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

• Author: Kosove, Daniel B.

The Black Death wrought a terrible toll on England. Approximately one-third of the country's population was lost to the bubonic plague between the years 1348 and 1350.(1) While the Plague killed indiscriminately, it hit the members of the lower social orders the hardest. The glut in the English labor market that existed at the time was thus eliminated, giving the surviving members of the lower orders more bargaining power in their dealings with the landholding classes than they had ever previously enjoyed.

In his book, English Law in the Age of the Black Death, 1348-1381, Robert Palmer(2) contends that the Plague gave impetus to changes in the essential nature of English governance. He claims that in an effort to preserve the existing distribution of powers within society in the face of the Black Death, the upper orders formed a cohesive government in order to hold the upper and lower orders to their respective obligations (p. 1). To that end, the English government used the law as a means of controlling class structure and interclass interaction (p. 5). These changes thereby qualitatively transformed the English government into a government of "inherent authority," meaning that the newly intrusive government "took responsibility for the regulation and direction of the whole of society" (p. 1).

Palmer's major thesis runs counter to traditional views of English governance following the Black Death. According to traditional historiography, the English government's steady increase in power was caused in large part by the skillful administration of a single man, King Edward III (pp. 9-10 & n.1). Edward consolidated and expanded his power by successfully waging war abroad and using his war profits as patronage to pacify the domestic elites. Such patronage allegedly fostered a spirit of trust and cooperation among Edward, the nobility, and the clergy. This increased cooperation allowed the newly centralized government effectively to expand its power and extend its influence. Despite this increased cooperation, however, the period found increased power struggles among the upper classes (p. 11). Traditional historiography thus contends that the Black Death presented Edward's administration with a crisis to overcome but that the plague did not provoke a qualitative change in the relations between English government and English society (p. 11).

Similarly, conventional history traces the expansion in fourteenth century English theories of liability not to a change in the style of governance but to the ability of skillful lawyers. Talented lawyers were able to manipulate standard writ forms in order to increase potential bases of liability. Contemporary justices, using only the internal logic of the law as their guide, then supposedly incorporated these theories of liability into the existing common law (pp. 61, 296, 299).

Against this general background, Palmer contends that the demographic changes resulting from the Black Death constituted the chief catalyst in bringing about fundamental changes in medieval England's social order. The threat to the social order that the Black Death posed was not translated directly into economic upheaval; there is no evidence to suggest that any economic crisis occurred in England prior to the 1370s (p. 4). In fact, because overpopulation was severe prior to the Black Death, there was no threat to the kingdom's labor supply even after the Plague struck, as indicated by the absence of vacant arable land in England during the 1350s.(3) Palmer contends that the threat to economic organization was indirect: the increased ability of the laboring classes to bargain due to the decreased labor pool impacted the power structure of traditional feudal society (pp. 15-17).

Palmer maintains that the upper orders drew together into a cohesive government to consolidate and enhance governmental power. This increase in power was utilized to preserve the social status quo by coercing each Englishman, whether he belonged to the upper or lower orders, to carry out his traditional obligations. In forming a cohesive government, a new class -- the gentry -- was created. Additionally, increased powers were given to local authorities to create a more congenial governing apparatus.

In an effort to preserve the social hierarchy, the Crown attempted to regulate the whole of English society through legislative acts, such as the Statute of Labourers.(4) To enforce these kingdomwide regulations in the various localities, the central government granted local peace officers broad powers of inquiry. They were also granted the ability to rule on felonies and trespasses according to the common law (p. 23). Palmer claims that the empowerment of local officials was largely responsible for the creation of the gentry, who were "substantial local people whose position is strongly related to the exercise of state authority" (p. 24). While this change took place over a number of years, Palmer places the "transition point" fifteen years after the Black Death (p. 294). The gentry replaced the "knightly classes" as the lowest classification among the upper orders (p. 294). Unlike the Christian warring elite, the gentry did not base their power on their personal authority or class status but on their function as agents of the central government.

In addition to creating a new class within the upper orders, the Crown made efforts to reconcile its differences with the rest...