English Legal History and its Materials

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Freedom Through Struggle

The history of freedom is the history of struggle, wherein contingencies that create struggle create freedom. Freedom can be seen through a class, race, or gender lens; but whatever the lens is, the connecting thread is struggle. In England, the powerful tried to maintain control but the unexpected effects of contingencies, like the Black Death and statutes, served as catalysts for freedom by creating necessary struggle between the free and unfree.

Freedom of People

The freedom of people was established through a slow constant struggle between those in bondage and their masters. Under feudalism, un-freedom was relative because they were free amongst themselves, but in relation to their lords they were in positions of slavery. They had no claims or rights against their lords; they were without rights to their own futures. The Black Death “wrought a revolution in social and economic conditions.” (Plucknett, 32). It was an unexpected contingency that set into motion the struggle for freedom of the unfree. In a society where those at the bottom lived unfree, the population reduction in this post-plague world meant that they had more bargaining power, better food, and better lives. Many who were unfree before the plague now had the power to move and work for the highest bidder; however, this freedom did not extend as rapidly to non-agricultural peasants. (Plucknett, 33). Those who remained in bondage saw the freedom of their brethren as hope for their own freedom. (Plucknett, 33). Slowly, unfree villeins received their freedom through a silent struggle. After the plague, the polarization of the struggle between those who remained unfree and their masters led to the 1381 Peasant Revolt.

Although the Peasant Revolt did not lead to freedom for all, it exemplified the struggle that led to eventual freedom. In England “the natural movement towards emancipation of the villeins… [and] a great silent revolution slowly took place.” (Plucknett, 33). The plague provided the contingency which created the struggle between the unfree and their masters. Through this slow but constant struggle the unfree finally received the bargaining power to secure their freedom.

Freedom of Property

The English history of property is characterized by the struggle between those who desired freedom in property versus those that sought to burden the land with taxes. This struggle played out in various ways in which property holders found innovative ways to evade taxes in order to gain full enjoyment of their property bundle. When power is through land it will always be politicized, and consequently the Crown never seized attempting to claim this power. In this struggle, the Crown legislated against the rights of property holders; what the Crown did not suspect was that this contingency would eventually lead to property freedom. In creating such legislation the Crown’s oversight was that “[w]hen we begin to write things down we are implying that there is openness and room for improvement, editing, and change.” (Moglen, Nov. 30).

Holders of property rights attempted to gain property freedom from their overlords through subinfeudation which left the lords with “wardship only of the seignory – that is, the worthless service.” (Baker, 242). Through subinfeudation “[t]he true value of the land, instead of being reflected in rent-service which would benefit the lord, had been converted into cash which went into the vendor’s pocket.” (Baker, 242). It was quasi-tax evasion in which services and property were divided by those who did not want to render the services. When Quia emptores terrarium was passed in 1290 it restricted property freedom by requiring that alienation of land be done through substitution rather than subinfeudation. (Baker, 242). Individuals attempted to escape taxes through a variety of means but “[e]ach form of evasion was countered at an early date by legislation.” (Baker, 243). Quia emptores terrarium empowered the Crown by shortening the property ownership chain thereby making all property beholden to the king.

Property owners found ways to counter legislative restraints by shielding their property through uses. Uses gave owners freedom to retain the value of their property by circumventing the Crown’s control by “hid[ing] behind a legal fašade.” (Baker, 243). Through uses the title of land was divided from the benefit; the owner held ad opus to the beneficial user. (Baker, 248-249). Families put property in the hands of feoffees, usually lawyers, who passed property onto later generations rather than passing through the constraining laws of succession. Uses were so prevalent that “[b]y 1502 it could be asserted that the greater part of the land in England was held in use.” (Baker, 251). Uses gave the owner freedom because “[b]y vesting land in others he paradoxically became a more absolute owner than the common law allowed: he was released … from the inflexible rules of inheritance.” (Baker, 253).

The struggle continued when King Henry VIII restrained property through the Statute of Uses. What the Crown did not realize was that the statute created the contingency for freedom. In 1536 “the Statute of Uses … decreed that beneficiaries should be deemed to be seised ‘of and in such like estates as they had in use” (Baker, 286). The Crown had sought power with the Statute of Uses, but in reality it was a contingency that created opposition. This opposition led to the eventual retreat of the Crown and property freedom. The government accepted the demands of the opposition and passed the Statutes of Wills in 1540 which “conferred … the legal power to dispose of freeholds by will.” (Baker, 256). In the constant struggle for power, the Crown did not realize that enacting restraining statutes would provide the contingency for property freedom.

Conclusion

Without the contingencies of the Black Death and the effects of statutes, the people and property of England might never have found freedom. These contingencies drove the struggle between the free and the unfree. Freedom has rarely been achieved without struggle. Whether it is the Black struggle of Malcolm X, class struggle of Karl Marx, or the feminist struggle of Catherine Mackinnon, all freedom requires struggle.


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