Our Legal Heritage Part 84

Jurors shall be selected from those people who have at least 80s.

annual income instead of 40s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. Also there had been inflation.

Defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail.

Not only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office.

A hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber.

The Star Chamber became the central criminal court after 1560, and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. Its procedure was inquisitory rather than accusative. It heard witnesses in camera [not in the presence of the suspected]. Trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. Silence could be taken for a confession of guilt. There was no jury. Queen Elizabeth chose not to sit on this court. Punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (The gentry was exempt from whipping.)

Because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the Star Chamber in 1585 held that the printing trade was to be confined to London, except for one press at Oxford and one at Cambridge. No book or pamphlet could be printed unless the text was first seen, examined, and allowed by the Archbishop of Canterbury or the Bishop of London. Book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. Wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. But printers continued to print unlicensed material.

The Ecclesiastical High Commission [later called the Court of High Commission or High Court of Ecclesiastical Causes] took over criminal cases formerly heard by the church courts. It also heard matters of domestic morals. It was led by bishops and Privy Council members who in 1559 were authorized by a statute of Parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. Obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. If anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. The clergyman who adopts a prayer book other that the prescribed one commits a crime. Excommunication has imprisonment behind it. Elizabeth gave this court the power to fine and imprison, which the former church courts had not had. At first, the chief work was depriving papists of their benefices.

Suits on t.i.tles to land were restricted to the common law courts and no longer to be heard in the Star Chamber, Chancery Court, or in the Court of Requests (equity for poor people).

The Queen's Privy Council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. It frequently issued orders to Justices of the Peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. The Justices of the Peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the Sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. They held petty and quarter sessions. The Justices of the Peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts.

They listed the poor in each parish community, a.s.sessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants.

Raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level.

They determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. There were about 50 Justices of the Peace per county. All were unpaid. They performed these duties for the next 200 years.

The Justices of a.s.size rode on circuit twice a year to enforce the criminal law and reported their a.s.sessment of the work of the Justices of the Peace back to the Privy Council.

The duty to hear and determine felonies was taken from Justices of the Peace by 1590. The Justices of a.s.size did this work. Accused people could wait for years in gaol before their case was heard. Felonies included breach of prison, hunting by night with painted faces, taking horses to Scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. The penalty was death. Many people were hanged for the felony of theft over 12d. Some bold men accused of felony refused to plead so that they could not be tried and found guilty. They died of heavy weights being placed on their bodies. But then their property could go to their heirs.

The Court of Queen's Bench and Exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the Court of Common Pleas or Chancery. Chancery interrogated defendants.

Chancery often issued injunctions against suits in the common law courts. Trial by combat was very rare.

Pleadings had to be in writing and oral testimony was given by sworn witnesses. Case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books.

In the common law, trespa.s.s has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of t.i.tle the claimant a.s.serts. Trespa.s.s on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. The use of the action of trover gradually supplants the action of detinue, which involves compurgation.

In the common law courts, the action of a.s.sumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. The essential nature of "consideration"

in contract is evolving from the procedural requirements for the action of a.s.sumpsit. Consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. Consideration must be something, an act, or forbearance of an act that is of value. For instance, forbearance to sue a worthless claim is not consideration.

The abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. For instance the word "consideration" is used in Hayward's Case in 1595 in the Court of Wards on the construction of a deed. Sir Rowland Hayward was seised in fee of the Doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money"

paid to him by Richard Warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their a.s.signs, presently after the decease of Sir Rowland, for the term of 17 years. It was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences.

In another case, A delivered 400s. to B to the use of C, a woman, to be delivered to her on the day of her marriage. Before this day, A countermanded it, and called home the money. It was held in the Chancery Court that C could not recover because "there is no consideration why she should have it".

In a case concerning a deed, A sold land to B for 400s., with confidence, that it would be to the use of A. This bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". It was held that the transaction was not examinable except for fraud and that A was therefore estopped.

A court reporter at the King's Bench formulated two principles on consideration of the case of Wilkes against Leuson as: "The heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. Where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the Queen must admit the feoffees to their traverse, and to have the farm, &c." The court reporter summarized this case as follows: Wilkes, who was merchant of the staple, who died in February last past, made a feoffment in the August before his death to one Leuson, a knight, and his brother, and another, of the manor of Hodnel in the county of Warwick; and the deed, (seen) for seven thousand pounds [140,000s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et h.o.e.redibus suis in perpetuum, ad proprium opus et usum ipsorum A. B. et C. in perpetuum," and not "h.o.e.redum suorum," together with a clause of warranty to them, their heirs and a.s.signs, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one I.

Wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. And although the said I. Wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. And whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the Queen donec et quousque &c. was a great question. And by the opinion of the learned counsel of that court he cannot do it, but the Queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. And this by the statutes ... And note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. And note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. And also the warranty in the deed was "to them, their heirs, and a.s.signs, in form aforesaid," which is a declaration of the intent of Wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. And suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? I believe not; and so in the other case.

A last example of a case concerning consideration is that of a.s.saby and Others against Lady Anne Manners and Others. The court reporter characterized the principle of the case as: "A. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in [fee]

tail, and that all persons should stand seised to those uses, and also for further a.s.surance. After the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of A. the daughter and her husband may enter." The court reporter summarized this case as follows: A. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and B. son and heir apparent of C. he covenanted and agreed by indenture with C. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said A. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an a.s.surance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards A.

bargained and sold the land for two hundred marks [2,667s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also A.

levied a fine to the recoverers before any execution had, and notwithstanding all these things A. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. And all this matter was found in a.s.size by a.s.saby and others against Lady Anne Manners and others. And judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement.

Yet error was alleged. The judgment in the a.s.size is affirmed.

The famous Sh.e.l.ley's Case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a cla.s.s to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. For example, where property goes to A for life and the remainder goes to A's heirs, A's life estate and the remainder merge into a fee in A. A can sell or devise this interest.

Edward Sh.e.l.ley was a tenant in fee tail general. He had two sons. The older son predeceased his father, leaving a daughter and his wife pregnant with a son. Edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. After judgment and the awarding of the writ of seisin, but before its execution, Edward died.

After his death, and before the birth of his older son's son, the writ of seisin was executed. The younger son entered the land and leased it to a third party. Afterwards, the son of the older son was born. He entered the land and ejected the third party. It was held that the younger son had taken quasi by descent until the birth of the older son's son. The entry by the older son's son was lawful. The third party was lawfully ejected. (Sh.e.l.ley's Case, King's Bench, 1581, English Reports - Full Reprint, Vol. 76, Page 206.)