were repealed because they had prevented free trade and tended to
increase prices, e.g. of grain, meal, flour, cattle, and other victuals.
Anyone assisting a felon (except for petty larceny) to try to escape
from gaol, is guilty of felony and shall be transported for seven years.
Anyone assisting a person who owes or is to pay 100 pounds to try to
escape from gaol is guilty of a misdemeanor. In 1772, prison keepers
were indemnified from creditors for any escapes of debtors due to
conspiracy and break out with weapons and firearms rather than due to
negligence of the prison keeper, as had been occurring.
No more than 600 pounds of gunpowder may be kept in any building in
London or Westminster or suburbs thereof. Later, no more than 200 pounds
of gunpowder were allowed to be kept therein for more than 24 hours.
Buildings may be searched on "reasonable cause" shown to a Justice of
the Peace. Later, no more than 400 pounds of gunpowder could be kept for
more than 24 hours near any town, or more than 300 pounds for more than
24 hours in any place. Then no gunpowder could be conveyed by land over
25 barrels or by water over 200 barrels.
It was customary for officers to take the oaths of allegiance and
supremacy to any new monarch. When George I became king in 1714, all
civil and military officers, clergy, schoolmasters, and lawyers,
solicitors, clerks, etc. living within 30 miles of London had to take an
oath of allegiance and a new oath that the person was not Papist and
agreed that no foreigners had jurisdiction in the realm, such as to
excommunicate someone and thus declaring he could be legitimately
killed. Soon after, it was required that Papists had to register their
names and real estates. Commissioners were appointed to make inquiries.
If a person did not take the oaths or did not register, he was to
forfeit 2/3 of his land to the king and 1/3 to a Protestant who sued for
such. This was in order to deter future rebellions against the king and
efforts to destroy the Protestant religion.
As late as 1722, there was a Papist conspiracy to take the Tower of
London and the King, and make a Catholic king. This resulted in the
imprisonment of the conspirators and a new statute: Persons not taking
the oath of allegiance and above oath that they were not Papist shall
register their lands and yearly rents and pay double the land tax and
100,000 pounds. After payment, they are discharged from forfeiting 2/3
of their lands' rents for one year.
Papists enlisting in the army are liable to corporal punishment, but
not death, as determined by a court martial.
Any mayor, bailiff, or other magistrate who is present at any meeting
for public worship other than the Church of England will lose office and
is barred from any public office or employment.
Jews may not refuse suitable maintenance to their children who are
Christian to pressure them to convert back to Judaism.
Black slaves were common for a time in London. This was a result of the
voluminous triangle trade of manufactured goods from England, slaves
from West Africa, and sugar and tobacco from the West Indies. Slavery
was largely abolished by judicial decision of Chief Justice Mansfield in
1772.
If a sheriff does not answer for money collected for the Exchequer, he
shall forfeit treble damages to the aggrieved person, double the sum
missing to the aggrieved person, 100 pounds to the king, and 100 pounds
to the party who sues. If a sheriff take a fee for levying or collecting
money due to the king (except 4d. for an acquittance) or take a sum for
not levying money due, he is guilty of extortion, injustice, and
oppression and shall forfeit treble damages and costs to the aggrieved
person, and double the sum extorted to the aggrieved person. A sheriff
may not levy more than 12d. for every 20s. of yearly income of any manor
for up to 100 pounds of income, and 6d. for value over 100 pounds.
No one may cut pine trees that are fit for masts of ship in New England
without license by the Queen or else forfeit 100 pounds. Later, pine
trees on private property were exempted.
Citizens of Great Britain may sue colonial debtors by oath before
British magistrates and a debtor's colonial lands and houses and negroes
may be used to satisfy his debts.
Anyone pretending to act under a charter and taking subscriptions in
Great Britain or the colonies must forfeit treble damages.
No hats, including beaver hats, may be exported from any colony even to
another colony because this has hurt British hat manufacture. The
penalty is 500 pounds. No one in the colonies except present hatmakers
who are householders and journeymen may make hats unless they serve a
seven year apprenticeship. No hatmaker in the colonies may have more
than two apprentices at once.
Whaling ships near Greenland were prohibited from returning until their
hulls were full. Vessels built or fitted out in America may engage in
whaling.
Pig iron from the colonies may be imported free, but there may be no
mill for slitting or rolling iron and no plateing-forge or other engine
to work with a tilt hammer and no furnace for making steel erected or
used in the colonies or else forfeit 200 pounds.
No paper bills of credit may be used in New England because such have
depreciated.
William Blackstone lectured on law at Oxford University in 1753. As a
result, the first professorship of English law was established. His
lectures were published in 1769 as the "Commentaries on the Laws of
England". They greatly influenced the American colonists and were the
basis of legal education in England and America for years. They were
comprehensive and covered real property, crime and punishment, court
procedure, contract, corporations, and commercial law. He wrote "The
Great Charter and Charter of the Forest" in 1759.
- Judicial Procedure -
For actions under 10 pounds in a superior court and actions under 40s.
in an inferior court, the offender shall be served with process to
appear in court rather than being arrested. For money at issue, an
affidavit shall be taken. No more money may be taken for bail than the
amount at controversy. This is to prevent frivolous and vexatious
arrests. Perjurers, forgers, those involved in barratry or suborning
perjury, and pretenders practicing as attorneys or solicitors in the
courts of law or equity shall be transported for seven years to the
American colonies. Unqualified people acting as attorneys or solicitors
in the county court shall forfeit 20 pounds.
No one may practice as an attorney in the courts of King's Bench,
Common Pleas, or Exchequer until he has been examined by a judge of such
court on his fitness and qualifications and has taken the oath to
honestly demean himself and practice according to his best knowledge and
ability. The same applies to a solicitor in the equity courts. This
shall not exclude persons who have been bound to an attorney or
solicitor for four years. Attorneys and solicitors, with consent of an
attorney of another court, may participate in proceedings of such other
court. No attorney may have more than two clerks bound to him at one
time. Attorneys may be admitted as solicitors and vice-versa.
There were twelve common law justices of the Court of the King's Bench,
Court of Common Pleas, and Court of the Exchequer. The Chief Justices of
all of these courts were paid partly from fees paid to the court. The
other Justices of these courts were paid completely by salary, which in
1759 was well over 500 pounds per year. These justices were to continue
in office even after a king died and could be removed only for good
cause upon the address of both houses of Parliament. The officers of
these courts were attorneys. There was one justice at Doctors' Commons.
The two chancery justices (since Edward I) were the Lord Chancellor and
the Master of the Rolls. The salary of the eleven masters of the court
of chancery in 1765 was 400 pounds per year. The officers of this court
were solicitors.
Appeals from the Exchequer could be made to a court of the King's Bench
and Common Pleas combined. Appeals from Common Pleas could be made to
the King's Bench. Decisions of the King's Bench and other common law
courts could be appealed to Parliament.
The common law courts rode circuit twice a year in five circuits and
once a year in the north circuit. So an accused person could spend up to
a year in gaol waiting for trial. Few prisoners were granted bail. In
each common law court, the law justices in banc would hear demurrers
[contentions that the other party was wrong in the law]. No one with an
interest in a suit, including the plaintiff and the defendant, could
give evidence. There was no power to amend pleadings, so misspelling of
the defendant's name, for instance, could result in dismissal of the
suit. In 1730, the pleadings and indictments ceased to be in Latin.
Compurgation still existed for debt and detinue.
Writs of error at variance from the original record or otherwise
defective may be amended to correct the defect by the court where such
writ is returnable. No judgment is to be reversed for any defect in any
bill or writ, excepting an appeal of felony or murder, or misdemeanor.
This is to prevent delays of justice. Justices of the Peace may correct
defects of form on appeals to them.
Plaintiffs neglecting to go to trial after an issue has been joined may
be nonsuited.
The qualification for jury service is having land with an income over
rents of at least 20 pounds, with leases for 500 years or more, or 99
years, or any term determinable on one or more lives. Being a freeholder
is not necessary. In London, the qualification is being a householder
and having lands to the value of 100 pounds. No sheriff may excuse a
qualified person from jury service for money or other reward. Selection
of jurors for each case is to be done by some impartial person pulling
their names from a box. Later, persons refusing jury service could be
fined.
Poor persons may be paid up to 6d. to give evidence against felons.
Pirates may not be tried again for the same crime or for a certain
crime and high treason. When the marine force was raised, the marines
were also given protection from double jeopardy.
In Chancery, a plaintiff filed a complaint and interrogatories prepared
by counsel. Only in Chancery could there be discovery, such as
interrogatories [written questions]. Court officials asked the questions
of witnesses without the presence of the parties or their lawyers.
Officials wrote down the answers in their own terms So there was no
cross-examination possible. Most decrees took many years to be made.
The ordinary administrative court of first instance is that of one or
two Justices of the Peace who issued orders in matters of public safety,
public order, public morals, health, the poor, highways, water, fields,
forests, fisheries, trade, building, fire, begging, and vagrancy. They
examined suspicious persons and issued warrants for the removal of any
person likely to become a public charge. The Justice of the Peace also
regulated wages, servants, apprentices, and day laborers. In his
judicial capacity, he tried all crimes and felonies except treason,
though in practice death penalty cases were transferred to the assize
justices. The Justices of the Peace of a hundred hold special sessions
such as for appointment of parochial officers, highway disputes, and the
grant of wine, beer, and spirit licenses. The appointment of overseers
of the poor, authorization of parish rates, and reading of the Riot Act
to mobs to disperse them, required more than one of the Justices of the
Peace of the hundred to participate. All the Justices of the Peace of
the county met four times a year at Quarter Sessions to hear appeals
from penal sentences, to determine the county rate of tax, to appoint
treasurers of the county and governors of the county prison and house of
correction, to issue regulations on prices of provisions and on wages,
to settle fees of the county officials, to grant licenses for
powder-mills and other industries, to hear nuisance complaints such as
those against parishes failing to keep their roads in repair, to make
regulations for the holding of markets, to hear complaints concerning
local government, and to register dissenting chapels. In more and more
matters specified by statute, the Quarter Sessions heard appeals from
the orders of individual Justices of the Peace instead of common law
courts hearing them by writ of certiorari. The writ of certiorari
allowed administrative decisions to be reviewed by the common law courts
for compliance with law, competency of the court, and interpretation of
the administrative law. The writ of habeas corpus appealed
administrative decisions to imprison not only after arrest for criminal
proceedings, but any coercive measure for enforcing an administrative
order. The writ of mandamus was available for enforcing the injunctions
of administrative law against towns, corporations, and all other
authorities and private persons, where the ordinary punishments were
insufficient. Justices of the Peace in rural areas were squires and in
towns aldermen.
In 1747, Justices of the Peace were authorized to decide issues between
masters and mistresses and their employees who were hired for at least
one year. If a servant misbehaved, they could authorize reduction of
wage, discharge, and hard labor at a house of Correction up to one
month. If a servant was not paid, he could authorize payment of wages up
to 10 pounds for an agricultural servant, and up to 5 pounds for an
artificer, handicraftsman, miner, collier, keelman, pitman, glassman,
potter, or ordinary laborer. Later, tinners and miners were added to the
last category. In 1758, employees of less than a year were included.
In 1775, Justices of the Peace were authorized to administer any oath
for the purpose of levying penalties.
To be a Justice of the Peace, one must have income of 100 pounds a year
from a freehold, copyhold, or customary estate that is for life or for a
term of at least 21 years, or be entitled to a reversion of lands leased
for 1 or 2 or 3 lives, or for any term of years determinable on the
death of 1 or 2 or 3 lives. Excepted were peers, justices, and heads of
colleges or vice chancellors at the universities. The Justices of the
Peace were selected by the superintending Sheriffs and Lords Lieutenant,
the latter of whom were usually peer with a ministers' office or a high
court official. No attorney or solicitor or proctor could be a Justice
of the Peace unless the locality had Justices of the Peace by charter.
A request for Certiorari for removal of convictions, judgments, orders
made by Justices of the Peace must be made within six months and after
notice to the Justice of the Peace who may argue cause against granting
certiorari.
In the common law courts, trespass in ejectment served the purposes of
most of the actions involving land. Assumpsit covered the whole province
of debt, and much more. Trover more than covered the old province of
detinue. Trespass still served for all cases in which the defendant had
been guilty of directly applying force to the plaintiff's body, goods or
chattels. Trespass on the case covered miscellaneous torts. Replevin was
still used. Covenant remained in use for the enforcement of promises
under seal. Account gradually came under the equity jurisdiction of
Chancery. Common law writs of dower are largely superseded by the relief
given to the doweress in the courts of equity, where new and valuable
rights were given to her and to her personal representatives against the
heir and his representatives. The actions of indebitatus assumpsit is
being extended to actions upon quasi-contract, in which the element of
contract is not required e.g. quantum meruit, where a contract is
implied from the facts of the case.
Mercantile law was developed by the common law courts, especially the
King's Bench.
The king was to appoint the marshal of the King's Bench. The marshal
was to select his inferior officers to hold office as long as they
"behave themselves well within". These offices had been sold by James I
to a certain person, his heirs, and assigns. The marshal was to keep the
prison of this court in good repair from his fees and profits of office.
The office of sheriff was now an accessory department of the common law
courts for summons, executions, summoning the jury, and carrying out the
sentence of the law.
Summons for excise offenses may be left at a person's abode, workhouse,
or shop as well as on his person.
The coroner's office now investigated unusual deaths with a jury from
the neighborhood elected by county freeholders.
The last beheading was of a Scottish lord in 1747; he had been involved
in an attempt to restore the Stuarts to the throne. So many people came
that some overcrowded bleachers fell down and crushed about 20
spectators. Henceforth, every sentence of death was by hanging, even for
peers.
In 1772, the process of pressing a man to death, if he refused to plead
to an indictment was abolished. Instead, persons accused or indicted, in
Great Britain or America, of felony or piracy who stand mute shall be
convicted of such charge. Property of a felon was still forfeited to the
crown.
From 1749 on were established special procedures for speedy decisions
in local courts in some areas for debts or damages under 40s. and
imprisonment for such was limited for up to three months. Otherwise,
sentences were longer, and debts grew during the time in prison. When
prisons were overcrowded, Parliament let the inmates out if they gave up
their possessions. They could go to Georgia.
In 1763, the homes of John Wilkes and others were searched for a
seditious and treasonous published paper and all related papers because
they had been rumored to have some relationship to the conception,
writing, publication, or distribution of the paper. Wilkes had such
papers and was convicted of libel. He countersued for damages due to
criminal trespass. The court held that general search warrants were
subversive of the liberty of the subject of the search in violation of
the British Constitution, declared the statute void, and found for
Wilkes. The Court of Common Pleas agreed on appeal and put the burden of
proof on the persons searching to justify the search warrant. His
decision gave support to William Pitt's assertion that "every man's home
is his castle".
There were felons' prisons and debtors' prisons. Sometimes they were
one and the same. There was much fighting among inmates. The inmates
slept on hay if lucky. There were no washing facilities and little
light. Counties or friends paid for their bread. They were also sold
beer, which made them drunk and riotous. The sale of beer was a
recognized and legitimate source of profit to the keeper. This was
remedied by statute of 1760 that no sheriff or other officer may take an
arrested person to a tavern or other public house or charge him for any
wine, beer, ale, victuals, tobacco or other liquor without his consent
and shall allow prisoners to be brought beer, ale, victuals, bedding,
and linen as the prisoner sees fit. Sheriffs often kept people
imprisoned unless and until they paid all their fees due to the sheriff.
In 1772 was founded the Society for the Discharge and Relief of Persons
Imprisoned for Small Debts for those inmates unfortunate instead of
fraudulent or extravagant. Legacies were often made to debtors. There
was much Gaol Distemper fever with fatal consequences. When John Howard,
a grocer who had inherited wealth, but poor health, became a sheriff, he
visited many gaols. When he saw the squalid conditions there, he
advocated hygienic practices. In 1774, Justices of the Peace were
authorized to order walls and ceilings of gaols to be scraped and
washed, ventilators for supplies of fresh air, a separate room for the
sick prisoners, commodious bathing tubs, provision of clothes for
prisoners, keeping of prisoners not below the ground, and apothecaries
at a stated salary to attend and to report the state of health of
prisoners.
In 1773, clergymen were employed in gaols to alleviate the distress of
prisoners and to contribute to morality and religion. Also, no longer
may any fees be taken by gaol keepers or sheriffs because persons not
indicted or found not guilty have been kept in prison pending payment of
such fees. Instead, the counties shall pay to gaol keepers up to 13s.4d.
per prisoner so discharged.
Colonials acts which infringed upon the English common or statutory
law, or were against the interests of other American colonies were
submitted to the Privy Council, which allowed or disallowed them.
Appeals from the colonial courts came to the Privy Council.
Judges in the colonies were appointed by royal governors and paid by
colonial legislatures. They served at the pleasure of the king. Colonial
courts included superior courts of judicature, courts of assize, general
gaol delivery, general sessions of the peace, inferior court of common
pleas, and commissions of Oyer and Terminer. There were also Justices of
the Peace, marshals, provosts, and attorney generals. There were few
cases of vagrancy, theft, or homicide. This may have been because the
people were few and dependent on each other, and economic opportunities
were great.
In 1735 John Peter Zenger, printer of the New York Weekly Journal, was
tried for seditious libel for its criticisms and satire of the New York
governor, who exceeded his powers, such as by demanding that bills from
the assembly be presented to him before the council, and by arbitrarily
displacing judges. Seditious libel was defined as "false, scandalous,
and seditious" writings. Traditionally, this word "false" could mean
"disloyal". The prosecution argued that truth of such criticism was an
aggravation of the crime because it was more provoking of sedition, as
found by Star Chamber cases. The defense argued for a right publicly to
remonstrate abuses of power by public officials to guard against
violence and destruction of liberties by men in authority. The American
jurors, who were supposed to be familiar with the facts pertinent to the
case, knew the truth of the paper's criticisms. They agreed with the
defense that the word "false" in the definition: "false, scandalous, and
seditious" writings, to mean "untrue" instead of "disloyal". So truth
became a defense to seditious libel. Pamphletts describing the Zenger
trial and acquittal were published and republished in London and the
colonies.
Benefit of clergy for certain crimes was available in the American
colonies to all who could read and write. For instance, t could be used
in trials for manslaughter.
- - - Chapter 19: Epilogue - - -