Book: Our Legal Heritage, 4th Ed.

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




At the 1376 Parliament, ("the Good Parliament") the Commons, which
formerly had only consented to taxes, took political action by
complaining that the King's councilors had grown rich by war
profiteering at the cost of impoverishing the nation and the
people were too poor to endure any more taxation for the war and
held a hearing on financial malfeasance and dishonesty of two
ministers. The chamberlain had extorted enormous sums, had
intercepted fines meant for the king's treasury, and had sold a
castle to the enemy. The steward had bought debts of the king's.
The House of Lords, the High Court of Parliament, found the
charges proved and dismissed them permanently from office. This
established the constitutional means for impeachment and
prosecution by the Commons and removal by the House of Lords of
ministers. By this process, there could be no royal intimidation,
as there could be in the ordinary courts. The Commons demanded
that its members be elected by county citizens rather than
appointed by the sheriff.

The roles of Parliament and the King's council are starting to
differentiate into legislative and executive, respectively. The
legislative function is law-making and the executive is
regulation-making that refines and effectuates the laws of
Parliament. But the legislative, executive, and judicial
authorities have not as yet become so completely separated that
they cannot on occasion work together.

Sheriffs dealt directly with the king instead of through an earl.

From 1150 to 1400, resistance was an ordinary remedy for political
disagreements. If a popular leader raised his standard in a
popular cause, an irregular army could be assembled in a day.
(There was no regular army, since England was protected by the sea
from invasion.) So misgovernment by a king would be quickly
restrained. Society recovered quickly from conflict and civil war
because the national wealth consisted chiefly in flocks and herds
and in the simple buildings inhabited by the people. In a week
after armed resistance, the agricultural worker was driving his
team. There was little furniture, stock of shops, manufactured
goods, or machinery that could be destroyed.

To support a war with France in 1353, the staple was reinstated by
statute of 1353 after an experiment without it in which profits of
a staple went to staples outside the nation. Wool exports were
inspected for quality and taxed through his officials only at the
designated staple ports. These officials included collectors,
controllers, searchers [inspectors], surveyors, clerks, weighers,
and crane-keepers. Wool, woolfells, leather, and lead sold for
export had to go through the staple town. The penalty was
forfeiture of lands, tenements, goods, and chattel. (The staple
statute remained basically unchanged for the next 200 years.) The
mayor and constables of the staple were elected annually by the
native and foreign merchants of the place. The mayor gave validity
to contracts for a set fee, by seal of his office. He and the
constables had jurisdiction over all persons and things touching
the staple, which was regulated by the Law Merchant in all matters
of contract, covenant, debt, and felonies against foreign
merchants. A hue and cry was required to be raised and followed
for anyone taking a cart of merchandise or slaying a merchant,
denizen [resident alien] or alien, or the town would answer for
the robbery and damage done. In 1363, Calais, a continental town
held by the English, became the staple town for lead, tin, cloth,
and wool and was placed under a group of London capitalists: the
Merchants of the Staple. All exports of these had to pass through
Calais, where customs tax was collected.

Guns and cannon were common by 1372. In the 1300s and 1400s, the
king relied on mercenaries hired directly or by contract with his
great nobles for foreign wars. The King reimbursed the contractors
with the profits of war, such as the ransoms paid by the families
of rich prisoners. The fighting men supplemented their pay by
plunder. Featherbeds and blooded horses were favorite spoils of
war brought back to England from the continent. As new techniques
with footmen came into being, the footmen became the core of the
army and the knightly abilities of the feudal tenants-in-chief
became less valuable.

Many lords got men to fight with them by livery and maintenance
employment agreements such as this one of 1374: "Bordeaux,
February 15. This indenture, made between our lord King John [of
Gaunt, of Castile, etc.] of the one part and Symkyn Molyneux,
esquire, of the other part, witnesses that the said Symkyn is
retained and will remain with our said lord for peace and for war
for the term of his life, as follows: that is to say, the said
Symkyn shall be bound to serve our said lord as well in time of
peace as of war in whatsoever parts it shall please our said lord,
well and fitly arrayed. And he shall be boarded as well in time of
peace as of war. And he shall take for his fees by the year, as
well in time of peace as of war, ten marks sterling [133s.] from
the issues of the Duchy of Lancaster by the hands of the receiver
there who now is or shall be in time to come, at the terms of
Easter and Michaelmas by even portions yearly for the whole of his
life. And, moreover, our lord has granted to him by the year in
time of war five marks sterling [67s.] by the hands of the
treasurer of war for the time being. And his year of war shall
begin the day when he shall move from his inn towards our said
lord by letters which shall be sent to him thereof, and
thenceforward he shall take wages coming and returning by
reasonable daily [payments] and he shall have fitting freightage
for him, his men, horses, and other harness within reason, and in
respect of his war horses taken and lost in the service of our
said lord, and also in respect to prisoners and other profits of
war taken or gained by him or any of his men, the said our lord
will do to him as to other squires of his rank."

Forecastles and stern castles on ships were lower and broader.
Underneath them were cabins. The English ship was still single
masted with a single square sail. A fleet was formed with over 200
ships selected by the English admirals acting for the king at the
ports. Men were seized and pressed into service and criminals were
pardoned from crimes to become sailors in the fleet, which was led
by the King's ship. They used the superior longbow against the
French sailor's crossbow. In 1372, the Tower of London had four
mounted fortress cannon and the port of Dover had six.

The war's disruption of shipping caused trade to decline. But the
better policing of the narrow seas made piracy almost disappear.

English merchants may carry their merchandise in foreign ships if
there are no English ships available.

Anyone may ship or carry grain out of the nation, except to
enemies, after paying duties. But the council may restrain this
passage when necessary for the good of the nation. Any merchant,
privy or stranger, who was robbed of goods on the sea or lost his
ship by tempest or other misfortune on the sea banks, his goods
coming to shore could not be declared Wreck, but were to be
delivered to the merchant after he proves ownership in court by
his marks on the goods or by good and lawful merchants.

All stakes and obstacles set up in rivers impeding the passage of
boats shall be removed.

Waterpower was replacing foot power in driving the mills where
cloth was cleaned and fulled.

A boundary dispute between two barons resulted in the first true
survey map. Nine cow pastures were divided by a boundary marked by
a shield on a pole which the commission of true and sworn men had
set up.

King Richard II, an irresponsible sovereign, asserted an absolute
supremacy of the king over Parliament and declared certain
statutes which he claimed to have been forced on him to be
revoked. He interfered with county elections of knights to
Parliament by directing sheriffs to return certain named persons.
He wanted to dispense altogether with Parliament and instead have
a committee of representatives. He claimed that the goods of his
subjects were his own and illegally taxed the counties. There were
many disputes as to who should be his ministers. High treason was
extended to include making a riot and rumor, compassing or
purposing to depose the King, revoking one's homage or liege to
the King, or attempting to repeal a statute. When Henry
Bolingbroke reported to Parliament that another lord had cast
doubt on the king's trustworthiness, a duel between them was
arranged. But Richard, probably fearing the gain of power of the
lord who won, instead exiled the two lords. He took possession of
the Lancaster estates to which Henry was heir and forbade this
inheritance. This made all propertied men anxious and they united
behind Bolingbroke in taking up arms against Richard. Richard was
not a warrior king and offered to resign the crown. The "Merciless
Parliament" of 1388 swept out Richard's friends. Parliament
deposed and imprisoned Richard. It revoked the extensions to the
definition of high treason. It elected Bolingbroke, who claimed to
be a descendant of Henry III, to be King Henry IV. This action
established clearly that royal decrees were subordinate to
parliamentary statutes, that Parliament was the ultimate legal
arbiter of the realm, and that the consent of Parliament was
necessary in determining kingship. The House of Commons became
very powerful. It was responsible for the major part of
legislation. It's members began to assert the privilege of free
speech. That is, they wanted to discuss other matters than what
was on the king's agenda and they opposed punishment for what they
said unless it was treasonable. Henry IV agreed to their request
not to consider reports of proceedings unless they came to him
through official channels.



- The Law -

After the Black Death of 1348 these statutes were enacted:

High treason was defined by statute in 1352 as levying war against
the King, aiding the King's enemies, compassing or imagining the
death of the King, Queen, or their eldest son and heir, or
violating the Queen or the eldest unmarried daughter or the wife
of the King's eldest son and heir; making or knowingly using
counterfeits of the King's great or privy seal or coinage; or
slaying the Chancellor, Treasurer, or any justice in the exercise
of their duty. The penalty was forfeit of life and lands.

Petit treason was defined by statute and included a servant
slaying his master, a wife her husband, or a man his lord, to whom
was owed faith and obedience.

No one shall tell false news or lies about prelates, dukes, earls,
barons, and other nobles and great men or the Chancellor,
Treasurer, a Justice, Clerk of the Privy Seal, Steward of the
King's house whereby debates and discords might arise between
these lords or between the lords and the commons. Cases shall be
tried by the King's Council, which included the Chancellor,
Treasurer, and chief justices.

Preachers drawing crowds by ingenious sermons and inciting them to
riot shall be arrested by sheriffs and tried by the ecclesiastical
court.

Any stranger passing at night of whom any have suspicion shall be
arrested and taken to the Sheriff.

No man shall ride with a spear, upon pain of forfeiting it.

No servant of agriculture or laborer shall carry any sword or
dagger, or forfeit it, except in time of war in defense of the
nation. He may carry bow and arrow [for practice] on Sundays and
holy days, when he should not play games such as tennis, football,
or dice.

No one may enter another's land and tenements by strong hand nor
with a mob, upon pain of imprisonment and ransom at the King's
will.

Charters, releases, obligations, [quit-claim deeds] and other
deeds burnt or destroyed in uprisings shall be reissued without
fee, after trial by the king and his council. Manumissions,
obligations, releases and other bonds and feoffments in land made
by force, coercion or duress during mob uprisings are void.

Men who rape and women consenting after a rape shall lose their
inheritance and dower and joint feoffments. The husbands, or
father or next of kin of such women may sue the rapist by
inquisition, but not by trial by combat. The penalty is loss of
life and member.

The Statute of Laborers of 1351 required all workers, from tailors
to ploughmen, to work only at pre-plague wage rates and forced the
vagrant peasant to work for anyone who claimed him or her. It also
encouraged longer terms of employment as in the past rather than
for a day at a time. Statutory price controls on food limited
profits to reasonable ones according to the distance of the
supply. Later, wages were determined in each county by Justices of
the Peace according to the dearth of victuals while allowing a
victualler a reasonable profit and a penalty was specified as
paying the value of the excess wages given or received for the
first offense, double this for the second offense, and treble this
or forty days imprisonment for the third offense.

A fugitive laborer will be outlawed, and when found, shall be
burnt in the forehead with the letter "F" for falsity.

Children who labored at the plough and cart or other agriculture
shall continue in that labor and may not go into a craft.

A statute of 1363 designed to stop hoarding various types of
merchandise until a type became scarce so to sell it at high
prices, required merchants to deal in only one type of
merchandise. It also required craftsmen to work in only one craft
as before (except women who traditionally did several types of
handiwork). This was repealed a year later.

Where scarcity has made the price of poultry high, it shall be
lowered to 8d. for a young capon, 7d. for an old capon or a goose,
9d. for a hen, and 10d. for a pullet.

The fares for passage on boats on fresh waters and from Dover to
the continent shall remain at their old rate.

Any merchant selling at a fair after it has ended will forfeit to
the king twice the value of that sold.

Anyone finding and proving cloth contrary to the assize of cloth
shall have one-third of it for his labor.

No shoemaker nor cordwainer shall tan their leather and no tanner
shall make shoes, in order that tanning not be false or poorly
done.

All denizen [foreigner permitted to reside in the realm with
certain rights and privileges] and alien merchants may buy and
sell goods and merchandise, in gross, in any part of the country,
despite town charters or franchises, to anyone except an enemy of
the King. They may also sell small wares: victuals, fur, silk,
coverchiefs [an item of woman's apparel], silver wire, and gold
wire in retail, but not cloth or wine. They must sell their goods
within three months of arrival. Any alien bringing goods to the
nation to sell must buy goods of the nation to the value of at
least one-half that of his merchandise sold. These merchants must
engage in no collusion to lower the price of merchandise bought,
take merchandise bought to the staple, and promise to hold no
staple beyond the sea for the same merchandise. An amendment
disallowed denizens from taking wools, leather, woolfells, or lead
for export, but only strangers.

Towns failing to bring disturbers of this right to justice shall
forfeit their franchise to the king and pay double damages to the
merchant. The disturber shall be imprisoned for a year.

Cloth may not be tacked nor folded for sale to merchants unless
they are opened to the buyers for inspection, for instance for
concealed inferior wool. Workers, weavers, and fullers shall put
their seals to every cloth. And anyone could bring his own wools,
woolfells, leather, and lead to the staple to sell without being
compelled to sell them in the country. Special streets or
warehouses were appointed with warehouse rent fixed by the mayor
and constables with four of the principal inhabitants. Customs
duties were regulated and machinery provided for their collection.
No one was to forestall or regrate, that is, buy at one price and
sell at a higher price in the same locale. Forestallers were those
who bought raw material on its way to market. Regrators were those
who tried to create a "corner" in the article in the market
itself.

Imported cloth shall be inspected by the King's officials for non-
standard measurements or defects [despite town franchises].

No one shall leave the nation except at designated ports, on pain
of one year's imprisonment.

Social distinctions by attire were mandated by statute of 1363. A
servant, his wife, son, or daughter, shall only wear cloth worth
no more than 27s. and shall not have more than one dish of meat or
fish a day. Carters, ploughmen, drivers of the plough, oxherds,
cowherds, shepherds, and all other people owning less than 40s. of
goods and chattels shall only wear blanket and russet worth no
more than 12d. and girdles of linen according to their estate.
Craftsmen and free peasants shall only wear cloth worth no more
than 40s. Esquires and gentlemen below the rank of knight with no
land nor rent over 2,000s. a year shall only wear cloth worth no
more than 60s., no gold, silver, stone, fur, or the color purple.
Esquires with land up to 2,667s. per year may wear 67s. cloth,
cloth of silk and silver, miniver [grey squirrel] fur and stones,
except stones on the head. Merchants, citizens, burgesses,
artificers, and people of handicraft having goods and chattels
worth 10,000s. shall wear cloth the same value as that worn by
esquires and gentlemen with land or rent within 2,000s. per year.
The same merchants and burgesses with goods and chattels worth
13,333s. and esquires and gentlemen with land or rent within 400s.
per year may not wear gold cloth, miniver fur, ermine [white] fur,
or embroidered stones. A knight with land or rents within 2,667s.
yearly are limited to cloth of 80s., but his wife may wear a stone
on her head. Knights and ladies with land or rents within 8,000s.
to 20,000s. yearly may not wear fur of ermine or of letuse, but
may wear gold, and such ladies may wear pearls as well as stones
on their heads. The penalty is forfeiture of such apparel. This
statute is necessary because of "outrageous and excessive apparel
of diverse persons against their estate and degree, to the great
destruction and impoverishment of all the land".

If anyone finds a hawk [used to hunt birds, ducks, and pheasant]
that a lord has lost, he must take it to the sheriff for keeping
for the lord to claim. If there is no claim after four months, the
finder may have it only if he is a gentleman. If one steals a hawk
from a lord or conceals from him the fact that it has been found,
he shall pay the price of the hawk and be imprisoned for two
years.

No laborer or any other man who does not have lands and tenements
of the value of 40s. per year shall keep a greyhound [or other
hound or dog] to hunt, nor shall they use nets or cords or other
devices to take [deer, hare, rabbits, nor other gentlemen's game],
upon pain of one year imprisonment. (The rabbit had been
introduced by the Normans.) This 1390 law was primarily intended
to stop the meetings of laborers and artificers.

No man shall eat more than two courses of meat or fish in his
house or elsewhere, except at festivals, when three are allowed
[because great men ate costly meats to excess and the lesser
people were thereby impoverished].

No one may export silver, whether bullion or coinage, or wine
except foreign merchants may carry back the portion of their money
not used to buy English commodities. The penalty for bringing
false or counterfeit money into the nation is loss of life and
member. An assigned searcher [inspector] for coinage of the nation
on the sea passing out of the nation or bad money in the nation
shall have one third of it. No foreign money may be used in the
nation.

Each goldsmith shall have an identifying mark, which shall be
placed on his vessel or work only after inspection by the King's
surveyor.

No one shall give anything to a beggar who is capable of working.

Vagrants begging in London were banned by this 1359 ordinance:
"Forasmuch as many men and women, and others, of divers counties,
who might work, to the help of the common people, have betaken
themselves from out of their own country to the city of London and
do go about begging there so as to have their own ease and repose,
not wishing to labor or work for their sustenance, to the great
damage of the common people; and also do waste divers alms which
would otherwise be given to many poor folks, such as lepers,
blind, halt, and persons oppressed with old age and divers other
maladies, to the destruction of the support of the same - we do
command on behalf of our lord the King, whom may God preserve and
bless, that all those who go about begging in the said city and
who are able to labor and work for the profit of the common people
shall quit the said city between now and Monday next ensuing. And
if any such shall be found begging after the day aforesaid, the
same shall be taken and put in the stocks on Cornhill for half a
day the first time, and the second time he shall remain in the
stocks one whole day, and the third time he shall be taken and
shall remain in prison for forty days and shall then forswear the
said city forever. And every constable and the beadle of every
ward of the said city shall be empowered to arrest such manner of
folks and to put them in the stocks in manner aforesaid."

The hundred year cry to "let the king live on his own" found
fruition in a 1352 statute requiring consent of the Parliament
before any commission of array for militia could be taken and a
1362 statute requiring purchases of goods and means of conveyance
for the king and his household to be made only by agreement with
the seller and with payment to him before the king traveled on,
instead of at the low prices determined unilaterally by the king's
purveyor.

Every man who has wood within the forest may take houseboot [right
to take wood for reapir of one's house] and heyboot [right to take
material for the maintenance of hedges and fences, and the making
of farming utensils] in his wood without being arrested so long as
it take such within the view of the foresters.

No fecal matter, dung, garbage, or entrails of animals killed
shall be put into ditches or rivers or other waters, so that
maladies and diseases will not be caused by corrupted and infected
air. The penalty is 400s. to the king after trial by the
Chancellor.

Gifts or alienation of land to guilds, fraternities, or towns are
forbidden. Instead, it escheats to its lord, or in his default, to
the King.

No man will be charged to go out of his county to do military
service except in case of an enemy invasion of the nation. Men who
chose to go into the king's service outside the nation shall be
paid wages by the king until their return.

Admiralty law came into being when ancient naval manners and
customs were written down as the "Black Book of the Admiralty".
This included the organization of the fleet under the Admiral,
sea-maneuver rules such as not laying anchor until the Admiral's
ship had, engagement rules, and the distribution of captured
goods: one-fourth to the vessel owner, one-fourth to the king if
the seamen were paid by the king's wages, and the rest divided
among the crew and Admiral. Stealing a boat or an anchor holding a
boat was punishable by hanging. Stealing an oar or an anchor was
punishable by forty days imprisonment for the first offense, six
months imprisonment for the second, and hanging for the third.
Desertion was punishable by loss of double the amount of wages
earned and imprisonment for one year. Cases were tried by jury in
the Admiral's court.

Wines, vinegar, oil and honey imported shall be gauged by the
King's appointees.



- Judicial Procedure -

The office of Justice of the Peace was developed and filled by
knights, esquires and gentlemen who were closely associated with
the magnates. There was no salary nor any requirement of knowledge
of the law. They were to pursue, restrain, arrest, imprison, try,
and duly punish felons, trespassers, and rioters according to the
law. They were expected to arrest vagrants who would not work and
imprison them until sureties for good behavior was found for them.
They also were empowered to inspect weights and measures. Trespass
included forcible offenses of breaking of a fence enclosing
private property, assault and battery, false imprisonment, and
taking away goods and chattels.

The action of trespass was replacing private suits for murder and
for personal injury.

Pardons may be given only for slaying another in one's own defense
or by misfortune [accident], and not for slaying by lying in wait,
assault, or malice aforethought.

Justices of Assize, sheriffs, and Justices of the Peace and mayors
shall have power to inquire of all vagabonds and compel them to
find surety of their good bearing or be imprisoned.

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