Our Legal Heritage Part 91

Defendants may not pet.i.tion to remove a case to the Westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves.

In 1619, by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts.

James I a.s.serted an authority to determine the jurisdiction between the various courts.

The Court of High Commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony [buying or selling ecclesiastical preferment, eclectically pardons, or other things regarded as sacred or spirtual], plurality, drunkenness, and other clerical irregularities.

The Star Chamber Court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable Justices of the Peace, for instance by deterring enclosure.

It also enforced monopolies. However, there was a growing tendency for King James, who sat on it, to abuse its power with high fines. For instance, a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. The lord was fined 10,000 pounds. James' council used torture to obtain information from accused felons about possible conspiracies against him.

The ordinary administrative court of first instance is formed by the single Justices of the Peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. For more important resolutions, the special sessions of the Justices of the Peace of a hundred for a court of intermediate instance and appointed overseers of the poor. All Justices of the Peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. It heard appeals expressly allowed by statute. The central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. This writ of certiorari ceased in the 1700s.

Justices of the Peace who have the power to give rest.i.tution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants].

The Justices of the Peace were chosen by the Crown, usually by the Chancellor. The qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. They were almost exclusively country gentlemen, except in the towns. In the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] Justices of the Peace. Their main duty was to keep the peace. If a justice heard of a riot in the making, he could compel individuals at the place to give bonds of ?good-a-bearing? and cause a proclamation to be made in the King's name for them to disperse. Two justices or more had the authority to arrest the rioters and send a record of it to the a.s.sizes and to the Privy Council. If the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the King and his Council. The justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. They tried to draw these men into confession by questioning. After indictment, a person had the choice of a petty jury trial or paying a fine. The Justices of the Peace could insist upon presentment juries or surveys of offenses by local officers, but, without the inst.i.tution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. Their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over 12s. and whippings and fines for misdemeanors. Further, the offender was frequently a neighbor with whom one would have to live. Mediation by the local constable often took place. When there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law.

a.s.sault cases were common in courts of a.s.size and courts of quarter sessions. The quarter sessions were those of a number of Justices of the Peace held for a couple of days four times a year for the more important cases in the jurisdiction of the Justices of the Peace. a.s.sault was violence or threat of imminent violence. Fines were graduated according to the means of the offender, who was usually bound over to keep the peace. Most involved offenders and victims who were neighbors and included people of substantial standing in the village. Also, a sizable minority were directed against local officers such as constables, bailiffs, or tax- collectors.

Three-fourths of all a.s.size indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery.

These offenses were mostly opportunistic rather than planned, except for London's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. There were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. But most of the poor never stole.

The Justices of the Peace usually deferred to the learned Justices of a.s.size for cases of felony, murder, rape, highway robbery, and witchcraft. Most homicides were the result of an impa.s.sioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. Only 18% of homicides were within the family. Men were still declared outlaw if they failed to come to court after repeated summons.

The Lord Keeper regularly advised the a.s.size justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impa.s.sable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. In fact, the justices were most attentive to offenses which affected them as rate payers for the poor. These were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, b.a.s.t.a.r.dy, vagrancy, church nonattendance, and above all, disorderly alehouses. Alehousing had been a well- established means of poor employment since the 1200s, so it was hard to enforce licensing laws. Further, alehouses were the centers of social life for the common people; both women and men met their friends there. If an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. None may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. An attorney who allows another to use his name shall forfeit 400 s.h.i.+llings and be disbarred.

Offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the King's subjects will no longer be burdened thereby.

Plaintiffs' costs shall be paid by the defendants only where there is a judgment against the defendant in all actions in which the plaintiff is ent.i.tled to costs on judgment for him, to discourage frivolous and unjust suits.

By 1616, Chancery could order injunctions to stop activities.

In Slade's case of 1602, the Court of the Queen's Bench held that a.s.sumpsit may be brought in place of the action of debt. So a.s.sumpsit supplants debt for recovering liquidated sums and is then called "indebitatus a.s.sumpsit".

The trial of Sir Walter Ralegh in 1603 began a call by people for a right to confront and question one's accusers. Before trial, privy counselors who in theory sat as impartial justices, cross-examined Ralegh in prison. With a carefully selected jury present, the trial began with reading of the indictment, which Ralegh had not yet seen. He was charged with treason in plotting with Catholic Spain to put Arabella Stuart on the throne. Arabella was to write to Spain promising peace, toleration of Catholics in England, and direction by Spain in her marriage choice. He pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. Next, Attorney General Edward c.o.ke, his enemy and rival, and he engaged in a debate about who was right, with c.o.ke outright bullying him. c.o.ke then produced a signed confession by Lord Cobham that implicated him in the alleged conspiracy and accepting 10,000 crowns for his part. Ralegh was given permission to speak. He said that Cobham had retracted his confession. He ridiculed the idea that he would betray England to Spain for gold after fighting against Spain, including risking his life three times, and spending 4,000 pounds for the defeat of Spain. He pointed to a treatise he had written to the king on the present state of Spain and reasons against peace. Then there was a discussion on the validity of Cobham's confession. Cecil gave an oration of Ralegh. c.o.ke gave a speech. Ralegh asked to have his accuser brought before him face to face. He cited law that two witnesses were necessary for a conviction for treason. Chief Justice Popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. c.o.ke added that it would be improper to call Cobham because he was a party. Then c.o.ke surprised Ralegh with a letter from Cobham stating that Ralegh had asked Cobham to procure him an annual pension of 1500 pounds from Spain for disclosing intelligence. Ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. He admitted that it was a fault not to inform authorities of this offer. The jury deliberated for fifteen minutes and returned with a verdict of guilty. The Chief Justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. The whole trial was not so much to access guilt, but to show the general public that the person was guilty.

Church courts were revived after a period of disuse. They could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. Annuled marriages made a person's children illegitimate. An action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for a.s.sault and battery could result in an order for separation. But only a private statute of Parliament could grant a divorce, which allowed remarriage. It was granted in only a few cases and only to the very wealthy. Church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice.

In 1610, Edward c.o.ke, Chief Justice of the Court of Common Pleas, decided that the statute giving the Royal College of Physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. c.o.ke said that a maxim of the common law was that no man ought to be judge in his own cause. By this decision, he a.s.serted a court supremacy over Parliament with respect to the validity of statutes. He opined that the courts should not only be independent of the Crown, but should act as arbiter of the Const.i.tution to decide all disputed questions. In his words, "When an Act of Parliament is against common right and reason, the common law will control it and adjudge such Act to be void."

Justices still explained and in some degree interpreted legislative acts of Parliament as they had since the 1500s, but their right to do so was coming into question and was slowly lost.

Female scolds were still dunked into water as punishment.

Only barristers, who were called to the bar after being in long residence in one of the Inns of Court, could practice before the King's court. Attorneys and solicitors prepared cases for barristers and practiced before minor courts.

The king appointed the justices, with the advice of the Chancellor.

James I often intimidated the justices to see things his way.

The oath of a justice was: "Well and truly ye shall serve the King and his people. And ye shall take no fee or livery of none but the King, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. And ye shall do equal law and execution of Right to all the King's subjects rich and poor, without regard to any person. Ye shall counsel our Sovereign Lord the King in his need. And ye shall not delay any person of common right for the letters of the King or of any person or for any other cause ... So help you G.o.d."

The courts of King's Bench and Common Pleas, and the Chancery all met simultaneously in Westminster Hall. Throngs pa.s.sed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. The hall was so cold that people kept on their coats and hats.