Our Legal Heritage Part 64

11. 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 pet.i.t 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.

12. 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.

13. A man declared outlaw forfeits his profits from land and his goods to the King.

14. 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.

15. An accessory shall not be put to answer before the princ.i.p.al.

16. If a man commands another to commit a trespa.s.s, and he does it, the one who made the command is a trespa.s.ser.

17. The land of every man is in the law enclosed from other, though it lies in the open field, and a trespa.s.ser in it may be brought to court.

18. Every man is bound to make recompense for such hurt as his beasts do in the growing grain or gra.s.s of his neighbor, though he didn't know that they were there.

19. If two t.i.tles are concurrent together, the oldest t.i.tle shall be preferred.

20. 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.

21. If the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate.

22. 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.

23. 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 a.s.size 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 inst.i.tution, 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 a.s.sets 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 a.s.size, 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 t.i.tles, 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.