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Attorneys in Early Modern England and Wales
Litigiousness in Early Modern England
The level of litigation in 1607: Exchequer, King's Bench, Common Pleas
Conclusion: England under James I had much more litigation in the central courts per 100,000 residents than England in 1975 and, overall, was much more litigious.
Exchequer of Pleas
Brooks estimates that there were only 100 to 150 cases annually on the common law side of the exchequer. That figure derives solely from the E13 series (Brooks, p. 300, n. 25), and even there seems to be too small by a factor of more than two. The E13 rolls for 1607 contain 456 cases, whereas Brooks's reports 100 to 150 cases for 1606. The E13 rolls for 1607 are available now in the AALT database under James I.
The real problem is that that figure does not include the litigation in the E368 and E159 rolls, the latter of which contains the socially important qui tam litigation that enforced statutes. See R.C. Palmer, Selling the Church (Chapel Hill, 2002), chapter 7 for the importance of the litigation in the E159 series. In 1607 the E159 rolls contained 1,220 cases. The E368 rolls for Trinity and Michaelmas contain 713 recorded cases; the figure excludes routine distraints to render homage and fealty and enforcement of amercements on sheriffs.
The real number of common law cases in exchequer thus is not 100 to 150 (Brooks, p. 300, n. 25), but well in excess of 2,000. That undercount in exchequer litigation is balanced out by an overcount in king's bench litigation, as shown below. The real change required by the better count is to increase the social impact of exchequer common law litigation, particularly that litigation in the E159 series.
King's Bench
Brooks estimated that the number of initiated cases in king's bench was probably double the number of pleaded cases. He used the same multiplier for king's bench that he used for common pleas. That number, however, seems far too high. Almost all the litigation in king's bench by the time of James I was brought by bill of Middlesex, a procedure that basically began with imprisonment of the defendant. That procedure was so stringent that plaintiffs who did not then submit a declaration in the case were liable to a judgment for the defendant's costs. A few, but only a very few enrollments for defendant's costs actually appear. Provisionally, then, it would seem more likely that the number of enrollments in king's bench approaches the number of cases initiated. The overcount in the king's bench balances out the undercount in the exchequer.
As between the undercount of exchequer and the over-count of king's bench, thus, the overall numbers are probably close to being a wash. His figures, however, would lead historians to over-value king's bench and to ignore the common law side of the exchequer, whereas the common law side of exchequer was extremely important to social regulation.
Common Pleas
The court of common pleas was the most important court in terms of volume of litigation. Brooks reported a figure 16,500 cases in advanced stages by using the prothonotary rolls (see the discussion of methodology above for the problem in this approach). Adjusting for the enrollments that were not "cases" requires lowering that figure to something like 12,200. He then used a multiplier of two to arrive at cases initiated: his figure was thus 33,000, now reduced to 24,400 by the preceding adjustment. His multiplier, as shown in the methodology discussion, was defective. Most enrollments were for debt, and for every 100 cases of debt initiated only 13 reached pleading. Only a negligible percentage of cases were discontinued within a term. Between the first and second term of a case, however, more than 20% of cases disappeared, presumably by settlement. For those cases that remained the exigent order then issued so that pleading would be expected not the following term but the term thereafter: the actual notice that the defendant received at that time, the serious consequences of outlawry, and the simple length of time available for settlement resulted in 80% of those cases in which an exigent issued disappeared before pleadings were submitted. Thirteen of every hundred cases of debt thus survived "to advanced stages." The multiplier thus should be 7.5, not 2. A similar but smaller adjustment has to be made in trespass, in which the dynamics were different (more cases disappearing earlier). Overall, Brooks thought that common pleas handled about 33,000 cases each year early in the reign of James. After all the adjustments, the more likely estimate for the annual caseload of the court of common pleas in 1607 would be something like 91,500. Still, that figure is an estimate and no substitute for an actual count.
Overall Litigation: Central Courts
Brooks estimated that there were, thus, 54,075 cases initiated in the central courts (including the Council in the North and the Council in Wales) in 1606 (Brooks, p. 78). After all the revisions, the plausible figure (remembering that this figure is for the very next year) is something in excess of 112,000 cases initiated: about double the Brooks estimate.
Overall Litigiousness
For overall litigiousness there are two relevant perspectives: litigiousness in the central courts and litigiousness in all courts, in both cases compared to the population.
Brooks estimated that central court litigation per 100,000 residents in 1606 was 1,351 cases, whereas in 1975 it was 560 cases. His estimate would thus have society in 1606 something like 2.4 times as litigious in the central courts as in modern England. That estimate assumed a population in 1606 of something like 4,000,000. If one retains the same population figure, the real rate of central court litigation is more in the order of 2,800 cases per 100,000 residents: about 5 times as litigious in the central courts as modern England. Modern government, of course, has many other mechanisms beyond litigation to bind people to the central government. Still, the level of central court litigation would be a strong indicator of the degree to which the central government under James I was establishing its authority.
The litigiousness of the English in all courts cannot be determined. Brooks at that point had made more progress on an empirical analysis of litigiousness, so he then made "a very speculative calculation (Brooks, pp. 77, 305-6)." In addition to his estimated figures for central court litigation, he introduced an estimate for ecclesiastical court litigation and then a possible ten cases per year for a possible 12,000 local courts, for a total of 120,000 cases in local courts. The total for all courts, central and local, would then be about 185,000 cases or 4,638 cases per 100,000 residents, compared to a figure of 4,235 per 100,000 residents in 1975. "Highly speculative," of course, is accurate, but fails to capture the fact that two-thirds of the figure was only little better than a guess. If the number of local courts was actually 13,000 and the average was 15 cases annually, the additional cases would equal about a third of his figure for the central courts. All we really know is that the local courts were substantially active. His speculative assessment was that the English in 1606 were probably somewhat more litigious than the English in 1975, but not remarkably so (4,638 cases per 100,000 residents in 1606 as compared to 4,235 cases in 1975). No one has better numbers for local court litigation, but with so much more central court litigation it is clear that England under James I was not slightly, but much more litigious than England in 1975.
This discussion does not adjust figures for the population of Wales but retains Brooks's population estimate for England for the sake of comparison. As appears in the succeeding portions of this article, the population of Wales would have to be included to arrive at a better estimate.