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Causes of Litigiousness: Effectiveness and Coerciveness of Legal Procedure


Conclusion: Procedural changes in the common law were the most important single factor in the increase in the level of litigation.

Brooks (pp. 88-90) dismisses procedural developments as significant for the increase in litigation late in Elizabeth's reign. That dismissal did not seem to be a conclusion from actual research as much as a conclusion drawn from a survey of the literature on English legal history concerning the sixteenth and seventeenth centuries. And indeed, from the literature there is nothing that would account for the dramatic change in the level of litigation, but legal historians had not been interested in searching for common law procedural innovations beyond the bill of Middlesex and the beginnings of indebitatus assumpsit. Procedural innovations in the sixteenth century, nevertheless, were quite important.

Jury Reform: the Statutes de Circumstantibus
Assembling a jury had been a long-standing problem at common law. More often than not, when the nisi prius justices went on a circuit insufficient jurors failed to appear to make the jury. To the extent that a plaintiff thought that the defendant would resist settlement and force a trial, the difficulty of assembling the jury was a disincentive to litigate. Indeed, medieval plea rolls, while they certainly contain jury verdicts, are not replete with them. A further difficulty with medieval juries was that jurors were known in advance. Attempts to influence the jurors, even by encouraging them not to appear, would have been relatively easy, even if illegal. Both of those problems with the medieval jury were overcome in the sixteenth century: the plea rolls are filled with successful jury verdicts. Indeed, the very rare case in which there was an adjournment after a nisi prius order was probably a delay at the request of the plaintiff.

The statutes de circumstantibus provided the process to resolve those jury problems. The first statute de circumstantibus was in 27 Henry VIII (c. 22), which was continued by Statute 35 Henry VIII, c. 6, and then made perpetual by Statute 2 & 3 Edward VI, c. 32 (1548). The statutes allowed the plaintiff, in a case in which insufficient jurors appeared, to have the sheriff select additional jurors "from those standing around," presumably from jurors summoned for other panels. No nisi prius order could thus fail solely because jurors failed to appear. Moreover, since the named veniremen need not actually be the jurors, influencing the jurors would, while still illegal, be even more problematic.

The jury reform proved popular. The Statute 4 & 5 Phil. & Mary, c. 7 extended the process to cases in which the crown was a party. The Statute 5 Elizabeth, c. 25 (1562-3) extended the procedure to Welsh courts, the Duchy, Cheshire, and Durham. Finally, the Statute 14 Elizabeth, c. 9 (1572) gave defendants the same right as plaintiffs. The main effect of giving defendants that right also would have come in replevin, in which action the actual plaintiff occupied the position of defendant.

Beginning in 1536 and progressively through the sixteenth century the disincentive for plaintiffs who thought their case would end up before a jury disappeared. In itself this reform would have increased litigation slightly, but it served more broadly to make litigation more efficient and predictable.

Change in the Role of Sheriffs and Bailiffs

In medieval litigation mesne process--the process to pressure the defendant to appear in court to answer--was difficult to execute; sometime after 1534 mesne process became reliable and simple to execute. The medieval mesne process was a complex of summonses, attachments, distraints, and arrests (capias) that might with a stubborn defendant result finally in an order for outlawry: the exigent. Attachments, distraints, and arrests all might be ordered repeatedly if the sheriff failed to act, so that the amount of time between the purchase of the original writ and the order for outlawry was completely indeterminate and could easily be years. Worse still, the mesne process required the sheriff or his bailiffs to track down the defendant and, perhaps, seize some of his goods: the work was time intensive and demanding. The medieval rolls are filled with process orders, many of which were not executed. While there was certainly corruption and favoritism by sheriffs and bailiffs, the primary problem was that there were simply too many orders to be executed. The sheriffs and bailiffs had to serve all the courts, the exchequer, the chancery, and the king.

Sometime before 1607 mesne process changed radically. In form everything seemed to be stable: there are orders for summonses, attachments, distraints, and arrests. The form was stable, but the process was different. Distraints were only ordered in the old actions like dower and replevin, but never in debt or trespass. In debt and trespassory suits (that is, in all but about 1% of the litigation) the time sequence of orders was uniform: an order to summon (debt) or attach (trespass), followed by three capias orders and then the order for the outlawry. Since the original writ contained the first order and two additional steps could be taken each term, any case that began by the beginning of a term would reach the order for outlawry by the end of the second term (about four months). In debt and trespassory writs the sheriff literally never executed these procedural orders: they merely answered that the defendant could not be found. While the writs were issued in fact and were endorsed (I have examined a writ file), the sheriff uniformly treated the orders merely as paperwork.

The first piece of process in debt or trespassory writs that was expected to be executed was the order for outlawry, but the exigent writ was executed in successive county court by notice read out in that court warning the defendant to appear: neither the sheriff nor his bailiffs had to search out the defendant. To stop the process, the defendant had to find the sheriff: the sheriff and bailiffs did not have to track down the defendant. The exigent became the mainspring of mesne process, not a possible and remote possibility. In 1607, between 2,000 and 6,500 exigent enrollments appeared each term in the court of common pleas (6,500 exigent enrollments would indicate exigents in something more than 13,000 cases).

This change in practice meant that sheriffs and bailiffs could actually execute process reliably, since they did not ever have to search out the defendants in most cases. Actual arrests would occur only in response to the writ capias ad satisfaciendum, an order that issued only after judgment rendered (such orders are the subject of complaints about official misconduct). Even with a vastly increased load of litigation, the burden on sheriffs and bailiffs was much reduced. The predictability of the process, together with the reduction of the possibility for bias from the sheriff or bailiff, made litigation more predictable and thus more attractive. As with the statutes de circumstantibus, the greater efficiency of legal process would have increased the level of litigation, but alone would not have accounted for the dramatic increase in litigation.

The Proclamation

The problem with exigent orders was that they seemed unfair. The sheriff who would receive the exigent order would be the sheriff in whose county the debt was contracted or the trespass was committed. Given the mobility of people and inter-county commerce, that county might not be the county of the defendant's residence, in which case the defendant would not have any notice that exigent procedures were being pursued against him in that other county. Thus by statute in 1512 the justices, when they issued an exigent writ, also issued a proclamation to the sheriff of the county in which the defendant was actually resident. Pursuant to that writ the sheriff had to proclaim both in his county court and in the quarter session that exigent proceedings were underway against the defendant (Statute 4 Henry VIII, c 4; Statute 6 Henry VIII, c. 4). After 1589 the sheriff had to make the proclamation also at the church in the parish of the defendant's residence. While the court of common pleas could not order ordinary process in Cheshire, Lancashire, Durham, or Wales, they could and did order sheriffs in those places to make the proclamations.

To stop the exigent procedure the defendant had to give the sheriff of the exigent county sufficient surety for appearance in the court of common pleas. The level of that security is unclear at the present time, but it was either typically a bond for 40 pounds sterling or an amount equivalent to the debt, and in either case he had to submit also mainprise who committed themselves to a similar sum. To protect themselves, the mainpernors might make the defendant give them a hold harmless bond. The AALT has two decent examples: A, B. Any debtor who actually owed and was able to pay at that point would have simply paid, purchased a supersedeas to stop the exigent, and be done of the whole affair. Debtors, of course, were tempted simply to pay and neglect the purchase of the supersedeas, so that they could find themselves still outlawed. For those defendants who declined to pay and presented the surety, the incentive to appear was great. The real purpose of the exigent writ here was not to outlaw the defendant, but to put him under a major forfeiture for failure to appear, much like the coercive force of the sub poena in chancery and very similar to the effect of the bill of Middlesex. While the overt forms remained the same at common law, the substance was different.

The effect of the proclamation, particularly the change in 1589, was to make the exigent process seem fair because at least fair notice was provided to the defendant and to make the process far more coercive in order to obtain the prompt appearance of the defendant in court.



Conclusion

The proclamation amplified the effect of the other procedural changes and the resumption of liberties. The dynamic among those reforms and changes was the fundamental dynamic behind the unprecedented increase in litigation late in the reign of Elizabeth through the early seventeenth century. The progress of a case was now very predictable; the procedures were not obviously unfair; the plaintiff had sufficient mechanisms to ensure the appearance of the defendant; sheriffs and bailiffs focused their time on execution of judgments rather than on elaborate, dilatory mesne procedure.