Epidemics in late medieval law

The Journal of Interdisciplinary History of Ideas recently published a review by Lorenzo Coccoli of Mario Ascheri's Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI) (Aracne, 2020). Coccoli writes:

In the large and ever-growing body of scholarship on the social history of medieval and early modern epidemics, a tendency exists to favor the second of these three aspects, looking at social life in time of disease outbreaks mostly through the lens of criminal justice and the repressive power deployed by authorities in order to enforce their emergency regulations. There are several good reasons justifying that choice....

Nevertheless, one might still legitimately wonder whether a different set of judicial sources could provide a somehow different picture of the challenges the plague posed at various levels of society. The sudden disappearance of people and properties confronted survivors with a whole series of legal problems that were not reducible to the grammar of crime and punishment. How to establish, for example, the correct line of inheritance when potential heirs die one right after the other, and when, because of the general confusion caused by disorganization and fear, no medical records exist to prove who died first and who died later? Should rent still be paid even though tenants had fled the rented premises to find shelter in a safer place? More generally: should contracts still be honored even though the plague had prevented their full execution? Questions of this sort may lead to a richer historical understanding of social dynamics in times of health crises, by adding to the ‘vertical’ observation of the relationship between authorities and their subjects the ‘horizontal’ auscultation of the connections and exchanges between the subjects themselves. For one thing is sufficiently clear: although narrators, from Boccaccio to Manzoni through Defoe, have conventionally depicted plague-ridden communities as unruly places where people move and act ‘beyond the usual laws’, law itself kept in fact operating throughout the epidemic storm as the fundamental infrastructure of associated life.

*****

The second and third chapters... deal with the solutions envisaged and proposed (with greater or lesser confidence) by late medieval law doctors to the problems raised by epidemic outbreaks for, respectively, the public management of cities and the regulation of private business. Sannazzari, Aldobrandini and Previdelli’s tracts in fact capitalized on a large pool of earlier consilia, quaestiones and commentaria on Roman and Canon law, gathering and organizing sparse hints on the matter that could be gleaned from them. Sixteenth-century jurists seem to agree with their predecessors on the supernatural causes of the plague, which represented the distinctive way in which God chose to wage war against humans because of their sins. The warlike metaphor—which seems to still have some currency in today’s parlance about the present predicament—was not, however, a simple rhetorical device. In the works of ius commune jurists, the notion of bellum Dei was taken literally so as to draw some effective legal consequences from it and solve, by virtue of analogical interpretation, the occasional legal conundrums. Thus, for example, the difficulty over the possibility of imposing an emergency property tax on people who were normally exempted from all sorts of contribution could be dodged by noting that, in times of war, even those who were covered by fiscal immunity were compelled to pay for the sake of the common good. 

Pandemics: Legal history and anthropology

Trionfo della morte (1446)
(Galleria Regionale di Palazzo Abbatellis)

This coming November 6 the Centre d'Histoire et d'Anthropologie du Droit at Université Paris Nanterre will host (online) what looks to be a very interesting program on the legal history and anthropology of pandemics: "Les crises pandémiques à travers les âges. Approche historique, juridique et anthropologique". The program includes fifteen talks on legal responses to epidemic diseases and their regulation from ancient Athens to modern times.

Registration ends October 29.

Historic Spanish conservation laws

The US Library of Congress's online Herencia collection, containing royal decrees, papal bulls, legal opinions, judgments, and royal orders from Spain from the 15th through the 19th centuries, has recently been running a crowdsourcing project to review transcriptions of the historic documents.

Two collections that might interest readers of this blog are the collections of laws and statutes on agriculture, conservation, hunting, and fishing, and that on disease and public health law.

Royal Order of December 12, 1748 concerning the conservation of forests and plantations (LOC)

Video of the colloquium on the legal history of epidemics

This past Monday's colloquium on the legal history of epidemics went well, I thought. The speakers (Mario Ascheri, Tamara Morsel-Eisenberg, Noga Morag-Levine, Alex Chase-Levenson, Felice Batlan, and John Witt) were really interesting, and the questions from the audience led to some more interesting discussion.

The video of the event (with transcript) is available here.

Work on the bibliography of the legal history of epidemics is ongoing - please send me your suggestions for further sources.

Colloquium: Legal history of epidemics

(Update: Video of the colloquium here.)

Next Monday, 25 May, the David Berg Foundation Institute for Law and History at Tel Aviv University will host an online colloquium on the legal history of epidemics. 

The program:

Session 1 (15:00 GMT/11:00 EDT):

Mario Ascheri (Rome 3): Treatises on Plague Law in the Italian Renaissance

Tamara Morsel-Eisenberg (Harvard): Early Modern Jewish Legal Sources on Epidemics

Noga Morag-Levine (Michigan State): Pestilence and Governance in Early Modern England

Alex Chase-Levenson (Penn): Lazaretto Law in the Early Nineteenth-Century Mediterranean

Felice Batlan (Chicago-Kent): Rights, Quarantines, and Inequality in U.S. History

John Witt (Yale): American Contagions: A Short History of Law and Democracy in Crisis

Session 2 (16:15 GMT/12:15 EDT):

Roundtable discussion: Issues and challenges in the legal history of epidemics

Moderator: David Schorr (Tel Aviv)

To receive a link and password, please register by emailing the address in the image above.

(The Berg Institute's bibliography on the topic is here.)

The law of necessity

Ely Cathedral and the fens

A new article by John Collins in Past & Present, "The Long Parliament and the Law of Necessity in Seventeenth-Century England", highlights the importance of claims of necessity in the history of environmental law. As necessity is also one of the foundations of much of the law made around historical epidemics, the topic is particularly timely. An excerpt from the article (notes omitted):

Narratives of perpetual necessity aroused concern in the early seventeenth century. Sir Edward Coke, for example, was worried about the power that the commissioners of sewers possessed over property in the Case of the Isle of Ely of 1609. The famed jurist heard these arguments while he was chief justice of the common pleas, a position he had obtained in 1606. This case was just one of several involving the ambitious undertakers of the English fens who sought, through mechanical improvements, to obtain control over the flood waters that engulfed the low-lying regions around Ely, in order to create productive, and enclosed, farmland. Their pursuits put them squarely at odds with those who wanted to keep the fens as they were so they could continue to enjoy public rights in the marshlands, with inhabitants from surrounding regions who did not want to pay the taxes required for the building of the pumps and dykes, and sometimes with landholders who had parts of their property expropriated so that the dykes could be built.

Legal cases arose over the statutes that authorized the commissioners of sewers. As David Chan Smith has so carefully shown in his recent book on Edward Coke’s jurisprudence, conflicts arose over ‘how taxes should be assessed to pay for sewer works and whether the commissioners had the power to direct the creation of new works’. The particular background to the Ely case involved a group of projectors who, in 1605, were going to drain the fens around Ely and pay for it either through direct or indirect expropriation of lands. While the commissioners of sewers decreed the project legal, the 1607 parliament had refused to sanction it.

In a reversal of previous judgements friendly to the discretionary powers of the commissioners, Coke attempted to bind them through a restrictive definition of necessity. For Coke, the commissioners of sewers could not tax English subjects unless there was an ‘inevitable necessity’ that mandated the construction of dykes, walls or other technologies to defend the land against floodwaters. Innovation was not included in Coke’s narrative of necessity. He only allowed taxation or the expropriation of property for the repair of pre-existing dykes or walls. For Coke, it was only for the sake of a structure that defended the English countryside against inevitable danger — a danger that was not presently visible but would assuredly manifest itself in the future, as the English knew from flood patterns and ocean forces through hundreds of years of experience — that the commissioners of sewers could transform the property of English subjects to achieve the preservation of the commonwealth. If any type of actual innovation was going to be made, the houses of parliament needed to approve it.

In many ways, Coke was an exceptional figure within the English legal community, as those judges who ruled before him on the various statutes of sewers and those who read after him, most notably Robert Callis, did not agree with his restrictive understanding of necessity. For Callis, who gave a reading on Henry VIII’s statute on sewers in 1622 at Gray’s Inn, Coke’s ruling did not fully appreciate the equity embedded in the powers given to the commissioners of sewers. Because their work was of such a ‘great and urgent necessity and use for the good of the whole Commonwealth of the Realm’, the intent ‘maybe extended in exposition beyond the letter of the words’. An equitable reading of the statute allowed judges to ‘inlarge the letter of the Law in the sence of construction, because it tends so much to the advancement of the Commonwealth’. For Callis (who in all likelihood stood to gain from the drainage projects), the soul of the law allowed for new projects even while its strict wording did not. Callis’s reading, at least in 1622, was the legal victor. Stuart lawyers in general allowed a relatively wide latitude when it came to the application of the law of necessity. Utility and improvement, as well as preservation, fitted into their narrative of necessity, which in turn provided those empowered to utilize such narratives a broad remit to generate novel positive laws.

Sources on the legal history of epidemics

I've been busy with other things for a while and haven't had a chance to post, but I've just put up the first draft of a list of sources on the legal history of epidemics.

Please pass it on to anyone who might be interested, and please email me with any sources or suggestions!

Wishing everyone good health,

David

Title page of Girolamo Previdelli, De Peste et ejus privilegiis (Bologna, 1528)
(courtesy of Bayerische StaatsBibliothek)

Drinking water standards

Yesterday's This Day in Water History had this quote from the AWWA's Water Quality and Treatment (3rd ed., 1971) (most comments removed):

“On October 21, 1914, pursuant to the recommendation of the Surgeon General of the Public Health Service, the Treasury Department adopted the first standards for drinking water supplied to the public by any common carrier engaged in interstate commerce. These standards specified the maximum permissible limits of bacteriological impurity, which may be summarized as follows:

1. The bacterial plate count on standard agar incubated for 24 [hours] at 37 C was not to exceed 100/cc.
2. Not more than one of the five 10-cc portions of each sample examined was to show presence of B. coli.
3. The recommended procedures were those in Standard Methods of Water Analysis (APHA, 1912).

These standards were drafted by a commission of 15 appointed members. Among the members of this commission were Charles Gilman Hyde, Milton J. Rosenau, William T. Sedgwick, George C. Whipple and C.-E. A. Winslow, names well known to those who have studied early developments in water treatment.

Though not a part of the standards, the accompanying first progress report is very interesting as it provides insight into the commission’s deliberations on other problems. There appears to have been considerable discussion on whether the standards should also state that the water shall ‘be free from injurious effects upon the human body and free from offensiveness to the sense of sight, taste, or smell’; whether the quality of water required should be obtainable by the common carriers without prohibitive expense; and whether it would be necessary to require more than a ‘few and simple examinations to determine the quality of drinking water.’”

US Public Health Service Hygienic Laboratory, c. 1930

Water pollution lawsuits

This Day in Water History recently reproduced a 1916 article from the Municipal Journal:

Three Sue City for Typhoid Deaths. Milwaukee, Wis.-Three suits brought against the city of Milwaukee as a result of the recent typhoid epidemic, have been filed in circuit court, by two men for the deaths of their sons, and by a woman for the death of her husband. They are for $10,000 each. The complainants claim that the victims contracted the disease from the use of lake water, alleged to be unfit to drink because of the sewage which is being constantly emptied into the lake. The suits charge negligence in allowing the water to become polluted and at the same time supplying it to drink. It is claimed that at various times during the last ten years the city officials have been notified of the condition of the water, but that no attention has been paid to the warnings.

Michael McGuire comments:

The typhoid fever epidemic in Milwaukee was caused by a city employee turning off the chlorine disinfection system for about 10 hours. The epidemic resulted in 513 cases and 59 deaths from typhoid fever. As filtration and chlorination became more widely installed to protect water supplies, it became harder for cities to claim that contaminated water supplies were not responsible for typhoid fever deaths. The combination of engineers wanting to do the right thing and lawsuits resulted in an accelerated introduction of the new technologies.

Natural disasters and legal solutions

Following up on Sunday's post on disasters, here's more on the subject: Franz Mauelshagen recently posted "Natural Disasters and Legal Solutions in the History of State Power". Some excerpts:

Throughout the history of disasters, legal solutions of one sort or another have played a significant role in recovery and prevention, as well as in shaping politics and individual behavior. After the Great Fire of London, following an extreme summer drought in 1666, the city council passed new building laws preventing the use of timber and man-dating stone or brick construction.Wood chimneys were prohibited after fires in Boston in 1631 and in New York in 1648. A list of similar legal changes in response to disasters would be endless. Through building codes,urban fire disasters have left visible traces in cityscapes almost everywhere around the world. In fact, because the new norms impact planning and construction for generations, they continue to leave such traces long after the buildings erected in the wake of the disaster have disappeared. 

Legal solutions operate at the intersection between government and the members of a political community by sanctioning certain types of individual behavior, either through coercion or incentives. In other words, legal solutions aim to achieve a degree of behavioral homogeneity and predictability that legislators consider desirable. The potential of natural hazards and disasters to trigger cultural transformations over the long term ismost obvious in environmentally vulnerable regions, such as dense urban agglomerations, coastal settlements, or agricultural economies in precarious climatic conditions.

*****

So far, only a few historians have considered natural disasters as an element in the evolution of governance. The evidence that has been brought to light suggests that natural disasters probably deserve a place in the history of state power—along with war and state competition. Political response to the second Bubonic plague pandemic in Europe, beginning with the Black Death in 1348, evolved over several centuries and left permanent traces in legal and political systems. Robert C. Palmer diagnosed that, in medieval England, the Black Death transformed “the nature of English governance” towards centralization, a new under-standing of governmental authority,and an enlargement of the sphere of legal matters. Such feedbacks of legal regulations in the realm of governance also explain how hospitals, originally invented to interrupt the chain of infection by separating the healthy from the sick, went from temporary to permanent institutions. The same holds true for medical councils, whose members initially had been appointed only in times of high emergency. In the eighteenth century, however, they became permanent, which made them precursors of departments of health in modern nation states.

Yellow fever control in colonial Senegal

The latest issue of the Journal of Colonialism and Colonial History has an article by Christian Strother, "'A Danger Which More or Less Threatens Us All': Yellow fever and the politics of disease control in Senegal 1890–1914". The abstract:

Prior to 1900, the colony of Senegal had suffered from periodic epidemics of yellow fever. In an attempt to combat the disease, the government of Senegal began to enact new legislation to prevent the spread of epidemics. The government hoped that these new laws would allow them to control yellow fever epidemics without hurting the economic viability of the colony, but they found that the new laws created new challenges. Within the first decade of the passage of the new legislation a series of formal complaints and court cases would challenge sanitation laws and test the limits of government authority.

School of Medicine and Chemistry inaugurated in Dakar in 1918 (ASNOM)