Our Legal Heritage Part 65

Attorneys may plead on behalf of parties in the hundred courts.

A qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least 40s. per year in value. In a plea of land worth at least 40s. yearly or a personal plea with relief sought at least 800s., jurors had to have land in the bailiwick to the value of at least 400s., because perjury was considered less likely in the more sufficient men.

In criminal cases, there were many complaints made that the same men being on the grand a.s.size and petty a.s.size was unfair because prejudicial. So it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty a.s.size. Then the petty a.s.size came to be drawn from the country at large and was a true petty or trial jury. Jurors were separated from witnesses.

Justices of the Peace were to have lands worth 267s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people.

A Sheriff was not to arrest, but to transfer indictments to the Justices of the Peace of the county. He had to reside in his bailiwick.

The sheriff could be sued for misfeasance such as bribery in the King's court.

Impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. This was a more rapid and efficient technique of bringing down unpopular ministers or political foes. There was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment.

An example of a case of common law decided by Court of King's Bench is Russell's Case (1482) as follows:

In the king's bench one Thomas Russell and Alice his wife brought a writ of trespa.s.s for goods taken from Alice while she was single. The defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which a.s.sessed the damages at 20 pounds. Before the case was next to be heard in the King's Court an injunction issued out of the Chancery to the plaintiffs not to proceed to judgment, on pain of 100 pounds, and for a long time judgment was not asked for. Then Hussey CJKB. asked Spelman and Fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. Fincham [P]: We would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the Chancellor if he disobeys. Fairfax, JKB: He can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. Hussey, CJKB: We have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. The law will not make him pay the penalty provided in the injunction. If the Chancellor wants to imprison him he must send him to the Fleet Prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. Nevertheless, Fairfax said he would go to the Chancellor and ask him if he would discharge the injunction. And they asked for judgment and it was held that they should recover their damages as a.s.sessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the Chancery injunction. And they said that if the Chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it.

An example of a pet.i.tion to chancery in the 1400s is Hulkere v. Alcote, as follows:

To the right reverend father in G.o.d and gracious lord bishop of Bath, chancellor of England, your poor and continual bedwoman Lucy Hulkere, widow of Westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the King's Bench and in the Common Pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of Manthorpe in Lincolns.h.i.+re and also of the manor of Gildenburton in Northamptons.h.i.+re, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of 100 pounds and more, under record of notary, sued against Harry Alcote and Elizabeth of the foresaid Gildenburton within the same county of Northampton. And by collusion and fickle counsel of the foresaid Harry and Elizabeth his mother there was led and shown for him within the Common Pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid Common Pleas. Of the which false release proved she has a copy to show. [All this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lords.h.i.+p in this matter at this time. That it please your n.o.ble grace and pity graciously to grant a writ subpoena to command the foresaid Henry Alcote and Elizabeth Alcote to come before your presence by a certain day by you limited in all haste that they may come to Westminster to answer to this matter abovesaid, for love of G.o.d and a deed of charity, considering graciously that the foresaid Harry Alcote, with another fellow of his affinity who is not lately hanged for a thief in Franceled her into a garden at Gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid Harry Alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother- in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead.

Pledges to prosecute: John Devens.h.i.+re of Berdevyle in Ess.e.x and James Kelom of London. Returnable in Michaelmas term.

- - - Chapter 11 - - -

- The Times: 1485-1509 -

Henry Tudor and other exiles defeated and killed Richard III on Bosworth field, which ends the civil War of the Roses between the Lancaster and York factions. As King, Henry VII restored order to the nation. He was readily accepted as king because he was descended from the Lancaster royal line and he married a woman from the York royal line. Henry was intelligent and sensitive. He weighed alternatives and possible consequences before taking action. He was convinced by reason on what plans to make. In his reign of 24 years, Henry applied himself diligently to the details of the work of government to make it work well. He strengthened the monarchy, sh.o.r.ed up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish.

His primary strategy was enacting and enforcing statutes to sh.o.r.e up the undermined legal system, which includes the establishment of a new court: the Court of the Star Chamber, to obtain punishment of persons whom juries were afraid to convict. It had no jury and no grand jury indictment. For speed and certainty, it tried people "ex officio": by virtue of its office. Suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. A man could not refuse to answer on the grounds of self-incrimination. The Star Chamber was the room in which the King's council had met since the 1300s.

The most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. Interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally p.r.o.ne to help their friends in court or to give a.s.sistance in return for payment. Rural juries were intimidated by the old baronage and their armed retinues. Juries in munic.i.p.al courts were subverted by gangs of townsmen. Justices of the Peace didn't enforce the laws. The agricultural work of the nation had been adversely affected.

Henry made policy with the advice of his council and had Parliament enact it into legislation. He dominated Parliament by having selected most of its members. Many of his council were sons of burgesses and had been trained in universities. He chose competent and especially trusted men for his officers and commanders of castles and garrison. The fact that only the king had artillery deterred barons from revolting. Also, the baronial forces were depleted due to the civil War of the Roses. If Henry thought a magnate was exercising his territorial power to the King's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. Since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. The earl of Kent, whose debts put him entirely at the King's mercy, was bound to "be seen daily once in the day within the King's house". Henry also required recognizances from men of all cla.s.ses, including clergy, captains of royal castles, and receivers of land. The higher n.o.bility now consisted of about twenty families. The heavy fines by the Star Court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance.

The ties between the n.o.bility and the Justices of the Peace had encouraged corruption of justice. So Henry appointed many of the lesser gentry and attorneys as Justices of the Peace. Also he appointed a few of his councilors as nonresident Justices of the Peace. There were a total of about thirty Justices of the Peace per county. Their appointments were indefinite and most remained until retirement or death. Henry inst.i.tuted the Yeomen of the Guard to be his personal bodyguards night and day.

Many bills of attainder caused lords to lose their land to the King.

Most of these lords had been chronic disturbers of the peace. Henry required retainers to be licensed, which system lasted until about 1600.

Henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time.

Henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the Exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. He also personally reviewed all accounts and initialed every page, making sure that all payments were made. He regularly ordered all men with an income of 800s. [40 pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. As a result, the Crown became rich and therefore powerful.

Henry's Queen, Elizabeth, was a good influence on his character. Her active beneficence was a counteracting influence to his avaricious predisposition. When Henry and his Queen traveled through the nation, they often stopped to talk to the common people. They sometimes gave away money, such as to a man who had lost his hand. Henry paid for an intelligent boy he met to go to school.

Henry had the first paper mill erected in the nation. He fostered the reading of books and the study of Roman law, the cla.s.sics, and the Bible. He had his own library and gave books to other libraries.

The age of entry to university was between 13 and 16. It took four years' study of grammar, logic, and rhetoric to achieve the Bachelor of Arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. Humanist studies were espoused by individual scholars at the three centers of higher learning: Oxford University, Cambridge University, and the Inns of Court in London. The Inns of Court attracted the sons of gentry and merchants pursuing practical and social accomplishments. The text of ?readings? to members of the inns survive from this time. In the legalistic climate of these times, attorneys were prosperous.

The enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. Often this was land that had been under the plough. Any villeins were given their freedom and they and the tenants at will were thrown off it immediately.

That land held by copyholders of land who had only a life estate, was withheld from their sons. Only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. But they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. The real line of distinction between rural people was one of material means instead of legal status: free or unfree. On one extreme was the well-to-do yeoman farmer farming his own land. On the other extreme was the agricultural laborer working for wages. Henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored.

Other land put to use for sheep breeding was waste land. There were three sheep to every person. The nearby woodlands no longer had wolves or lynx who could kill the sheep. Bears and elk are also gone.There were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. Wood was used for houses, arms, carts, bridges, and s.h.i.+ps.