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Attorneys in Early Modern England and Wales           Litigiousness in Early Modern England

Litigiousness in Early Modern England: Conclusion


Early modern England was much more litigious than England in 1975. Per unit of population, the central courts handled about five times as much litigation. Since the volume of litigation in local courts cannot even be approximated, no precise estimate of the rate of litigation overall is possible, but something in the range of half again as litigious as the England of 1975 would seem perhaps in the right order. It would seem unlikely that that "half-again" estimate would fall to less than a quarter or reach as high as double, but even that range rests on one's own sense of the plausible.

Litigiousness, of course, is not a primary concept, because it only tells us how often people resort to courts to resolve disputes. It does not tell us about the more basic aspects of a people, such as contentiousness, religiosity, traditionalism, xenophobia, or gender relations. The reasons for the extraordinary amount of litigation in early modern England are thus a complex; the social results of the mix of factors could change relatively rapidly. Surely, the factors that Brooks relied on to explain the phenomenon contributed: increases in inflation, commerce, population, and the size of the legal profession. Factors he was unable to isolate were as important and probably more important: the fee structures offered by attorneys, the increase in the territorial ambit of the common law both within England and in Wales, the growing predictability and efficiency of the procedure of the legal system, the new coerciveness of mesne procedure. The centrality of the exigent procedure and the proclamation that now accompanied the exigent and both legitimated and reinforced it while it spread the applicability of the common law were probably, but perhaps only marginally, the most important factors in the growth of litigation.

As Brooks well understood, litigiousness, as a derivative characteristic of a society, necessarily results from a dynamic of different factors, not the basic tendencies of a society.