The Second Legal System

The Second Legal System: 1348 to 1529

The Black Death killed perhaps 40% of the population of England in 1348-50; the government reacted to the demographic disaster by drawing the upper orders together and both facilitating and coercing them to fulfill their duties, while at the same time coercing the lower orders to stand to theirs. To draw the upper orders together, criminal law was restructured to provide better protections, as with the Great Statute of Treasons and an important due process statute, as well as the Statute of Premunire that mandated a warning to instead of mere arrest of those who sought to undermine royal court judgments by getting papal orders. The expanded use of and the more rigorous enforcement of penal and performance bonds coerced the upper orders to stand to their duties. The Statute of Laborers coerced people of occupation and farm laborers to work and to work at pre-Black Death wages; employers could control both free and unfree labor and sue for damages years after the offence. The new writs of assumpsit and case remedied the tendency to react by working poorly. Overall, the government became a government of inherent authority: a government that acts in fact as having a mandate to hire any social need that arises. For this whole matter, see Palmer, English Law in the Age of the Black Death (1992).

The second legal system changed the major characteristics of the first legal system:

1. Allocation of Power within the Family. The development of the medieval use, allowed by the refusal of common law justices to inquire into whether feoffments to feoffees to uses were feigned, allowed males to arrange property interests so that they never held their lands heritably while they were married. If they were never seised heritably, then their widow could not claim dower right after the husband died. The husband would provide for his widow instead by a decision communicated to his feoffees to uses (like trustees) at any time down to his death. Since the wife was dependent on the husband's decision instead of being possessed of a dower right the husband could not avoid, the wife during marriage became much more dependent on her husband. The use also allowed the father to establish some better control over their children in an analogous way. Overall, women's property rights declined. The husband/father gained greater power in the family governance unit that mirrored the macro-political system.

2. Attitude toward Debts/Commercial Relations. Penal and performance bonds, now allowed to be overt and rigidly enforced, came to characterize commercial relations; they imposed penalties at double the value owed. The large penalties imposed by penal bonds put a much higher value on paying debts on time; over the decades the greater emphasis on prompt repayment changed social mores. Performance bonds enforced, among many other things, both lessors and lessees as well as arbitration arrangements. Both leaseholds and arbitration arrangements became much more common: a successful mechanism of the common law that governed society by imposing such dire consequences on default that few of the cases required litigation. Part of the decline in the levels of litigation in the fifteenth century reflects the success of the common law in this direction.

3. Damages and Penalties to Punish and Coerce. Instead of aiming at equality between damages done and award given, the new mechanisms after the Black Death aimed to make people live up to their obligations by imposing a severe penalty for default. Penal bonds, which today have long been considered unconscionable, were enforced rigorously and would award the whole penalty even for default on the last installment of a debt. The Statute of Laborers was similarly punitive and made free men subject to the same kinds of labor controls that had applied to villeins, but now both were imposed by the state. New actions of trespass on the case imposed strict liabilities on, among others, innkeepers and those who kept vicious dogs. Assumpsit actions closed off the workers only remaining protest against the Statute of Laborers: now, if they worked poorly, they were subject to this new remedy. The so-called Peasants' Revolt of 1381 (many of the so-called "peasants" were yeomen and men of occupation) is a measure of the grievance felt, even though the precipitate cause was the poll taxes.

4. Extraction of the tiered litigation structure in favor of different remedies at common law and in Chancery. Litigation over property rights had proceeded on the tiered remedy structure with possessory litigation beginning with an assize, proceeding deeper into the right with a writ of entry, and finally reaching the writ of right for ultimate determination of a dispute. Litigants had even begun eliciting an action of trespass to get an initial, pre-assize assessment of how a jury might consider rights to the tenement prior to bringing an assize. That lengthy tiered structure rapidly disappeared after the Black Death. The precise replacement mechanism is not fully known, although its pieces are clear. In part, litigation about rights to land rapidly turned into disputes about instructions given to feoffees to uses, so that the matter was not for the common law but for the chancellor in his growing court of conscience. In part, the common law handled defence of a beneficiary of a use against outsiders simply by trespass suits or by actions designed to discourage unwarranted entries made to assert title: actions under the various statutes against forcible entries. And in part, the performance bond put such penalties on non-performance of an arbitration award that arbitration became an effective method of sorting out disputes about title, when both sides normally had some seemingly legitimate claim; arbitration became a much more frequently used mechanism for resolving disputes in the late fourteenth and fifteenth centuries The way in which these various mechanisms fit together has not been sorted out, but they effectively made the old tiered remedy structure obsolete. Most of the rules of real property carried on after the Black Death, but were utilized differently and in a different social, governmental, and institutional context.

5. The Way Lawyers Worked. The tangled and immense corpus of writs that had been developed rapidly became, by and large, no longer used, although they remained available. Lawyers continued to learn those writs, however, because the rights and liabilities they enforced remained and would shape, for instance, whether an action of trespass would lie on a particular situation. Lawyers worked on knowledge abstracted from the writs in working out what the chancellor might enforce in his court of conscience (because the chancellor followed most of the common law up to the point where he found a result that produced injustice) or within the world of the common law that was now largely composed of debt, the various trespassory actions, statutory actions such as forcible entry and violations of the Statute of Laborers, and a few actions of account.

6. Interface Concerns. Problems relating to the interface between central and local courts had mostly been resolved prior to the end of the reign of Edward I. Even the supervisory device of the justices in eyre did not survive the 1330s. The new concern after the Black Death was working out the relationship between the new prerogative courts (primarily the chancellor's court of conscience that would later, after the law it enforced became sufficiently coherent, be called a court of equity). The common law justices aided and abetted chancery's development of the use, because the justices declined to consider the feoffment to the feoffees to uses a feigned feoffment, even though it was clearly conditional. Refusal to consider what the chancery was doing (not out of hostility, but as a pre-condition to the development of the chancellor's court) allowed the common law to become rigid and enforce the general rules, all the while knowing that the chancellor could intervene to resolve the occasional and inevitable unconscionable result of general rules in individual situations. Overt studied ignorance established two parallel legal structures that were nonetheless deeply and intricately connected. Despite the necessity of statutory intervention to resolve the borders between the courts, the interface worked out was that of a very permeable wall. The inevitable tensions did not break out into serious conflict until the late fifteenth century and was one of the strains that would work into a major characteristic of the third legal system. The problem of the relationship between the king's court and the ecclesiastical courts was one that was carried over from the first legal system, transformed somewhat by the governments increasing activity in enforcing ecclesiastical regulations. Long term ecclesiastical objectives to complete a separate juridical and social order remained.

Proceed to the Third Legal System.

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