English Law in the Age of the Black Death, 1348-1381: A Transformation of Governance and Law

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

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

A Transformation of Governance and Law

Robert C. Palmer

The University of North Carolina Press

Chapel Hill and London

Publication of this work was made possible in part through a grant from the Division of Research Programs of the National Endowment for the Humanities, an independent federal agency whose mission is to award grants to support education, scholarship, media programming, libraries, and museums, in order to bring the results of cultural activities to a broad, general public.

© 1993 The University of North Carolina Press

All rights reserved

Manufactured in the United States of America

The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources.

Library of Congress Cataloging-in-Publication Data

Palmer, Robert C., 1947–

English law in the age of the Black Death, 1348–1381 : a

transformation of governance and law / Robert C. Palmer.

     p. cm. — (Studies in legal history)

Includes bibliographical references and index.

ISBN 0-8078-2099-7 (cloth : alk. paper)

1. Law—Great Britain—History. 2. Great Britain— Politics and government—1327–1377. 3. England—Social conditions—1066–1485. 4. Black death—Social aspects— England—History. I. Title. II. Series.

KD610.P35 1993

349.42—dc20 93-592

[344.2]

CIP

97 96 95 94 93 5 4 3 2 1

THIS BOOK IS WAS DIGITALLY MANUFACTURED.

STUDIES IN LEGAL HISTORY

Published by the

University of North Carolina Press

in association with the

American Society for Legal History

Editor

Thomas A. Green

Editorial Board

John D. Cushing

Lawrence M. Friedman

Charles M. Gray

Oscar Handlin

George L. Haskins

J. Willard Hurst

Stanley N. Katz

S. F. C. Milsom

L. Kinvin Wroth

This book is affectionately dedicated to

Edward Palmer and Elspeth Palmer.

Contents

Preface

Abbreviations

Chapter 1. General Introduction

PART ONE

The Upper Orders Drew Together into a More Cohesive Government . . .

Chapter 2. Introduction

Chapter 3. Creating the Gentry

Chapter 4. Regulating the Church

Chapter 5. Conclusion

PART TWO

. . . to Facilitate or Coerce the Upper Orders to Stand to Their Obligations . . .

Chapter 6. Introduction

Chapter 7. The Written Contract

Chapter 8. Recovering Movables

Chapter 9. The Chancellor’s Court

Chapter 10. Conclusion

PART THREE

. . . . and to Coerce the Lower Orders to Stand to Their Obligations

Chapter 11. Introduction

SECTION 1

Chapter 12. The Issues

Chapter 13. Trespass Vi et Armis

SECTION 2

Chapter 14. Assumpsit

Chapter 15. Carriers

Chapter 16. Builders

Chapter 17. Doctors

Chapter 18. Shepherds, Clothworkers, Laborers

Chapter 19. Conclusion

SECTION 3

Chapter 20. Trespass on the Case

Chapter 21. Farriers

Chapter 22. Vicious Dogs

Chapter 23. Innkeepers and Jailers

Chapter 24. Fires, Cattle, etc.

Chapter 25. Dikes and Franchises

Chapter 26. General Conclusion

PART FOUR

Appendixes

Author’s Note

Appendix 1. Regulating the Church

Appendix 2. The Written Contract

Appendix 3. Carrier Writs

Appendix 4. Cutting Timber

Appendix 5. Builders

Appendix 6. London Doctors

Appendix 7. Doctors of Animals and People

Appendix 8. Detinue of Animals

Appendix 9. Shepherd Assumpsit Writs

Appendix 10. Horses Bailed

Appendix 11. Clothworkers

Appendix 12. Services

Appendix 13. Horse Killers

Appendix 14. Farriers

Appendix 15. Scienter with Warnings

Appendix 16. Scienter without Warnings

Appendix 17. Other Scienter Writs

Appendix 18. Innkeeper Liability: London

Appendix 19. Innkeeper Liability

Appendix 20. Jailers before 1348

Appendix 21. Jailers after 1348

Appendix 22. Indirect and Consequential Damages

Appendix 23. Miscellaneous Wrongs

Appendix 24. Select Repair Writs

Appendix 25. Select Franchise Writs

Manuscript Sources

Index

Preface

This book serves various purposes. Primarily, it argues a thesis that the effects of the Black Death¹ worked a transformation in English law and governance, that the changes in the law derived from a social trauma instead of from internal legal considerations whether of doctrine or of litigation strategy. At the same time, it is almost a survey of English law in the mid-fourteenth century, because the changes in the law at that time were comprehensive and are still little known. I also tried to make available materials for both legal and historical researchers. The mixture of theses, subtheses, and audiences certainly exceeded my capabilities; to the extent I have succeeded in the end I am indebted to the insightful and considerate editorial work of Tom Green, editor of this series, and to the insightful criticisms of Charles Donahue, Jr.

Additionally, I have incurred the usual scholarly debts in researching and writing this book. The Institute of Bill of Rights Law at the Marshall-Wythe School of Law of the College of William and Mary supported me in the initial phases of this research; the abundant resources attached to the Cullen Professorship of History and Law at the University of Houston allowed me to complete the work with five more summers of research in England. The staff of the Public Record Office has been most generous, particularly in providing access to the writ files by carrying those filthy files down from and back up to the Tower along many flights of stairs. Paul and Vanessa Brand have both suffered many detailed discussions on case and assumpsit, both patiently offering their helpful and well-considered advice. They will probably rejoice more at the termination of this project than my family, who have been able to enjoy many summers in England away from the summer heat in Houston. Since I interrupted my English legal historical work to write in American legal history in the mid-1980s, my family has become more enthusiastic about the English side of my interests; for that support (even if not wholly altruistic), I am deeply indebted.

Note

1. This book is not about the plague itself. Book-length studies on the plague include Philip Ziegler, The Black Death (London, 1969); John Hatcher, Plague, Population and the English Economy 1348–1530 (Basingstoke, 1977); Harry A. Miskimin, The Economy of Early Renaissance Europe, 1300–1460 (Cambridge, 1969).

Abbreviations

Abbreviations of Frequently Cited Works

CCR: Calendar of Close Rolls Preserved in the Public Record Office: Edward III, 14 vols. (London, 1896–1913). CLE: William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford, 1765–69). CPL: Calendar of Entries in the Papal Registers relating to Great Britain and Ireland. Papal Letters, 12 vols. (London, 1893–1933). CPR: Calendar of Patent Rolls Preserved in the Public Record Office: Edward III, 16 vols. (London, 1893–1916). ERW: Early Registers of Writs, ed. Elsa de Haas and G. D. G. Hall, Selden Society, vol. 87 (London, 1970). HFCL: S. F. C. Milsom, Historical Foundations of the Common Law, 2nd ed. (London, 1981). IELH: J. H. Baker, An Introduction to English Legal History, 3rd ed. (London, 1990). ROB: W. Rastell, Registrum Omnium Brevium tam originalium quam iudicalium (1531). SCTKC: Select Cases of Trespass in the King’s Court, ed. Morris Arnold, Selden Society, 2 vols. (London, 1984, 1987). SELH: J. H. Baker and S. F. C. Milsom, Sources of English Legal History: Private Law to 1750 (London, 1986). SHCL: S. F. C. Milsom, Studies in the History of the Common Law (London, 1985).

Abbreviations of Words Frequently Used in Notes and Appendixes

absd: abovesaid atp: against the (king’s) peace bsp: bishop cc: cleric cpn: chaplain D (DD): defendant, with accompanying specifiers (abovesaid, aforementioned, etc.) Mr: Master P (PP): plaintiff, with accompanying specifiers wf&a: with force and arms

Dates and Money

Dates are converted without other notice into modern dates. A letter prefixed to a year (e.g., T1358) designates the legal term: H (Hilary term, roughly January); E (Easter term, after Easter); T (Trinity term, roughly July); M (Michaelmas term, beginning in October).

Money is shown in pounds (£), shillings (s), pence (d), and marks (m = 2/3 of a pound).

Footnote References

References in footnotes to A— (as in A14m or A25b) refer to entries in the appendixes (Appendix 14, entry A14m; Appendix 25, entry A25b).

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

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 nevertheless will rapidly note that the conclusions here are not stated tentatively, even in the chapters on the church and the chancery, in both of which extensive further research is clearly possible. More broadly, most of the individual developments here could be construed in different ways if considered in isolation. The strength of the assertions derives from the reinforcement that each development receives from other simultaneous changes, of which the reader at the beginning will necessarily be unaware.

This book falls into three parts, followed by lengthy appendixes. The first part is largely concerned with statutory provisions and their attendant circumstances that demonstrate the way in which the upper orders drew together to confront the demographic crisis. The second part analyzes changes in private law that coerced the upper orders to stand to their obligations. The third part, the focal point of the book, concentrates on tort law changes that put new pressures on the lower classes to perform adequately in occupations. Viewed as a whole, these changes represent a coherent although unenunciated general pattern of governmental responses to the demographic crisis, one that now utilized the law as an affirmative instrument to impose social policy.

Notes

1. The phrase government of inherent authority found its primary use in nineteenth-century America, to differentiate state authority from federal authority. See Robert C. Palmer, Liberties as Constitutional Provisions, 1776–1791, in Liberty and Community: Constitution and Rights in the Early American Republic, by William E. Nelson and Robert C. Palmer (New York, 1987), pp. 55–148; Robert C. Palmer, The Federal Common Law of Crime, Law and History Review 4 (1986): 267–323. The phrase finds an appropriate use here to differentiate between the de facto limited governmental concerns prior to the Black Death and the more aggressive and comprehensive concerns of government after the Black Death.

2. Robert C. Palmer, The Origins of Property in England, Law and History Review 3 (1985): 1–50; Paul A. Brand, "Multis Vigiliis Excogitatam et Inventam: Henry II and the Creation of the English Common Law," Haskins Society Journal 2 (1991): 197–222.

3. Robert C. Palmer, The Economic and Cultural Impact of the Origins of Property, 1180–1220, Law and History Review 3 (1985): 375–96.

4. Joseph R. Strayer, On the Medieval Origins of the Modern State (Princeton, 1970), pp. 5–10, 34–48, 54–56.

5. Robert C. Palmer, The County Courts of Medieval England, 1150–1350 (Princeton, 1982), pp. 220–96.

6. Robert C. Palmer, The Whilton Dispute, 1264–1380 (Princeton, 1984), pp. 6–9.

7. G. O. Sayles, The King’s Parliament of England (London, 1975), pp. 70–93; Michael Prestwich, Edward I (Berkeley, 1988), pp. 67–97.

8. A. L. Brown, The Governance of Late Medieval England, 1272–1461 (London, 1989), pp. 30–35.

9. John Hatcher, Plague, Population and the English Economy 1348–1530 (Basingstoke, 1977), pp. 21–22; see the accounts in W. M. Ormrod, The Reign of Edward III: Crown and Political Society in England, 1327–1377 (New Haven, 1990), pp. 21–22 (the Black Death as a welcome relief from the war, a quaint perspective), and Scott L. Waugh, England in the Reign of Edward III (Cambridge, 1991), pp. 85–89.

10. The membrane count (year and Michaelmas term) for this period: I was unable to get good figures for most of the 1360s. Many of those years have a term in which the roll is unfit for production. In each of 1361, 1365, and 1368 a term was canceled. T1377 was canceled because of the death of Edward III; the plea roll for that term is one membrane long. T1381 was canceled because of the Peasants’ Revolt. If one took the percentage of the average of the years 1343–48 instead of simply 1348, the percentages would be one to two points lower consistently.

11. For the sake of comparison, T1377 was canceled because of the death of Edward III: CP40/467 (only one membrane). Litigation then recovered its normal pace in about a year and a half. The second major outbreak of the plague in 1361–62 affected litigation for about two years; the third outbreak in 1368, much less severely but again for about two years. The relatively rapid recovery rate for the second and third plagues may be accounted for by the lower mortality of later plagues, the sector of the population most affected by the later plagues, or by a greater competence to handle death on such a large scale.

12. J. L. Bolton, The Medieval English Economy, 1150–1500 (London and Melbourne, 1980), pp. 208–14, finds the beginning of a labor shortage only after the 1360s; Hatcher, Plague, pp. 32–35, puts the lingering prosperity through to the end of the fourteenth century. Waugh, England in the Reign of Edward III, p. 7.

13. Hatcher, Plague, p. 25.

14. Bertha Haven Putnam, The Enforcement of the Statute of Laborers, 1349–1359 (New York, 1908), pp. 149, 160, 221; Bolton, Medieval English Economy, pp. 212–13; Ormrod, The Reign of Edward III, p. 22; Waugh, England in the Reign of Edward III, p. 112.

15. I have argued before a political origin to the beginnings of the common law in 1176. That political origin was to regulate the magnates in their tenurial decision making so that they would not again revolt. Those decisions certainly had extensive repercussions down to a sector even of those holding relatively little land. Despite those effects, the intent was focused on the magnates: regulating the in-fighting among the elite of society is quite different from social control through the law. The latter focuses broadly on the totality of the society, including the everyday relationships of the lower classes.

16. The quo warranto campaign under Edward I might be seen as a similar exercise. Donald W. Sutherland, Quo Warranto Proceedings in the Reign of Edward I, 1278–1294 (Oxford, 1963). Asserting that all jurisdictions derive from royal grant did constitute the liberty holder as a delegate of royal authority, thus asserting royal authority over broad governmental matters. Quo warranto prosecutions, however vital they were for governmental development before the Black Death, did not extend the subject matter concerns of government into areas that would involve the government in a practical assertion of societal regulation and control.

Part One

The Upper Orders Drew Together into a More Cohesive Government . . .

Chapter Two

Introduction

Governance is an intractable subject. Historical approaches to the reign of Edward III focus on the success of governance itself or on a social historical debate about whether governance was characterized by conflict or consensus. The greater cohesion after the Black Death argued in Part I is a direct contribution to neither approach, because it depends instead on a focus on governmental responsibilities and what the scope of those responsibilities reveals about the character of governance and the nature of the state. The assertion here is that England after the Black Death can, for the first time, be characterized as a government of inherent authority.

Focusing on a transformation in English governance after 1348 is not consistent with approaches that analyze Edward III’s reign only in terms of successful royal governance, although Edward III was undoubtedly successful.¹ By that tradition, after 1341 Edward III won his nobles over with the glory and profits of war and generous but carefully limited patronage, while protecting his financial rights against magnate encroachments. Overall, he prevented the emergence of a magnate opposition. Militarily, Edward III won the Battle of Crécy in 1346 and the Battle of Poitiers in 1356. That latter English victory resulted in the capture of King John II of France and thus in the favorable Treaty of Brétigny of 1360.² Skillful patronage and military success kept the magnates engaged abroad, loyal to the king.

From that perspective also the years between 1340 and 1360 showed continuity in a domestic administration that was dynamic and successful. After 1340 the king’s council became dramatically more active as a formal institution directing the governance of the realm, and it was not dominated by the magnates.³ The king’s council (here always designating the administrative council) could coordinate efficiently the work of governance; the core of its membership was the chancellor, the treasurer, the justices, and the barons of the exchequer. Council could implement its orders directly or through chancery,⁴ the exchequer,⁵ or the courts.⁶ Council was thus positioned to direct the whole of the governmental apparatus. Edward chose his ministers well and judged them by their loyal service; particularly in the area of finances, they served the king well and efficiently.⁷ Nevertheless it was only after the Black Death that Crown and Commons began to settle old disputes in a spirit of cooperation.⁸ The greater influence of the Commons reinforced Crown power, evidenced by the regularity of parliamentary subsidies and the government’s success in passing major legislation and achieving reform in the administration of the criminal law, from both of which the government greatly benefited.⁹ The royal skill and determination that had invigorated the administrators, had kept the magnates usefully employed in war and docile in domestic affairs, and had attracted the loyalty of the Commons dissipated after 1360. For two decades, by this evaluation (undisputed here), Edward had maintained stability within which royal power had flourished.

The major question, nevertheless, is not whether royal power was both aggressive and successful from 1340 to 1360 but rather whether governance in the 1350s was like governance in the 1340s.¹⁰ With the Commons Edward became successful only after the Black Death. But the Black Death, in this tradition, was merely a challenge to be overcome: the panic proved temporary, and . . . within a short time the administration recovered its confidence, and emerged from the crisis with renewed strength.¹¹ Continuing vigor and success in administration may nevertheless mask major alterations in approaches to governing. Some alterations in approach to governance are temporary; alterations that result in the development of major new legal remedies, however, tend in Anglo-American contexts to constitute a permanent restructuring of the power and extent of government, regardless of the decline or resurgence of a monarch’s personal control. The legal transformation after the Black Death was a lasting change to governance in England.

From a social-historical perspective, one not concerned with periodizing Edward III’s reign or with evaluating a monarch’s success, contrasts are drawn between those who emphasize consensus among the upper classes as against those who emphasize conflict. Nigel Saul has recently tried to reconcile these approaches, noting that they are not necessarily incompatible: greater cooperation can result in more friction and conflict. His analysis is traditional nevertheless in working from gentry demands about conferring full powers on keepers of the peace to make them justices and from demands for the selection of sheriffs from county notables. He concluded that by the 1360s the gentry succeeded in controlling those institutions that threatened local autonomy, so that there was more intense competition at the local level.¹² That formulation, however, fails to recognize the complexity of the change after 1348, as will any perspective that focuses solely on local society. New and enduring elements of state authority after the Black Death gave local notables major new mechanisms for exercising local power against both their equals and their inferiors; they thus gained a much stronger interest in the preservation of state authority. The problems of consensus and conflict in late medieval England are ones that take place in a newly coherent society, in which the upper classes, by standing thoroughly now as the agents of a fully empowered government, have a qualitatively different kind of interest in government and a different communality with each other than they had prior to the Black Death.

The Black Death transformed the royal approach to governance. England was already governed by a vigorous and determined king with a dedicated and efficient council tending toward increased centralization with power able to be exercised almost autocratically for periods. The reaction to the Black Death increased state power but emphasized delegation and cooperation among the upper orders.¹³ Confronted with the imminent collapse of the world with which they were familiar, king, magnates, and gentry coalesced into a governing elite under the umbrella of state authority, cooperating to compel individuals to stand to their obligations. The difference in the years immediately after the Black Death was only incremental in any given area. The broad range of those incremental changes together with the way in which many of them implicated a different approach to governance made that incremental change a qualitative rather than merely a quantitative change.

Part I thus shows the way in which the upper classes coalesced after the Black Death for governance purposes. Admittedly, the upper classes had always been part of the governing authority. Barons and bishops had a rightful and necessary place in governance. They and the knightly classes had a recognized and effective but not delegated¹⁴ authority over the largest part of the population, their own unfree tenantry. Moreover, the knightly classes had participated in governance activities on various governmental commissions for over a century prior to the Black Death. Nevertheless, after the Black Death, with the Statute of Laborers, the knightly classes became completely accepted in the exercise of central authority at the local level, rapidly embodied in the justice of the peace commissions that had full authority to hear and determine felonies and trespasses; they received the exercise of state authority over their tenants that was broader than and as effective as the authority they had inherently. Royal treatment of the bishops likewise altered dramatically from a confrontational, punitive approach to a more collegial, compromising approach. Moreover, the statutes immediately after the Black Death contain substantial new criminal rights, both for laymen and for clergy. Criminal rights were much more important for those who knew enough to claim them: the upper classes. Those new rights, effectively but probably not in an explicit, conscious manner, recognized the greater lenience in criminal prosecutions owed to those involved in governance (by their standards, not by ours). The upper classes coalesced after the Black Death to preserve as well as they were able their position in traditional society.

Notes

1. Michael Prestwich, The Three Edwards: War and State in England, 1272–1377 (New York, 1980), p. 214; W. A. Pantin, The English Church in the Fourteenth Century (Cambridge, 1955), p. 81; W. M. Ormrod, Edward III and the Recovery of Royal Authority in England, 1340–1360, History 72 (1987): 4–19; W. M. Ormrod, The English Government and the Black Death of 1348–49, in England in the Fourteenth Century, Proceedings of the 1985 Harlaxton Symposium, ed. W. M. Ormrod (Bury St. Edmunds, 1986), pp. 175–88; W. M. Ormrod, "The Origins of the Sub Pena Writ," Historical Research 61 (1988): 11–20; W. M. Ormrod, The Reign of Edward III: Crown and Political Society in England, 1327–1377 (New Haven, 1990), pp. 18–20. Most recently, Scott Waugh portrayed Edward III’s reign in this way: From 1330 to 1369, England witnessed an extraordinary fulfilment of the potential of the medieval state, founded on cooperation and trust between the king, the landed elite, and the church. In those years he found only the years 1340–41 as years of political unrest. Waugh, England in the Reign of Edward III (Cambridge, 1991), p. 4. He also noted (p. 5) the way in which power was centralized but exercised by delegation.

2. Ormrod, Edward III, pp. 5–10.

3. Ibid., p. 10; Waugh, England in the Reign of Edward III, pp. 193–94.

4. Chancery was basically a scribal office that had developed many other important functions. It issued the original writs that initiated litigation in the common law courts, investigated royal rights deriving from old feudal duties, and would soon be developing into a court of its own, although for several more decades it overlapped with the council acting as a court.

5. The exchequer was basically the royal financial office, exercising both accounting and relevant judicial activities. Later on the exchequer of pleas would become a major common law court, but not during this period. The exchequer also appointed and supervised the sheriffs.

6. Ormrod, The Reign of Edward III, pp. 75–76: The council was the supreme expression of corporate government, and it is difficult to find any aspect of administration in which it was not involved. . . . Undoubtedly the most interesting work done by the council during Edward III’s reign was in the judicial sphere, both in supervising other courts and in acting as a court itself.

7. Ormrod, Edward III, pp. 13–17.

8. Ormrod, English Government, p. 187.

9. Ormrod, Edward III, pp. 10–13.

10. Ormrod sees governance as basically stable through the reign: It is remarkable how little politics really changed under Edward III. Ormrod, The Reign of Edward III, p. 202.

11. Ormrod, English Government, p. 175.

12. Nigel Saul, Conflict and Consensus in English Local Society, in Politics and Crisis in Fourteenth Century England, ed. John Taylor and Wendy Childs (Wolfeboro Falls, 1990), pp. 50–54; see Alan Harding, The Law Courts of Medieval England (London, 1973), pp. 86–98.

13. Harry Miskimin has ascribed a similar importance to the Black Death, but politically in a different direction. That difference results from his concern with a longer trend, whereas I am concerned with a much shorter period. Harry A. Miskimin, The Economy of Early Renaissance Europe 1300–1460 (Cambridge, 1969), pp. 164–70.

14. The authority of the lord over his unfree tenantry resulted not from law protecting them in the exercise of that power, but rather in the exclusion of the villein’s access to the common law to redress grievances against his lord. The lord’s power was thus admitted and recognized, but not affirmatively protected by English law.

Chapter Three

Creating the Gentry

Subjects not employed in the central administration had long been vital to English governance but only after the Black Death were they accepted fully into the sphere of governance. Describing certain subjects as the gentry instead of as the knightly classes relates directly to the degree to which those subjects stood as agents of state authority. The beginnings of state labor regulation and the elaboration of criminal rights after the Black Death make this period an appropriate one for the transition from the knightly classes to the gentry.¹ While the knightly classes had increasingly served as agents of state authority leading up to the Black Death, the development is best described not as an evolutionary development, but as the result of several planned maneuvers and of a conscious need to recognize these subjects’ new, fully accepted position in the exercise of state power.

The Beginnings of State Labor Regulation

The Black Death transformed the approach of English law to labor relations. Before 1348 English common law did not regulate either agricultural or artisan labor. What regulation there was, was local and often made according to personal status.² Such local control continued after the Black Death, but declined in importance because of the new mechanisms introduced by the central government. Those mechanisms instituted comprehensive controls over both artisans and agricultural laborers, dictated not by personal status but by contract compulsory for all those not otherwise occupied. The alteration in approach increased the power of the central government as much as it drove economic dividing lines between the rulers and the ruled.

Prior to the Black Death the common law considered the regulation of agricultural labor primarily as a matter of status that was appropriately and traditionally a local concern. Those who were personally free and held freely needed to perform only those services traditionally associated with their tenement. They had access to the common law courts to prevent any further exactions by aggressive lords.³ Villeins, however, were characterized at common law as being subject to the unpredictable demands of their lord and to his discipline, not normally a subject of concern for the common law.⁴ Regulation of wages, if any, was customary and local, without the promulgation of national wage rates; what punishment there was for early departure from service was by local courts.⁵

After the Black Death, because of the Ordinance and Statute of Laborers, the common law approached labor regulation from a radically different perspective: provision of a sufficient work force at acceptable wages became a matter of great concern to the central government.⁶ In providing for the work force, now by statute, English law approached workers from an economic perspective: dividing the population between those who were otherwise completely occupied and those who were available to work for others, instead of between the free and the unfree.⁷ The enforcement of labor regulation was still primarily local, but local power was now more effectively exercised by lords representing central authority over all available workers instead of by lords exercising their own inherent authority over their unfree tenants.⁸

Artisans were as much among the subjects of concern generated by the Black Death as were agricultural laborers. Prior to the Black Death the regulation of artisans was a local matter emanating from city and guild authority;⁹ what regulation there was in the countryside came from market forces, the sheriff in his courts, or the various other local courts. After the Black Death important facets of that regulation were dictated by statute; and those who exercised that statutory authority, often the same local figures as those who had been in control before the Black Death, stood as the representatives of central authority exercising externally imposed rules. Still locally exercised, regulation of artisans was now a legitimate concern of central government, which exercised this newly acknowledged power by delegation, thus substantially reinforcing local authority.

Manorial lords prior to the Black Death were immensely powerful over the whole of the tenantry. The common law considered such tenants either free or villein, with the villein having no ordinary recourse to the common law for protection against his lord. The free tenant’s access to the common law could be important but was not normally the most crucial fact of his existence. Free tenants might be indistinguishable from their villein neighbors economically, although villeins were subject to more lordly demands on their work. Villeins’ tenements often went to their heirs and were secure. Lesser free tenants might not often have the economic resources to resist the lord more than their villein counterparts. That resistance by tenants was often substantial: the lord could not long and profitably exercise his authority arbitrarily against a disgruntled tenantry, whether free or villein.¹⁰ In many ways, then, the status-based distinctions of the common law were only one factor in the exercise of power. The common law distinctions nonetheless were embedded in state structures and thus conditioned the exercise of state power as well as the conceptualization of authority.

After the Black Death the conceptualization of power changed drastically. The division between villeins and free men endured in law and remained important in fact,¹¹ even though villeins, in the more competitive labor market after the Black Death, slowly succeeded in improving their lot.¹² In the long run, the decreased availability of labor dictated that lords’ rights not be enforced too rigorously for fear of driving tenants away.¹³ The greater bargaining power that the plague handed to the individual laborer, however, was not the sole reason why villeinage socially became less common. Lords also found that the status of villeinage was no longer as necessary. The authority that lords had had by virtue of status over their unfree tenantry, they with other employers could now exercise over both free and unfree without engaging in litigation of uncertain result if the tenant maintained that he was free.¹⁴ The authority accorded to the powerful by the Ordinance and Statute of Laborers was a partial substitute for and in some ways stronger than that given by status. Status remained important, for both economic and non-economic reasons; but status could decline in importance because of the statutory mechanism for provision of labor. The statutory mechanisms enabled lords to manumit more frequently to retain desirable tenants and thus for the social significance of villeinage to decline.

The Provisions

The primary governmental response to the depopulation produced by the Black Death was an effort to maintain the status quo in regard to the production of food and services and in regard to the relative status between the knightly classes and the workers. The instrument produced to effectuate this aim was the Ordinance of Laborers and Servants of June 1349,¹⁵ reinforced by the Statute of Laborers of 1351¹⁶ and later by the statute of January 1361.¹⁷ This legislative activity demonstrates continuing concern to make state authority bolster employers’ ability to regulate laborers and artisans.

The Ordinance of Laborers was promulgated within a year of the outbreak of the plague in England. The plague temporarily disrupted the institutions of central government. The Parliament summoned for early in 1349 was canceled; the courts were adjourned during Trinity term because of the plague. The legislative response to the plague was relatively immediate and based more on impressions, suspicions, and expectations—all undoubtedly mixing both truth and exaggeration—than other major medieval enactments. The ordinance expressly cited the death of a great part of the people, particularly of the workers and servants, as producing both an unwillingness to work and demands for higher wages as the reason for the provisions in its seven chapters.

The basic provision of the ordinance was coercion to work and to work at accustomed wages. All able-bodied people under sixty years old were required to labor. Excepted from this provision were those who were self-sufficient, living in merchandise, exercising a craft, or having sufficient land of their own to farm: of the agricultural sector, thus, the lower ranks found themselves subjected to this regulation regardless of personal or tenurial status. Testimony by two men before various local officials was sufficient to jail those who refused to work or to work at the accustomed wages, until they found surety to comply (c. 1). Such servants, if they departed service before their agreed upon term without reasonable cause or permission, faced imprisonment (c. 2). The ordinance thus supplemented the lord’s right to imprison his villein with a process to have imprisoned any of the lesser tenantry that proved too idle or demanding.

The ordinance stifled competition as much as possible. The lord of any tenant, free or villein, retained priority to his service, tempered by a qualification against excessive retention of servants (c. 1). Those who retained another’s servant who departed before term were to suffer the same penalty of imprisonment as the servant (c. 2). Those who offered, as well as those who demanded, excessive wages were liable to a penalty of twice that offered or demanded; such claims were to be made either by those affected or by anyone at all in the local lord’s court (c. 3). Triple penalties applied against lords, with the claims to be made in county, wapentake, trithing, or other such courts (c. 4). Agreements for excessive wages made prior to the ordinance encountered similar penalties (c. 4). The intention was to retain the status quo as it had been prior to the Black Death by reinforcing the lord’s control over his tenantry, by forcing people to work and work at reasonable rates, and by preventing excessive competition for the smaller labor pool.

The ordinance similarly regulated crafts and sales of foodstuffs. The craftsmen particularly listed, with no intent to be exclusive, were saddlers, skinners, white-tawers, cordwainers, tailors, smiths, carpenters, masons, tilers, boatmen,¹⁸ and carters. Such craftsmen faced imprisonment for charging more for their work than prior to the plague (c. 5). Sellers of foodstuffs—butchers, fishmongers, innkeepers, brewers, bakers, and poulterers—were prohibited from charging unreasonable prices and ordered to receive only moderate profit with respect to the distance of supply. Such sellers were subject to a double forfeiture at the claim of the injured party or of any other. City and town officials received power to investigate abuses and levy fines. Local officials themselves were subject to a treble forfeiture and amercement if convicted before royal justices of neglecting their duties (c. 6).

The ordinance also regulated ecclesiastical matters by restricting almsgiving. Chapter 7 forbade giving alms to able-bodied beggars. Such beggars, so the council thought, were given to vice, theft, and abominations; they chose to live in idleness, depleting the work force. Giving them alms aided them in contravening the ordinance (c. 7). The king in council thus forbade charitable giving to those who could work, explicitly to compel them to work for their living. Separate forceful letters of request were sent to the bishops asking them to put their stipendiary chaplains under similar wage restrictions by suspension and interdict. Chaplains, like laborers, were charging excessive salaries.¹⁹ Both actions suggested strongly the breadth of intent in the council’s reaction to the plague.

The ordinance became rapidly known throughout the realm and at all levels of society. Sheriffs were to have the ordinance proclaimed publicly in and out of liberties in cities, boroughs, markets, towns, seaports, and other important places within their jurisdiction; bishops were to have it proclaimed in every church and other expedient places. Furthermore, the bishops were to encourage their priests to exhort their parishioners to observe the ordinance. Ordaining and proclaiming are one thing; observing is another. No doubt, however, the intent of the government was clear to the populace.

The private enforcement that was the mainstay of the ordinance soon seemed insufficient. The government therefore instituted public prosecution, with the penalties being applied to the tenth and fifteenth that had been granted to the king and that many localities were finding hard to pay. After the payment of the tenth and fifteenth, such fines were to continue to go to the king. Private prosecution remained possible and was encouraged.²⁰

The Parliament of 1351 reinforced and modified the Ordinance of Laborers in various ways in the Statute of Laborers, once again specially concerned with agricultural laborers and craftsmen. Mentioned explicitly were carters, plowmen, shepherds, swineherds, and dairy servants. The statute tightened the specification of wages. Instead of 1347 and the five or six years previous, the standard was now 1347 and the four years previous. The wages for mowers and reapers were limited, changing by season, with regard to regional differences and methods of payments, and with a prohibition of collateral demands. Such workers were to come with their instruments to be hired in merchant towns, not to be hired privately. The term of hiring was to be for the year or other usual term, not by the day (c. 1). The statute likewise specified the wages for threshing according to the type of grain and with regard to regional differences. All such workers had to swear to abide by the ordinance twice a year before local officials and were forbidden to migrate during the summer to find work, customary migration from Staffordshire, Lancastershire, Derbyshire, Craven, the Welsh Marches, and Scotland excepted. Those refusing to swear to obey the ordinance, officials were to put in stocks for at least three days or to commit to jail until they submitted. Towns had to erect stocks to execute this provision (c. 2).

The statute treated craftsmen with the same detail. It determined the wages of carpenters, masons, tilers, thatchers, and plasterers, differentiating masters, ordinary workers, and servants and also various times of the year. Those involved in transportation of goods received wage standards in accordance with the usually specified years (c. 3). Shoemakers and cordwainers had to abide by the prices of 1347; goldsmiths, saddlers, horse smiths, spur makers, tanners, dressers and preparers of leather, tailors, and other such craftsmen were to swear before the justices to practice their crafts as they had in 1347 and before. Violation of the oath made offenders liable to fine, ransom, and imprisonment at the discretion of the justices (c. 4).

Local officials received broader powers of inquiry, and the process for enforcing the provisions became more specific. Seneschals, bailiffs, and constables now had to swear before justices to search out violators of the provisions and to certify the names of the rebels.²¹ The justices would then order their attachment to answer for contempt; conviction would result in fine, ransom, and imprisonment until submission. Such local officials who broke their oath would be imprisoned forty days for a first offense; three months for a second offense; and for each offense thereafter a doubled penalty. The king’s justices were to inquire at each circuit whether the officials had been corrupt; conviction would result in fine and ransom. The justices likewise had power to inquire about and punish all the ministers, craftsmen, laborers, and servants mentioned. They further received power to inquire and punish either by private suit or by public presentment innkeepers, keepers of lodges, and others who sold foodstuffs or other things. Prosecutions of all craftsmen, laborers, and sellers could go to exigent and outlawry after the issue of the first capias.²² The justices also received the power to depute others at their discretion as to number and kind to see that the ordinance was kept (c. 5).

The statute further provided for the administration of the provisions. It prohibited officials from extorting nonstatutory exactions. The proceeds of all convictions under the statute, except those prosecuted by private parties, were to be applied to the tenth and fifteenth of the local town or, if that town had paid, to the nearest defaulting town at the discretion of the justices (c. 6). The royal justices were to make their circuit at least four times a year in all the counties and to punish harshly anyone speaking or doing anything in their presence adverse to the provisions. Sheriffs who apprehended laborers, craftsmen, or servants fleeing from the justices in other counties were to take them to the chief jail of the county from which they fled and have them imprisoned there until the arrival of the justices, notifying the justices of those thus apprehended and imprisoned (c. 7). The elaborate provisions could have left no doubt about the government’s attitude toward the labor problems resulting from the Black Death.

The overall effect of the Statute of Laborers of 1351 was to incorporate the alterations that had already been made to the ordinance, to extend certain local responsibilities to search out violators of the provisions, to provide supervision by royal justices, to specify appropriate wages, and to make minor adjustments. The tone of the statute was no different from that of the ordinance. Both the Ordinance and the Statute of Laborers dealt with people directly providing services, whether agricultural labor, craftwork, or the sale of foodstuffs.

Parliament further altered the regulatory mechanisms in 1361.²³ The original provisions had allowed for fines; imprisonment without bail was now the ordinary punishment (c. 9). The statute brought carpenters and masons explicitly within the ambit of regulation in regard both to wages and to completion of contracted work and term²⁴ (c. 9). It likewise made provision for fugitive laborers, allowing for branding on the forehead (c. 10).

Finally, in 1364, Parliament issued sumptuary legislation.²⁵ That particular statute regulated workmen and artisans in various ways. With some exceptions, it demanded that merchants deal in only one kind of merchandise; artisans, in only one craft (cc. 5, 6). It then went on to specify both the diet and apparel of servants, as well as the appropriate apparel of craftsmen and yeomen, esquires and gentlemen, merchants, knights, clergy, and plowmen (cc. 8–14). Many of these provisions, unlike the Statute of Laborers, never did find effective enforcement; supervision of merchants and artisans, however, seems to have increased.²⁶ The attempt shows the degree to which the central government had extended its concerns into the relatively mundane, taking great care with the regulation of laborers and artisans.

Statute of Laborers prosecutions implemented the coercive statutory powers. The first employer could sue a rival employer.²⁷ The vicious potential of Statute of Laborers prosecutions, however, appeared only in suits against a servant for withdrawing from service. One shepherd withdrew from service in 1349 after less than eight months service under a one-year contract. The employer sued him, but eight years after the infraction.²⁸ The employer thus could wait until the shepherd had accumulated the resources to be worth suing. The statute constituted a brutal threat against employees, because the frustrated servant would be endangering his earnings for an uncertain period of time into the future. Prosecutions appeared frequently in the common pleas, a potent threat against the better artisans and laborers.²⁹ The upper classes were willing to use state authority to augment and perhaps occasionally to replace local and status-based labor regulation in particularly coercive ways, explicitly as the result of the Black Death.

Empowering the Gentry

The decisions for enforcement were as important as the substantive content of the statute. Local notables had long assisted in the work of the king’s court at trials of oyer and terminer and at nisi prius. Despite earlier experiments, however, between 1344 and 1350 the king rejected parliamentary attempts to make local keepers of the peace into full-fledged justices capable of hearing and determining felonies and trespasses at common law. In 1350 the Crown reversed itself, giving these local officials both the power to handle offenses under the Ordinance of Laborers and the power to hear and determine felonies and trespasses.³⁰ Those commissions were soon split, but the peace commissioners remained justices, although assize justices sat with them usually to determine felonies.³¹ The statute of 1361 finally allowed for commissions of the peace containing a magnate and three or four local notables to hear and determine felonies and trespasses.³² The gentry dominated the Statute of Laborers commissions from the beginning, although the central court justices supervised them;³³ after 1361 the commissions for justices of the peace often included enforcement of the Statute of Laborers.³⁴ In 1344 the king had opted firmly for central control; during the decade after the Black Death that decision was reversed in favor of the exercise of central governmental authority by delegation of power to the local level.

These regulatory initiatives demonstrate two sides of governmental change after the Black Death. After the Black Death government extended its concerns into the lower levels of society, assuming much greater authority in matters that city or manor courts had previously regulated or that had gone without regulation altogether. Agricultural laborers found that free status was no longer any protection against enforced work; both free and unfree workers were subject to wage restrictions, violation of which might endanger future earnings as well as present wealth. In highly detailed statutes, the government assumed control over labor relations, exalting state regulation and contract over traditional seigneurial authority and status.

State power increased by augmenting local authority. The Crown abandoned its distrust of local people exercising state authority and its preference for central control and immediate participation. The king finally delegated power to those local notables who had long been functioning in various lesser governmental capacities; they were now justices, powerful representatives of central authority. The government did not abolish the old status-based authority structure; it provided more effective alternative mechanisms to control labor. The empowerment of local notables as justices together with the increased subordination of the working classes makes this legislative effort an appropriate dividing line. The economic difference between employer and employee became more important than the status-based difference between villein and free and the tenurial difference between lord and tenant. The gentry, substantial local people whose position is strongly related to the exercise of state authority, replaces the knightly classes as the appropriate, if amorphous, designation of the lower ranks of the upper orders.

Criminal Rights

The statutes after the Black Death accorded greater criminal rights to those accused of major crimes. These statutes represented a dramatic change in the trend of criminal administration in the reign of Edward III, because the courts had been expanding the scope of treason. The law of treason was particularly vital to the magnates and knightly classes: they were the most likely defendants. While other areas of the law—such as labor regulation as well as many areas still to be described—grew more punitive, criminal law became more considerate, at least during the vital period of the transformation.

The different approach taken toward the knightly classes required a different approach to criminal law. The aggressive law of treason prior to the Black Death was the product of an approach to governance that emphasized subduing opposition rather than governing cooperatively. Part of the transition from the knightly classes to a gentry entailed a less aggressive and authoritarian approach to criminal law, more protections for the substantial subjects to insure their cooperation. The greater state authority deriving from these changes, of course, meant that that attitude toward criminal law need not endure; in fact, it did not. Although nothing intrinsic to these changes proves such a purpose, the statutory changes in criminal law after the Black Death nonetheless make sense as one part of a comprehensive alteration in governance to counteract the effects of the Black Death.

The statute of 1352³⁵ also curbed aggressive monarchical practices in purveyance, the forced sale for the provision of royal needs. The statute recited earlier legislation that declared that purveyors who abused appraisers to render valuations lower than market rates would be treated as thieves. That provision was now to be included in every purveyor’s commission (c. 1). Purveyors likewise were forbidden to take trees near houses (c. 6). They had to value according to standard quarters and bushels (c. 10). Taking sheep and keeping the value of the wool for themselves was forbidden: they were only to take as many sheep as required before sheering. Contravention made the purveyor liable to be treated as a thief (c. 15). Measures were enacted to police the purveyance of wine by the king’s butlers and their deputies (c. 21). Regulation of purveyance showed a harsher attitude toward the