Judicial Procedure

For actions under 10 pounds in a superior court and actions under 40s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. For money at issue, an affidavit shall be taken. No more money may be taken for bail than the amount at controversy. This is to prevent frivolous and vexatious arrests. Perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the American colonies. Unqualified people acting as attorneys or solicitors in the county court shall forfeit 20 pounds.

No one may practice as an attorney in the courts of King's Bench, Common Pleas, or Exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. The same applies to a solicitor in the equity courts. This shall not exclude persons who have been bound to an attorney or solicitor for four years. Attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. No attorney may have more than two clerks bound to him at one time. Attorneys may be admitted as solicitors and vice-versa.

There were twelve common law justices of the Court of the King's Bench, Court of Common Pleas, and Court of the Exchequer. The Chief Justices of all of these courts were paid partly from fees paid to the court. The other Justices of these courts were paid completely by salary, which in 1759 was well over 500 pounds per year. These justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of Parliament. The officers of these courts were attorneys. There was one justice at Doctors' Commons. The two chancery justices (since Edward I) were the Lord Chancellor and the Master of the Rolls. The salary of the eleven masters of the court of chancery in 1765 was 400 pounds per year. The officers of this court were solicitors.

Appeals from the Exchequer could be made to a court of the King's Bench and Common Pleas combined. Appeals from Common Pleas could be made to the King's Bench. Decisions of the King's Bench and other common law courts could be appealed to Parliament.

The common law courts rode circuit twice a year in five circuits and once a year in the north circuit. So an accused person could spend up to a year in gaol waiting for trial. Few prisoners were granted bail. In each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. No one with an interest in a suit, including the plaintiff and the defendant, could give evidence. There was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. In 1730, the pleadings and indictments ceased to be in Latin. Compurgation still existed for debt and detinue.

Writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. No judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. This is to prevent delays of justice. Justices of the Peace may correct defects of form on appeals to them.

Plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited.

The qualification for jury service is having land with an income over rents of at least 20 pounds, with leases for 500 years or more, or 99 years, or any term determinable on one or more lives. Being a freeholder is not necessary. In London, the qualification is being a householder and having lands to the value of 100 pounds. No sheriff may excuse a qualified person from jury service for money or other reward. Selection of jurors for each case is to be done by some impartial person pulling their names from a box. Later, persons refusing jury service could be fined.

Poor persons may be paid up to 6d. to give evidence against felons.

Pirates may not be tried again for the same crime or for a certain crime and high treason. When the marine force was raised, the marines were also given protection from double jeopardy.

In Chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. Only in Chancery could there be discovery, such as interrogatories [written questions]. Court officials asked the questions of witnesses without the presence of the parties or their lawyers. Officials wrote down the answers in their own terms So there was no cross-examination possible. Most decrees took many years to be made.

The ordinary administrative court of first instance is that of one or two Justices of the Peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. They examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. The Justice of the Peace also regulated wages, servants, apprentices, and day laborers. In his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. The Justices of the Peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. The appointment of overseers of the poor, authorization of parish rates, and reading of the Riot Act to mobs to disperse them, required more than one of the Justices of the Peace of the hundred to participate. All the Justices of the Peace of the county met four times a year at Quarter Sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. In more and more matters specified by statute, the Quarter Sessions heard appeals from the orders of individual Justices of the Peace instead of common law courts hearing them by writ of certiorari. The writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. The writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. The writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. Justices of the Peace in rural areas were squires and in towns aldermen.

In 1747, Justices of the Peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. If a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of Correction up to one month. If a servant was not paid, he could authorize payment of wages up to 10 pounds for an agricultural servant, and up to 5 pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. Later, tinners and miners were added to the last category. In 1758, employees of less than a year were included.

In 1775, Justices of the Peace were authorized to administer any oath for the purpose of levying penalties.

To be a Justice of the Peace, one must have income of 100 pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least 21 years, or be entitled to a reversion of lands leased for 1 or 2 or 3 lives, or for any term of years determinable on the death of 1 or 2 or 3 lives. Excepted were peers, justices, and heads of colleges or vice chancellors at the universities. The Justices of the Peace were selected by the superintending Sheriffs and Lords Lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. No attorney or solicitor or proctor could be a Justice of the Peace unless the locality had Justices of the Peace by charter.

A request for Certiorari for removal of convictions, judgments, orders made by Justices of the Peace must be made within six months and after notice to the Justice of the Peace who may argue cause against granting certiorari.

In the common law courts, trespass in ejectment served the purposes of most of the actions involving land. Assumpsit covered the whole province of debt, and much more. Trover more than covered the old province of detinue. Trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. Trespass on the case covered miscellaneous torts. Replevin was still used. Covenant remained in use for the enforcement of promises under seal. Account gradually came under the equity jurisdiction of Chancery. Common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. The actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case.

Mercantile law was developed by the common law courts, especially the King's Bench.

The king was to appoint the marshal of the King's Bench. The marshal was to select his inferior officers to hold office as long as they "behave themselves well within". These offices had been sold by James I to a certain person, his heirs, and assigns. The marshal was to keep the prison of this court in good repair from his fees and profits of office.

The office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law.

Summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person.

The coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders.

The last beheading was of a Scottish lord in 1747; he had been involved in an attempt to restore the Stuarts to the throne. So many people came that some overcrowded bleachers fell down and crushed about 20 spectators. Henceforth, every sentence of death was by hanging, even for peers.

In 1772, the process of pressing a man to death, if he refused to plead to an indictment was abolished. Instead, persons accused or indicted, in Great Britain or America, of felony or piracy who stand mute shall be convicted of such charge. Property of a felon was still forfeited to the crown.

From 1749 on were established special procedures for speedy decisions in local courts in some areas for debts or damages under 40s. and imprisonment for such was limited for up to three months. Otherwise, sentences were longer, and debts grew during the time in prison. When prisons were overcrowded, Parliament let the inmates out if they gave up their possessions. They could go to Georgia.

In 1763, the homes of John Wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. Wilkes had such papers and was convicted of libel. He countersued for damages due to criminal trespass. The court held that general search warrants were subversive of the liberty of the subject of the search in violation of the British Constitution, declared the statute void, and found for Wilkes. The Court of Common Pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. His decision gave support to William Pitt's assertion that "every man's home is his castle".

There were felons' prisons and debtors' prisons. Sometimes they were one and the same. There was much fighting among inmates. The inmates slept on hay if lucky. There were no washing facilities and little light. Counties or friends paid for their bread. They were also sold beer, which made them drunk and riotous. The sale of beer was a recognized and legitimate source of profit to the keeper. This was remedied by statute of 1760 that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. Sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. In 1772 was founded the Society for the Discharge and Relief of Persons Imprisoned for Small Debts for those inmates unfortunate instead of fraudulent or extravagant. Legacies were often made to debtors. There was much Gaol Distemper fever with fatal consequences. When John Howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. When he saw the squalid conditions there, he advocated hygienic practices. In 1774, Justices of the Peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners.

In 1773, clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. Also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. Instead, the counties shall pay to gaol keepers up to 13s.4d. per prisoner so discharged.

Colonials acts which infringed upon the English common or statutory law, or were against the interests of other American colonies were submitted to the Privy Council, which allowed or disallowed them. Appeals from the colonial courts came to the Privy Council.

Judges in the colonies were appointed by royal governors and paid by colonial legislatures. They served at the pleasure of the king. Colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of Oyer and Terminer. There were also Justices of the Peace, marshals, provosts, and attorney generals. There were few cases of vagrancy, theft, or homicide. This may have been because the people were few and dependent on each other, and economic opportunities were great.

In 1735 John Peter Zenger, printer of the New York Weekly Journal, was tried for seditious libel for its criticisms and satire of the New York governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. Seditious libel was defined as "false, scandalous, and seditious" writings. Traditionally, this word "false" could mean "disloyal". The prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by Star Chamber cases. The defense argued for a right publicly to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. The American jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. They agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". So truth became a defense to seditious libel. Pamphletts describing the Zenger trial and acquittal were published and republished in London and the colonies.

Benefit of clergy was available in the American colonies to all who could read and write. It could be used in trials for manslaughter.