creation money or allowance of 40 pounds a year. A marquess was given 35
pounds. These new positions could not descend to an heiress, unlike a
barony or earldom. An earl was given 20 pounds, which probably took the
place of his one-third from the county. King Henry VI gave the title of
viscount to several people; it had an allowance of 13.3 pounds and was
above baron. It allowed them to be peers. There were about 55 peers. In
King Edward IV's reign, the king's retinue had about 16 knights, 160
squires, 240 yeomen, clerks, grooms, and stablemen. The suitable annual
expense of the household of the king was 13,000 pounds for his retinue
of about 516 people, a duke 4,000 pounds for about 230 people, a
marquess 3,000 pounds for about 224 people, an earl 2,000 pounds for
about 130 people, a viscount 1,000 pounds for about 84 people, a baron
500 pounds for about 26 people, a banneret [a knight made in the field,
who had a banner] 200 pounds for about 24 people, a knight bachelor 100
pounds for about 16 people, and a squire 50 pounds for about 16 people.
Of a squire's 50 pounds, about 25 pounds were spent in food, repairs and
furniture 5, on horses, hay, and carriage 4, on clothes, alms and
oblations 4, wages 9, livery of dress 3, and the rest on hounds and the
charges of harvest and hay time. Many servants of the household of the
country gentleman were poor relations. They might by education and
accomplishment rise into the service of a baron who could take him to
court, where he could make his fortune.
Barons' households also included steward, chaplains, treasurer,
accountants, chamberlain, carvers, servers, cupbearers, pages, and even
chancellor. They were given wages and clothing allowances and had meals
in the hall at tables according to their degree.
The authority of the King's privy seal had become a great office of
state which transmitted the King's wishes to the Chancery and Exchequer,
rather than the King's personal instrument for sealing documents. Now
the king used a signet kept by his secretary as his personal seal.
Edward IV made the household office of secretary, who had custody the
king's signet seal, a public office. The secretary was generally a
member of the council. Edward IV invented the benevolence, a gift wrung
from wealthy subjects.
King Edward IV introduced an elaborate spy system, the use of the rack
to torture people to give information, and other interferences with
justice, all of which the Tudor sovereigns later used. Torture was used
to discover facts, especially about coconspirators, rather than to
elicit a confession, as on the continent. It was only used on prisoners
held in the Tower of London involved in state trials and could only be
authorized by the king's closest councilors in virtue of the royal
prerogative. The rack stretched the supine body by the wrists and legs
with increasing agony at the joints until the limbs were dislocated.
Some victims were permanently crippled by it; others died on it. Most
told what they knew, often at the very sight of the rack. Torture was
forbidden in the common law, which favored an accusatorial system, in
which the accuser had to prove guilt, rather than an inquisitional
system, in which the accused had to prove innocence. Edward IV applied
martial law to ordinary cases of high treason by extending the
jurisdiction of the politically- appointed High Constable of England to
these cases, thus depriving the accused of trial by jury. He executed
many for treason and never restored their forfeited land to their
families, as had been the usual practice.
King Richard III prohibited the seizure of goods before conviction of
felony. He also liberated the unfree villeins on royal estates.
It was declared under Parliamentary authority that there was a
preference for the Crown to pass to a King's eldest son, and to his male
issue after him. Formerly, a man could ascend to the throne through his
female ancestry as well.
- The Law -
The forcible entry statute is expanded to include peaceful entry with
forcible holding after the justices arrived and to forcible holding with
departure before the justices arrived. Penalties are triple damages,
fine, and ransom to the King. A forceful possession lasting three years
is exempt.
By common law, a tenant could not take away buildings or fixtures he
built on land because it would be wasteful. This applied to agricultural
fixtures, but not to other trade fixtures. Also at common law, if a
person had enjoyed light next to his property for at least 20 years, no
one could build up the adjacent land so that the light would be blocked.
Women of age fourteen or over shall have livery of their lands and
tenements by inheritance without question or difficulty.
Purposely cutting out another's tongue or putting out another's eyes is
a felony, the penalty for which is loss of all property].
No one may keep swans unless he has lands and tenements of the estate
of freehold to a yearly value of 67s., because swans of the King, lords,
knights, and esquires have been stolen by yeomen and husbandmen.
The wage ceiling for servants is: bailiff of agriculture 23s.4d. per
year, and clothing up to 5s., with meat and drink; chief peasant, a
carter, chief shepherd 20s. and clothing up to 4s., with meat and drink;
common servant of agriculture 15s., and clothing up to 3s.4d.; woman
servant 10s., and clothing up to 4s., with meat and drink; infant under
fourteen years 6s., and clothing up to 3s., with meat and drink. Such as
deserve less or where there is a custom of less, that lesser amount
shall be given.
For laborers at harvest time: mower 4d. with meat and drink or 6d.
without; reaper or carter: 3d. with or 5d. without; woman laborer and
other laborers: 2d with and 4d. without.
The ceiling wage rate for craftsmen per day is: free mason or master
carpenter 4d. with meat and drink or 5d. without; master tiler or
slater, rough mason, and mesne [intermediary] carpenter and other
artificiers in building 3d. with meat and drink or 4d. without; every
other laborer 2d. with meat and drink or 3d. without. In winter the
respective wages were less: mason category: 3d. with or 4d. without;
master tiler category: 2d. with or 4d. without; others: 1d. with or 3d.
without meat and drink.
Any servant of agriculture who is serving a term with a master and
covenants to serve another man at the end of this term and that other
man shall notify the master by the middle of his term so he can get a
replacement worker. Otherwise, the servant shall continue to serve the
first master.
No man or woman may put their son or daughter to serve as an apprentice
in a craft within any borough, but may send the child to school, unless
he or she has land or rent to the value of 20s. per year.This was
because of scarcity of laborers and other servants of agriculture.
No laborer may be hired by the week.
Masons may no longer congregate yearly, because it has led to violation
of the statute of laborers.
No games may be played by laborers because they lead to [gambling and]
murders and robberies.
Apparel worn must be appropriate to one's status to preserve the
industry of agriculture. The following list of classes shows the lowest
class, which could wear certain apparel:
1. Lords - gold cloth, gold corses, sable fur, purple silk
2. Knights - velvet, branched satin, ermine fur
3. Esquires and gentlemen with possessions to the value of 800s. per
year, daughters of a person who has possessions to the value of 2,000s.
a year damask, silk, kerchiefs up to 5s. in value.
4. Esquires and gentlemen with possessions to the yearly value of 800s.
40 pounds - fur of martron or letuse, gold or silver girdles, silk corse
not made in the nation, kerchief up to 3s.4d in value
5. Men with possessions of the yearly value of 40s. excluding the above
three classes - fustian, bustian, scarlet cloth in grain
6. Men with possessions under the yearly value of 40s. excluding the
first three classes - black or white lamb fur, stuffing of wool, cotton,
or cadas.
7. Yeomen - cloth up to the value of 2s., hose up to the value of 14s.,
a girdle with silver, kerchief up to 12d.
8. Servants of agriculture, laborer, servant, country craftsman - none
of the above clothes
Gowns and jackets must cover the entire trunk of the body, including
the private parts. Shoes may not have pikes over two inches.
Every town shall have at its cost a common balance with weights
according to the standard of the Exchequer. All citizens may weigh goods
for free. All cloth to be sold shall be sealed according to this
measure.
There is a standard bushel of grain throughout the nation.
There are standard measures for plain tile, roof tile, and gutter tile
throughout the nation.
No gold or silver may be taken out of the nation.
The price of silver is fixed at 30s. for a pound, to increase the value
of silver coinage, which has become scarce due to its higher value when
in plate or masse.
A designee of the king will inspect and seal cloth with lead to prevent
deceit. Cloth may not be tacked together before inspection. No cloth may
be sold until sealed.
Heads of arrows shall be hardened at the points with steel and marked
with the mark of the arrowsmith who made it, so they are not faulty.
Shoemakers and cordwainers may tan their leather, but all leather must
be inspected and marked by a town official before it is sold.
To prevent deceitful tanning, cordwainers shall not tan leather.
Tanners who make a notorious default in leather which is found by a
cordwainer shall make a forfeiture.
Defective embroidery for sale shall be forfeited.
No fishing net may be fastened or tacked to posts, boats, or anchors,
but may be used by hand, so that fish are preserved and vessels may
pass.
No one may import any articles which could be made in the nation,
including silks, bows, woolen cloths, iron and hardware goods, harness
and saddlery, except printed books.
The following merchandise shall not be brought into the nation already
wrought: woolen cloth or caps, silk laces, ribbons, fringes, and
embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles,
gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis
balls, points, purses, gloves, girdles, harness for girdles of iron
steel or of tin, any thing wrought of any treated leather, towed furs,
shoes, galoshes, corks, knives, daggers, woodknives, thick blunt
needles, sheers for tailors, scissors, razors, sheaths, playing cards,
pins, pattens [wooden shoes on iron supports worn in wet weather], pack
needles, painted ware, forcers, caskets, rings of copper or of gilt
sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass
bells, rings for curtains, ladles, skimmers, counterfeit felt hat
moulds, water pitchers with wide spouts, hats, brushes, cards for wool,
white iron wire, upon pain of their forfeiture. One half this forfeiture
goes to the king and the other half to the person seizing the wares.
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 county 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 is to be
by majority of the votes and its results will be sealed and sent to
Parliament.
Electors and electees to Parliament must reside in the county or be
citizens or burgesses of a borough. To be an elector to Parliament, a
knight must reside in the county and have a freehold of land or
tenements there of the value of at least 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 electors and every
leaseholder and every copyholder were now excluded. Those elected for
Parliament were still gentry chosen by substantial freeholders.)
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 justice 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;
inheritance and alienation of land. 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 reenter, 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
[undivided], 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, ..."
There are legal maxims and customs of ancient origin which have become
well established and known though not written down as statutes. Some
delineated by Christopher St. Germain in "Doctor and Student" in 1518
are:
1. The spouse of a deceased person takes all personal and real chattels
of the deceased.
2. For inheritance of land, if there are no descendant children, the
brothers and sisters take alike, and if there are none, the next blood
kin of the whole blood take, and if none, the land escheats to the lord.
Land may never ascend from a son to his father or mother.
3. A child born before espousals is a bastard and may not inherit, even
if his father is the husband.
4. If a middle brother purchases lands in fee and dies without heirs of
his body, his eldest brother takes his lands and not the younger
brother. The next possible heir in line is the younger brother, and the
next after him, the father's brother.
5. For lands held in socage, if the heir is under 14, the next friend
to the heir, to whom inheritance may not descend, shall have the ward of
his body and lands until the heir is 14, at which time the heir may
enter.
6. For lands held by knight's service, if the heir is under 14, then
the lord shall have the ward and marriage of the heir until the heir is
21, if male, or 14 (changed to 16 in 1285), if female. When of age, the
heir shall pay relief.
7. A lease for a term of years is a real chattel rather than a free
tenement, and may pass without livery of seisin.
8. He who has possession of land, though it is by disseisin, has right
against all men but against him who has right.
9. If a tenant is past due his rent, the lord may distrain his beasts
which are on the land.
10. All birds, fowls, and wild beasts of the forest and warren are
excepted out of the law and custom of property. No property may be had
of them unless they are tame. However, the eggs of hawks and herons and
the like belong to the man whose land they are on.
11. If a man steals goods to the value of 12d., or above, it is felony,
and he shall die for it. If it is under the value of 12d., then it is
but petit larceny, and he shall not die for it, but shall be punished at
the discretion of the judges. This not apply to goods taken from the
person, which is robbery, a felony punishable by death.
12. If the son is attainted [convicted of treason or felony with the
death penalty and forfeiture of all lands and goods] in the life of the
father, and after he purchases his charter of pardon of the King, and
after the father dies; in this case the land shall escheat to the lord
of the fee, insomuch that though he has a younger brother, yet the land
shall not descend to him: for by the attainder of the elder brother the
blood is corrupt, and the father in the law died without heir.
13. A man declared outlaw forfeits his profits from land and his goods
to the King.
14. He who is arraigned upon an indictment of felony shall be admitted,
in favor of life, to challenge thirty-five inquirers (three whole
inquests would have thirty-six) peremptorily. With cause, he may
challenge as many as he has cause to challenge if he can prove it. Such
peremptory challenge shall not be admitted in a private suit.
15. An accessory shall not be put to answer before the principal.
16. If a man commands another to commit a trespass, and he does it, the
one who made the command is a trespasser.
17. The land of every man is in the law enclosed from other, though it
lies in the open field, and a trespasser in it may be brought to court.
18. Every man is bound to make recompense for such hurt as his beasts do
in the growing grain or grass of his neighbor, though he didn't know
that they were there.
19. If two titles are concurrent together, the oldest title shall be
preferred.
20. He who recovers debt or damages in the King's court when the person
charged is not in custody, may within a year after the judgment take the
body of the defendant, and commit him to prison until he has paid the
debt and damages.
21. If the demandant or plaintiff, hanging his writ (writ pending in
court), will enter into the thing demanded, his writ shall abate.
22. By the alienation of the tenant, hanging the writ, or his entry into
religion, or if he is made a knight, or she is a woman and takes a
husband hanging the writ, the writ shall not abate.
23. The king may disseise no man and no man may disseise the king, nor
pull any reversion or remainder out of him.
- Judicial Procedure -
The prohibition against maintenance was given penalties in 1406 of
100s. per person for a knight or lower giving livery of cloth or hats,
and of 40s. for the receiver of such. A person who brought such suit to
court was to be given half the penalty. The Justices of Assize and
King's Bench were authorized to inquire about such practices. The
statute explicitly included ladies and any writing, oath, or promise as
well as indenture. Excepted were guilds, fraternities, and craftsmen of
cities and boroughs which were founded on a good purpose; universities;
the mayor and sheriffs of London; and also lords, knights, and esquires
in time of war. A penalty of one year in prison without bail was given.
In 1468, there was a penalty of 100s. per livery to the giver of such,
100s. per month to the retainer or taker of such, and 100s. per month to
the person retained. Still this law was seldom obeyed.
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 oath-helping 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. 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. Since
there was no requirement of legal knowledge for a Justice of the Peace,
many referred to the "Boke of the Justice of the Peas" compiled about
1422 for them to use. 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 justices 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. These
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 had estates of fee simple, fee tail, or
freehold in lands and tenements, which were 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.
In criminal cases, there were many complaints made that the same men
being on the grand assize and petty assize was unfair because
prejudicial. So it became possible for a defendant to challenge an
indictor for cause before the indictor was put on the petty assize. Then
the petty assize came to be drawn from the country at large and was a
true petty or trial jury. Jurors were separated from witnesses.
Justices of the Peace were to have lands worth 267s. yearly, because
those with less had used the office for extortion and lost the respect
and obedience of the people.