English Law in the Age of the Black Death, 1348-1381

A Transformation of Governance and Law

Robert C. Palmer

• Publisher: The University of North Carolina Press
• Year: 2000
• ISBN:
  9780807863749
• Topic: History
• Subtopic: European Medieval History
• Index: History

Robert Palmer's pathbreaking study shows how the Black Death triggered massive changes in both governance and law in fourteenth-century England, establishing the mechanisms by which the law adapted to social needs for centuries thereafter. The Black Death killed one-third of the English population between 1348 and 1351. To preserve traditional society, the king's government aggressively implemented new punitive legal remedies as a mechanism for social control. This attempt to shore up traditional society in fact transformed it. English governance now legitimately extended to routine regulation of all workers, from shepherds to innkeepers, smiths, and doctors. The new cohesiveness of the ecclesiastical and lay upper orders, the increase in subject matter jurisdictions, the growth of the chancellor's court, and the acceptance of coercive contractual remedies made the Black Death in England a transformative experience for law and for governance. Palmer's book, based on all of the available legal records, establishes a genuinely new interpretation and chronology of these important legal changes.

Chapter One
General Introduction

After the Black Death and to preserve the status quo as far as possible, the upper orders of English society drew together into a more cohesive government to facilitate or coerce the members of the upper orders to stand to their obligations, at the same time they were coercing the lower orders more punitively to stand by theirs. State authority increased greatly, although significant powers were to be exercised by delegation to the local level. Authority throughout society came more thoroughly to be exercised not by virtue of innate individual power but by virtue of state mandate, and the government took responsibility for the regulation and direction of the whole of society: it became a government of inherent authority.¹ Vigorous action to preserve the status quo in fact transformed both governance and law.

The Black Death could plausibly have the effect argued here, because of the particular situation of England in 1348. Two centuries before, England had been a sparsely populated feudal monarchy, albeit governmentally advanced for the time. Feudal relations had been a primary method of social organization; state structures, while present, had left organization basically regional: county courts were the focal points of governmental activity. The only bureaucracy was the exchequer, and the action of the exchequer was not such as to impinge directly on any large segment of society. When, in 1176, Henry II initiated ongoing supervision of feudal decisions to prevent uprisings, the inadvertent result was the common law: law common throughout England and not variable from one county to another.² The bureaucracy that grew up in the administration of the law affected a large segment of the population, soon perhaps in excess of 30 percent of families, and provided a source of common concern for the English. That concern was separate from and at times militated against loyalty to the king, a phenomenon preeminently apparent in the confrontations leading up to Magna Carta in 1215.³ The twelfth-century concentration of power in local organizations characteristic of a feudal monarchy had begun to give way to state authority and concern for the centralized organs of state power.

A century or so after Magna Carta, England, already overpopulated, could well be considered a “modern state.”⁴ Magnates remained powerful, as did relationships of loyalty that functioned outside state authority. The overarching concerns nevertheless revolved around the control of the bureaucratic centralized state structures. The centralization of concerns was reflected well in the fact that county courts had become inferior courts for relatively insignificant litigation.⁵ The king’s court now served as a major forum for litigation from every region of the country;⁶ Parliament processed both local and national concerns by handling petitions, passing statutes, and granting taxation in ways that made national government coherent.⁷ The emphasis in governance was on central control, even though locally important people functioned often by virtue of royal commissions and those same people still exercised little-regulated personal authority over their unfree tenants. Particularly important for the thesis of this book, the king’s council, long an important but amorphous body vital to the running of the country, began to crystallize already prior to the Black Death into a much more professional institution involved in the day-to-day operations of running the country.⁸ Fortuitously by 1348, then, the common law already regulated the lives and fortunes of all substantial and many insignificant Englishmen; the centralized bureaucratic governmental structures existed that could utilize that law to respond to an extraordinary demographic crisis.

That demographic crisis was the death of upwards of a third of the population in the first outbreak of the Black Death in 1348–50. Beneficed clergy seem to have lost 40 percent of their numbers; tenants in chief, 27 percent.⁹ A different index of mortality that has a similar countrywide basis is the level of litigation. Litigation is a more difficult index than reports of deaths, because litigation could diminish substantially for a complex of reasons. Still, the level of litigation in the court of common pleas, measured by the membranes of legal records in the plea rolls, confirms the drastic impact of the first occurrence of the Black Death. The rolls even between 1353 and 1356, after an immediate precipitous decline in 1349, remained less than 60 percent the size of the 1348 rolls. Litigation, hindered by successive recurrences of the plague, recovered to 1348 levels only by 1365, aided by the appearance of new methods of litigation.¹⁰ The 1348–50 epidemic seems to have been quite as severe as has been thought: it quite plausibly killed a third to a half of the population.¹¹

The government clearly made a major effort to counteract the effects of the plague. Economic historians have been unable to see any kind of economic crisis until the 1370s; there had been sufficient overpopulation before 1348 that land was not standing vacant even in the 1350s.¹² Apparently, anything less than the death of half the population can be reconciled with the continued economic prosperity of the 1350s and 1360s.¹³ Nevertheless, that reconciliation also requires governmental intervention: during the first two decades after the Black Death the government exerted itself to retain the old structure of society, primarily through the enforcement of the Ordinance and Statute of Laborers. That enforcement was effective in the short run.¹⁴

The vigorous governmental response was indicative of the general change in governance and law as such. Governmental power prior to the Black Death was certainly not formally limited. Thirteenth-century English government handled social needs as they arose; the king’s own authority was inherent. Nevertheless, prior to the Black Death the government in fact did not meddle in a wide range of matters at the local level. Moreover, the use of private law (as distinct from the king’s own use of the courts for pursuing conflicts) was reactive in the sense that the government was content to resolve litigation without attempting to use law as an assertive instrument of extensive social control.¹⁵ While resolving disputes could properly be seen as a method of social control, in this context mere resolution of disputes indicates a less aggressive approach to the formulation of law, an approach that is more content to let major areas of social need lie outside the purview of government.

Governance after the Black Death was qualitatively different, exhibiting a government intent on using the law to control society, to preserve as far as possible the status quo. Punitive remedies and occupational liabilities are prominent indications of the new attitude that would not find its completion until the sixteenth century with the statutes in the 1530s and the broad changes in the common law. A vital portion of the qualitative roots of Tudor governance, however, was the change in governmental approach and the great expansion of legal subject matter jurisdiction that began with the Black Death. After the Black Death the king’s government became responsible for the running of the whole society. That fundamental assertion in action, rather than only in theory,¹⁶ makes it appropriate to label the English state after the Black Death as a government of inherent authority. The greater cohesiveness of the upper orders was a vital part of the general recognition of a great need to preserve traditional society, probably without any recognition that the vigorous attempt to preserve society would inevitably transform it. That transformation, producing a newly responsible and newly intrusive government, is intrinsic to the appreciation not only of the Black Death, but also of the Peasants’ Revolt of 1381, long acknowledged to have been fueled by labor regulation, although precipitated by the poll tax.

In the very nature of this topic, the thesis cannot be proved with geometrical satisfaction. Many kinds of causation are at work—some very direct, others at a substantial remove both in terms of the kind of causation and in terms of chronology. Instead of absolute proof, however, the aim is to show that, given the needs for and the effects of the legal change, the hypothesis of a transformation of law and governance in the wake of the Black Death is much more cohesive and explanatory, more sensible than the fragmented, legally insular conceptualizations currently dominant that portray the change as gradual evolution with discrete, noninteractive legal categories. Readers neverthe...