A History Society Law in the Time of Plague

HISTORY SOCIETY: LAW IN A TIME OF PLAGUE:

WAS THE LAW A GOOD DOCTOR?

Master John Baker and Master John Wass in conversation with Master Donald Cryan via webinar on Monday 22 March 2021.

Donald Cryan: This evening, we are concerned with the law’s response to plague in the Tudor and Stuart periods. What is of interest here is how the executive used the law. Were their actions legitimate in constitutional terms? How effective was the law that they administered? And in medical terms, did the law do more harm than good?

Professor Wass, I understand that the Black Death in the mid-14th century was part of the second great wave of bubonic plague and it was enormously devastating. How far would the echo of that have impacted down the years?

JW: The Black Death was a slight misnomer because they went blue, they became cyanosed, because it often affected the lungs. A third of the population of Europe died. I think it is fair to say it reshaped the course of history. There was huge psychological impact because this high mortality destroyed the confidence of the population of the world in the future. And it affected social architecture: indeed, the Peasants’ Revolt of 1381 was possibly related to the social discord caused by the Black Death of some years earlier.

The plague of 1665 is well documented. This was an awful illness. And there was death in considerable agony. It was originally thought to be spread by rat-borne fleas. More recent data shows that there is human-to-human transmission, usually by human fleas and body lice. It is interesting also that plague still exists in parts of the USA and possibly in North Korea, so it is something which has never ever been seriously got rid of.

DC: We know that the distribution of the plague amongst the different levels of society was by no means the same. Why was this? How different was it for the poor and the rich? Is it much the same as now? JW: The answer to all that is, yes. The price of labour rose because there was a predominant infection of people who were in the lower socio-economic groups, probably largely related to their degree of overcrowding. That resulted in this shift in the distribution of wealth.

It is very interesting that in Cambridge there were 972 people who got the plague, but not a single academic got the plague. Because actually they had moved out of Cambridge, and that’s something which actually is a reflection of how it affected people: people who were affected in perhaps the higher socio-economic groups moved away from where all the infections were.

In Cambridge there were 972 people who got the plague, but not a single academic got the plague. Because actually they had moved out of Cambridge, and that’s something which actually is a reflection of how it affected people: people who were affected in perhaps the higher socio-economic groups moved away from where all the infections were.

DC: Sir John, Professor Wass has set out the public health emergency which the Tudor and Stuart administrations were facing. How did the great institutions deal with that? What was the practical response?

JB: The law books are less informative than might be expected, and it is the law that I am going to concentrate on. The first statute was not until 1604. The case law is also sparse. One reason for that is that many of the measures were extra-legal. For instance, in colleges and Inns of Court, the solution was that everyone just went away, leaving the servants behind. The only regulations needed were retrospective, for instance to modify the residence qualifications.

Prospective regulation had to be introduced for the central courts of law, since in normal circumstances plaintiffs who failed to continue their actions from one return day to the next would automatically lose their cases. If courts stopped sitting, everyone’s suits would be discontinued and have to be started again. The first example of a royal command to adjourn the term for plague comes from the time of the Black Death. Parliament was similarly adjourned or prorogued when necessary. Some of the earliest written regulations by the Privy Council were made to ensure the isolation and safety of the King’s own court.

DC: There were many complex issues when dealing with the measures taken by regulation and by statute, and the role of the executive and parliament. How did this play out in the 16th and 17th centuries? How were the plagues controlled in those times?

JB: During the 16th century, written plague regulations were issued both by central government and by local authorities themselves. But by the 1550s, seemingly without any written regulation, in towns throughout the country, sheds or cabins for infected people were being built on the outskirts. Infected houses were being shut up, and the movement of people and goods was restricted. That rested on compulsion, but it was done without any authorisation by parliament or central government.

Then, under Elizabeth I, the government became more dirigiste. In 1577, the Privy Council ordered inquiries to be made as to what orders were taken locally for the restraining of persons dwelling in houses infected from the company of others not infected. And, interestingly: “Whether there has been any partiality used either in restraining the poor upon of plague more than the rich, or in sparing the rich transgressing the good orders taken for the stay of infection and punishing the poorer sort.” It was clearly assumed that local authorities could and should be imposing such restrictions, though the power was not derived from any previous proclamation, let alone Act of Parliament.

In 1578, the Council published its own directions, attributing the increase in contagion to a wilful failure by the authorities to give proper directions. The orders were directed at local authorities, that is the mayors and Justices of the Peace (JPs), and they provided that houses affected by the plague were to be closed up until six weeks after the sickness had passed. These rules were to be enforced by watchmen, and offenders were to be put in the stocks in the highway next to the infected house. At the same time, public medical guidance was issued by the College of Physicians. The orders in Council contained a clause very reminiscent of modern legislation: “The said Justices may put in execution any other orders that by them at their general assembly shall be devised and thought meet tending to the preservation of His Majesty’s subjects from infection.” And it went on to say that such orders were to be enforced by imprisonment. None of this was authorised by statute.

DC: I know that you have recently come across something rather interesting which shines a particular light on the detail of how these orders were carried into effect?

JB: Yes, I acquired a manuscript book of memoranda kept by a Staffordshire JP, Anthony Kynnersley, which contains a number of local plague measures from 1603, just before the statute. One refers to the isolation of merchants who had gone to London, contrary to his command, and brought back packs of wares. Kynnersley also drew up orders for the forthcoming fair in Uttoxeter. Warders were to be placed at all street ends leading into the town. All householders receiving suspected persons were to receive condign punishment, and three whippers were to be paid by the town, to whip away rogues, vagabonds and beggars. And it says that these orders were made by consent of the constable and inhabitants of Uttoxeter.

DC: If those proclamations were accepted as an effective way of acting as prophylactic measures against the plague, was the same true of other public health measures in those times?

JB: London was the biggest cause for concern because its growing overpopulation was causing health hazards and social problems. In 1580, the Privy Council issued a proclamation against building new houses in London and against subdividing houses. The proclamation warned property developers not to put the pursuit of “private lucre” before the public interest and threatened offenders with imprisonment without bail. It was thought desirable to back that up by statute in 1593 because it really did seem to impinge on the rights of freehold property.

A

Above: From Edward Coke’s Third Institute of the Laws of England Left, Top L–R: Master John Baker, Master Donald Cryan Bottom Left: Master John Wass

A new proclamation in 1602 gave jurisdiction to the Star Chamber to expel inmates and to order new buildings to be pulled down. Concerns were expressed about this in parliament. It was clear law that the government could not alter the law by proclamation. By what right, then, could the Privy Council stop people building on their own freehold, and even pull down the houses which they built? The SolicitorGeneral (Bacon) was challenged on this in the Star Chamber in 1607. He was forced to rely on the principle that necessity knows no law and said it was dangerous to follow precedents too slavishly. He was inviting the court to make it up!

DC: If there was no prerogative power vested in the King, and no statutory authority had been granted by parliament, might there yet have been a common law jurisdiction which might be invoked?

JB: Coke’s commentary on the lapsed 1604 Act contains several authorities in the margin. One was the writ De Leproso Amovendo, which enabled lepers to be moved out of contact with society. Numerous lazar houses, or leper hospitals, were built in medieval times, yet there is little or no evidence the writ was ever used, and no evidence that it was extended to other diseases. But you could argue that, as a matter of legal theory, it showed that people considered unfit to mix in company could be compulsorily isolated.

Another line of argument might have been that spreading plague was a common-law offence and, therefore, reasonable steps could be taken to prevent it. In an unpublished case of 1569, it was said that “if someone who has a horrible sickness be in my house and will not depart, an action will lie against him. And yet he taketh not any air from me, but infecteth that which I have.”

The most interesting case I found is another unpublished case. In 1596, an action of false imprisonment was brought against the mayor of Coventry for confining someone from a plagueridden house under a local ordinance. Chief Justice Anderson said the plaintiff had not only deserved imprisonment but really deserved to be imprisoned again for his audacity in bringing the action. Of course, that was meant ‘in terrorem’ rather than seriously. But he amplified the deterrent effect by recollecting a case which had come before him: a man who had visible plague sores on him had visited his sister and embraced her, with the result that she and all her children died. He was indicted and convicted of murder and hanged. Sixty years later, Sir Matthew Hale, Lord Chief Justice, argued that without proof of an intention to cause harm, this would not even be manslaughter.

Reading some of the voluminous literature on plague and pestilence in early modern England, I have been struck recently by the many obvious resonances with the present. Besides the suffering and the death, and the overfilled hospitals, we find shops, pubs and schools closed, travel restricted, employees furloughed or made redundant; social distancing, with funerals limited to six persons; public gatherings and entertainments forbidden; marshals and watchmen to enforce lockdown; uncertainties about what it was safe to do; and the moral dilemma over balancing common humanity with the need to shut away the unfortunate. The legal history which I have been looking at shows that people were generally willing to accept a measure of governmental control without too much anxiety about the source of its authority.

DC: Professor Wass, could you tell us about the doctors’ response?

JW: I am going to start with the Royal College of Physicians, founded in 1518, with a royal charter through parliament in 1523. And it is interesting that the then Queen asked for measures to combat the plague. They founded the idea of public health in terms of hygiene, air pollution, food sanity, and population density and social distancing. Plague Commissions were set up based on the idea of ‘salus populi suprema lex esto’ (‘the health of the people is the highest law’). There is a very significant comparison between 1665 and now, with social inequalities, the King or the Queen isolating in Windsor, gatherings banned, alehouses banned, theatres shut, trade stopped and the Scotland border shutting. I think the only thing that is different now is vaccination.

There is a very significant comparison between 1665 and now, with social inequalities, the King or the Queen isolating in Windsor, gatherings banned, alehouses banned, theatres shut, trade stopped and the Scotland border shutting. I think the only thing that is different now is vaccination.

DC: What about the middle classes, the middling type of people? What was the impact upon them of the plague?

JW: Okay, take Shakespeare as an example of this. In the 16th century, a couple in Stratford-on-Avon lost two children to bubonic plague, and the couple barricaded themselves in to protect their three-month-old son, William, who survived. And in fact, a quarter of the population in Stratford were killed in the year of William Shakespeare’s birth. His 11-year-old son, Hamnet, reputedly died from bubonic plague in 1596. Some ten years later Shakespeare wrote King Lear during a period of plague lock-down, and it is interesting to note that the theatres were shut down for 60 per cent of the time from 1603 to 1613.

DC: Can we put the historic picture into a modern context?

JW: This goes back to Spanish flu: 102 years ago, somebody travelled to a small town in Alaska and then became sick. Within a week, 72 out of 90 of the population had died. It was a hugely infectious viral illness. Fifteen million people are estimated to have died during Spanish flu. Around 4.2 million people have died of COVID-19 (as of August 2021).

As a doctor, you have to be a pathological optimist. It is fair to say that we have led the world in this country on vaccination and development. We have also led the world in the genomic testing of new viruses and new mutations in these viruses. I think the healthcare infrastructure in our country is amazing. It is unique because all the NHS hospitals work together in the National Institute of Health Research, and that has had a hugely beneficial impact on our research.

I think the only defence of humans is their wits, and I think in those circumstances we have done not too badly. So, my conclusion is that the law is probably not a good doctor. But neither are the doctors. I think, though, they are getting better.

Professor Sir John Baker QC LLD FBA

Downing Professor Emeritus of the Laws of England

Professor John Wass MA MD FRCP

Professor of Endocrinology, University of Oxford

His Honour Donald Cryan (Hon) LLD Former Treasurer of the Inner Temple

For the full video recording of this talk: innertemple.org.uk/plague