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.

The civil suit of trespass on the case has now branched into assumpsit, trover, deceit, negligence, and libel and slander. The latter supplements bad words punished by the local courts and defamation punished by the church courts. Trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff.

This is an example of the initiation of a suit by a writ for trespass on the case: The King to the sheriff &c. as in Trespass to show: wherefore (e.g.:___) he fixed piles across the water of Plim along which, between the Humber and Gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said A, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass.

This is an example of a writ for trespass on the case in assumpsit: The King to the sheriff greeting &c. as in Trespass to show: wherefore whereas he the Said X undertook well and competently to cure the right eye of the Said A, which was accidentally injured, for a certain sum of money beforehand received, he the same X so negligently and carelessly applied his cure to the said eye, that the said A by the fault of him the said X totally lost the sight of the said eye, to the damage of him the said A of twenty pounds, as he saith, and have there &c. wherefore whereas he the said X undertook to make and build three carriages for conveying victuals of him the said A to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said X did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said A hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said A as it is said: and have there &c.

This is an example of a writ for case on indebitatus assumpsit: The King to the sheriff &c. as in Trespass to show: for that, whereas the said X heretofore, to wit (date and place) was indebted to the said A in the sum of for divers goods wares and merchandises by the said A before that time sold and delivered to the said X at his special instance and request, and being so indebted, he the said X in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said A to pay him the said sum of money when he the said X should be thereto afterwards requested. Yet the said X, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said A in this behalf, hath not yet paid the said sum of money or any part thereof to the said A (although oftentimes afterwards requested). But the said X to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said A of ------ pounds as it is said. And have you there &c.

This is an example of a writ for case for trover: The King to the sheriff greeting &c. as in Trespass to show: for that, whereas the said A heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great Britain; and, being so possessed thereof he the said A afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said X by finding; Yet the said X well knowing the said goods and chattels to be the property of the said A and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said A in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said A (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said X's own use, to the damage of the said A of ____ pounds as it is said; and have you there &c.

The rigid writs with specific forms of action for common law cases started to fall into disuse. Later, trespass on the case bifurcates into misdemeanor and the tort of trespass.

Persons in prison on suspicion of treason could not be released on bail as of 1688.

If one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. A person found guilty of malicious prosecution recovered his costs from his accuser.

Mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law.

Merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order.

After the Restoration, all legal decisions of the Commonwealth and Protectorate were confirmed subject to a right of appeal.

The Star Chamber was not restored, and Parliament assumed its control of the press. The King's Bench succeeded to most of the Star Chamber's jurisdiction. No longer could the Privy Council influence criminal cases and the general supervision of legal processes through the Star Chamber.

The High Commission court was not restored, but church courts were, but with depleted powers. They accepted subordination to the common law courts. Because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and Justices of the Peace. They had virtually no authority over laymen. They could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. Local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. In 1678, the death sentence was taken away from the church courts. In 1697, church sanctuary was abolished.

The county courts faded into insignificance, as the Justices of the Peace took on more jurisdiction.

In 1668, new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. Charles II and James II frequently dismissed justices not favorably disposed to the Crown. In 1697, they were to have fixed salaries instead of the profits of justice. By statute of 1701, justices' commissions were to be made with an established salary determined by Parliament and a tenure to last during good behavior. They could be removed only by the address of both Houses of Parliament. This gave them independence from the king. Their tenure lasted for the life of the monarch.

The chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in Westminster.

Judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees.

Court judgments and fines could be challenged for error only within twenty years.

Court decisions were still appealable to the House of Lords. In 1668, Skinner v. East India Company held that the House of Lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. In 1675, the House of Lords acquired the new judicial function of hearing appeals from the Chancery Court by virtue of the case of Shirley vs. Fagg.

Any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit 500 pounds.

The last burning of a woman as a penalty for an offense, which had been only occasional, was in 1688.

The last bill of attainder, which condemned a person to death, occurred in 1697.

The pillory was still in use.

Benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least 20s, or stole goods of over 5s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse.

A statute of 1661 gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. Usually the penalty was to be determined by the courts-martial, but sometimes death was decreed.

In the American colonies, judges were still appointed by the royal governors and paid by the local legislatures. They still served at the pleasure of the king.