Part 89

By statutes of 1660 and 1662, when goods have been carried off ships without customs being paid, the Chief Magistrate of the place where the offense was committed or the adjoining place, or the Lord Treasurer, or a Baron of the Exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. This was extended to the colonies in 1696.

The penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is 1s. For others, it is 2s. The fine is doubled for the second offense, and tripled for the third offense. If an adult offender can't pay, he shall be put in the stocks for one hour. If a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable.

The equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. Such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. Also, husbands are not allowed to punish and beat their wives as before. But the lower rank of men were slow to give this up. A wife could have the security of the peace against her husband. He could restrain her liberty only for gross misbehavior.

In 1685, the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers.

There were many variations in religious practices for statutes to address. The Quakers and Baptists were opposed to any state church. The Independents and Presbyterians accepted the idea of a state church. The members of the established church and Roman Catholics adhered to their version the state church as they had experienced it in the past. Atheism had a bad reputation. In 1662, the Jews established the first synagogue in London. The Privy Council recognized their religious status as long as they were peaceful and obeyed the laws. They engaged in pawn-broking as well as money-lending.

There were various statutes enacted over the course of time regarding religion, as follows:

All ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the King over the church] or be removed from office.

A great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of God was preached according to the established church. The morning and afternoon Sunday services with sermons, sometimes by guest preachers, continued. So factions and schisms developed. In response, the king changed the Book of Common Prayer and its prayers were required by statute in 1662 to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. Attendance at one's local parish church was never again required.

As of 1665, no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit 40 pounds. Persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit 40 pounds.

By statute of 1670, anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established Church of England at which there are at least five persons present shall be fined 5s. for the first offense and 10s. for the second offense. (This does not include members of the same household meeting in their home.) Anyone who preaches or teaches at such a meeting shall pay 20 pounds for the first offense, and 40 pounds for further offenses. The householder who permits such a meeting shall pay 20 pounds. A justice or Justice of the Peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. This is to discourage the growing of dangerous seditious persons under pretence of tender consciences.

Religious nonconformity continued especially among the humble people. The penal statutes caused hundreds of these nonconformists to be put in gaol. From time to time, the king would release them and suspend these laws. Sometimes, Charles II allowed dissenters to meet in private for worship if they got a license from him. Religious gatherings grew in numbers, size, and geographical extent. Dissenters were then allowed by statute to meet behind locked or barred doors. But they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. By statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. Disturbers of religious worship were required to find two sureties for the amount of 50 pounds.

Attendance at the established Church of England was never again required. Nor was preaching or lecturing constrained. Instead, a statute was passed in 1677 that: Every person shall be pious and exercise religion publicly and privately on Sunday. No work may be done or goods sold or else forfeit 5s. or the goods respectively. No one may travel or else forfeit 5-20s. In a further statute of 1688, because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite Protestant subjects in interest and affection, Protestant nonconformists who took the oaths (or declaration in the case of Quakers) and a declaration that they were not Catholic, did not adore the Virgin Mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the Church of England, except Protestant dissenters meeting behind locked doors. But payment of tithes and performance of parish duties were still obligatory. Non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen Articles of Religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the Elizabethan statute and the statute on uniformity of prayers and sacraments of Charles II.

Quakers were active in the countryside. They were about one tenth of the population and did not believe in a state church. There were some Quakers schools and some Quaker workhouses to give work to the poor. For the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in 1662, that any Quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of God or refusing to take a required oath was to forfeit 5 pounds for the first offense or be imprisoned for 3 months if he couldn't pay. For the second offense, the penalty was 10 pounds or imprisonment for 6 months with hard labor. The third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. The policy of Charles II was to allow Quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. But this policy was only partially adopted in the country. From 1689, by statute, the Quakers were allowed to affirm or declare instead of making the customary oath.

Many Presbyterians became Unitarians, who rejected the trinity of "Father, Son, and Holy Ghost" and doubted the divinity of Jesus, but accepted revelation. This statute was then passed in 1697: Any person having been educated in or having at any time made profession of the Christian religion who, by writing, printing, teaching, or advised speaking, denies the Holy trinity, asserts that there is more than one god, or that the Bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. The penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize.

Catholicism was always disfavored. Catholic priests were executed with little evidence. At times, Charles commuted the death penalty for them to banishment. Sometimes there were effigies of the pope burned in the streets. Such burnings were later banned. At times Charles allowed Catholics to attend mass.

By statute of 1672, all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established Church of England or be incapable of office. They also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the Lord's Supper, or in the elements of bread and wine, when they were consecrated. This is to prevent dangers from Papists. As of 1678, no one may be a member of Parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not Catholic, did not adore the Virgin Mary or any saint, and did not go to mass.

Papists were made to pay higher taxes. Every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of 2s.8d. for every pound's worth of personal property and money. But Papists had to pay 5s.4d. for such. Persons and corporations having land worth at least 20s. yearly, had to pay 4s. for every pounds' worth. But Papists and aliens had to pay 8s. for such.

But Charles' successor, King James II was Catholic and gave many offices to Catholics. This prompted a reaction against Papists and more statutes restricting them. After James II was chased out of England, a statute of 1688 required suspected Papists in London to make a declaration that they were not Catholic, did not adore the Virgin Mary or any saint, did not go to mass, or else stay ten miles outside of London. Excluded were tradesmen and manual workers, who had only to register. All Papists had to forfeit their arms and any horse worth more than 5 pounds. Also, no King or Queen or spouse of such could be a Papist, but had to make the same declaration as members of Parliament, and join in the communion of the established Church of England. As of 1696, a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. As of 1698, Papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. Also, Popish parents were prohibited from forcing their children who were inclined towards Protestantism to become Catholic by refusing them suitable maintenance. As of 1699, a reward of 100 pounds was offered to any person who apprehended a Popish bishop, priest, or Jesuit saying mass. Also, no Papist was allowed to buy land.

- Judicial Procedure -

As of 1679, no man could be held in prison but on a charge or conviction of crime or for debt. Every prisoner on a criminal charge could demand as a right from the Court of the King's Bench the issue of a writ of "habeas corpus" which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. This forced trials to be speedy, which they had not hitherto been. Now it was impossible for the Crown to detain a person for political reasons in defiance of both Parliament and the courts, as Charles I had done. The writ was suspended in times of war and domestic unrest: 1689,1696, 1708.

In 1670, William Penn was arrested for sedition for delivering a sermon in London, contrary to the statute that only the Church of England could conduct meetings for worship. The jurors would not convict him, so were gaoled and fined by the justices. The jurors filed a writ of habeas corpus in the Court of Common Pleas, which held in their favor. Thereafter the English jury had full independence to decide to verdicts. By court decision of 1679, jurors were held not to be responsible to the justice for their verdict.

After 1688, hearsay was inadmissible as evidence, which Coke had recommended. The old system of original writs was abandoned, and the general concept or a wrong to person or property took its place.

A person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary in the courts had to take the required oaths of allegiance and supremacy.

As of 1692, persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony.

As of 1696, persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. Those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. They could have a copy of the panel of jurors at least two days before trial. They could be represented in their defense by not more than two counsel learned in the law and assigned by the court. Their counsel had free access to them at all reasonable hours. They could make proof through lawful witnesses under oath. In a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. In a trial of a peer, the others peers in Parliament determined the outcome by a majority vote.

Jurors were required to have at least 20 pounds income from freehold land or rents in fee, fee tail, or for life. This increase in the quality of the jury enabled it to better discern the issues in dispute.

Jury sympathy was determined by the sheriff who chose the jury. So if a sheriff was popularly elected, as in London, he chose jurors who favored individual and corporate liberty. If the king selected the sheriff, he chose tories, who supported the Crown.

Issues of bastardy or lawfulness of marriage had to be tried by a jury.