English Legal History and its Materials

One damned contingency after the other

-- By RhickBose - 01 Apr 2018


“Power concedes nothing without a demand.” [Frederick Douglass, If There Is No Struggle, There Is No Progress, (1857)

The push and pull of the King-ian demand for justice and the Robespierriean requirement of peace is a major force propelling history’s entropic arrow forward through time. The development of the common law can be viewed as the fervent demands of the English upper class (landholders, knights, clergy) upon the crown. Here, contingency—both unplanned for and planned for—has played a significant role. At a macro level, the unplanned for contingent event of the Black Death served to force the crown to offer the upper class more freedom in exchange for the peace of maintaining the social structure. At a micro level, landholders believed they’d addressed a planned for contingency by transferring a fee simple estate as gift, and later expanded their own freedom to plan their estates by doubling down on such conditional gifts through the statute of de donis conditionalibus. Both are examined here

Macro-Contingency: People

Contingency drove the further consolidation and centralization of state power after the Black Death, resulting in more freedom for the upper classes and more power for the state. This can be seen through both (1) the turn in the relations from punitive to collegial between crown and baronage, knights and clergy after the Black Death, and (2) the need to “preserve traditional society after the Black Death.” (Palmer 59).

Relations between knights, clergy, and the crown before the Black Death was oppositional and coercive, especially in the king’s use of the law as a political instrument to be wielded against knights and clergy. “[T]he king used litigation to corner his opponents and bludgeon them into submission.” (Palmer 56). The unforeseen, drastic reduction in the number of people alive in English society forced the crown to recognize the need for a cohesive upper class that would exist to continue the crown’s rule and society itself. It was in this context that the crown recognized the need for “broad new authorities” for the knightly classes. (Palmer 54). While, in a nod to Fredrick Douglass, these classes had been clamoring for state authority before the Black Death, it was only after the event that the crown began to rely on them not only for “local labor regulation” but also now for the “exercise of state authority in criminal matters. After the Black Death local commissioners received official powers over felony and trespass…” (Id).

This was a new level of freedom and power for this already comparatively freer class, and its driver was contingency. After the Black Death, social and status-based control over villeins was insufficient as a mechanism for the control of a newly empowered labor class. This power was a result of their fewer numbers, coupled with a steady demand for their services. The Black Death “accelerated and intensified…a very serious depletion of the labor supply. The population of the manor was no longer sufficient to work the lord’s estates.” (Plucknett 32). As a result, the central authority granted knights the freedom they already were clamoring for to use the criminal law to control this newly empowered labor class who were less willing than before to simply subjugate themselves before class antagonism.

Micro-Contingency: Property

Property rights of landholders were effected by contingency in two main ways: (1) in the development of the reversion mechanism to act as a bulwark against the unfulfilled promise of maritagium and (2) the adoption of the statute de donis conditionalibus of 1285.

Through maritagium land was gifted to a married couple, intended for the first son born of the marriage in the form of fee simple until the third generation, when “the third heir was liable to perform services and could insist on doing homage.’’ (Baker 271). Were the marriage to produce no offspring or no sons, land law dictated reversion back to the gifter. This use of the law in furtherance of status quo retrenchment, and in furtherance of the gifter’s intention to retain the land should no adequate family line be produced, was further retrenched when remedy was sought after a case in 1281 pleading that “the condition of a fee tail was fulfilled merely by birth of issue.” (Baker 273). The misalignment of the intention of the gift and it’s usage limited the freedom of the gifter and enhanced the freedom of the giftees. This would soon by rectified by de donis, allowing estate planning arrangements to have their own force, such that those in line of succession may sue if the gift is not carried out as intended by the donor.

The question of what to do in the situation where no heir was produced was perhaps the ultimate contingency, albeit one that the gifter attempted to plan for in this case. Here the balancing of freedoms was weighed to the gifter and away from the giftee, but the subsequent challenge necessitated the production of a statute that further reinforced the gifter’s position. Much like the Black Death, which led to political reprioritizing of relationships in the wake of contingent events, the stoppage of a line when no heirs could be produced had a similar effect of political reprioritizing within the estate,


Notably absent in this analysis is the laboring class to which the quote from Frederick Douglass was directed. Perhaps it is the “intermediate character of freedom makes it possible to simultaneously pursue it for yourself and deny it for others.” Indeed, “[w]e can simultaneously be for freedom and hold people in subordination and it doesn’t hurt us, we don't suffer from it.” (Moglen). Here, the knights and clergy derived their new powers from further holding people in subordination. The Statute of Laborers points to the fear that the upper class had for peasant power; their suffering is absent from this analysis, and the suffering of others was not cited in the texts as motivating forces for any of the upper classes clamoring for more freedom. They were simply acting from one damn contingency after the other.

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r1 - 02 Apr 2018 - 01:21:20 - RhickBose
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