosecution recovered his costs from
his accuser.
Mercantile cases were decided in light of mercantile custom rather
than according to the strict rules of the common law.
Merchants and traders could settle their trade disputes by
arbitration, which decision could be enforced by court order.
After the Restoration, all legal decisions of the Commonwealth and
Protectorate were confirmed subject to a right of appeal.
The Star Chamber was not restored, and Parliament assumed its
control of the press. The King's Bench succeeded to most of the
Star Chamber's jurisdiction. No longer could the Privy Council
influence criminal cases and the general supervision of legal
processes through the Star Chamber.
The High Commission court was not restored, but church courts
were, but with depleted powers. They accepted subordination to the
common law courts. Because the church's administration was
inefficient and corrupt and its punishments inadequate, they
gradually lost their power to the common law justices and Justices
of the Peace. They had virtually no authority over laymen. They
could still punish heresy, but lost jurisdiction over the law of
libel and slander, which then were transformed by the civil
courts, and over prostitution and scandalous lewdness. Local
ordinances for suppression of brothels, which were run by madams,
were founded on breach of the peace. In 1678, the death sentence
was taken away from the church courts. In 1697, church sanctuary
was abolished.
The county courts faded into insignificance, as the Justices of
the Peace took on more jurisdiction.
In 1668, new justices were issued patents with "at pleasure"
instead of "during good behavior" describing their tenure. Charles
II and James II frequently dismissed justices not favorably
disposed to the Crown. In 1697, they were to have fixed salaries
instead of the profits of justice. By statute of 1701, justices'
commissions were to be made with an established salary determined
by Parliament and a tenure to last during good behavior. They
could be removed only by the address of both Houses of Parliament.
This gave them independence from the king. Their tenure lasted for
the life of the monarch.
The chief justice could empower persons by commission to take
affidavits from people in the country for court proceedings in
Westminster.
Judgments were docketed so they could easily be found e.g. by
heirs, executors, administrators, purchasers, and mortgagees.
Court judgments and fines could be challenged for error only
within twenty years.
Court decisions were still appealable to the House of Lords. In
1668, Skinner v. East India Company held that the House of Lords
could not exercise original jurisdiction in civil cases between
commoners as it had claimed, but retained its appellate
jurisdiction. In 1675, the House of Lords acquired the new
judicial function of hearing appeals from the Chancery Court by
virtue of the case of Shirley vs. Fagg.
Any gaol keeper allowing a prisoner to escape in return for money
lost his office forever and had to forfeit 500 pounds.
The last burning of the occasional burnings of a woman as a
penalty for an offense was in 1688.
The last bill of attainder, which condemned a person to death,
occurred in 1697.
The pillory was still in use.
Benefit of clergy was taken away from those who stole cloth or
woolen manufactures from their drying racks or who embezzled
military stores or ammunition worth at least 20s, or stole goods
of over 5s. value from a dwelling house with a person therein put
in fear, a dwelling house in daytime with a person therein, or by
day or night a shop or warehouse.
A statute of 1661 gave jurisdiction to naval courts-martial to
decide cases at sea, e.g. insubordination; failure to fight the
enemy, a pirate, or rebels; not assisting a friend, mutiny,
drunkenness, creating a disturbance to protest the quality of the
food, quarreling, sleeping on watch, sodomy, murder, robbery,
theft, and misdemeanors. Usually the penalty was to be determined
by the courts-martial, but sometimes death was decreed.
In the American colonies, judges were still appointed by the royal
governors and paid by the local legislatures. They still served at
the pleasure of the king.
- - - Chapter 18 - - -
- Times: 1702-1776 -
Dress was plainer than before. Gentlemen wore white linen shirts;
waistcoats fitted at the waist and covering the trunk at least;
long lawn ties wound around the throat and tied in front with the
tails tucked in, knee-length coats that were wide in the skirts
and in the sleeve cuffs and having large gold, silver, or bronze
buttons which didn't reach to the buttonholes on the other side of
the coat; knee breeches of cloth, knitted wool, thread, and silk;
and silk stockings rolled up at the knee. Some shoes had metal
buckles. Gold fobs with watches or seals hung from the breeches
pocket. The clothes were made of silk, satin, or velvet and often
in colors such as yellow, orange, scarlet, blue, violet, pink, and
dull slate, and decorated with gold and silver trimmings. A
slender sword was worn on the side. Short wigs, often powdered
with heavily scented white or gray wheat flour, with rolls over
the ears with hair tied at the back, were worn for formal
occasions. Wigs were made of human, horse, goat, or cow hair, or
mohair, worsted, silk, or wire. Sometimes feathers and cork were
also used. The hat was three-cornered, and usually of beaver or
dark felt. There was often a rosette or such to show one's
political opinion. There were new colors and cuts of dress for
every season. By 1750, wearing a sword was just a symbol of
gentility. Gentlemen often had valets to help them dress. Ladies
wore fitted full-length dresses held out by hoops with shoulders
hidden, sometimes with a laced bodice with stays, and lace at the
neck. The waistline fashion fluctuated high and low and in
tightness. The dress could be brocade, satin, velvet, silk, etc.
Some put jewels in their hair and had high elaborate hats with
wide brims tilted forward. Hair was in ringlets at the side or
dressed close to the head with a small top knot covered with a
laced cap. They also wore wigs when dressing up, decorated with
ribbons and artificial flowers. Hooded cloaks were used outdoors
and hoods were used for sun or wind. They carried leather purses
with gloves at elbow length. Both gentlemen and ladies wore
cosmetics and face patches and used tooth powders, breath
sweeteners, lip salves, and choice perfume. Some had false teeth
of bone or ivory wired into place. They both had accessories such
as fans, handkerchiefs, head scratchers, and elaborately designed
snuff-boxes, patch boxes, and perfume containers. Both men and
women sniffed tobacco snuff but only men smoked. They walked with
tall, elegant canes, and women also carried parasols. Hats were
made of wool and hair of beaver, rabbit, or camel. Straw hats were
worn in the summer. There were ready-made clothes and shoes,
especially for children. Night gowns and night caps were worn to
bed. About 1714, umbrellas for rain were introduced. They were
made of waxed silk or taffeta. All but the poorest wore silk and
lace. A prosperous countryman wore riding clothes consisting of
breeches and boots, cut-away coat, and low top hat.
The highest class were the peers and peeresses of the House of
Lords and their spouses and families. They were the nobility and
held the high political offices, the high ranks in the army and
navy, and owned large estates, usually scattered over the country.
Some were lawyers or merchants. There was much intermarriage among
these families. Indeed, many a noble family had salvaged its
fortunes by marriage to a London merchant. The richest people in
London were international merchants. These high class families
lived in mansions with four or five living rooms, two to five acre
gardens, and stables.
The next class were the gentry. Their family heads had land and
were often Justices of the Peace. They were sometimes members of
the House of Commons. The oldest son took over from his father,
while the other had to find a living such as in the church, law,
medicine, or trade. They usually lived in mansions.
The old yeoman class was disappearing due to their selling their
land to larger landowners. Farming on a large scale was more
productive.
The next class were the "middling sort". In this class were
merchants, lawyers, substantial tenant farmers, smaller
freeholders, millers, innkeepers, in town traders, shopkeepers
(who now kept their wares inside and lived on the second floor),
middlemen, clothiers, ironmongers, goldsmiths, grocers, linen
drapers, apothecaries, school masters, clerks and civil servants,
and customs and excise men. The town people lived in town houses
of two stories plus an attic.
The last class were the manual workers. These were wage earners or
independent craftsmen, farriers, rural smiths (who shod horses and
made stair rails, window-bars, torch extinguishers, lamp irons,
bells, bolts, hinges, locks, and fire-grates), sawyers,
carpenters, joiners, wheelwrights, nail makers, brick makers,
plumbers (made lead cisterns, kitchen sinks, rain-water heads,
drain pipes and lead flats for houses and ornaments), thatchers,
spinners (silk, flax, hemp, wool, hair), dyers, wool combers,
weavers, shoemakers, hat makers, belt and buckle makers,
dressmakers, milliners (hats, caps, bonnets, cloaks, hoods,
muffs), feather workers, button makers, lace makers, steel pin
makers, brewers, cutlery makers, soap makers, candle makers (made
from beeswax, fallow, mutton-fat, or beef-drippings), comb makers,
barber/hairdressers (shaved, cut hair, made wigs and braids, and
let blood), curriers, leather workers, carpet weavers, paper
makers, tin-plate makers, printers, enamel workers, braziers and
coppersmiths (made kettles, saucepans, canisters, milk pails,
lanterns, candle boxes, candle sticks, and lamp lighters), basket
makers, jewelers (made rings, perfumes, match boxes, buckles, and
tops of canes), watch and clock makers, type founders, letter
cutters, trunk and chest makers, cabinet makers, saddlers, coach
body builders, coach carriage makers, shipwrights, rope makers,
and sail makers. These workers typically worked in their stone or
brick houses in a rural setting, with gardens, a cow, a horse,
pigs, and poultry around them on 2-6 acres. They now ate wheaten
bread instead of rye bread, much meat and cheese, and drank tea.
These people also worked in the harvesting of grain. Some
consolidation of work was starting. For instance, the weaver, who
had furnished himself with warp and weft, worked it up, and
brought it to market himself was being displaced by weavers who
worked under supervision for one merchant in a town on looms the
merchant had acquired. Many women and children were so employed.
It was not unusual for a man to work 13 hours a day for 6 days a
week. Real wages were higher than at any time since the mid-1400s.
The wage earners were well above the subsistence level as long as
trade was good. Working men could now afford leather shoes and
white bread. But eventually, as the employer came to realize how
dependent the weaver had become on him, wages tended to fall. In
1757 a Gloucester weaver, with his wife to help him, could earn,
when work was good, from 13s. to 18s. a week. A few years later,
he could only earn about 11s. A woman spinner earned 10-15d. a day
in 1764, but 3-5d. in 1780. In the same period, men's wages fell
from 17d. to 10d. a day. Only certain workers, whose special
occupation needed greater skill, e.g. the wool-combers, whose wool
was longer and of better quality than carded wool, and shearers,
were better paid. In 1770, wool combers made 13s. a week; their
wage was about the same all over the country because they traveled
form town to town in search of work and always supported each
other. Also in 1770, Newcastle miners earned 15s. a week,
Sheffield cutlers 13s.6d. a week, a Rotherham blacksmith 13s. a
week, a furnace keeper at Horsehay about 12s. a week, a
Staffordshire potter from 8-12s., a Witney blanket weaver or a
Wilton carpet weaver 11s. or more a week, a Manchester cotton
weaver from 7-10s. a week, and a Leeds cloth weaver about 8s. In
this class also were ploughmen, cowmen, dairymaids of the bigger
farms. They had cottages of wood, clay, and straw, with clay
floors and low ceilings, and a divided ground floor. A few had
homes built of stone, covered with slate or thatch.
Wages of industry were higher than those of agriculture. In 1770,
a day laborer earned 5-6s. a week in winter and 7-9s. in summer
(without board or lodging). In the short harvest time, he could
earn 12s. a week.
Lastly were the mass of the population of London: hordes of
laborers who depended on casual employment and could be dismissed
at will.
About half the population had no resources but their labor, which
was usually unskilled and lowly paid. In good times they had just
enough to feed themselves.
The gap between rich and poor became greater. Marriage remained a
main way to wealth. Also, one trained in the law could aspire to
have a successful career in high political office, which also
brought wealth. But there was less social mobility than in the
previous century and many landed families were consolidating their
position. They expected their oldest son to take and preserve the
family estate. Industrialists who had made a fortune for example
in steel, cotton, coal mining, porcelain, and merchants who wanted
to turn themselves into landed gentlemen found it very difficult
to buy such estates. Old dissenter families, Quakers in
particular, who were highly esteemed as businessmen, as
industrialists, and as model employers were excluded from the
Anglican landowning society. Rich tradesmen, artists, actors, and
writers found it difficult to buy substantial houses in the small
market towns and countryside because of an entrenched hierarchical
atmosphere there that didn't exist in London. The only gentlemen
who were in household service were librarians, tutors, or
chaplains. They ate with the family and did not consider
themselves servants. Servants were kept more at a distance. By the
1750s the servant class was clearly defined. Their quarters were
moved to the basement of the house and they ate together in the
kitchen. But some householders still had special occasions when
everyone would eat together in the dining room, with the servants
at one end of the table. In 1767 about one tenth of the population
in London had servants. Even bricklayers and milk sellers had a
servant. Most families had just one servant. Most wives employed
some other woman or child to help in washing and scouring or in
the minding of the children.