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Litigiousness in Early Modern England
Litigiousness in Early Modern England and Wales
Robert C. Palmer, Cullen Professor of History and Law, The University of Houston
Thesis: Early modern England was much more litigious than current estimates would indicate.
In 1986 Christopher Brooks in his path-breaking book Pettyfoggers and Vipers of the Commonwealth argued that the central courts of Jacobean England entertained twice as much litigation in relation to the population as did the central courts of England in 1975, although his estimate was that, considering all courts, England was not much more litigious in 1606 than in 1975. As to the reasons for the phenomenal increase in the level of central court litigation late in the reign of Elizabeth, he dismissed the possibility of changes in legal procedure and relied instead on the increase in four social factors: population, commerce, the number of attorneys, and inflation.
The argument here is that Brooks's argument is defective in most of its parts. The number of cases in the central courts was far higher than he was able to ascertain. Although it is impossible to have any real estimate for overall litigiousness, the higher level of litigation in the central courts must have meant, given that local courts were still active, that England circa 1607 was far more litigious than England in 1975, perhaps by something like 50%. Finally, while the social and economic factors he relied on were certainly present and would have contributed to the level of litigation, legal procedures and statutory changes were more relevant.
1. Discussion of methodology for assessing the level of litigation
2. The database for this article
3. The level of litigation in 1607: Exchequer, King's Bench, Common Pleas
4. Causes of Litigiousness: Inflation and Legal Fees
5. Causes of Litigiousness: New Territories subject to the Common Law
6. Causes of Litigiousness: Effectiveness and Coerciveness of Legal Procedure
7. Impact of Litigation
8. The 1607 Summer Circuit
9. Conclusion