Abstract
While doubts about trust took some time to become imbedded in culture, the vast increase in the number of disputes over broken credit agreements occurred much more immediately as a result of structural problems within credit networks. Most concerned the simple non-payment of debts discussed in the last chapter, but because of the rudimentary nature of accounting, there were also many bargains which were remembered differently by the parties involved and payments to third parties could also be communicated badly. Notes were also lost and payments were forgotten. Arguments over the nature of contracts took place, as did disputes over damaged or poor quality goods, or concerning changed circumstances caused by dearth, the loss of a ship or the effects of war. The iron merchant George Sitwell often wrote of such problems in his letters. On one occasion he replied to someone who had asked for payment of a debt of £8 8s, claiming that he owed nothing because he had already paid it to a Mr Wright, stating: ‘you have putt me to some trouble to peruse my papers, and when you consult better with your reckonings I doubt but you will finde it right that I have paid all.’ On another occasion he reported how he himself even lost a bond for £100, and had to sign an aquittance for it. His letters were full of such problems, to the extent that on one occasion he wrote: ‘wee play the fooles grossly about our Debts’.2 But whatever the nature of disputes concerning obligations, there is certainly much evidence of the seriousness with which contemporaries approached such conflict.
There is more wealth, and consequently there are more contracts real and personal, than there were in former ages…. there is more luxury and excess in the world, which breeds unthrifts, bankrupts, and bad debtors; more covetousness and more malice which begets force and fraud … Out of these fountains innumerable suits do spring.
(Sir John Davies, Le Primer Report 1615)1
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Notes
Jeake, Diary, pp. 162, 165–6; J.F.W. Hill (ed.), The Letters and Papers of the Banks Family of Revesby Abbey 1704–1760, Lincolnshire Record Society 45 (1952), p. 103
J.H. Baker, ‘New light on Slade’s case’ in J.H. Baker, The Legal Profession and the Common Law (London, 1986), pp. 424–6, especially n.83; David Ibbetson, ‘Sixteenth century contract law: Slade’s Case in context’, Oxford Journal of Legal Studies, 4 (1983), pp. 312–13
Theoretically, damages above the value of the debt were not considered actionable in suits of debt, but by the seventeenth century they were normally included in small amounts. Ibbetson, ‘Slade’s Case in context’, p. 309; William Blackstone, Commentaries on the Laws of England (London, 1765–1769), III, p. 120
David Ibbetson, ‘Assumpsit and debt in the early Sixteenth Century: the origins of the indebitatus count’, Cambridge Law Journal, 41 (1982), pp. 152–3
Marx argued that private property was the means for the individual accumulation of capital, and that the establishment of the legal ‘rights’ of property were the chief characteristics of this stage in the transformation to capitalism. Karl Marx, Capital, I, pp. 875–95, 1083–4; III, pp. 917–50. C.B. Macpherson, building on Marx’s ideas, also argued that private property was central to what he saw as the emerging ‘possessive market economy’ of the seventeenth century. He also claimed that defence of the ownership of property, such as land, was crucial to the political theory of the Levellers, Hobbes, and Locke. C.B. Macpherson, The Political Theory of Possessive Individualism (Oxford, 1962), pp. 53–68, chs. 3, 5 passim. It has recently been shown, however, by James Tully that Macpherson misinterpreted the contemporary meaning of the word ‘property’ which did not refer to ownership, but simply to ‘rightv. James Tully, A Discourse on Property, John Locke and his Adversaries (Cambridge, 1980), passim. The best description of the changes in real property in this period from something held in trust for the community to ownership attributed to a person can be found in W.J. Jones, ‘A note on the demise of manorial jurisdiction: the impact of Chancery’, American Journal of Legal History, 10 (1966), pp. 304–6.
Angel Conyers (ed.), Wiltshire Extents for Debts Edward I—Elizabeth I, Wiltshire Record Society, XXVIII (1972), pp. 1–16
W.J. Jones, ‘The foundations of English bankruptcy: statutes and commissions in the early modern period’, Transactions of the American Philosophical Society, 69 (1979), pp. 44–6.
Erickson, Women and Property, pp. 102–51: Todd, ‘Freebench and free enterprise’, pp. 175–200; Tim Stretton, ‘Women, custom and equity in the Court of Requests’, in Garthine Walker and Jenny Kermode (eds.), Women, Crime and the Courts in Early Modern England (London, 1994), pp. 170–89; D.C.E. Yale (ed.), Lord Nottingham’s Chancery Cases, Selden Society, LXXIII, LXXIX (1957), I, xxxvii–cxxiv, II, 7–207.
The liberties of Shrewsbury were, however, very large and covered much of the town’s immediate market hinterland. They extended 8 miles to the north and 4 miles to the west of the town and included 48 villages with a population about half that of the town. Thus, it is likely that the percentages of non-residents using the town court would have been larger had the town’s jurisdiction been geographically smaller. W.A. Champion, ‘Litigation in the boroughs: the Shrewsbury Curia Parva, 1480–1730’, Legal History, 153 (1994), p. 203.
For the method of estimating these figures, see Appendix I. These are estimates of urban litigation, with an estimated 25 per cent of foreign plaintiffs left out of the calculation. For the purpose of these calculations, an average household size multiplier of 4.5 has been used to determine the population of households in all of the towns in question, except for King’s Lynn, as worked out by Peter Laslett and analysed by Nigel Goose. In reality, as Goose’s discussion points out, urban household size would have varied between towns and also over time, but this average figure has been adopted here for purposes of comparison. Nigel Goose, ‘Household size and structure in early-Stuart Cambridge’, Social History, 5 (1980), p. 363
Peter Laslett, ‘Size and structure of the household in England over three centuries’, Population Studies, XXIII (1969), p. 204.
North Yorkshire RO, DC SCB VI; E.A. Wrigley, ‘Urban growth and agricultural change: England and the continent in the early modern period’ in E.A. Wrigley, People, Cities and Wealth (Oxford, 1987), pp. 158–9. In Newcastle, by the mid-1660s, the rate of litigation seems to have been about 0.9 suits per household, based on a population figure of 12,000. C.W. Brooks, ‘Interpersonal conflict and social tension: civil litigation in England, 1640–1830’, in Beier, Cannadine and Rosenheim (eds.), The First Modern Society, pp. 372–4. In Ipswich, the number of judgments on the court rolls indicate there may have been as many as 2000 suits in 1590; East Suffolk RO, C5/19/6. In addition to borough institutions there were other hybrid civic courts which could hear civil suits according to local custom. In Kent there were 39 different local courts, including the Rochester Court of Oyster Fishermen. Louis Knafla, ‘The morphology of civil litigation in the local, secular courts of Kent in the early seventeenth century’, Paper presented to the Twelfth British Legal History Conference, Durham, 1995, pp. 3–4. In some church courts suits of debt could still be heard in the seventeenth century, and there were unusual ecclesiastical jurisdictions such as the Archbishop of Canterbury’s Palace Court, the Cheny Court of the Bishop of Winchester, (which meet once a week and was hearing about 260 suits of debt and assumpsit in the mid-1650s), or the Ely Diocesan Court of Pleas which heard 91 suits in 1655. In Oxford too, although the procedure of the Chancellor’s Court resembled that of the church courts, business was chiefly civil in nature and many tradesmen litigated there. Malcolm Underwood, ‘The structure and operation of the Oxford Chancellor’s Court from the sixteenth to the early eighteenth century’, Journal of the Society of Archivists, 6 (1978), pp. 18–22
R.H. Helmholtz, ‘Assumpsit and fidei laesio’, The Law Quarterly Review, 91 (1975), pp. 406–32
R.H. Helmholz, ‘Debt claims and probate jurisdiction in historical perspective’, American Journal of Legal History, XXIII (1979), pp. 68–82.
John Kitchen, Jurisdictions: or the Lawful Authority of Courts Leet, Courts Baron, Court of Marshalseyes, Court of Pypowder (London, 1656), pp. 196–9; Douglas G. Green, ‘The Court of the Marshalsea in late Tudor and Stuart England’, American Journal of Legal History, 20 (1976), pp. 267–81.
Based on a population figure of 561 households. Maryanne Kowaleski, ‘The commercial dominance of a medieval provincial oligarchy: Exeter in the late fourteenth century’, Mediaeval Studies 46 (1984), p. 369
Champion, ‘Litigation in the boroughs’, p. 205. There also seems to have been a high rate of litigation in Nottingham in the early fifteenth century; Trevor Foulds, Jill Hughes and Michael Jones, ‘The Nottingham borough court rolls: the reign of Henry VI (1422–57)’, Transactions of the Thoroton Society of Nottinghamshire, XCVII (1993), pp. 75–6.
Further, there seems to have been very little duplication of suits, despite the anxiety expressed in the statue of 21 James I, ch.23, passed to prevent suits of under £5 from being moved from local courts into the central courts, that too much litigation which should have been dealt with in the lesser courts was being removed to higher jurisdictions. Only three of the 69 suits from Common Pleas had previously been sued for in the Lynn Guildhall Court. This also seems to contradict what Mathew Hale said about half the suits in the central courts being less than 40s in value, which he argued should have been dealt with in the County Courts. Mathew Hale, Considerations Touching the Amendment or Alteration of Lawes, in Francis Hargrave (ed.), A Collection of Tracts Relative to the Law of England from Manuscripts (London, 1787), I, pp. 280–5.
This discrepancy could mean that there were still more households that the hearth tax missed, or more likely, that in some households there was more than one member involved in the court, which could have been the case if a widow or young tradesman was lodging with a family. The hearth tax estimate was made possible by the discovery of a missing page in PRO E179/367/13. It forms the second page of a two-page assessment, and has now been reunited with the first page which is classified as PRO E179/238/119; E179 154/697. The discharge lists are in E129, 336–8. For a more detailed description of how both the court and hearth tax population estimates were worked out, see Craig Muldrew, ‘Credit and the courts: debt litigation in a seventeenth-century urban community’, Economic History Review, XLVI (1993), pp. 28–9.
Holderness, ‘Credit in a rural community’, pp. 100–2; B. A. Holderness, ‘Elizabeth Parkin and her investments 1733–66. Aspects of the Sheffield money market in the mid-eighteenth century’, Transactions of the Hunter Archaeological Society, new series, X (1972), pp. 81–7.
Bolton and Maslen, Court Books of Witney, pp. xxii, xxix-xliii, 12, 69, 123; Northumberland RO, Allendale MSS. 672/1/6/31-39; North Yorkshire RO, ZDU 154; J.H. Baker, ‘Personal actions in the high court of Battle Abbey, 1450–1602’, Cambridge Law Journal 51 (1992), pp. 523–4.
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Muldrew, C. (1998). Disputes and Levels of Litigation. In: The Economy of Obligation. Early Modern History: Society and Culture. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-26879-5_9
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