Monday, November 30, 2009
Legal Changes in the Wake of England's 1348 Plague Outbreak
This is a research paper I wrote for Legal History. It's long and I'm not really sure who'd be interested in it, but I'm not letting something that took this long to write rot on my laptop.
Medieval England in the 1340's was not really a cool place to be. If you were caught for a major offense like murder or robbery, they usually just killed you on the spot or locked you in a dungeon. Lawsuits from the period mostly involve property, contracts, or wages. The crazy notion that maybe two champions beating the shit out of each other was not the proper way to settle a lawsuit was only about a century old. Juries were a luxury, if you wanted one you had to pay extra. Major advances like evidence, witnesses, impartiality, or not being drunk while deciding a verdict would not be around for a while. Most of the population were serfs working estates, which was only a mild variation on the concept of slavery.
The overall theme of the paper is to chart how, after a major disaster hits this situation, a change in the legal system is attempted to return things back to normal and fails miserably. New laws are introduced, new types of lawsuits become popular, and the law courts became much more sophisticated rapidly. I'm of the school of thought that in order for a law to actually work, there has to be a need present to motivate people to respect it. The 1348 outbreak and subsequent laws represent a situation where the need is absent from a law. Strict enforcement of labor statutes or pricing regulation were mostly a good way to end up broke or if you really pissed off the local serfs, lynched. Passing a bunch of laws or engaging in lawsuits to preserve a way of life that is no longer feasible is not going to change anything. It's the ones who adapt that survive.
The paper stops short of claiming this, but I might as well just say it in the summary. I rely on an old 1970's history theory on macroparsitism to explain the government's function in all of this. If you want footnotes or sources, drop me an e-mail and I'll sling you the proper word file. Without further ado:
Legal Changes in the Wake of England's 1348 Plague Outbreak
The relationship between law and disease is historically an indirect one. Due to lack of understanding about how disease was transferred effective quarantine and sanitation regulations would not come about until relative modernity, meaning that infectious diseases were an inevitability instead of something that could be controlled. Laws in times of plague instead worked to effectively undermine the loss of life and productivity so that rulers could continue to control the populace. In other words, it is how one parasite tightens its control over a host population when threatened by another, smaller parasite.
Thinking of a system of government as a parasitic relationship is something that William H. McNeil proposes in his book Plagues and Peoples. This is not meant to be seen as a negative but rather demonstrate a method of living that is intrinsic to all living beings. We are all surviving off the work of another living being, be it vegetable or animal, much like a parasite does at a microscopic scale. McNeill explains that historically macroparasitism must have begun once large-scale agriculture was instituted. He writes, “A conqueror could seize food from those who produced it, and by consuming it himself become a parasite of a new sort on those who did the work.” In order for this relationship to last, an effective conqueror learned to take a surplus while leaving enough food for the agrarian group to survive. Like a parasite, a conqueror who kills its host is an inefficient one. Over time the relationship evolves as the conqueror seeks to increase the surplus by protecting the host from other forces. Over time both host and parasite develop into a balanced, stable relationship.
What a plague represents in this perspective is an invading force that cannot be controlled with armies and sheriffs. Yet like a parasite, an infectious disease also seeks to establish a balanced relationship with its host. Rural and lightly populated areas typically do not provide an appropriate environment for an infectious disease to thrive. In order to be successful it must transfer to new hosts on a constant basis as subjects either die from the disease or develop immunities. All major disease outbreaks are going to occur in a largely populated city. Two things happen as a consequence: people from rural areas must constantly move to metropolitan areas (while still providing taxable surplus) and the infectious disease is slowly bred over generations into a childhood sickness. That’s what allows a person to be immune to it in their adulthood. McNeill comments, “since children, especially small children, are comparatively easy to replace, infectious disease that affects only the young has a much lighter demographic impact on exposed communities” . This is how the balanced relationship with a disease develops over time, if someone has survived to full adulthood then they are immune and the resources invested in their development are not lost. McNeill suggests thinking of it like an energy balance, “Food extracted from peasants for the support of rulers, soldiers, and city folk, as well as goods consumed by microparasites within their own bodies, represents a net withdrawal of energy available to the food producers themselves. More going to one kind of parasite leaves less for others.”
Although a parasite has only its considerable biological means of dispersal and infiltration to deploy for controlling a host, human beings are endowed with a method for circumventing the evolutionary process through language. We don’t have to physically adapt, just adjust living habits. Wearing clothes and furs, for example, enabled humans to move into much colder climates than they normally would have been able to survive in. The practice of doing this spreads by cultural and tribal discussion instead of any major biological adjustment. Laws work in precisely the same manner. They are adaptations to circumstances that curb or introduce social habits to adapt to situations without actually having to biologically adapt. As a consequence, a law is both faster than traditional forms of evolution and also more prone to becoming inefficient once the immediate cause is absent.
Prime examples of legal codes modifying social behavior in response to disease usually occur when a new disease is introduced to a community unaccustomed to it. At the start of the Christian era, McNeill identifies four different disease pools based around geographical divisions : Europe, Asia, Africa, and India. These areas geographically overlapped enough that various cultures had shared their diseases but not yet encountered other pools. When one culture from a region came in contact with another, usually through invading armies such as the Mongols or merchant ships, the result was a disease infection that would ravage the immediate population. Rather than just the young dying, young and old, skilled craftsmen and laborer, all die. It usually takes about 120 years for a population to fully adapt and regulate a disease into only affecting young children . Examples of linguistic adaptations include religious and tribal practice that helped avoid infectious diseases. The Christian Bible and Jewish Torah recommend separating someone infected with leprosy apart from the village for forty days, a practice maintained by most major shipping ports such as Venice and Ragusa into the 1400’s. The caste system of India recommends thoroughly washing if touched by someone from the country and generally avoiding someone from outside one’s social group, doctrine that although destructive today was an effective method of preventing infection centuries ago. Nomad tribesmen from the steppe region of China maintained strict rules with the marmot population because they believed they were their ancestors. An animal moving in a sick manner was not to be touched and if a marmot colony showed widespread signs of disease then the entire tribe left the area because it was seen as a bad omen. Since many infectious diseases were spread by fleas living on rodents, this was an effective counter-measure to possible infection.
Legal adjustments to the plague outbreaks required modifying existing methods of legal control in order to ensure productivity kept up. Rome, for example, suffered numerous plagues throughout its history. Symptoms of a population that has sustained losses requiring the macroparasite adjust its legal and government policies can be seen in 235 and into the reign of Diocletian (285-305). Laws were introduced that prohibited cultivators from leaving the land and made labor occupations hereditary and obligatory. Barbarian tribes were allowed to move into recently emptied lands (due to plague) in exchange for military service to support a shortage of trained soldiers. In China an outbreak of the bubonic plague in several coastal provinces forced the Emperor to bring in Turkish Uighur mercenaries. When the plague came to Byzantium in 542, the Zoroastrian based society had to significantly modify its inheritance laws to ensure social stability. Women, throughout history, are more resistant to the plague than men. After continuous wars during the sixth century and a heavy plague outbreak, the Empire suddenly found itself with a severe shortage of adult males. Laws were passed that allowed upper-class Iranian women to manage family estates and represent the estate in court, give testimony, alienate her husband’s property, inherit a double-share from her husband and a half-share from her father, and sometimes even choose her next husband. Rulers had to insure that the land remained productive and with a stable line of owners during these periods.
Studying the legal effects of a disease on a population becomes difficult both because it is not always certain what disease was spreading at the time and the possibility of other variables driving the formation of the law. The relationship between the law and the disease also becomes steadily more fragmented as time goes by and the populace develops immunities. Nor are statistics always reliable, in England for example the only people capable of treating the sick without risk of infection were elderly women. A household diagnosed with plague meant quarantine and isolation, which could effectively destroy a family and since one minor group controlled all treatment bribery and faked statistics must be presumed . One also has to account for the fact that eventually the governing macroparasite will simply learn to adjust to the presence of the disease. England would have recurrent outbreaks of the Black Plague for centuries with the last major outbreak occurring in 1665 . The worst of these in terms of death toll would be in 1625 at 41,313 in London and several thousand more in rural areas. The true nature of the bacteria and how the disease was spread would not be realized until a group of Japanese doctors studied the disease in Hong Kong in 1894 . At that time the death rate for infected Europeans was already at 18.2%, meaning that by then most Europeans were immune. The second lowest was a 60% mortality rate for Japanese infected.
The first major plague outbreak occurred in England in 1348 and subsequent policies after that period will be the focus of this paper. This outbreak is not special in terms of total deaths but rather the total deaths of the macroparasitic governing class. By the time the 1600’s came about the governing classes may not have been able to cure the disease, but they knew how to avoid it. Eyewitness accounts of the plague in the 1600’s describe the upper-class boarding themselves up in their homes with enough food and water to survive or utilizing servants to purchase goods . The Black Death is a particularly nasty disease in that a perfectly healthy human adult can die of it within twenty-four hours of infection. Those that do not recover from the disease suffer extreme fever and swelling of the lymphatic glands for two to five days before death. Breathing in or eating the bacterium results in infection. Skin to skin contact does not. Thus, boarding yourself up in your home and eating cooked or preserved foods was an effective counter-measure that was widely used by those who could afford it. In the 1348 outbreak, such measures were still unknown. While a total third of the population died from the 1348 outbreak, this includes 40% of the clergy, 27% of the tenants-in-chief, and total litigation dropping to 60% of what it was pre-plague. In comparison, in the 1625 outbreak clergy death was at 3.5 to 4.5% due to effective education and counter-measures. So while subsequent plague outbreaks would prove to be more deadly for the poor and disenfranchised, the governing class learned to both survive personally and how to maintain their estates in such circumstances. It is the 1348 outbreak where the most legal change occurred which can be directly traced to the very real threat of disease to the governing macroparasite.
Need precedes law, which means that there is often a delay in legal developments before the full effects of a social shift are detected. Generally speaking the villein and manor system remained the same despite the plague for the first few years in terms of legal governance. What changed was the cost to run it. Due to a shrunken labor pool, rural workers demanded and lords had no choice but to pay increased wages. From the 1340’s to 1360’s wages increased on average from twenty to forty percent. Certain areas were more affected than others, Suffolk experienced a 67 percent increase in wages for reaping while Oxfordshire went from paying a plowman 2 shillings weekly to 10 shillings weekly in the space of a year . Despite the increased salary, the rural workers social situation changed very little due to inflation. Increased costs of production meant increased costs for manufacture, meaning everything cost more despite the better pay. English lords also suffered reduced profits from rent, milling, and oven rentals due to the now mobile working class. Serfs often moved to wherever the best wages were being paid, they no longer needed to pay rent on a regular basis to any one particular lord.
The current King in 1348 was Edward III, who had very recently won the Battle of Crecy to the French. England was also recovering from a brutal series of famines. With a third of both enemy and friend in the ruling class wiped out in the space of a year, Edward III was confronted with a massive drop in tax revenue and a manorial system that was rapidly devolving as Lords found themselves competing for a decreased labor pool. Robert C. Palmer writes in English Law in the Age of the Black Death, “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 autocratically for periods. The reaction to the Black Death was to increase state power but emphasized delegation and cooperation among the upper orders.” Prior to 1348 Edward III had been engaged with several lawsuits involving rebellious bishops who refused to pay taxes. After the plague hit these cases were all dropped for paltry sums. In 1349 the King declared that common law disputes were to be handled by the Chancellor’s court while common law judges who were already handling these affairs were inducted into the Chancellor’s court. In order to ensure uniform enforcement, the Knights became the central authority figures at the local level. They were authorized to hear and determine felony and trespass cases and exercise state authority over tenants much more broadly than before. Pardons, a normally rarely used option in trials, became prevalent so long as the accused Lord or Knight agreed to military service or provided financial support to the crown. Political concessions had to be made amongst the upper-class macroparasite in order for a delegated centralized authority to return the host populace back to normal output.
Within a year of the plague’s full impact the first law was introduced to begin regulating labor. The Statute of Laborers is a large proclamation that details several adjustments to labor policy . The preamble to the law explains their motivation aptly, “Because a great part of the people, and especially workmen and servants, late died of pestilence, many seeing the necessity of masters, and a great scarcity of servants, will not serve unless they may receive excessive wages, and some rather willing to beg in idleness, than by labour to get their living…” The law goes on to dictate that anyone under the age of sixty had to work. Giving alms to beggars who were physically able to work was outlawed. Lords who were not over-capacity had first claim to any laborer who had contracted to work for them. Craftsmen such as blacksmiths or butchers had to charge pre-plague rates for their goods. A subsequent law required all labor contracts to be gauged by the year instead of the day.
Yet as with all laws it is in the enforcement that the function can be seen. Despite the illegality of laborers abandoning their contracts, agents began to appear who would match labor-short lords with serfs willing to risk the fines that came with new employment. Several lawsuits prosecuting such agents can be identified in Suffolk, Norfolk, and Gloucestershire. Usually prevalent during the autumn harvest, laborers would be recruited to appear at labor short manors willing to pay the illegal rate just to get the grain harvested. J.A. Raftis points out in Peasant Economic Development within the English Manorial System that property leases show numerous variations in how many virgates (30 acres of land) various peasants and tenants were working, far more than what an individual could manage. People relied on outsourced labor fairly regularly if they had the cash. The Abbot of Saint Edmund’s, for example, kept his staff by illegally paying them in grain stipends and better wages while employing temporary laborers during the harvest to accommodate the extra demand . Being able to afford this arrangement would have been extremely difficult for a Lord that was not already fairly wealthy.
It was conceivable then for one employer to sue another for taking laborers away, yet there is no record of such litigation ever occurring. What there is instead are numerous records of employers suing laborers for abandoning their contracts prematurely. There would be an initial fine for missing work and this would be multiplied for each subsequent time someone failed to appear. Many peasants could afford to miss this because they were either managing property or working somewhere else for better pay. But as the fines increased, so did the lawsuits going after the missing laborers . Palmer cites a particular case where an employer waited eight years after a shepherd abandoned his post before suing, conceivably because the shepherd could not have afforded the fines until then .
Contractual enforcement was also much harsher after the plague as courts began to be willing to allow for damages and performance bonds. These legal concepts existed before the Black Death but they did not come into heavy use nor were courts inclined to uphold them due to their resemblance to usury. Originally contract enforcement required the document be written under seal, in the post-plague political climate courts were inclined to accept a contract without one. The purpose behind these harsher penalties and lawsuits was to ensure that labor remained consistent and the manorial system continued to produce crops.
As the economic method for how the macroparasitic class profited from land became unstable in the wake of the 1348 plague, the labor laws eventually gave way to new forms of controlling property. The laws boosting gross productivity artificially in the immediate term while enforcing a stagnant price resulted in mass deflation and over-abundant harvests . For many manors, it was more expensive to grow the crops and sell them than to just let the land lie. The 590.5 acres sown on average in Suffolk in the late 1330’s was reduced to 288.67 acres in the 1360’s, for example . Some manors relinquished direct control of their property in favor of renting it out to farmers. By the 1380’s, a Lord gained more money by renting than by managing the land themselves. The total number of renting tenants increased considerably during the last quarter of the century. By 1425 a Lord would simply sell to the peasant his right of lordship, a surrender to the peasant of outright possession of holding for a fixed cash rent and freedom from dues and services. The peasant paid rent and did the best they could with the land . Cash crops such as grapes, olives, apples, pears, vegetables, hops, hemp, flax, silk, and dye all began to be produced. One of the more popular alternatives was the less labor-intensive managing of livestock. Arable acreage declined by 32.3 percent while pasture acreage increased by 149 percent.
Tenants who could manage a variety of skills naturally made a greater profit than those who only farmed. Records highlight one farmer who performed as both beadle and reeve over 1378-79 for one and one-quarter virgate (30 acres of land). A farm would act as reeve and ploughman or perform labor services temporarily in addition to their original work. Landowner administration ceded more and more land for commutation. Again, all of these lands must have relied on temporary labor during the Autumn season for harvest despite only being operated by one farmer.
With all of these new innovative uses of land both in terms of agriculture and rental to tenants, the nature of Property laws had to adjust accordingly. While there is not any one specific law that drastically altered the property situation as with the Statute of Laborers, what is present are interesting shifts in the types of litigation and contracts coming into existence after the plague. Courts were both more open to variations from normal legal custom and previously underused legal methods became more prevalent. The process of renting land to tenants, for example, can be noted through a gradual increase in leases. Initially leases were granted for four to six years at fixed rates for sections of demesne and for vacant dependent holdings. Leases over time lengthened to ten, twenty, thirty years, or even a lifetime. Enforcement of tenant contracts, as with labor contracts, became detectably harsher. Palmer writes in English Law in the Age of the Black Death, “In traditional debt, there was a strong impetus toward reasonable damages, damages at a level that would not provide extraordinary compulsion to pay on time. That tendency toward reasonable damages characterized contract law prior to the Black Death; contract law after the Black Death was increasingly harsh.” The way this worked was a covenant became a prelude to a final concord, serving to enforce written agreements between tenants and landlords by ensuring conveyance of fees. Escrow arrangements were heavily used to avoid actual litigation on the covenant, the creditor would have direct claim to chattels if someone were to default on the lease. Enforcement of the contract thus only required the purchase of a writ from the Court of Chancery.
These legal alternatives had existed before the plague, what changed was how often and the extent of the penalties imposed on a person for defaulting the lease. Because juries were typically inclined to go light on someone who failed to pay rent, creditors and lords increasingly relied on contracting the penalty into the lease. Penal bonds and condition precedent contracts became popular by 1352. New writs were introduced to allow for additional claims and pleadings despite payment of initial obligation, land began to be valued by the interest it was protecting rather than the actual value. The problem became exacerbated enough that the Courts eventually began to limit debt collection from detinue arrangements. Thus despite the slow shift into allowing farmers and tenants to manage their own affairs, the harsh demands that the land remain productive to the owner of the land debatably became more difficult. Before the plague a rough harvest would not necessarily result in a serf becoming homeless.
Harsher consequences for defaulting on a lease meant that more leniency concerning occupation and ownership of the land had to be allowed. Joint-tenancies with non-family members began to appear in lease arrangements, conceivably to ensure the tenant met lease obligations, and these slowly evolved into social uses. 1359 to 1369 were the years that Chancery began to allow and uphold uses in land contracts . Palmer writes, “The use was thus a relationship in which the trustees held the enforceable legal title but solely for the benefit of another who had likewise an enforceable right against the trustees, the purpose of that arrangement exceeding merely the alteration of the grantor’s estate or the rapid granting of the land to a third party.” The general need for such an arrangement was to insure that if anything happened to the tenant someone could step in to manage debts and take care of the family. Life estates began to add an additional year on top of the tenant’s lifetime to make sure that debts could be collected and creditors could make arrangements to hold the land until they were repaid. This was necessary due to land traditionally always going back to the owner without the tenants obligations being met. Social uses were also used by husbands to cut their wives out of their land or rightful inheritance through deadhand conditions. Palmer explains, “Joint tenancies reduced that independence [for widows], exalting the husband’s and father’s authority in the family. Conveying lands to feoffees prior to marriage prevented dower right: the widow’s right would then depend solely on the father’s authority in the family.” The land continued to remain productive for the macroparasite through changing attitudes about what was legal and methods of enforcing contracts that allowed a defaulting tenant to still remain profitable for all parties involved.
Concepts of natural rights were also adjusted in response to the plague. Lord Bracton wrote in regards to legal opinion at the time, “By natural law itself, these things are common to all: running water, air, and the sea, and the shores of the sea, as the sea’s accessories. ” Yet laws regulating public waterways were always present in England. Someone who excessively diverted water from their normal course resulting flooding of highways or land was held accountable in the King’s Court. You could effectively obtain a writ from the King’s Court for: (1) the heightening of a pond; (2) the diversion of a water course; (3) the preventing of another from gaining lawful access to a spring, a lake, a well, a fish-pond; (4) the preventing of another from lawfully drawing water, or driving cattle to it; (5) and the opening of new veins of water in a place where only a single water source was granted. Water was promised either through deeds to a certain field or to a grantee terminable upon death. Complex partitioning and water agreements existed concerning the flow of a stream so that the current could be divided both by time and by measure and the parties would only use the water at certain hours of certain days. This was important both for irrigation but also a mill owner at one part of a stream disrupting the head of water for the mill owner downstream. This complex system of leasing water flow had to be abandoned in the wake of deaths and tenant leases that made such arrangements too complex. While possible when organized amongst a few lords, after the plague Edward III’s clerks formalized the process and controlled all water use through regulation and license.
All of these social changes and adjustments came about during the turbulent first few decades after the 1348 outbreak of the Black Plague. Yet simply because the macroparasitic government introduced and attempted to enforce these regulations does not necessarily mean that the host populace was necessarily fond of it. The manorial system began to fully decline after the 1348 outbreak thanks to commutation of duties and process of alienating demesne. J.A. Raftis explains:
“In the one case the lord found it to his advantage, or was compelled, to release his tenants from their customary obligations and exact money wherewith to hire free labourers to work his estate. The acceptance of rent in lieu of services dissolved the links between the servile tenants and the home farm, and commutation was thus the most powerful agency and conspicuous factor in the process of manorial disintegration. In the other case the lord initiated an entirely new departure. He gave up completely the system of direct exploitation of the land, and yielded the management of his demesne into other hands; he ceased to be a farmer and developed into a landlord, who leased his estate to tenants and lived on the income accruing from their rents.”
It is important to note that despite the upper-class reconciling itself and attempting to enforce its control over the populace there was hardly a uniform response. Lords and tenants had to be heavily regulated to ensure the crown was still getting its share as well. As Edward III began to grow old Lords began to grow more cagey and fraudulent in their collection of fees and taxes. Parliament was eventually forced to pass laws that regulated the conduct of the macroparasite itself in order to ensure that a sustainable relationship could be maintained. The law explains, “And it was decreed in this parliament that if any of the said lords was discovered to have received gifts, or to have been disloyal in the obedience he showed either to the king or to the community, he should forthwith be removed from the government and be held infamous for all time; he should pay the king five times what he had accepted, and his body should be at the mercy of the king.”
Overreliance on the legal system to regulate conditions of servitude eventually began to cause revolts in the populace. Trying to find ways to keep the populace producing funds for the government forced them to increasingly rely on heavy taxation. In 1377 a third poll tax was introduced that unevenly charged people depending on their economic background. The most famous, the Wat Tyler Rebellion in 1381, involved mobs destroying the property and lives of their overlords, government officials, and lawyers. Over 100,000 peasants marched on London and forced a fourteen year old Richard II to acquiesce to the abolishment of the entire villeinage and tenant system. There would be five more revolts by 1405. Penal bonds, excessive rents, and seizing chattels for debt default may have been viable legal methods for ensuring profitability for the macroparasite class, but they were also speedy ways for a Lord to get himself killed by his own tenants. Starting with the legal changes that came from the 1348 outbreak, one can trace the slow breakdown of feudalism as peasants slowly refused to cooperate with a system that deprived them so extensively of property for the slightest error. By the time Columbus sailed across the Atlantic, English serfdom essentially ceased to exist.
Subsequent laws and legal developments that were direct responses to plague outbreaks are not nearly as wide-ranging in their repercussions. A new Quarantine Act passed in 1721 ordered immediate death for anyone who left a quarantined zone and also for anyone who came in contact with the subject. Entire sections of a city could be quarantined in this manner, marked through trenches and lines placed in the roads. Such measures were mostly ineffective due to the lack of understanding about sanitation and bacteria during the time period. The massive drop in Black Death outbreaks can mostly be traced to a wood shortage following the Great Fire of London in 1666. Brick had to be used, which was more difficult for the disease carrying rat to make its home in, along with heavier consumption in meat products resulting in a new species of non-infectious rat becoming prevalent in London. As awareness of how to prevent diseases like cholera increased, sanitation laws would eventually become contested as English law mandated the installation of plumbing systems to insure that no stagnant bodies of water became infected. Given that someone protesting the violation of their natural rights could choose between having plumbing or dying of cholera, there was not much discussion on the issue.
In a time period where medical science had not yet figured out the source of the Black Death, governments had no choice but to maintain society by adjusting their laws to tighten control. The opportunities that a reduced labor pool created for serfs had to be mitigated if the ruling class was going to maintain its macroparasitic control over the populace. The problem with this approach was that for many rulers, expecting things to go back to the way they were before the plague was not possible. There was not just one body taxing the populace once the bubonic plague arrived, but two. Under such conditions it was only a matter of time before the populace reacted negatively to the government through revolt, something that played out in England’s history since the plague’s arrival. Thinking of disease as a drain on resource is, like any problem, not one that can necessarily be solved by law alone.