Our Legal Heritage Part 126

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, gla.s.sman, 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 ent.i.tled 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, trespa.s.s in ejectment served the purposes of most of the actions involving land. a.s.sumpsit covered the whole province of debt, and much more. Trover more than covered the old province of detinue. Trespa.s.s still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. Trespa.s.s 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 Common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the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 a.s.sumpsit 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 a.s.signs. 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 relations.h.i.+p 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 trespa.s.s. The court held that general search warrants were subversive of the liberty of the subject of the search in violation of the British Const.i.tution, 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 a.s.sertion 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 was.h.i.+ng 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 sc.r.a.ped 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 a.s.size, 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 a.s.sembly 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 - - -

In the time period after 1776, there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flus.h.i.+ng toilets, Edmund Cartwright's power weaving machine, Samuel Crompton's mule for spinning many threads by waterpower in 1779, James Watt's steam engine with steam pus.h.i.+ng the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, Henry Bessimer's inexpensive low carbon steel in 1856, iron and steel bridges and s.h.i.+ps, drilling and use of oil and natural gas as fuel, Adam Smith's "Wealth of Nations" opining that compet.i.tion of the market could distribute resources best, Thomas Paine's "Rights of Man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, Mary Wollstonecraft's "Vindication of the Rights of Women", university education for women (University of London), policemen (in London in 1829), clipper s.h.i.+ps (the final development of sailing before steam), percussion caps on guns, Periodic Chart of chemical elements, college degrees in biology, chemistry, and physics, geology, Maxwell's theory of electromagnetism, Albert Einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the DNA sequence, Charles Darwin's evolution, Joseph Lister's disinfectant in 1867, Edward Jenner's smallpox vaccine, Louis Pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet Ura.n.u.s by observation and thence of Neptune and Pluto by calculation from discrepancies in Ura.n.u.s' orbit, Hubble s.p.a.ce telescope, Big Bang Theory, buses (horse-drawn from 1829 with 18 pa.s.sengers), subways, trains (1804), public railway (1825, goods drawn by engine and pa.s.sengers by horse), steam s.h.i.+ps, steel s.h.i.+ps, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in 1801, children's playgrounds, knee length dresses, chemical artificial fertilizers, subst.i.tution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical a.n.a.lysis, Bell curves, standard deviations, United Nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skysc.r.a.pers, electricity, electric lights, sewing machines, water closets in richer houses (after 1778), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, Charles d.i.c.kens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, four- p.r.o.nged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, Braille, airplanes, s.p.a.ce s.h.i.+p to moon, factory a.s.sembly lines, was.h.i.+ng machines, dishwashers, sewing machine, microwave ovens, copier machines, DNA evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amus.e.m.e.nt parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory a.s.sembly line, gene-mapping, animal cloning, Internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, ma.s.s production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, DDT, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign emba.s.sies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, Walt Disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in 1890s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. The science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that G.o.d had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the Tower of Babel and dispersing the people into all parts of the world with different languages derived from the original: Hebrew, so that they could not communicate with each other. The science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. In 1784, Lord Henry Cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. In the United States, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic t.i.tles.

In this time period the development of law includes abandonment of common law crimes such as seditious libel in the United States, negligence and duty of due care in the United States replacing the English strict liability for torts, subst.i.tution of the caveat emptor doctrine for the English sound price doctrine in contract law in the United States, truth as a defense to charge of libel in the United States, repeal in England of seven year requirement for apprentices in 1814, married women's property acts beginning 1839: (1. right to sue and be sued, 2. right to her own earnings, 3. right to own real and personal property, 4. right to make contracts 5. right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in England by courts in 1857, in United States extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in England in 1839 mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the 1850s; in England allowance of women attorneys in 1922, women to vote in 1928, adultery by a husband to be adjudged as culpable as adultery by a wife in 1923, the rights of a mother over her child to be equal to those of a father in 1924, and the rights of a woman to property to be the same as those of a man in 1926; child labor laws, full religious freedom with admission of nonconformists to the two universities in England in 1871, probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair compet.i.tion, ant.i.trust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, s.e.x, ethnic or national origin, disability, age, and s.e.xual preference; s.e.xual hara.s.sment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the United States,

In England, there was an end of trial by combat in 1819, of compurgation in 1833, and of benefit of clergy. In 1820, there were 160 offenses in England with the death penalty, including stealing from a dwelling house to the value of 40s., stealing from a shop to a value of 5s., and stealing anything privily from the person. The penalty for treason was still drawing and quartering. It was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. As of 1823, church courts could no longer decide cases of perjury; as of 1855, no cases of defamation, but only church matters. Hearsay rules and exceptions were developed in the 1800s. In 1816, jurors were to have no knowledge except the evidence accepted at court. In 1837, counsel for a person indicted for high treason could examine and cross- examine witnesses. In 1839, a defendant could see the written record of evidence against him. In 1898, the accused was allowed to give evidence. Pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action.