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The culture of reconciliation: community and the settlement of economic disputes in early modern England*

Published online by Cambridge University Press:  11 February 2009

Craig Muldrew
University of Cambridge


The period from 1550 to 1640 saw a tremendous rise in the amount of litigation initiated in England. Although the pattern of this great expansion is known, its social meaning is not yet clear. Litigation has, paradoxically, been interpreted as both the barometer of a breakdown in social relations, or alternatively as a functional means of dispute settlement. Here this problem will be addressed by placing the initiation of litigation within the context of the social practices and events which led to disputes, and also by looking at how contemporaries reacted to, and interpreted these events, both publicly and privately. Most litigation arose out of economic disputes concerning credit and contracts, and this was a result of the growth of marketing in the period. Such disputes were seen as threatening to the social order, and were something which contemporaries took very seriously. The primary means of dealing with disputes was to attempt to initiate a community negotiated Christian reconciliation between the disputing parties in order to maintain social peace and concord. But as the market grew more complex, and disputes became more difficult to resolve, increasingly the authority of the law had to be invoked. This in turn led to the development of a more pessimistic language of social relations which stressed that any form of positive sociability could only be maintained under an institutional umbrella created by the threat of authority. As a result, community relations and reconciliation, although still defined in terms of Christian love and charity, came to be seen as more functional than normative because of the massive interjection of the civil law into day to day life.

Copyright © Cambridge University Press 1996

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1 The estimate of central court litigation is taken from Brooks, C. W., Pettyfoggers and vipers of the commonwealth; the lower branch of the legal profession in early modem England (Cambridge, 1986), pp. 4951, 56–7, 305 n. 21Google Scholar. The estimates of local litigation are based on counts of the number of suits initiated in various courts for a number of sample years. In towns yearly levels of litigation were simply compared to the household population of each town in question (after subtracting suits by individuals from outside of town), and an average ratio of 2·6 suits per urban household was established, which when multiplied by a rough estimate of the population of towns in the early seventeenth century comes out to 410,526. In King's Lynn and Bristol, for instance, an average of 2,000 and 4,000 suits respectively were brought before their civil courts each year in the early seventeenth century. The figure for local rural litigation is based on calculations made for the wapentake of Langbaugh in north Yorkshire in the mid-seventeenth century, which indicate an average rate of litigation of 0·7 suits per household per year, and this has been checked with other jurisdictions and multiplied by an estimated rural population in the early seventeenth century calculated at 87 per cent of four million people. These estimates will be discussed at greater length in my forthcoming monograph, The economy of obligation. Craig, Muldrew, ‘Credit and the courts: debt litigation in a seventeenth-century urban community’, Economic History Review, XLVI, 1 (1993), 23–8Google Scholar. Norfolk Record Office: Norwich City Records, Shelf 8b Box #3, Yarmouth Corporation, Court Books, C5/75; Bristol Archives Office, Z27/04457, 04458, 14459 (1–4), Z37/04756–70, 04429; North Yorkshire Record Office, ZDU 154; Public Record Office, E.179 215/451, 216/461; Brooks, C. W., ‘Interpersonal conflict and social tension: civil litigation in England, 1640–1830’, in Beier, A. L., David, Cannadine, AND Rosenheim, J. M. (eds.) The first modem society (Cambridge, 1989), pp. 360–7, 372–4Google Scholar. Martin, Weinbaum, British borough charters 1307–1660 (Cambridge, 1943)Google Scholar. Jones, W. J., ‘Palatinate performance in the seventeenth century’, in Peter, Clark, Smith, A. G. R. and Nicholas, Tyacke (eds.), The English commonwealth, 1547–1640 (Leicester, 1979), pp. 189204Google Scholar. Population estimates were taken from Wrigley, E. A., People, cities and wealth (Oxford, 1987), pp. 157–67Google Scholar, and Wrigley, E. A. and Schofield, R. S., The population history of England 1541–1871 (Cambridge, 1989), pp. 531–2Google Scholar. The estimate of average household size used here is 4·75 taken from Peter, Laslett, ‘Mean household size in England since the sixteenth century’, in Laslett, and Wall, R. (eds.), Household and family in past time (Cambridge, 1972), pp. 125–58.Google Scholar

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19 This contrasts with the situation in early colonial America, where historians have dealt with dispute settlement more thoroughly than is the case for early modern England. American historians have argued that there was a linear progression away from informal community based dispute settlement in the colonies, as this was supplanted and eroded by the growth of institutional litigation. Mann, Bruce H., Neighbours and strangers; law and community in early Connecticut (Chapel Hill, 1987)Google Scholar; Konig, David Thomas, Law and society in puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill, 1979)Google Scholar. Nicole Castan has argued that a very similar sort of progression took place in France in the seventeenth and eighteenth centuries. Castan, N., ‘The arbitration of disputes under the “Ancien Regime”’, in Bossy, (ed.), Disputes and settlements, pp. 220, 257–60.Google Scholar

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29 For examples of such works see below pp. 928, 930, 936.

30 This was true despite the decline in litigation in the first half of the eighteenth century. Brooks, , ‘Interpersonal conflict’, pp. 360–7.Google Scholar

31 It should be noted as a caveat, however, that while there is evidence that poorer individuals believed in the virtue of reconciliation, it can not similarly be shown whether they considered themselves to have been treated with equanimity in arbitrations by their betters.

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56 Ibid. p. 364. Blundell also recorded instances when he helped to decide differences between his tenants and friends, including disputes over land, one between two parsons, and one between a husband and wife in which he asked another tenant to ‘help make them friends’. Blundell, , Diurnal, I, 120, 123, 130, 161, 170; II, 10Google Scholar. Powell, , Diary, p. 23.Google Scholar

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80 Ibid. pp. ix, 16, 162, 165.

81 Such power was given to landlords in rental agreements, and once a distress was taken the tenant had to sue for trespass in common law if he felt the action to have been unjust. If the rent remained unpaid the landlord could eventually sell the distrained goods at common sale to recover what was owed. In most cases, though, the distress was meant simply to force the tenant to ‘compound neighbourly with him for the debt’. Cowell, The interpreter, sv. distresse; Baker, J. H., An introduction to English legal history, third edn (London, 1990), pp. 271–3.Google Scholar

82 Cowlson had already been sued by Sir Henry Browne. A month later he was also sued by Cholmeley's uncle Robert Hungate and threatened by others, which forced him to flee the parish to avoid being arrested, while his friends again rescued his one poor cow from the pound and attempted to hide it from the bailiff. Ibid. pp. 158, 161–2.

83 Ibid. pp. 159–62.

84 Ibid. pp. 162, 167.

85 A copy of a bond of this nature can be found in the King's Lynn court books, where two individuals who seem to have been engaged in a fairly serious quarrel signed an agreement which made provision for the repayment of £13 15s. in two separate payments. NRO KL/C25/17, 11/13/52. Also see, Eyre, , ‘Diurnall’, p. 80.Google Scholar

86 Marshall, J. D. (ed.), The autobiography of William Stout, Chetham Society, third series, 14 (1967). P. 146.Google Scholar

87 Tusser, , Five hundred points, p. 21Google Scholar. For information on the popularity of this work, see Stevenson, L. C., Praise and paradox (Cambridge, 1984), pp. 16, 132, 140–1.CrossRefGoogle Scholar

88 Tusser, , Five hundred points, p. 13.Google Scholar

89 Pepys, , Diary, II, 29.Google Scholar

90 John, Vernon, The compleat compting-house (London, 1678), pp. 178–9.Google Scholar

91 Lowe, , Diary, p. 44.Google Scholar

92 Josselin, , Diary, p. 315.Google Scholar

93 Walworth, , Correspondence, pp. 60–5.Google Scholar

94 Stout, , Autobiography, p. 120.Google Scholar

95 Josselin, , Diary, p. 342.Google Scholar

96 Pepys, , Diary, III, 16.Google Scholar

97 The debt had actually been incurred by Robert Pepys, but Samuel was responsible for it as the executor of the will. He eventually paid it in full two and one half months later. Ibid., III, 34, 80.

98 Blundell, , Diurnal, I, 89, 189, 285, 310.Google Scholar

99 Muldrew, , ‘Credit, market relations and debt litigation’, pp. 321–7Google Scholar. Anderson, B. L., ‘The attorney and the early capital market in Lancashire’, in Crouzet, F. (ed.), Capital formation and the industrial revolution (London, 1972), pp. 223–55.Google Scholar

100 Blundell, , Diurnal, I, 79, 277.Google Scholar

101 Ibid. pp. 189, 285.

102 Stout, , Autobiography, p. 120.Google Scholar

103 Brooks, , Pettyfoggers, pp. 132–7, 193–5Google Scholar; Prest, W. R., The rise of the barristers: a social history of the English bar 1590–1640 (Oxford, 1986), pp. 281–91Google Scholar; Sharpe, , ‘The people and the law’, pp. 258–60.Google Scholar

104 Wallington, , Record of the mercies of God, Guildhall Lib. MS 204, pp. 464–5Google Scholar; Lowe, , Diary, p. 89Google Scholar; Long, W. H. (ed.), The Oglander memoirs: extracts from the MSS of Sir John Oglander (London, 1888), pp. 20–1.Google Scholar

105 Walworth, , Correspondence, pp. 75–6Google Scholar. John Evelyn also recorded dining with the unpopular Lord Chancellor Jeffries and three Sergeants in 1686, where they told stories of how they had ‘detained their clients in tedious processes, by their tricks’ as if Evelyn noted, ‘so many highway thieves should have met and discovered the severall purses they had taken’. de Beer, E. S. (ed.), The diary of John Evelyn (London, 1959), p. 856.Google Scholar

106 Jones, , Chancery, pp. 314–20Google Scholar. Brooks, , Pettyfoggers, pp. 134–5Google Scholar, and for a discussion of local attorney's practices, and their place in society see chs. 3, 9–11.

107 Stout, , Autobiography, p. 189Google Scholar. In one of the many difficult disputes Alice Thornton became involved in, in this case concerning some of her husband's debts, she turned to her cousin, one Roger Covill, whom she described as, ‘a very able lawyer and a good honnest man, a freind… [who] had don many offices of kindness for us…’ Thornton, , Diary, p. 279.Google Scholar

108 In King's Lynn, for instance, a complaint could be made for only 4d. Norfolk Record Office, KL/C27/22.

109 For other statements of this view, see Jones, , Chancery, pp. 265–6Google Scholar; Sharpe, , ‘Such disagreement’, pp. 183, 185.Google Scholar

110 Walworth, , Correspondence, p. 61.Google Scholar

111 Turner, , Diary, pp. xxiii, 1617, 28–9, 34Google Scholar. Blundell noted an instance where he instructed his lawyer to cease proceedings in a suit after an agreement was made. Blundell, , Diurnal, I, 170Google Scholar. See also, ibid. pp. 133, 211, 224, 246, II, 66.

112 In Lynn only 4% of suits ever went all the way to judgement. In 1975, similarly, only 4·5% of actions entered in county courts had judgements entered, which indicates that in our age as well, most suits are not initiated with a view to obtaining a final court awarded judgement. Brooks, , Pettyfoggers, p. 76 n. 9.Google Scholar

113 For the civic authority of mayors and aldermen see Robert, Tittler, Architecture and power: The town hall and the English urban community 1500–1660 (Oxford, 1991), pp. 98120.Google Scholar

114 John, Rushworth, The tryal of Thomas Earl of Strafford (London, 1680), p. 662Google Scholar. Similar sentiments were expressed in a preamble to the York Assizes in 1620 cited in Sharpe, , ‘The People and the law’, p. 246Google Scholar. Also, see Brooks, , Pettyfoggers, p. 135Google Scholar, and Judson, Margaret A., The crisis of the constitution. An essay in constitutional and political thought in England, 1603–1645 (New York, 1949), pp. 4467.Google Scholar

115 Hobbes, , Leviathan, pp. 189239.Google Scholar

116 The seriousness of imprisonment in gaols, where poor conditions could often lead to death, was criticized by many contemporaries. Paul, Haagen, ‘Eighteenth-century English society and the debt law’, in Stanley, Cohen and Andrew, Scull (eds.) Social control and the state (Oxford, 1983), pp. 222–47Google Scholar; Joanna, Innes, ‘The King's Bench Prison in the later eighteenth-century’, in An ungovernable people, pp. 250–98.Google Scholar

117 Both Steve Rappaport and Ian Archer have shown how the courts of the London companies played an important role in helping to arbitrate disputes between their members. Rappaport, , Worlds within worlds, pp. 201–13Google Scholar; Archer, , Pursuit of stability, pp. 78–9, 100Google Scholar. Pepys and Heywood recorded in detail Chancery suits they were involved in which were ended through negotiation. Pepys, , Diary, I, 134 n. 2Google Scholar; n, 214–15, 134; rv, 221, 132, 351–2; x, 20–321. Heywood, , Autobiography and diaries, III, pp. 142–3.Google Scholar

118 Turner, , Diary, p. 283.Google Scholar

119 See above, p. 928. Also see, Craig, Muldrew, ‘The contractual society: litigation and the social order 1550–1650’ (unpublished paper).Google Scholar