felony by reason whereof many women suffer death for small causes,
any woman convicted for the felonious taking of any money, goods
or chattels greater than 12d. and less than 10s. other than
burglary or robbery on the highway or from the person of any man
or woman without their knowledge, shall be branded and marked in
the hand upon the brawne of the left thumb with a "T" and
imprisonment, whipping, stocking, or sending to the house of
correction for a year or less.
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.
Mothers concealing the death of a bastard baby shall suffer as for
murder, unless one witness proves the child was born dead.
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.
In 1604 it was decided that it was not necessary to prove that
witchcraft caused the death of a person for there to be punishment
for the witchcraftery. All that was necessary now was the practice
of witchcraft. The punishment was death by hanging. Also,
consulting or feeding an evil spirit was felony.
As Attorney General, 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."
- 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,
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. 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 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".
A statute of 1623 gave rights for adverse possession. It provided
that all writs of formedon [right to land by gift of an estate
tail] in descender, formedon in remainder, and formedon in
reverter for any manors, lands, tenements, or hereditaments shall
be sued within twenty years, for the quieting of men's estates and
avoiding of suits. In default thereof they shall be excluded from
such entry except children under 21 years, women-covert, non
compos mentis, imprisoned or overseas shall have an additional ten
years after their disability ceases if the twenty years have
expired. The limitation for bringing actions on the case (except
slander), account, trespass, replevin, debt, detinue for goods and
chattels and the action of trespass, quare clausum fregit [damages
for unlawful entry on land], is within 6 years; for trespass of
assault, battery, wounding, imprisonment is within 4 years; and
for actions upon the case for words is within 2 years.
The trial of Sir Walter Ralegh in 1603 began a call 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 was 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 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. 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.
Nine-tenths of the people were Protestant. Religion was a favorite
and serious topic of discussion, even among the illiterate. On the
whole, they were more inclined to salvation by grace than to
salvation by good works. Popular reading included guides for good
manners such as "The Rich Cabinet" by Thomas Gainsford, and
"Youths Behavior" translated from the French by Francis Hawkins.
It advised not to sit with one leg on the other, but with the feet
even; not to spit on one's fingers; and not to sniffle in the
sight of others. Books for ladies such as "Delights for Ladies" by
Hugh Platt told them how to adorn themselves, tables, closets, and
rooms with beautiful objects, perfumes, and waters. It taught
preserving and the making of candy preserved by sugar, cooking,
and housewifery. Gervase Markham wrote advice for men in "Hobsons
Horse-load of Letters", which addressed serious negotiations,
private businesses, amorous accomplishment, wanton merriment, and
the defense of honor and reputation. "A Helpe to Discourse" primed
a man to meet company with suggested questions and answers,
epigrams, riddles, and jests. In Henry Peacham's "The Compleat
Gentleman" (1622), the model Cavalier is portrayed in terms of
horsemanship, tilting, sports, choice of companions, reserved and
dignified conduct, good scholarship, and responsibility. This
popular book was a guide to university, where there was a seven
year course of classroom lectures. It advised conversation with
men of the soundest reputation for religion, life, and learning,
but recreation with those of the same rank and quality. First
place was to be given to religion, so that the foundation of all
studies would be the service of God. Following in importance were:
speaking and writing in English or Latin (grammar, syntax, and
rhetoric), astronomy, astrology, geography (whose authorities
were Pliny, Strabo, and the pagan writers of the first century),
chorography [map-making], mathematics, including arithmetic
and geometry, poetry (reading, writing, and criticizing), music,
including part-music, drawing, limning [putting drawings in books],
painting, art history, exercise (riding, running, leaping,
tilting, throwing, wrestling, swimming, shooting, and falconry),
logic and disputation if related to one's intended profession such
as the law, philosophy (Plato and Aristotle), and some medicine
and botany.
Richard Brathwaite's "The English Gentleman" portrays the somber
Puritan who accepts the gospel of work. He is a staid and serious
businessman. "Matrimonial Honour" by Daniel Rogers opined that for
success, a marriage must be godly, with the parties equally
religious, worshipping together in private and in public. A hasty
or worldly marriage would bring repentance. The spouses should
agree, but keep to their spheres. Children should not be spoiled.
Large households were more or less self-supporting and were
managed by their ladies. Work included ordering wool, hemp, and
flax; making cloth and dying it; dairy work; brewing; malting;
baking; preserving wines; extracting oils; distilling perfume; and
putting on banquets. Couches were coming into use in parlors.