Book: Our Legal Heritage, 4th Ed.

S >> S. A. Reilly >> Our Legal Heritage, 4th Ed.




Wills are proven in the Court of Husting, the oldest court in
London, which went back to the times of Edward the Confessor. One
such proven will is:

"Tour (John de La) - To Robert his eldest son his capital messuage
and wharf in the parish of Berchingechurch near the land called
'Berewardesland`. To Agnes his wife his house called
'Wyvelattestone', together with rents, reversions, etc. in the
parish of S. Dunstan towards the Tower, for life; remainder to
Stephen his son. To Peter and Edmund his sons lands and rents in
the parish of All Hallows de Berhyngechurch; remainders over in
default of heirs. To Agnes, wife of John le Keu, fishmonger, a
house situate in the same parish of Berhyng, at a peppercorn
[nominal] rent."

The Court of the Mayor of London heard diverse cases, including
disputes over goods, faulty or substandard goods, adulteration,
selling food unfit for human consumption, enhancing the price of
goods, using unlawful weighing beams, debts, theft, distraints,
forgery, tavern brawling, bullying, and gambling. Insulting or
assaulting a city dignitary was a very serious crime; an attack on
the mayor was once capitally punished. Sacrilege, rape, and
burglary were punished by death. Apart from the death penalty, the
punishment meted out the most was public exposure in the pillory,
with some mark of ignominy slung round the neck. If the crime was
selling bad food, it was burnt under the offender's nose. If it
was sour wine, the offender was drenched in it. Standing in the
pillory for even one hour was very humiliating, and by the end of
the day, it was known throughout the city. The offender's
reputation was ruined. Some men died in the pillory of shame and
distress. A variation of the pillory was being dragged through the
streets on a hurdle. Prostitutes were carted through the streets
in coarse rough cloth hoods, with penitential crosses in their
hands. Scolds were exposed in a "thewe" for women. In more serious
cases, imprisonment for up to a year was added to the pillory.
Mutilation was rare, but there are cases of men losing their right
hands for rescuing prisoners. The death penalty was usually by
hanging. The following four London cases pertain to customs, bad
grain, surgery, and apprenticeship, respectively.

"John le Paumer was summoned to answer Richer de Refham, Sheriff,
in a plea that, whereas the defendant and his Society of Bermen
[carriers] in the City were sworn not to carry any wine, by land
or water, for the use of citizens or others, without the Sheriff's
mark, nor lead nor cause it to be led, whereby the Sheriff might
be defrauded of his customs, nevertheless he caused four casks of
wine belonging to Ralph le Mazun of Westminster to be carried from
the City of Westminster without the Sheriff's mark, thus
defrauding the latter of his customs in contempt of the king etc.
The defendant acknowledged the trespass. Judgment that he remain
in the custody of the Sheriff till he satisfy the King and the
Court for offense."

"Walter atte Belhaus, William atte Belhous, Robert le Barber
dwelling at Ewelleshalle, John de Lewes, Gilbert le Gras, John his
son, Roger le Mortimer, William Ballard atte Hole, Peter de
Sheperton, John Brun and the wife of Thomas the pelterer, Stephen
de Haddeham, William de Goryngg, Margery de Frydaiestrate, Mariot,
who dwells in the house of William de Harwe, and William de
Hendone were attached to answer for forestalling all kinds of
grain and exposing it, together with putrid grain, on the
pavement, for sale by the bushel, through their men and women
servants; and for buying their own grain from their own servants
in deception of the people. The defendants denied that they were
guilty and put themselves on their country. A jury of Richard de
Hockeleye and others brought in a verdict of guilty, and the
defendants were committed to prison til the next Parliament."

"Peter the Surgeon acknowledged himself bound to Ralph de
Mortimer, by Richard atte Hill his attorney, in the sum of 20s.,
payable at certain terms, the said Ralph undertaking to give Peter
a letter of acquittance [release from a debt]. This Recognizance
arose out of a covenant between them with regard to the effecting
of a cure. Both were amerced for coming to an agreement out of
Court. A precept was issued to summon all the surgeons of the City
for Friday, that an enquiry might be made as to whether the above
Peter was fitted to enjoy the profession of a surgeon."

"Thomas de Kydemenstre, shoemaker, was summoned to answer William
de Beverlee, because he did not clothe, feed and instruct his
apprentice Thomas, William's son, but drove him away. The
defendant said that the apprentice lent his master's goods to
others and promised to restore them or their value, but went away
against his wish; and he demanded a jury. Subsequently, a jury of
William de Upton and others said the apprentice lent two pairs of
shoes belonging to his master and was told to restore them, but,
frightened by the beating which he received, ran away; further
that the master did not feed and clothe his apprentice as he
ought, being unable to do so, to the apprentice's damage 40d., but
that he was now in a position to look after his apprentice.
Thereupon Thomas de Kydemenstre said he was willing to have the
apprentice back and provide for him, and the father agreed.
Judgment that the master take back the apprentice and feed and
instruct him, or that he repay to the father, the money paid to
the latter, and that he pay the father the 40d. and be in mercy."

A professional class of temporal attorneys whose business it is to
appear on behalf of litigants is prominent in the nation.
Attorneys are now drawn from the knightly class of landed
gentlemen, instead of ecclesiastical orders. Since it was
forbidden for ecclesiastics to act as advocates in the secular
courts, those who left the clergy to become advocates adopted a
close-fitting cap to hide their tonsures, which came to be called
a "coif". The great litigation of the nation is conducted by a
small group of men, as is indicated by the earliest Year Books of
case decisions. They sit in court and will sometimes intervene as
amicus curiae [friends of the court]. Parliament refers difficult
points of law to them as well as to the justices. These reports
became so authoritative that they could be cited in the courts as
precedent. Groups of attorneys from the countryside who are
appearing in London courts during term-time and living in
temporary lodgings start to form guild-like fellowships and buy
property where they dine and reside together, called the Inns of
Court. They begin to think of themselves as belonging to a
profession, with a feeling of responsibility for training the
novices who sat in court to learn court procedures and attorney
techniques. They invited these students to supper at the Inns of
Court for the purpose of arguing about the day's cases. The Inns
of Court evolved a scheme of legal education, which was oral and
used disputations. Thus they became educational institutions as
well as clubs for practicing attorneys. The call to the bar of an
Inn was in effect a degree. To be an attorney one had to be
educated and certified at the Inns of Court. They practice law
full time. Some are employed by the King. Justices come to be
recruited from among those who had passed their lives practicing
law in court, instead of from the ecclesiastical orders. All
attorneys were brought under the control of the justices.

There are two types of attorney: one attorney appears in the place
of his principal, who does not appear. The appointment of this
attorney is an unusual and a solemn thing, only to be allowed on
special grounds and with the proper formalities. For instance, a
poor person may not be able to afford to travel to attend the
royal court in person. The other one is the pleader-attorney, who
accompanies his client to court and advocates his position with
his knowledge of the law and his persuasiveness.

In 1280, the city of London made regulations for the admission of
both types of attorneys to practice before the civic courts, and
for their due control. In 1292 the king directed the justices to
provide a certain number of attorneys and apprentices to follow
the court, who should have the exclusive right of practicing
before it. This begins the process which will make the attorney
for legal business an "officer of the court" which has appointed
him.






- - - Chapter 9 - - -



- The Times: 1348-1399 -

Waves of the black death, named for the black spots on the body,
swept over the nation. The black blotches were caused by extensive
internal bleeding. The plague was carried in the blood of black
rats and transmitted to humans by the bite of the rat flea, but
this cause was unknown. The first wave of this plague, in 1348,
lasted for three years and desolated the nation by about one half
the population in the towns and one third in the country. People
tried to avoid the plague by flight. The agony and death of so
many good people caused some to question their belief in God.
Also, it was hard to understand why priests who fled were less
likely to die than priests who stayed with the dying to give them
the last rites. Legal and judicial, as well as other public
business, ceased for two years, interrupted by the plague. Thus
begins a long period of disorganization, unrest, and social
instability. Customary ways were so upset that authority and
tradition were no longer automatically accepted. Fields lay waste
and sheep and cattle wandered over the countryside. Local courts
could seldom be held. Some monasteries in need of cash sold
annuities to be paid in the form of food, drink, clothing, and
lodging during the annuitant's life, and sometimes that of his
widow also. Guilds and rich men made contributions to the poor and
ships with provisions were sent to various parts of the country
for the relief of starving people. In London, many tradesmen and
artisans formed parish fraternities which united people of all
social levels and women on almost equal terms with men, in
communal devotion and mutual support, such as help in resolving
disputes, moral guidance, money when needed, and burial and
masses.

Farm workers were so rare that they were able to demand wages at
double or triple the pre-plague rate. The pre-plague had been 4d.-
6d. daily for masons, carpenters, plasterers, and tilers and 3d.
for their laborers. These laborers could buy 12 cheap loaves, 3
gallons of ale, and a gallon of cheap wine or half a pair of
shoes. Prices did not go up nearly as much as wages. Villeins
relinquish their tenements, and deserted their manors, to get
better wages elsewhere. They became nomadic, roaming from place to
place, seeking day work for good wages where they could get it,
and resorting to thievery on the highways or beggary where they
could not. The Robin Hood legends were popular among them. In
them, Robin Hood is pure outlaw and does not contribute money to
the poor. Nor does he court Maid Marion.

They spread political songs among each other, such as: "To seek
silver to the King, I my seed sold; wherefore my land lieth fallow
and learneth to sleep. Since they fetched my fair cattle in my
fold; when I think of my old wealth, well nigh I weep. Thus
breedeth many beggars bold; and there wakeneth in the world dismay
and woe, for as good is death anon as so for to toil."

Groups of armed men took lands, manors, goods, and women by force.
The villeins agreed to assist each other in resisting by force
their lords' efforts to return them to servitude. A statute of
laborers passed in 1351 for wages to be set at the pre-plague
rates was ineffectual. Justices became afraid to administer the
law. Villeins, free peasants, and craftsmen joined together and
learned to use the tactics of association and strikes against
their employers.

The office of Justice of the Peace was created for every county to
deal with rioting and vagrants. Cooperation by officials of other
counties was mandated to deal with fugitives from its justice.

The Black Death visited again in 1361 and in 1369. The Black Death
reduced the population from about 5 million to about 2 1/2
million. It was to rise to about 4 million by 1600.

When there were attempts to enforce the legal servitude of the
villeins, they spread rhymes of their condition and need to
revolt. A secret league, called the "Great Society" linked the
centers of intrigue. A high poll tax, graduated from 20s. to 12d.,
that was to be raised for a war with France, touched off a
spontaneous riot all over the nation in 1381. This tax included
people not taxed before, such as laborers, the village smith, and
the village tiler. Each area had its own specific grievances.
There was no common political motive, except maladministration in
general.

In this Peasants' Revolt, mobs overran the counties around London.
The upper classes fled to the woods. Written records of the
servitude of villeins were burned in their halls, which were also
looted. Title deeds of landlords were burned. Rate rolls of
general taxation were destroyed. Prisoners were released from
gaols. Men connected with tax collection, law enforcement,
attorneys, and alien merchants were beheaded. The Chief Justice
was murdered while fleeing. The archbishop, who was a notoriously
exploitive landlord, the chancellor, and the treasurer were
murdered. Severed heads were posted on London Bridge. A mob took
control of the king's empty bedchamber in the Tower. The villeins
demanded that service to a lord be by agreement instead of by
servitude, a commutation of villein service for rents of a maximum
of 4d. per acre yearly, abolition of a lord's right for their work
on demand (e.g. just before a hail storm so only his crops were
saved), and the right to hunt and fish. The sokemen protested
having to use the lord's mill and having to attend his court.

The revolt was suppressed and its leaders punished. The king
issued proclamations forbidding unauthorized gatherings and
ordering tenants of land to perform their customary services. The
poll tax was dropped. For the future, the duty to deal with
rioting and vagrants was given to royal justices, sheriffs,
mayors, bailiffs, and constables as well as the Justices of the
Peace. There was a high Peace in each hundred and a petty
constable in each parish. Justices of the Peace could swear in
neighbors as unpaid special constables when disorder broke out.

The sheriff was responsible for seeing that men of the lower
classes were organized into groups of ten for police and surety
purposes, and for holding of hundred and county courts, arresting
suspects, guarding prisoners awaiting trial, carrying out the
penalties adjudged by the courts, and collecting Crown revenue
through his bailiffs. Royal writs were addressed to the sheriff.
Because many sheriffs had taken fines and ransoms for their own
use, a term limit of one year was imposed. Sheriffs, hundreders,
and bailiffs had to have lands in the same counties or bailiwicks
[so they could be held answerable to the King].

Efforts were made to keep laborers at the plough and cart rather
than learn a craft or entering and being educated by the church.
The new colleges at the universities ceased to accept villeins as
students.

Due to the shortage of labor, landlords' returns had decreased
from about 20% to about 5%. But some found new methods of using
land that were more profitable than the customary services of
villeins who had holdings of land or the paid labor of practically
free men who paid a money rent for land holdings. One method was
to turn the land to sheep breeding. Others leased their demesne
land, which transferred the burden of getting laborers from the
landlord to the lessee-tenant. The payment was called a "farm" and
the tenant a "farmer". First, there were stock-and-land leases, in
which both the land and everything required to cultivate it were
let together. After 50 years, when the farmers had acquired
assets, there were pure land leases. Landlords preferred to lease
their land at will instead of for a term of years to prevent the
tenant from depleting the soil with a few richer crops during the
last years of his tenancy. The commutation of labor services into
a money payment developed into a general commutation of virtually
all services. Lords in need of money gladly sold manumissions to
their villeins.

The lord and lady of some manors now ate with their family and
entertained guests in a private parlor [from French word 'to
speak"] or great chamber, where they could converse and which had
its own fireplace. The great chamber was usually at the dais end
of tahe great hall. The great hall had been too noisy for
conversation and now was little used. There were also separate
chambers or bed-sitting rooms for guests or members the family or
household, in which one slept, received visitors, played games,
and occasionally ate.

Some farmers achieved enough wealth to employ others as laborers
on their farms. The laborers lived with their employer in his
barn, sleeping on hay in the loft, or in mud huts outside the
barn. The farmer's family lived at one end of the barn around an
open fire. Their possessions typically were: livestock, a chest, a
trestle table, benches, stools, an iron or bronze cauldron and
pots, brooms, wooden platters, wooden bowls, spoons, knives,
wooden or leather jugs, a salt box, straw mattresses, wool
blankets, linen towels, iron tools, and rush candles [used the
pith of a rush reed for the wick]. Those who could not afford rush
candles could get a dim light by using a little grease in a
shallow container, with a few twisted strands of linen thread
afloat in it. The peasants ate dark bread and beans and drank
water from springs. Milk and cheese were a luxury for them. Those
who could not afford bread instead ate oat cakes made of pounded
beans and bran, cheese, and cabbage. They also had leeks, onions,
and peas as vegetables. Some farmers could afford to have a wooden
four-posted bedstead, hens, geese, pigs, a couple of cows, a
couple of sheep, or two plow oxen. July was the month when the
divide between rich and poor became most apparent. The rich could
survive on the contents of their barns, but the poor tried to
survive by grinding up the coarsest of wheat bran and shrivelled
peans and beans to make some sort of bread. Grain and bread prices
soared during July. Farming still occupied the vast majority of
the population. Town inhabitants and university students went into
the fields to help with the harvest in the summer. Parliament was
suspended during the harvest.

Town people had more wealth than country people. Most townspeople
slept in nightgowns and nightcaps in beds with mattresses,
blankets, linen sheets, and pillows. Beds were made every morning.
Bathing was by sponging hot water from a basin over the body,
sometimes with herbs in it, rinsing with a splash of warm water,
and drying off with a towel. Tubs used only for baths came into
use. There were drapery rugs hung around beds, hand-held mirrors
of glass, and salt cellars. The first meal of the day was a light
breakfast, which broke the fast that had lasted the night. Meals
were often prepared according to recipes from cook books which
involved several preparation procedures using flour, eggs, sugar,
cheese, and grated bread, rather than just simple seasoning. Menus
were put together with foods that tasted well together and served
on plates in several courses. Sheffield cutlery was world famous.
Table manners included not making sounds when eating, not playing
with one's spoon or knife, not placing one's elbows on the table,
keeping one's mouth clean with a napkin, and not being boisterous.
There were courtesies such as saying "Good Morning" when meeting
someone and not pointing one's finger at another person. King
Richard II invented the handkerchief for sneezing and blowing
one's nose. There were books on etiquette. Cats were the object of
superstition, but there was an Ancient and Honorable Order of the
Men Who Stroke Cats.

New burgesses were recruited locally, usually from within a 20
mile radius of town. Most of the freemen of the larger boroughs,
like Canterbury and London, came from smaller boroughs. An
incoming burgess was required to buy his right to trade either by
way of a seven year apprenticeship or by payment of an entry fee.
To qualify, he needed both a skill and social respectability.

Towns started acquiring from the king the right to vacant sites
and other waste places, which previously was the lord's right. The
perpetuality of towns was recognized by statutes of 1391, which
compared town-held property to church-held property. The right of
London to pass ordinances was confirmed by charter. Some towns had
a town clerk, who was chief of full-time salaried officers. There
was a guildhall to maintain, a weigh-house, prison, and other
public buildings, municipal water supplies, wharves, cranes,
quays, wash-houses, and public lavatories.

After the experience of the black death, some sanitary measures
were taken. The notorious offenders in matters of public hygiene
in the towns, such as the butchers, the fishmongers, and the
leather tanners were assigned specific localities where their
trades would do least harm. The smiths and potters were excluded
from the more densely populated areas because they were fire
risks. In the town of Salisbury, there was Butcher Row, Ox Row,
Fish Row, Ironmongers' Row, Wheelwrights' Row, Smiths' Row, Pot
Row, Silver Street, Cheese Market, and Wool Market.

Fresh water was brought into towns by pipe or open conduit as a
public facility, in addition to having public wells. In London, a
conduit piped water underground to a lead tank, from which it was
delivered to the public by means of pipes and brass taps in the
stone framework. This was London's chief water supply. Water
carriers carried water in wooden devices on their backs to houses.
The paving and proper drainage of the streets became a town
concern. Building contracts began specifying the provision of
adequate cesspits for the privies at town houses, whether the
latrines were built into the house or as an outhouse. Also, in the
better houses, there grew a practice of carting human and animal
fecal matter at night to dung heaps outside the city walls. There
was one public latrine in each ward and about twelve dung-carts
for the whole city. Country manor houses had latrines on the
ground floor and/or the basement level. Stairwells between floors
had narrow and winding steps.

In London, the Goldsmiths, Merchant Taylors [Tailors], Skinners,
and Girdlers bought royal charters, which recognized their power
of self-government as a company and their power to enforce their
standards, perhaps throughout the country. The Goldsmiths, the
Mercers, and the Saddlers became the first guilds to receive, in
1394-5, charters of incorporation, which gave them perpetual
existence. As such they could hold land in "mortmain" [dead hand],
thus depriving the king of rights that came to him on the death of
a tenant-in-chief. They were authorized to bestow livery on their
members and were called Livery Companies. The liverymen [freemen]
of the trading companies elected London's representatives to
Parliament.

In all towns, the organization of craft associations spread
rapidly downwards through the trades and sought self-government.
Craft guilds were gaining much power relative to the old merchant
guilds in governing the towns. The greater crafts such as the
fishmongers, skinners, and the corders (made rope, canvas, and
pitch) organized and ultimately were recognized by town
authorities as self-governing craft guilds. The building trade
guilds such as the tilers, carpenters, masons, and joiners, became
important. Masons were still itinerant, going to sites of
churches, public buildings, or commanded by the king to work on
castles. The guild was not necessarily associated with a specific
product. For instance, a saddle and bridle were the result of work
of four crafts: joiner (woodworker), painter, saddler (leather),
and lorimer (metal trappings).

In London in 1392 craft guilds included: baker, fishmonger (cut up
and sold fish), fruiterer, brewer, butcher, bird dealer, cook,
apothecary (sold potions he had ground up), cutler (made knives
and spoons), barber, tailor, shoemaker, glover (made gloves),
skinner (sold furs), girdler (made girdles of cloth to wear around
one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller,
painter, carpenter, joiner (woodworker who finished interior
woodwork such as doors and made furniture), tiler, mason (cut
stone for buildings), smith (made metal tools for stonemasons and
builders), tallow chandler (made candles and sometimes soap from
the fat and grease the housewife supplied), wax chandler (made
candles), stirrup maker, spurrier (made spurs), and hosteler
(innkeeper). However, the merchant guilds of the goldsmiths,
vintners (sold wine), mercers (sold cloth), grocers, and drapers
(finished and sold English cloth) were still strong. It was a long
custom in London that freemen in one company could practice the
trade of another company. There were paint mills and saw mills
replacing human labor. There were apothecary shops and women
surgeons. Women who earned their own living by spinning were
called "spinsters".

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