Part 70

The duty to hear and determine felonies was taken from Justices of the Peace by 1590. The Justices of Assize did this work. Accused people could wait for years in gaol before their case was heard. Felonies included breach of prison, hunting by night with painted faces, taking horses to Scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. The penalty was death. Many people were hanged for the felony of theft over 12d. Some bold men accused of felony refused to plead so that they could not be tried and found guilty. They died of heavy weights being placed on their bodies. But then their property could go to their heirs.

The Court of Queen's Bench and Exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the Court of Common Pleas or Chancery. Chancery interrogated defendants. Chancery often issued injunctions against suits in the common law courts. Trial by combat was very rare.

Benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months.

Pleadings had to be in writing and oral testimony was given by sworn witnesses. Case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books.

In the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. Trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. The use of the action of trover gradually supplants the action of detinue, which involves compurgation.

In the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. The essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. Consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. Consideration must be something, an act, or forbearance of an act that is of value. For instance, forbearance to sue a worthless claim is not consideration.

The abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. For instance the word "consideration" is used in Hayward's Case in 1595 in the Court of Wards on the construction of a deed. Sir Rowland Hayward was seised in fee of the Doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by Richard Warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of Sir Rowland, for the term of 17 years. It was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences.

In another case, A delivered 400s. to B to the use of C, a woman, to be delivered to her on the day of her marriage. Before this day, A countermanded it, and called home the money. It was held in the Chancery Court that C could not recover because "there is no consideration why she should have it".

In a case concerning a deed, A sold land to B for 400s., with confidence, that it would be to the use of A. This bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". It was held that the transaction was not examinable except for fraud and that A was therefore estopped.

A court reporter at the King's Bench formulated two principles on consideration of the case of Wilkes against Leuson as: "The heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. Where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the Queen must admit the feoffees to their traverse, and to have the farm, &c." The court reporter summarized this case as follows: Wilkes, who was merchant of the staple, who died in February last past, made a feoffment in the August before his death to one Leuson, a knight, and his brother, and another, of the manor of Hodnel in the county of Warwick; and the deed, (seen) for seven thousand pounds [140,000s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum A. B. et C. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one I. Wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. And although the said I. Wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. And whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the Queen donec et quousque &c. was a great question. And by the opinion of the learned counsel of that court he cannot do it, but the Queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. And this by the statutes ... And note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. And note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. And also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of Wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. And suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? I believe not; and so in the other case.

A last example of a case concerning consideration is that of Assaby and Others against Lady Anne Manners and Others. The court reporter characterized the principle of the case as: "A. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in tail, and that all persons should stand seised to those uses, and also for further assurance. After the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of A. the daughter and her husband may enter." The court reporter summarized this case as follows: A. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and B. son and heir apparent of C. he covenanted and agreed by indenture with C. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said A. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards A. bargained and sold the land for two hundred marks [2,667s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also A. levied a fine to the recoverers before any execution had, and notwithstanding all these things A. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. And all this matter was found in assize by Assaby and others against Lady Anne Manners and others. And judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. Yet error was alleged. The judgment in the assize is affirmed.

The famous Shelley's Case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. For example, where property goes to A for life and the remainder goes to A's heirs, A's life estate and the remainder merge into a fee in A. A can sell or devise this interest.

Edward Shelley was a tenant in tail general. He had two sons. The older son predeceased his father, leaving a daughter and his wife pregnant with a son. Edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. After judgment and the awarding of the writ of seisin, but before its execution, Edward died. After his death, and before the birth of his older son's son, the writ of seisin was executed. The younger son entered the land and leased it to a third party. Afterwards, the son of the older son was born. He entered the land and ejected the third party. It was held that the younger son had taken quasi by descent until the birth of the older son's son. The entry by the older son's son was lawful. The third party was lawfully ejected. (Shelley's Case, King's Bench, 1581, English Reports - Full Reprint, Vol. 76, Page 206.)

About 1567, London authorities punished Nicholas Jennings alias Blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. He was pilloried, whipped, and pulled behind a cart through the streets. He was kept at the Bridewell and was set to work at a mill.

- - - Chapter 14 - - -

- The Times: 1601-1625 -

Due in part to increasing population, the prices of foodstuffs had risen sixfold from the later 1400s, during which it had been stable. This inflation gradually impoverished those living on fixed wages. Landlords could insist on even shorter leases and higher rents. London quadrupled in population. Many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. The accompanying extinguishment of common rights was devastating to small tenants and cottagers. Gentry and yeomen benefited greatly. There was a gradual consolidation of the land into fewer hands and demise of the small family farm. In towns, the mass of poor, unskilled workers with irregular work grew. Prices finally flattened out in the 1620s.

Society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. This social stratification became a permanent fixture of English society. Poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. Many full-time wage earners were in constant danger of destitution. More subdivided land holdings in the country made holdings of cottagers minuscule. But these were eligible for parish relief under the poor laws. Beside them were substantial numbers of rogues and vagabonds wandering the roads. These vagrants were usually young unmarried men. There were no more licensed liveries of lords.

During the time 1580 to 1680, there were distinct social classes in England which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. It was influenced by power, wealth, life-style, educational level, and birth. These classes lived in separate worlds; their paths did not cross each other. People moved only within their own class. Each class had a separate existence as well as a different life style from the other classes. So each class developed a wariness of other classes. However, there was much social mobility between adjacent classes.

At the top were the gentry, about 2% of the population. Their's was a landed wealth with large estate mansions. They employed many servants and could live a life of leisure. Their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. They conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. Gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. These families often sent the oldest son to university to become a Justice of the Peace and then a member of Parliament. They also served as justices and as county officers such as High Constable of their hundred and grand jury member. Their social, economic, and family ties were at least countywide. They composed about 700 gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. After the peers were: baronets (created in 1611), knights, esquires, and then ordinary gentlemen. These titles were acquired by being the son of such or purchase. Most gentry had a house in London, where they spent most of their time, as well as country mansions. About 4/5 of the land was in the hands of 7,000 of the nobility and landed gentry due in part to entails constructed by attorneys to favor hereditary interests. The gentry had also profited by commerce and possessions in the colonies. The country life of a country squire or gentleman dealt with all the daily affairs of a farm. He had men plough, sow, and reap. He takes part in the haying and getting cut grass under cover when a rain came. His sow farrows, his horse is gelded, a first lamb is born. He drags his pond and takes out great carps. His horses stray and he finds them in the pound. Boys are bound to him for service. He hires servants, and some work out their time and some run away. Knaves steal his sheep. His hog is stabbed. He and a neighbor argue about the setting up of a cottage. He borrows money for a daughter's dowry. He holds a leet court. He attends church on Sunday and reads the lesson when called upon. He visits the local tavern to hear from his neighbors. Country folk brawl. Wenches get pregnant. Men commit suicide, usually by hanging. Many gentlemen spent their fortunes and died poor. New gentlemen from the lower classes took their place.

The second class included the wealthier merchants and professional men of the towns. These men were prominent in town government. They usually had close family ties with the gentry, especially as sons. When wealthy enough, they often bought a country estate. The professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. The instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. Also included in this second group were the most prosperous yeomanry of the countryside.

The third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least 40s., partly due to inflation. Freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in Parliamentary elections. Other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least 50 acres. A copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. The copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. The average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. The house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. No longer was there a central great hall. Cooking was done in a kitchen or over the open fire in the fireplace of the main room. Furniture included large oak tables, stools, settes or forms, chests, cupboards, and a few hard-backed simple chairs. Dishware was wood or pewter. The yeomen were among those who governed the nation. They often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the Justices of the Peace, and sheriffs' bailiffs. The families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. Their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. They smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or of lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. They preserved fruits candied or in syrup. They preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. Many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. Wives also ploughed and sowed, weeded the crops, and sheared sheep. They sometimes cared for the poor and sold produce at the market. Some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the Justices of the Peace for exercising a craft without having served an apprenticeship. The third class also included the freemen of the towns, who could engage independently in trade and had political rights. These were about one-third of the male population of the town.

The fourth class included the ordinary farmer leasing by copyhold, for usually 21 years, five to fifty acres. From this class were drawn sidesmen [assistants to churchwardens] and constables. They had neither voice nor authority in government. Their daily diet was bacon, beer, bread, and cheese. Also in this class were the independent urban craftsmen who were not town freemen. Their only voice in government was at the parish level.

The fifth and lowest class included the laborers and cottagers, who were usually tenants at will. They were dependent on day labor. They started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. Some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. The cottagers' typical earnings of about 1s. a day amounted to about 200 shillings a year, which was almost subsistence level. Accordingly they also farmed a little on their four acres of land with garden. Some also had a few animals. They lived in a one or two room cottage of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. They ate bread, cheese, lard, soup, and greens. If a laborer was unmarried, he lived with the farmer. Theirs was a constant battle for survival. They often moved because of deprivation to seek opportunity elsewhere. The town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. The mass of workers in London were not members of guilds, and the crime rate was high.

The last three classes also contained rural craftsmen and tradesmen, who also farmed. The variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. The curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated.

The fourth and fifth classes comprised about three fourths of the population.

Then there were the maritime groups: traders, ship owners, master and seamen, and the fishers.

Over one fourth of all households had servants. They were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [40s.] a year. Those who sewed got additional pay for this work. There was no great chasm between the family and the servants. They did not segregate into a parlor class and a kitchen class. The top servants were as educated as their masters and ate at the same table. Great households had a chaplain and a steward to oversee the other servants. There was usually a cook. Lower servants ate together. Servants were disciplined by cuffs and slaps and by the rod by master or mistress. Maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. Chamber maids helped to dress their mistresses. Servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. A footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. He walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. A good footman is described in this letter: "Sir, - You wrote me lately for a footman, and I think this bearer will fit you: I know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) I would not part with him were I not to go post to the North. There be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. He is a great enemy to all dogs, if they bark at him in his running; for I have seen him confront a huge mastiff, and knock him down. When you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. I send him to you but for trial, if he be not for your turn, turn him over to me again when I come back..."