Our Legal Heritage Part 57

The office of Justice of the Peace was developed and filled by knights, esquires and gentlemen who were closely a.s.sociated with the magnates.

There was no salary nor any requirement of knowledge of the law. They were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespa.s.sers, and rioters according to the law. They were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. They also were empowered to inspect weights and measures. Trespa.s.s included forcible offenses of breaking of a fence enclosing private property, a.s.sault and battery, false imprisonment, and taking away goods and chattels.

The action of trespa.s.s was replacing private suits for murder and for personal injury.

Pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, a.s.sault, or malice aforethought.

Justices of a.s.size, sheriffs, and Justices of the Peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned.

A reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by curtesy of the nation, or in [Fee] Tail after Possibility of Issue extinct are sued in court for the land, so as to prevent collusion by the demandants.

A person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at his will.

Where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable.

Actions of debt will be heard only in the county where the contract was made. The action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. Thus there is a growing connection between the actions of debt and contract.

Executors have an action for trespa.s.s to their testators' goods and chattels in like manner as did the testator when alive.

If a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. Such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court.

Children born to English parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation.

A person grieved by a false oath in a town court proceeding may appeal to the King's Bench or Common Pleas, regardless of any town franchise.

It was exceptional for the King to sit on the Court of the King's Bench, which worked independently of the King.and became confined to the established common law.

Decisions of the common law courts are appealable to the House of Lords. The king's council members who are not peers, in particular the justices and the Masters of the Chancery, are summoned by the House of Lords only as mere a.s.sistants. Parliament may change the common law by statute. The right of a peer to be tried for capital crimes by a court composed of his peers was established. There was a widespread belief that all the peers are by right the king's councilors.

No attorney may practice law and also be a justice of a.s.size. No justice may take any gift except from the king nor give counsel to any litigant before him.

In 1390, there was a statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. Because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords'

service, and could not be retained by another lord. No one was to give livery to anyone else, except household members and those retained for life for peace or for war. Justices of the Peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord.

Whereas it is contained in the Magna Carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by pet.i.tion or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law.

The Chancery came to have a separate and independent equitable jurisdiction. It heard pet.i.tions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wards.h.i.+p of infants, dower, and rent charges. Because the common law and its procedures had become technical and rigid, the Chancery was given equity jurisdiction by statute in 1285. King Edward III proclaimed that pet.i.tions for remedies that the common law didn't cover be addressed to the Chancellor, who was not bound by established law, but could do equity. In Chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the Chancellor. These were called "actions on the case". Also, Parliament may create new remedies. There were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the Chancery. The Chancellor gave swift and equitable relief, which was summary. With the backing of the council, the Chancellor made decisions implementing the policy of the Statute of Laborers. Most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. For instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. The Chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. He imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. A dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. A person starting a fire was given a duty to prevent the fire from damaging property of others. The King will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the Chancellor by due process.

Only barons who were peers of the House of Lords were ent.i.tled to trial in the House of Lords. In practice, however, this pertained only to major crimes.

Treason was tried by the lords in Parliament, by bill of "attainder".

It was often used for political purposes. Most attainders were reversed as a term of peace made between competing factions.

The King's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "Memorandum that on July 6, [1347], Henry de Roseye abjured the realm of England before John Bernard, the King's coroner, at the church of Tendale in the County of Kent in form following: 'Hear this, O lord the coroner, that I, Henry de Roseye, have stolen an ox and a cow of the widow of John Welsshe of Retherfeld; and I have stolen eighteen beasts from divers men in the said county. And I acknowledge that I have feloniously killed Roger le Swan in the town of Strete in the hundred of Strete in the rape [a division of a county] of Lewes and that I am a felon of the lord King of England. And because I have committed many ill deeds and thefts in his land, I abjure the land of the Lord Edward King of England, and [I acknowledge] that I ought to hasten to the port of Hastings, which thou hast given me, and that I ought not to depart from the way, and if I do so I am willing to be taken as a thief and felon of the lord King, and that at Hastings I will diligently seek pa.s.sage, and that I will not wait there save for the flood and one ebb if I can have pa.s.sage; and if I cannot have pa.s.sage within that period, I will go up to the knees into the sea every day, endeavoring to cross; and unless I can do so within forty days, I will return at once to the church, as a thief and a felon of the lord King, so help me G.o.d."

Property damage by a tenant of a London building was a.s.sessed in a 1374 case: "John Parker, butcher, was summoned to answer Clement Spray in a plea of trespa.s.s, wherein the latter complained that the said John, who had hired a tavern at the corner of St. Martin- le-Grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was ent.i.tled to destroy any portion of the buildings or fixtures let to him. He alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a part.i.tion of the tavern, a seat in the tavern, a plastered part.i.tion wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a part.i.tion in the kitchen, two doors and other part.i.tions, of a total value of 21s.

four pounds, 1s. 8d., and to his damage, 400s. [20 pounds]. The defendant denied the trespa.s.s and put himself on the country. Afterwards a jury [panel]... found the defendant guilty of the aforesaid trespa.s.s to the plaintiff's damage, 40d. Judgment was given for that amount and a fine of 1s. to the King, which the defendant paid immediately in court."

The innkeeper's duty to safeguard the person and property of his lodgers was applied in this case:

"John Trentedeus of Southwark was summoned to answer William Latymer touching a plea why, whereas according to the law and custom of the realm of England, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are pa.s.sing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ...