Book: Our Legal Heritage, 4th Ed.

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OUR LEGAL HERITAGE

King AEthelbert - King George III

600 A.D. - 1776






By

S. A. Reilly, Attorney
175 E. Delaware Place
Chicago, Illinois 60611-1724
S.A.Reilly@att.net



4th Edition


Copyright (C) 2002







Preface

This was written to appreciate what laws have been in existence
for a long time and therefore have proven their success in
maintaining a stable society. Its purpose is also to see the
historical context in which our legal doctrines developed. It
includes the inception of the common law system, which was praised
because it made law which was not handed down by an absolutist
king; the origin of the jury system; the meaning of the Magna
Carta provisions in their historical context; and the emergence of
attorneys.

This book is a primer. One may read it without prior knowledge of
history or law, although it will be more meaningful to attorneys
than to others. It can serve as an introduction on which to base
further reading in English legal history. It defines terms unique
to English legal history. However, the meaning of some terms in
King Aethelbert's code in Chapter 1 are unknown or inexact.

In the Table of Contents, the title of each chapter denotes an
important legal development in the given time period for that
chapter. Each chapter is divided into three sections: The Times,
The Law, and Judicial Procedure.

The Times section sets a background and context in which to better
understand the law of that period. The usual subject matter of
history such as battles, wars, royal intrigues, periods of
corruption, and international relations are omitted as not helping
to understand the process of civilization and development of the
law. Standard practices are described, but there are often
variations with locality. Also, change did not come abruptly, but
with vacillations, e.g. the change from pagan to Christian belief
and the change to allowance of loans for interest. The scientific
revolution was accepted only slowly. There were often many
attempts made for change before it actually occurred, e.g. gaining
Parliamentary power over the king's privileges, such as taxation.

The Law section describes the law governing the behavior and
conduct of the populace. It includes law of that time which is the
same, similar, or a building block to the law of today. In earlier
times this is both statutory law and the common law of the courts.
The Magna Carta, which is quoted in Chapter 7, is the first
statute of England and is listed first in the "Statutes of the
Realm" and the "Statutes at Large". The law sections of Chapters 7
- 18 mainly quote or paraphrase most of these statutes. Excluded
are statutes which do not help us understand the development of
our law, such as statutes governing Wales after its conquest and
statutes on succession rights to the throne.

The Judicial Procedure section describes the process of applying
the law and trying cases, and jurisdictions. It also contains some
examples of cases.

For easy comparison, amounts of money expressed in pounds or marks
[Danish denomination] have often been converted to the smaller
denominations of shillings and pence. There are twenty shillings
in a pound. A mark in silver is two-thirds of a pound. Shillings
are abbreviated: "s." There are twelve pennies or pence in a
Norman shilling. Pence are abbreviated "d." Six shillings and two
pence is denoted 6s.2d. A scaett was a coin of silver and copper
of lesser denomination than a shilling.

The sources and reference books from which information was
obtained are listed in a bibliography instead of being contained
in tedious footnotes. There is no index to pages because the
electronic text will print out its pages differently on different
computers with different computer settings. Instead, a word search
may be done on the electronic text.




Dedication and Acknowledgements

A Vassar College faculty member once dedicated her book to her
students, but for whom it would have been written much earlier.
This book "Our Legal Heritage" is dedicated to the faculty of
Vassar College, without whom it would never have been written.
Much appreciation goes to Professor Lacey Baldwin Smith of
Northwestern University's History Department and to Professor
James Curtin of Loyola Law School for their review and comments on
this book: The Tudor and Stuart periods: Chapters 11-17, and the
medieval period: Chapters 4-10, respectively.




Table of Contents

Chapters:

1. Tort law as the first written law: to 600
2. Oaths and perjury: 600-900
3. Marriage law: 900-1066
4. Martial "law": 1066-1100
5. Criminal law and prosecution: 1100-1154
6. Common Law for all freemen: 1154-1215
7. Magna Carta: the first statute: 1215-1272
8. Land law: 1272-1348
9. Legislating the economy: 1348-1399
10. Equity from Chancery Court: 1399-1485
11. Use-trust of land: 1485-1509
12. Wills and testaments of lands and goods: 1509-1558.
13. Consideration and contract Law: 1558-1601
14. Welfare for the poor: 1601-1625
15. Independence of the courts: 1625-1642
16. Freedom of religion: 1642-1660
17. Habeas Corpus: 1660-1702
18. Service of Process instead of arrest: 1702-1776
19. Epilogue: 1776-2000

Appendix: Sovereigns of England

Bibliography





- - - Chapter 1 - - -



- The Times: before 600 A.D. -

The settlement of England goes back thousands of years. At first,
people hunted and gathered their food. They wore animal skins over
their bodies for warmth and around their feet for protection when
walking. These skins were sewn together with bone needles and
threads made from animal sinews. They carried small items by
hooking them onto their belts. They used bone and stone tools,
e.g. for preparing skins. Their uncombed hair was held by
thistlethorns, animal spines, or straight bone hair pins. They
wore conical hats of bound rush and lived in rush shelters.

Early clans, headed by kings, lived in huts on top of hills or
other high places and fortified by circular or contour earth
ditches and banks behind which they could gather for protection.
They were probably dug with antler picks and wood spades. The
people lived in rectangular huts with four wood posts supporting a
roof. The walls were made of saplings, and a mixture of mud and
straw. Cooking was in a clay oven inside or over an open fire on
the outside. Water was carried in animal skins or leather pouches
from springs lower on the hill up to the settlement. Forests
abounded with wolves, bears, deer, wild boars, and wild cattle.
They could more easily be seen from the hill tops. Pathways
extended through this camp of huts and for many miles beyond.

For wives, men married women of their clan or bought or captured
other women, perhaps with the help of a best man. They carried
their unwilling wives over the thresholds of their huts, which
were sometimes in places kept secret from her family. The first
month of marriage was called the honeymoon because the couple was
given mead, a drink with fermented honey and herbs, for the first
month of their marriage. A wife wore a gold wedding band on the
ring finger of her left hand to show that she was married.

Women usually stayed at home caring for children, preparing meals,
and making baskets. They also made wool felt and spun and wove
wool into a coarse cloth. Flax was grown and woven into a coarse
linen cloth. Spinning the strands into one continuous thread was
done on a stick, which the woman could carry about and spin at
anytime when her hands were free. The weaving was done on an
upright or warp-weighted loom. People of means draped the cloth
around their bodies and fastened it with a metal brooch inlayed
with gold, gems, and shell, which were glued on with glue that was
obtained from melting animal hooves. People drank from hollowed-
out animal horns, which they could carry from belts. They could
tie things with rawhide strips or rope braids they made. Kings
drank from animal horns decorated with gold or from cups of amber,
shale, or pure gold. Men and women wore pendants and necklaces of
colorful stones, shells, amber beads, bones, and deer teeth. They
skinned and cut animals with hand-axes and knives made of flint
dug up from pits and formed by hitting flakes off. The speared
fish with barbed bone prongs or wrapped bait around a flint, bone,
or shell fish hook. On the coast, they made bone harpoons for
deep-sea fish. The flint axe was used to shape wood and bone and
was just strong enough to fell a tree, although the process was
very slow.

The king, who was tall and strong, led his men in hunting groups
to kill deer and other wild animals in the forests and to fish in
the streams. Some men brought their hunting dogs on leashes to
follow scent trails to the animal. The men threw stones and spears
with flint points at the animals. They used wood clubs to beat
them, at the same time using wood shields to protect their bodies.
They watched the phases of the moon and learned to predict when it
would be full and give the most light for night hunting. This
began the concept of a month. Circles of stone like Stonehenge
were built with alignments to paths of the moon.

If hunting groups from two clans tried to follow the same deer,
there might be a fight between the clans or a blood feud. After
the battle, the clan would bring back its dead and wounded. A
priest officiated over a funeral for a dead man. His wife would
often also go on the funeral pyre with him.

The priest also officiated over sacrifices of humans, who were
usually offenders found guilty of transgressions. Sacrifices were
usually made in time of war or pestilence, and usually before the
winter made food scarce.

The clan ate deer that had been cooked on a spit over a fire, and
fruits and vegetables which had been gathered by the women. They
drank water from springs. In the spring, food was plentiful. There
were eggs of different colors in nests and many hare to eat. The
goddess Easter was celebrated at this time.

After this hunting and gathering era, there was farming and
domestication of animals such as horses, pigs, sheep, goats,
chicken, and cattle. Of these, the pig was the most important meat
supply, being killed and salted for winter use. Next in importance
were the cattle. Sheep were kept primarily for their wool. Flocks
and herds were taken to pastures. The male cattle, with wood
yokes, pulled ploughs in the fields of barley and wheat. The
female goat and cow provided milk, butter, and cheese. The
chickens provided eggs. The hoe, spade, and grinding stone were
used. Thread was spun with a hand-held spindle which one hand held
while the other hand alternately formed the thread from a mass and
then wound it around the spindle. A coarse cloth was woven and
worn as a tunic which had been cut from the cloth. Kings wore
tunics decorated with sheet gold. Decorated pottery was made from
clay and used to hold liquids and for food preparation and
consumption. During the period of "lent" [from the word "lencten",
which means spring], it was forbidden to eat any meat or fish.
This was the season in which many animals were born and grew to
maturity. Wood carts with four wheels were used to transport
produce and manure. Horses were used for transportation of people
or goods. Wood dug-out boats and paddles were used to fish on
rivers or on the seacoast.

Clans had settlements near rivers. Each settlement had a meadow,
for the mowing of hay, and a simple mill, with round timber huts,
covered with branches or thatch or turf supported by a ring of
posts. Inside was a hearth with smoke going up through a hole in
the roof, and a cauldron for cooking food. There was an upright
loom in the darkness. The floor was swept clean. At the door were
spears or bags of slingstones ready for immediate use. The King
lived in the largest hut. Gullies outside carried off excess
water. Each hut had a garden for fruit and vegetables. A goat or
cow might be tied out of reach of the garden. There was a fence or
hedge surrounding and protecting the garden area and dwelling.
Buckets and cauldrons which had originated from the Mediterranean
were used. Querns with the top circular stone turned by hand over
the bottom stone were used for grinding grain. There were ovens to
dry and roast grain. Grain was first eaten as a porridge or
cereal. There were square wood graneries on stilts and wood racks
on which to dry hay. Grain was stored in concealed pits in the
earth which were lined with drystone or basketwork or clay and
made airtight by sealing with clay or dung. Old pits were
converted into waste dumps, burials, or latrines. Outside the
fence were an acre or two of fields of wheat and barley, and
sometimes oats and rye. Wheat and rye were sown in the fall, and
oats and barley in the spring. Sowing was by men or two oxen
drawing a simple scratch plow. The crops were all harvested in the
summer. In this two-field system, land was held by peasants in
units designed to support a single extended family. These fields
were usually enclosed with a hedge to keep animals from eating the
crop and to define the territory of the settlement from that of
its neighbors. Flax was grown and made into linen cloth. Beyond
the fields were pastures for cattle and sheep grazing. There was
often an area for beehives. This was subsistence level farming.

Pottery was given symmetry when formed with use of a wheel and
heated in increasingly hot kilns. From kilns used for pottery, it
was noticed that lumps of gold or copper ore within would melt and
assume the shape of what they had been resting on. These were the
first metals, and could be beaten into various shapes, such as
ornaments. Then the liquid ore was poured into moulds carved out
of stones to make axes and daggers, which were reheated and
hammered to become strong. Copper-tipped drills, chisels, punches
and awls were also made.

The bodies of deceased were buried far away from any village in
wood coffins, except for kings, who were placed in large stone
coffins after being wrapped in linen. Buried with them were a few
personal items, such as copper daggers, flat copper axes, and awls
[small pointed tool for piercing holes in leather, wood, or other
soft materials.]. The deceased was buried in a coffin with a stone
on top deep in the earth to keep the spirit of the dead from
coming out to haunt the living.

It was learned that tin added to the copper made a stronger metal:
bronze. Stone hammers, and bronze and iron tools, were used to
make cooking pots, weapons, breast plates, and horse bits, which
were formed from moulds and/or forged by bronze smiths and
blacksmiths from iron extracted from iron ore heated in bowl-
shaped hearths. Typically one man operated the bellows to keep the
fire hot while another did the hammering. Bronze was made into
sickles for harvesting, razors for shaving, tweezers, straight
hair pins, safety pins for clothes, armlets, neck-rings, and
mirrors. Weapons included bows and arrows, flint and copper
daggers, bronze swords and spears, stone axes, and shields of wood
with bronze mountings. The bows and arrows probably evolved from
spear throwing rods. Kings in body armor fought with chariots
drawn by two horses. The horse harnesses had bronze fittings. The
chariots had wood wheels, later with iron rims. When bronze came
into use, there was a demand for its constituent parts: copper and
tin, which were traded by rafts on waterways and the sea. When
iron came into use, there were wrought iron axes, saws, adzes [ax
with curved blade used to dress wood], files, ploughshares,
harrows [set of spikes to break clods of earth on plowed land and
also to cover seed when sewn], scythes, billhooks [thick knife
with hooked point used to prune shrubs], and spits for hearths.
Lead was mined. There was some glassmaking of beads. Wrought iron
bars were used as currency.

Hillforts now had wooden palisades on top of their banks to
protect the enclosed farmsteads and villages from stock wandering
off or being taken by rustlers, and from attacks by wild animals
or other people. Later a rampart was added from which sentries
could patrol. These were supported by timber and/or stone
structures. Timbers were probably transported by carts or dragged
by oxen. At the entrances were several openings only one of which
really allowed entry. The others went between banks into dead ends
and served as traps in which to kill the enemy from above. Gates
were of wood, some hung from hinges on posts which could be
locked. Later guard chambers were added, some with space for
hearths and beds. Sometimes further concentric circles of banks
and ditches, and perhaps a second rampart, were added around these
forts. They could reach to 14 acres. The ramparts are sufficiently
widely spaced to make sling-shotting out from them highly
effective, but to minimize the dangers from sling-shotting from
without. The additional banks and ditches could be used to create
cattle corridors or to protect against spear-thrown firebrands.
However, few forts had springs of water within them, indicating
that attacks on them were probably expected to be short. Attacks
usually began with warriors bristling with weapons and blowing war
trumpets shouting insults to the foe, while their kings dashed
about in chariots. Sometimes champions from each side fought in
single combat. The Celts took the heads of those they killed to
hang from their belts or place on wood spikes at the gates.
Prisoners, including women and children, might become slaves.
Kings sometimes lived in separate palisades where they kept their
horses and chariots.

Circles of big stones like Stonehenge were rebuilt so that the
sun's position with respect to the stones would indicate the day
of longest sunlight and the day of shortest sunlight. Between
these days there was an optimum time to harvest the crops before
fall, when plants dried up and leaves fell from the trees. The
winter solstice, when the days began to get longer was cause for
celebration. In the next season, there was an optimum time to
plant seeds so they could spring up from the ground as new growth.
So farming gave rise to the concept of a year. Certain changes of
the year were celebrated, such as Easter, named for the Goddess of
the Dawn, which occurred in the east (after lent); May Day
celebrating the revival of life; Lammas around July, when the
wheat crop was ready for harvesting; and on October 31 the Celtic
eve of Samhain, when the spirits of the dead came back to visit
homes and demand food or else cast an evil spell on the refusing
homes; and at which masked and costumed inhabitants representing
the souls of the dead paraded to the outskirts of the settlements
to lead the ghosts away from their homes; and at which animals and
humans, who might be deemed to be possessed by spirits, were
sacrificed or killed perhaps as examples, in huge bonfires
[bonefires] as those assembled looked out for spirits and evil
beings.

There was an agricultural revolution from the two-field to the
three-field system, in which there were three large fields for the
heavy and fertile land. Each field was divided into long and
narrow strips. Each strip represented a day's work with the
plough. One field had wheat, or perhaps rye, another had barley,
oats, beans, or peas, and the third was fallow. These were rotated
yearly. There was a newly invented plough that was heavy and made
of wood and later had an attached iron blade. The plough had a
mould-board which caught the soil stirred by the plough blade and
threw it into a ridge alongside the furrow dug by the plough
blade. This plough was too heavy for two oxen and was pulled by a
team of about eight to ten oxen. Each ox was owned by a different
man as was the plough, because no one peasant could afford the
complete set. Each freeman was allotted certain strips in each
field to bear crops. His strips were far from each other, which
insured some very fertile and some only fair soil, and some land
near his village dwelling and some far away. These strips he
cultivated, sowed with seed, and harvested for himself and his
family. After the harvest, they reverted to common ownership for
grazing by pigs, sheep, and geese. As soon as haymaking was over,
the meadows became common grazingland for horses, cows, and oxen.
Not just any inhabitant, but usually only those who owned a piece
of land in the parish were entitled to graze their animals on the
common land, and each owner had this right of pasture for a
definite number of animals. The faster horse replaced the ox as
the primary work animal. Other farm implements were: coulters,
which gave free passage to the plough by cutting weeds and turf,
picks, spades and shovels, reaping hooks and scythes, and sledge
hammers and anvils. Strips of land for agriculture were added from
waste land as the community grew. Waste lands were moors bristling
with brushwood, or gorse, heather and wanton weeds, reed-coated
marshes, quaking peat-bogs, or woods grown haphazard on sand or
rock. With iron axes, forests could be cleared to provide more
arable land.

Some villages had a smith, a wheelwright, and a cooper. There were
villages which had one or two market days in each week. Cattle,
sheep, pigs, poultry, calves, and hare were sold there. London was
a town on the Thames River under the protection of the Celtic
river god Lud: Lud's town. It's huts were probably built over the
water, as was Celtic custom. It was a port for foreign trade. Near
the town was Ludhill.

Flint workers mined with deer antler picks and ox shoulder blade
shovels for flint to grind into axes, spearheads, and arrowheads.
Mine shafts were up to thirty feet deep and necessitated the use
of chalk lamps fuelled by animal fat with wicks of moss. The flint
was hauled up in baskets.

Common men and women were now buried in tombs within memorial
burial mounds of earth with stone entrances and interior chambers.
A man's weapons and shield were buried with him and a woman's
spindle and weaving baton, and perhaps beads or pottery with her.
At times, mounds of earth would simply be covered over piles of
corpses and ashes in urns. In these mass graves, some corpses had
spear holes or sword cuts, indicating death by violence. The Druid
priests, the learned class of the Celts, taught the Celts to
believe in reincarnation of the soul after death of one body into
another body. They also threw prized possessions into lakes and
rivers as sacrifices to water gods. They placed images of gods and
goddesses in shrines, which were sometimes large enough to be
temples.

With the ability to grow food and the acquisition of land by
conquest by invading groups, the population grew. There were
different classes of men. The freemen were eorls [noble freemen]
or ceorls [ordinary free farmers]. Slaves were not free. Freemen
had long hair and beards. Slaves' hair was shorn from their heads
so that they were bald. Slaves were chained and often traded.
Prisoners taken in battle, especially native Britons taken by
invading groups, became slaves. A slave who was captured or
purchased was a "theow". An "esne" was a slave who worked for
hire. A "weallas" was a Welsh slave. Criminals became slaves of
the person wronged or of the king. Sometimes a father pressed by
need sold his children or his wife into bondage. Debtors, who
increased in number during famine, which occurred regularly,
became slaves by giving up the freeman's sword and spear, picking
up a slave's mattock [pick ax for the soils], and placing their
head within a lord's or lady's hands. They were called wite-
theows. The original meaning of the word lord was "loaf-giver".
Children with a slave parent were slaves. The slaves lived in huts
around the homes of big landholders, which were made of logs and
consisted on one large room or hall. An open hearth was in the
middle of the earthen floor of the hall, which was strewn with
rushes. There was a hole in the roof to let out the smoke. Here
the landholder and his men would eat meat, bread, salt, hot spiced
ale, and mead while listening to minstrels sing about the heroic
deeds of their ancestors. Richer men drank wine. There were
festivals which lasted several days, in which warriors feasted,
drank, gambled, boasted, and slept where they fell. Physical
strength and endurance in adversity were admired traits.

Slaves often were used as grain grinders, ploughmen, sowers,
haywards, woodwards, shepherds, goatherds, swineherds, oxherds,
cowherds, dairymaids, and barnmen. Slaves had no legal rights. A
lord could kill his slave at will. A wrong done to a slave was
regarded as done to his owner. If a person killed another man's
slave, he had to compensate him with the slave's purchase price.
The slave owner had to answer for the offences of his slaves
against others, as for the mischief done by his cattle. Since a
slave had no property, he could not be fined for crimes, but was
whipped, mutilated, or killed.

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