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 [penalty of 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 & 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. [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.
Cordwainers shall not tan leather [to prevent deceitful tanning].
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.
3. 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.
4. 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.
5. 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.
6. A lease for a term of years is a real chattel rather than
a free tenement, and may pass without livery of seisin.
7. He who has possession of land, though it is by disseisin,
has right against all men but against him who has right.
8. If a tenant is past due his rent, the lord may distrain
his beasts which are on the land.
9. 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.
10. 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.
11. 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.
12. A man declared outlaw forfeits his profits from land and
his goods to the King.
13. 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.
14. An accessory shall not be put to answer before the
principal.
15. If a man commands another to commit a trespass, and he
does it, the one who made the command is a trespasser.
16. 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.
17. 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.
18. If two titles are concurrent together, the oldest title
shall be preferred.
19. 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.
20. If the demandant or plaintiff, hanging his writ (writ
pending in court), will enter into the thing demanded, his
writ shall abate.
21. 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.
22. 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.
A Sheriff was not to arrest, but to transfer indictments to the
Justices of the Peace of the county. He had to reside in his
bailiwick. The sheriff could be sued for misfeasance such as
bribery in the King's court.
Impeachment was replaced with bill of attainder during the swift
succession of parliaments during the civil war. This was a more
rapid and efficient technique of bringing down unpopular ministers
or political foes. There was no introduction of evidence, nor
opportunity for the person accused to defend himself, nor any
court procedure, as there was with impeachment.
An example of a case of common law decided by Court of King's
Bench is Russell's Case (1482) as follows: