English Legal History: A Statistical Overview

Accounts of English legal history have omitted any attempt at a statistical overview. A statistical overview, however, is a necessary part, but only a part, of an assessment of the law. It is a part of the social history of the law and provides the context within which doctrinal, administrative, institutional, and professional elements took place. The statistical overview also helps assess the importance of those other developments and assists in the development of new research agendas. The overview at this point supports the following propositions:

1. Usage of the common law. Usage of the common law expanded dramatically in the late thirteenth century, the late fourteenth century (adjusted for population loss) and the late sixteenth century.

2. Geographical usage. From the beginning and through into the seventeenth century, the common law was truly a national law and capable of providing a unifying core of interest for England and then England and Wales.

3. Actions in use at common law. The real actions (concerned overtly with real property) were at the heart of the early common law. Actions for debts grew more frequent by 1300 and after the Black Death constituted the numerical core of litigation. Few people used the old real actions any more except in non-litigious processes, such as preliminary paperwork for a final concord.

4. Suits to enforce relational obligations. Before the Black Death the action of account against a receiver of money had become the primary action to recover money owed. After the Black Death, when the action of debt received process that was as coercive as the action of account, debt became and remained the primary action both for reclaiming money.

5. Dower. Dower became socially less important for women after the Black Death. Before the Black Death dower was a frequent social phenomenon. After the Black Death, men rapidly utilized the use (precursor of the modern trust) to avoid dower right from attaching to their lands. The power of husbands thus increased, since provision for the wife could be changed by instructions to the feoffees to use (trustees) at any point prior to the husband's death. Dower law remained, but was normally avoided. Even after the Statute of Uses the frequency of dower did not rebound to the pre-Black Death levels, since widows had to opt either for jointure or for dower.

6. Dower in the Plea Rolls. As a percentage of all enrollments, dower reached its high point in the mid-thirteenth century. The decline in percentage thereafter reflects primarily an increase in other forms of litigation and then, after the Black Death, a decline also in absolute numbers.

7. Women's Property Rights: Waste. Actions of waste confirm the strength of dower right all the way up to the Black Death and indicates that the general property rights of women declined more slowly than did dower right.

8. Women's Property Rights. In general, the overall number of women who held real estate declined in relation to men after the Black Death, but not for the first few decades.

9. Status of Litigants. Although the most important conclusions about relative litigation status remain unanswered, the common law was clearly important and involved with a very broad sector of society.

10. Clerics as Litigants. The absolute number of clergy who brought cases at common law was highest in the second half of the fourteenth century and declined dramatically during the fifteenth century and then again with the Reformation.

11. Clerics as Litigants 2. The percentage of litigation brought by clerics was at its highest in the late fourteenth century and declined then gently during the fifteenth century and then rapidly at the time of the Reformation.

12. A County Survey. A survey of litigation from Cornwall over more than four years shows the variability in volume of litigation, the level of new cases as compared to continuing actions, and the distribution of cases among the major types of litigation in the early 1330s.

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