After the Black Death the English legal system became increasingly comprehensive. In the wake of the plague, Edward Ill’s government acted aggressively to hold society together by introducing coercive mechanisms to compel all sectors of society to perform their obligations. Suddenly, in the two decades following 1348, shepherds, builders, surgeons, clothmakers appear in the plea rolls, regulated in the quality of their workmanship. The justices themselves spurred the development of penal and performance bonds that acted coercively to ensure debt repayment and adherence to agreements, including agreements to perform arbitration awards. The chancellor himself became more aggressive, leaving the general rules of the common law in place but remedying individual problems in his court of conscience, the court that would slowly develop its own systematic law: the law of equity. By the sufferance of the common law justices, the chancellor developed the rules that allowed the growth of uses, a device that empowered husband and father within the family and increased the manipulability of land as an economic resource. The English government through its courts increasingly became a government of inherent authority, a state that acted in fact as responsible for the whole of society.
The Statute of Labourers of 1351, the most obvious consequence of the Black Death, compelled workers both to work and to work at roughly traditional wages. The statute diminished the necessity of villein status in securing a labour force and increased the importance of contractual relationships. To the extent that lords manumitted villeins or simply ignored status because they had other means of securing labour, the lords made themselves more reliant on state authority. In the years right before the Peasants’ Revolt, the court of common pleas handled more than 300 Statute of Labourers cases each term (most only at procedural stages), with even more enforcement managed at the local level. To reinforce the effect of the statute, moreover, chancery made available assumpsit writs that allowed suits to enforce the quality of workmanship in occupations. The law not only tied the gentry to the state, but also secured the labour force and controlled society. Incorporating the gentry effectively into governance came all the more easily because the gentry themselves were the arms of state power at local level, whether as the commissioners who enforced the Statute of Labourers or as the newly empowered justices of the peace.19
Penal and performance bonds were as coercive in horizontal relationships as the Statute of Labourers was in employment relationships. With a penal bond, a debtor made out a bond committing himself to pay a sum twice the amount actually owed (e. g. ?50 for a debt of ?25), with full repayment of the real amount owed on time (?25) making the bond amount (?50) void. Default in any part made the debtor liable for the bond amount (?50), a crushing penalty. Performance bonds were similar instruments, but with the penalty voided on performance of an act, such as performing an arbitration award or performing leasehold obligations. These instruments were extraordinarily coercive, since the penalty would be owed in full even if the debtor defaulted in the last, even minor instalment. Penal bonds became the classic way to commit to a debt. Performance bonds served as primary mechanisms for reinforcing arbitration agreements and leaseholds. Since performance bonds were so coercive, they made arbitration a serviceable mechanism for resolving disputes: accepting the arbitration award was much less expensive than defaulting and thus owing the penalty. Arbitration thus flourished in the fifteenth century, not because people were dissatisfied with the courts but because the courts had made available devices that put teeth into arbitration. Similarly, leases became more frequent after the Black Death, partly because it was a better way to manage a depopulated countryside, but more because performance bonds served both lessor and lessee to ensure either the rent and proper return of the tenement or the quiet enjoyment of the leasehold. Penal and performance bonds allowed people to be assured of the consequences of debts and agreements.20
Uses, enforced by the chancellor’s court of conscience, gave people a life after death. The common law was so manipulable that tenants gave their land to feoffees of uses (analogous to modern-day trustees). The common law was content to regard only the feoffees as having any rights; the chancellor in his court, outside the common law, finally made the feoffees act conscientiously, according to the directions given or that had been given by the tenant, either for his own benefit or for others. The immediate purposes seemed cogent: utilization of real property to pay off debts after one died, more security in providing for prayers after one’s death, avoidance of dower rights that presented particular problems to purchasers, and strengthening of husband and father against the entrenched rights of dower and primogeniture. In Trinity term 1386 almost 80 per cent fewer women claimed dower than had in 1305, even though overall litigation had increased by about 60 per cent. By Trinity term 1465 there were only twelve women claiming dower in the court, a strong testament to the popularity and effect of the use and to the way in which males utilized the legal rules that would keep wives’ dower right from attaching to land. With uses, the husband/father could keep a wife or a son dependent on the directions he gave to the feoffees even down to the day of his death. In practice, of course, husbands frequently did provide well for their widows, but they retained full power in their own hands until they died. Some husbands even stipulated that support for the widow would terminate on her remarriage, thus governing her conduct even after death. Soon the tangential effects of uses became more important because uses could also avoid wardship rights of lords, thus increasing the wealth passed to the next generation.21
The introduction of a new court, the chancellor’s court of conscience, with new concerns and approaches, together with new common law devices such as the penal and performance bonds changed the complexion of litigation. In 1275 the old property actions, including conveyancing litigation oriented towards final concords, had accounted for more than 80 per cent of the cases in the court of common pleas. The jurisdictional changes during the reign reduced that figure to 54 per cent by 1305, but with the absolute volume of such cases still increasing by more than 40 per cent. By 1386 the old property actions constituted only 11 per cent, with the absolute volume less than half of the 1275 figure. By 1486 they constituted only 5 per cent, with the absolute volume less than a fifth of the 1275 figure.22 The old actions continued to set the framework within which landed wealth was managed, but litigants found it much more useful at common law to challenge rights by provoking tenants to bring actions of trespass or by binding people with performance bonds. Many disputes about landed wealth likewise went not to common law but to the chancellor, whose court dealt with the directions given to feoffees of uses. Instead of a tiered system of litigation that allowed multiple chances to relitigate at a higher level of right, late fourteenth - and fifteenth-century litigants preferred rather to use the law as a mechanism for pressuring opponents and for structuring social relations in ways that presumed the litigation structure but had strong disincentives actually to use it. Use of the common law not for actual litigation and judgements but as a context within which people constructed predictable social interactions both built on and reinforced ideas about social deference and developed social practices controlled securely but at a distance by the law.
World History
