the creditors of the deceased often can't pay the debts from their own
money, the people (who are not creditors) receiving the goods shall pay
the creditors.
No merchant may dress black rabbit skins, nor export them, unless
dressed by skinners and bought from them because the skinners have been
thus deprived of their livelihoods to their impoverishment throughout
the realm.
Beer may be exported when malt is at 16s. per quarter because exporting
beer instead of barley and malt will (1) increase the export tax to the
King, (2) increase income for coopers and brewers, and (3) provide more
jobs in transporting beer, which is more voluminous, to the great
comfort of the port towns.
Fish which are spawning and growing in harbors may not be taken by any
net or weirs because this practice has hurt fishermen and the realm.
No one shall sell beer or ale to an unlicensed alehousekeeper because
abuses there have become intolerable.
No person at least 18 years of age may be naturalized or restored in
blood after being attainted unless he takes the sacrament and the Oath
of Supremacy [of the king over the church of England], and Oath of
Allegiance [to the king].
Money given by will for the apprenticeship of poor children shall be
managed by incorporated towns and unincorporated parishes. Masters
receiving such apprentices shall become bound with sufficient sureties.
Houses of correction shall be built in every county.
London may make a trench to bring water to the north part of the city
and shall compensate the owners of lands by agreement with them of an
amount or an amount determined by commissioners.
All hospitals and abiding places for the poor, lame, maimed, and
impotent persons or for houses of correction founded according to the
statute of Elizabeth shall be incorporated and have perpetual
succession.
Only lands and hereditaments paying rents to the Crown within the last
sixty years shall be claimed by the Crown; the title of all persons and
corporation who have enjoyed uninterruptedly against the Crown for the
last sixty years are confirmed against the Crown.
No one may take more than 8% interest on loans because 10% has caused
many, including gentry, merchant, farmer, and tradesman, to sell their
land and forsake their trade to pay their debts.
As Attorney General, Edward Coke introduced the crime of "seditious
libel" in a case before the Star Chamber in 1606. These written slanders
or libels were viewed as incitements to disorder and private vengeance.
Because the tendency to cause quarrels was the essence of the crime, the
truth of the libel was not a defense, but might be an aggravation of
criminality.
Edward Coke, former Chief Justice of both the Court of Common Pleas and
Court of the Queen's Bench, wrote his Reports on court cases of all
kinds through forty years and his Institutes on the law, in which he
explained and systematized the common law and which was suitable for
students. This included a commentary and update of Littleton, published
in 1627; old and current statutes; a description of the criminal law;
and lastly an explanation of the court system, the last two published in
1644. Coke declared that "a man's house is his castle".
Coke waged a long battle with his wife over her extensive property and
the selection of a husband for their daughter. In his institutes, he
described the doctrine of coverture as "With respect to such part of the
wife's personality as is not in her possession, as money owing or
bequeathed to her, or accrued to her in case of intestacy, or contingent
interests, these are a qualified gift by law to the husband, on
condition that he reduce them into possession during the coverture, for
if he happen to die, in the lifetime of his wife, without reducing such
property into possession, she and not his representative will be
entitled to it. His disposing of it to another is the same as reducing
it into his own possession." He further states that "The interest of the
husband in, and his authority over, the personal estate of the wife, is,
however, considerably modified by equity, in some particular
circumstances. A settlement made upon the wife in contemplation of
marriage, and in consideration of her fortune, will entitle the
representatives of the husband, though he die before his wife, to the
whole of her goods and chattels, whether reduced into possession or not
during the coverture. ... A settlement made after marriage will entitle
the representative of the husband to such an estate in preference to the
wife. ... A court of equity will not interfere with the husband's right
to receive the income during the coverture, though the wife resist the
application."
No person convicted of Catholicism may practice the common law as a
counsellor, clerk, attorney, or solicitor, nor may practice civil law as
advocate, or proctor, nor shall be justice, minister, clerk, or steward
in any court, nor practice medicine, nor perform as apothecary, nor be
officer in a town, in the army, or navy, or forfeit 100 pounds as
punishment. Nor may they be administrators of estates, or have custody
of any child as guardian. Nor may they possess any armor, gunpowder, or
arms. Nor may anyone print or import Popish books rosaries, or else
forfeit 40s
Papists running a school must forfeit 40s. a day for such. Anyone
conveying a child beyond the seas to be educated in popery may not sue
in the courts, may not hold any office, and shall forfeit 100 pounds and
all lands. But the child returning may have his family lands restored to
him if he receives the sacrament of the lord's supper in the established
church after reaching 18 years of age.
- Judicial Procedure -
Defendants may not petition to remove a case to the Westminster courts
after a jury is selected because such has resulted in unnecessary
expense to plaintiffs and delay for defendants in which they suborn
perjury by obtaining witnesses to perjure themselves.
In 1619, by the writ of quo warranto, a government office or official
could be made to explain by what right he performed certain acts.
James I asserted an authority to determine the jurisdiction between the
various courts.
The Court of High Commission heard mostly matrimonial cases, but also
moral offenses both of clergy and laity, and simony [buying or selling
ecclesiastical preferment, eclectically pardons, or other things
regarded as sacred or spirtual], plurality, drunkenness, and other
clerical irregularities.
The Star Chamber Court still was primarily directed against force and
fraud and defended the common people from over-mighty lords and
over-pliable Justices of the Peace, for instance by deterring enclosure.
It also enforced monopolies. However, there was a growing tendency for
King James, who sat on it, to abuse its power with high fines. For
instance, a lord accused with foul language by a huntsman of following
hounds of a chase too closely threatened to use his horse whip on the
huntsman's master when the huntsman threatened to complain to his
master. The lord was fined 10,000 pounds. James' council used torture to
obtain information from accused felons about possible conspiracies
against him.
The ordinary administrative court of first instance is formed by the
single Justices of the Peace, who issue orders regarding public safety,
order, public morals, health, the poor, highways, water, fields,
forests, fisheries, trade, building, and fire, and particularly begging
and vagrancy as well as regulations of wages, servants, apprentices, and
day laborers. For more important resolutions, the special sessions of
the Justices of the Peace of a hundred for a court of intermediate
instance and appointed overseers of the poor. All Justices of the Peace
were present at the quarter sessions, which were held at least four
times a year, and were primarily a court of appeal from penal sentences,
but also make the county rate, appoint county treasurers and county
prison and house of correction governors, regulate prices and wages,
settle fees of county officials, grant licenses for powder mills, and
register dissenting chapels. It heard appeals expressly allowed by
statute. The central courts also heard appeals by writ of certiorari as
to whether an administrative act was in accordance with existing law,
whether the court is competent, and whether the administrative law has
been rightly interpreted. This writ of certiorari ceased in the 1700s.
Justices of the Peace who have the power to give restitution of
possession to tenants of any freehold estate of their lands or tenements
which have been forcibly entered and withheld, shall have like power for
tenants for term of years, tenants by copy of court roll, guardians by
knight service, and tenants by elegit statute merchant and staple of
lands or tenements [tenant-plaintiffs holding property to receive income
therefrom for satisfaction of a debt of defendants].
The Justices of the Peace were chosen by the Crown, usually by the
Chancellor. The qualifications were residence in the county, suitability
of moral character, religious uniformity, and the possession of lands or
tenements with twenty pounds a year. They were almost exclusively
country gentlemen, except in the towns. In the corporate towns, the
mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue
of the office] Justices of the Peace. Their main duty was to keep the
peace. If a justice heard of a riot in the making, he could compel
individuals at the place to give bonds of "good-a-bearing" and cause
a proclamation to be made in the King's name for them to disperse. Two
justices or more had the authority to arrest the rioters and send a
record of it to the assizes and to the Privy Council. If the riot had
taken place before their arrival, they could make an inquiry by a jury
and certify the results to the King and his Council. The justices had
men brought before them on many kinds of charges, on their own summons,
or on initiative of the petty constable. They tried to draw these men
into confession by questioning. After indictment, a person had the
choice of a petty jury trial or paying a fine. The Justices of the Peace
could insist upon presentment juries or surveys of offenses by local
officers, but, without the institution of policemen, not many crimes
were prosecuted because victims were unwilling or could not afford to
initiate judicial action. Their unwillingness was partly due to the
severity of penalties, e.g. death for the theft of over 12s. and
whippings and fines for misdemeanors. Further, the offender was
frequently a neighbor with whom one would have to live. Mediation by the
local constable often took place. When there an outbreak of lawlessness
in an area, a commission might be set up especially for that area to
enforce the law.
Assault cases were common in courts of assize and courts of quarter
sessions. The quarter sessions were those of a number of Justices of the
Peace held for a couple of days four times a year for the more important
cases in the jurisdiction of the Justices of the Peace. Assault was
violence or threat of imminent violence. Fines were graduated according
to the means of the offender, who was usually bound over to keep the
peace. Most involved offenders and victims who were neighbors and
included people of substantial standing in the village. Also, a sizable
minority were directed against local officers such as constables,
bailiffs, or tax- collectors.
Three-fourths of all assize indictments and many quarter-sessions
indictments were for various types of theft, including petty larceny,
grand larceny, housebreaking, burglary, sheep stealing, and robbery.
These offenses were mostly opportunistic rather than planned, except for
London's underworld of professional thieves and the cutpurses of country
markets and highway robbers on lonely roads. There were substantial
peaks in theft in periods of harvest failure and industrial depression,
especially by vagrants. But most of the poor never stole.
The Justices of the Peace usually deferred to the learned Justices of
Assize for cases of felony, murder, rape, highway robbery, and
witchcraft. Most homicides were the result of an impassioned argument
leading to blows inflicted by nearby commonplace items picked up and
used as weapons. Only 18% of homicides were within the family. Men were
still declared outlaw if they failed to come to court after repeated
summons.
The Lord Keeper regularly advised the assize justices, before each
circuit departure, to relieve the poor, supply the markets, maintain the
roads (which were frequently impassable in winter for wagons or
coaches), enforce church attendance, suppress superfluous and disorderly
alehouses, and put down riots, robberies, and vagrancy, and in times of
dearth, to suppress speculation in foodstuffs, prevent famine, and
preserve order. In fact, the justices were most attentive to offenses
which affected them as rate payers for the poor. These were offenses
against cottaging laws (e.g. erection of cottages which lacked the
statutory four acres of land), harboring of "inmates", disputes of
settlement of paupers, bastardy, vagrancy, church nonattendance, and
above all, disorderly alehouses. Alehousing had been a well- established
means of poor employment since the 1200s, so it was hard to enforce
licensing laws. Further, alehouses were the centers of social life for
the common people; both women and men met their friends there. If an
attorney or solicitor delays his client's suits to work his own gain or
over charges his client, the client can recover his costs and treble
damages and the attorney and solicitor shall be disbarred. None may be
admitted to any court of the king but such as have been brought up in
the same court or is otherwise well-practiced in soliciting of causes
and has been found by their dealings to be skillful and honest. An
attorney who allows another to use his name shall forfeit 400 shillings
and be disbarred.
Offenders shall pay the charge of their own conveyance to gaol or the
sum shall be levied by sale of their goods so that the King's subjects
will no longer be burdened thereby.
Plaintiffs' costs shall be paid by the defendants only where there is a
judgment against the defendant in all actions in which the plaintiff is
entitled to costs on judgment for him, to discourage frivolous and
unjust suits.
By 1616, Chancery could order injunctions to stop activities.
In Slade's case of 1602, the Court of the Queen's Bench held that
assumpsit may be brought in place of the action of debt. So assumpsit
supplants debt for recovering liquidated sums and is then called
"indebitatus assumpsit".
The trial of Sir Walter Ralegh in 1603 began a call by people for a
right to confront and question one's accusers. Before trial, privy
counselors who in theory sat as impartial justices, cross-examined
Ralegh in prison. With a carefully selected jury present, the trial
began with reading of the indictment, which Ralegh had not yet seen. He
was charged with treason in plotting with Catholic Spain to put Arabella
Stuart on the throne. Arabella was to write to Spain promising peace,
toleration of Catholics in England, and direction by Spain in her
marriage choice. He pled not guilty and took no exception to any jurors,
stating that he knew them all to be honest men. Next, Attorney General
Edward Coke, his enemy and rival, and he engaged in a debate about who
was right, with Coke outright bullying him. Coke then produced a signed
confession by Lord Cobham that implicated him in the alleged conspiracy
and accepting 10,000 crowns for his part. Ralegh was given permission to
speak. He said that Cobham had retracted his confession. He ridiculed
the idea that he would betray England to Spain for gold after fighting
against Spain, including risking his life three times, and spending
4,000 pounds for the defeat of Spain. He pointed to a treatise he had
written to the king on the present state of Spain and reasons against
peace. Then there was a discussion on the validity of Cobham's
confession. Cecil gave an oration of Ralegh. Coke gave a speech. Ralegh
asked to have his accuser brought before him face to face. He cited law
that two witnesses were necessary for a conviction for treason. Chief
Justice Popham replied that only one witness was necessary under common
law, which applied to his case, and that the trial was properly
conducted by examination of the defendant. Coke added that it would be
improper to call Cobham because he was a party. Then Coke surprised
Ralegh with a letter from Cobham stating that Ralegh had asked Cobham to
procure him an annual pension of 1500 pounds from Spain for disclosing
intelligence. Ralegh acknowledged that a pension was offered, but denied
that he had ever intended to accept it. He admitted that it was a fault
not to inform authorities of this offer. The jury deliberated for
fifteen minutes and returned with a verdict of guilty. The Chief Justice
delivered the sentence for treason: drawing, hanging, disemboweling,
beheading, and quartering. The whole trial was not so much to access
guilt, but to show the general public that the person was guilty.
Church courts were revived after a period of disuse. They could annul
an unconsummated or legally invalid marriage (e.g. consanguinity,
impotence, a witnessed precontract to marry) and order judicial
separations in case of adultery, cruelty, or apostasy. Annuled marriages
made a person's children illegitimate. An action at common law for
"criminal conversation" [adultery] with the plaintiff's spouse or for
assault and battery could result in an order for separation. But only a
private statute of Parliament could grant a divorce, which allowed
remarriage. It was granted in only a few cases and only to the very
wealthy. Church officials spied upon people's conduct to draw them into
their courts and gain more money from the profits of justice.
In 1610, Edward Coke, Chief Justice of the Court of Common Pleas,
decided that the statute giving the Royal College of Physicians power to
imprison and fine those practicing without a license was invalid and
unenforceable because it gave the college half of each fine awarded,
which was a conflict of interest with its role as an adjudicator. Coke
said that a maxim of the common law was that no man ought to be judge in
his own cause. By this decision, he asserted a court supremacy over
Parliament with respect to the validity of statutes. He opined that the
courts should not only be independent of the Crown, but should act as
arbiter of the Constitution to decide all disputed questions. In his
words, "When an Act of Parliament is against common right and reason,
the common law will control it and adjudge such Act to be void."
Justices still explained and in some degree interpreted legislative
acts of Parliament as they had since the 1500s, but their right to do so
was coming into question and was slowly lost.
Female scolds were still dunked into water as punishment.
Only barristers, who were called to the bar after being in long
residence in one of the Inns of Court, could practice before the King's
court. Attorneys and solicitors prepared cases for barristers and
practiced before minor courts.
The king appointed the justices, with the advice of the Chancellor.
James I often intimidated the justices to see things his way.
The oath of a justice was: "Well and truly ye shall serve the King and
his people. And ye shall take no fee or livery of none but the King, nor
gift or reward of none that hath a do before you except it shall be meat
or drink of small value, as long as the plea hangs before you. And ye
shall do equal law and execution of Right to all the King's subjects
rich and poor, without regard to any person. Ye shall counsel our
Sovereign Lord the King in his need. And ye shall not delay any person
of common right for the letters of the King or of any person or for any
other cause ... So help you God."
The courts of King's Bench and Common Pleas, and the Chancery all met
simultaneously in Westminster Hall. Throngs passed up and down the
middle aisles between the courts, including booksellers, stationers,
scriveners, and vendors of bread and hot meat. The hall was so cold that
people kept on their coats and hats.
The last court case concerning villeinage was in 1618.
- - - Chapter 15 - - -
- The Times: 1625-1642 -
The entourage of Charles I came to be called "Cavaliers". They were
named by their opponents for the Spanish caballero who was a Catholic
who prosecuted Protestants. Their hair had long, curled, and flowing
locks. They wore a broad-rimmed decorated hat. Their fancy jackets and
breeches were loose. Boots were wide and folded over at the top. Young
men wore earrings and painted their faces. A lady wore her hair in
ringlets on each side of her face. Her dress was fitted at the waist,
with a peaked bodice. It was low at the shoulders with a scoop neckline
in front. She often wore much lace, especially at the neck down to the
bust line. Her outer dress and under-skirt that was revealed in front,
were full and made of satin and stiff silk or velvet. Only hose of silk
were worn at court.
A majority of prosperous industrial towns and fee farmers, led
sometimes by lords or old landed gentry, were Puritans. They dressed
plainly and in somber colors such as black, grey, and buff, with no
ornamentation except plain white collars and cuffs of linen rather than
of lace. Wool replaced silk and velvet. No jewelry was worn. The Puritan
women also wore long white aprons. The Puritan women smoothed their hair
back into little knobs and covered their hair and head with a white
covering. Both Puritan men and women wore broad-rimed hats and plain
shoes. The ordinary country man wore a felt hat, broadcloth coat, woolen
trousers, hand-knitted worsted stockings, and plain, strong shoes. The
Puritan men for a time had short-cut hair. The Puritan- Parliamentarians
were given the name "Roundheads" after the crop- headed London
apprentices whose rioting had marked every stage of the conflict between
king and Parliament.