Definition
Second surcharge is a historical English common law concept referring to the act of overcharging a common a second time by the same person who had already been adjudicated against in a prior admeasurement proceeding. When a commoner's right to pasture animals on common land was abused — specifically, when more animals were turned out than the right permitted — the remedy of admeasurement of pasture would issue to reduce the commoner's use to its proper limit. If that same defendant thereafter again exceeded the limit, the second overloading was termed a second surcharge. The writ of second surcharge, authorized by the Statute of Westminster II (1285), provided a remedy specifically for this repeated offense, enabling the aggrieved party to proceed against the recalcitrant commoner.
The term therefore presupposes familiarity with two related concepts: surcharge (the initial overloading of a common beyond one's right) and admeasurement of pasture (the writ that established the proper measure of a commoner's entitlement). A second surcharge is not merely a second episode of overloading in the abstract — it is a second offense committed by the same defendant after a formal legal determination had already been made against him.
Common Language
Modern common usage (Wiktionary): "Surcharge" in ordinary English refers to an additional charge or fee imposed on top of an existing price or cost. "Second" simply means occurring after the first.
Historical common usage (Webster's 1913): Surcharge as a noun meant an excessive load, burden, or charge; as a verb, to overload or overburden.
The ordinary meaning of "second surcharge" — a second additional fee — bears no meaningful relationship to its legal meaning. In the legal context, the term describes a specific agrarian offense in the law of commons, with a dedicated writ as its remedy. A researcher encountering the term in historical sources should not interpret it through any modern financial or fee-based lens.
Common Confusion
Second surcharge is easily confused with surcharge alone. The distinction matters: surcharge triggers the writ of admeasurement of pasture, which merely resets the commoner's allowance to its proper measure. Second surcharge, by contrast, triggers a more severe proceeding under the Statute of Westminster II — one aimed at a defendant who has already been through admeasurement and has defied it. The two writs are sequential and logically dependent; second surcharge cannot exist without a prior admeasurement.
Why It Matters in Research
This term is of interest almost exclusively to researchers working in English agrarian law, manorial records, or the history of common rights. Its practical legal significance ended with the decline of common field agriculture in England and has no meaningful counterpart in American law.
Researchers consulting Blackstone directly — the cited passage is 3 Bl. Comm. 239 — will find the term embedded in his treatment of remedies relating to common of pasture. That chapter is the primary expository source, and both Black's and Burrill track it almost verbatim. Anyone working backward from the dictionaries to Blackstone, and from Blackstone to the Statute of Westminster II (13 Edw. I, c. 8, commonly known as Westminster II, 1285), is following the complete chain of authority for this term.
The term does not appear in American caselaw in any operative sense. Searches in American legal databases will return nothing substantive. The writ of second surcharge was never received into American common law as a practical tool, largely because the open-field common system on which it depended was not transplanted to the colonies in any operative form.
Researchers working in English local history, copyhold tenure, or the history of enclosure may encounter references to second surcharge in manor court records. In those contexts, the term should be read against the backdrop of manorial custom and the specific rights of common attached to particular tenements, which could vary considerably by manor.
Historical Dictionary Support
Black's Law Dictionary and Burrill's Law Dictionary are in near-perfect textual agreement on this term, with both definitions tracing directly to Blackstone's Commentaries at 3 Bl. Comm. 239. Neither dictionary adds independent analysis, and neither extends beyond the Blackstone citation. This convergence is typical of the treatment of archaic writs in the classical legal dictionaries: the entry records the term's existence and its statutory origin, but makes no attempt to synthesize case development or doctrinal evolution, because by the time these dictionaries were compiled, the writ had long since become a historical artifact.
What the historical dictionaries do not address is the procedural mechanics of the writ itself — what the plaintiff was required to show, what judgment followed, or how the remedy differed from that available after a first surcharge. Researchers needing that level of detail must go to Blackstone directly, or to earlier treatise writers on common rights such as Charles Callis's work on sewers and common, or John Scriven on copyhold.
Jurisdictional Note
This term has no operative jurisdictional significance in any American jurisdiction. It is an English common law term of art tied to a specific statutory writ that was never adopted in the United States and has been obsolete in England since the transformation of agrarian tenure through the enclosure movement and subsequent legislative reforms.