The Third Legal System

The Third Legal System: 1529 to 1649(?) or 1689(?)

After a sustained common law attack not on the church itself but rather on the church's ability to participate in the governance of society and then a failed initiative to govern the church through an ecclesiastic, Henry VIII reshaped the realm; his initiatives resulted in a different legal system. This legal system, as thus far defined, was characterized not so much in different family structures as in different political structures. The time of transition from the third into the fourth legal system is unknown, at least to me. Plausible dates are 1649 and 1689, and the choice between them awaits careful research. The results of the change might not be readily visible at the beginning, as with the transformation at the Black Death. Plausible assertions are that the Commonwealth ushered in a new legal system, or that the Commonwealth introduced anomalies (much as had Fyneux's campaign) that were then taken in and broadened/incorporated in the Glorious Revolution. I do not know enough and have insufficient familiarity with the documents to make any informed choice on conceptualization.

The third legal system changed central characteristics of the second legal system:

1. Unification of the Realm.. The Dissolution of the Monasteries and the closely related resumption of liberties eliminated most of the complications of local liberties; statute also unified Wales into England and extended the reach of the king's court into Wales. Similarly the king assumed control over the church courts. Judicial authority now ran clearly and directly from the king alone. The remaining major liberties were primarily cities and incorporated towns, but they received their privileges by royal charter and were reviewed and regulated by the Crown. The unification of authority within the realm is the primary element that traditionally would identify sixteenth and seventeenth England as an absolutist (not totalitarian) state: there was formal, institutionalized counter-authority. Parliament gained its authority from the Crown, even though in the seventeenth century the ability of the Crown to control Parliament was severely challenged.

2. Attitude toward Debts/Commercial Relations. The Statutes of 1529 forced the clergy out of commerce and made commercial activity--the buying and selling of goods for profit--a preserve for the laity. This assertion of control over who could participate in commerce was accompanied and succeeded by other qui tam statutes that regulated in detail all kinds of manufactury and commerce, from the regulation of imports and exports to the prohibition of the use of specified manufactury devices, the length, width, and quality of cloth, and detailed regulation of other trades and occupations. Enforcement was normally through informers who would expect to receive half the statutory forfeiture. The statute increasing enforced prohibitions against forestalling and regrating and against usury. The state preserved commerce and manufactury for the laity but regulated both intensively.

3. Informants for Social Regulation. A distinctive feature of the third legal system was the informant for qui tam statutes. Economic incentives enticed ordinary individuals in the localities to launch suits to enforce statutory regulations on commerce, morality, and manufactury. The prosecutions show up in concentrated sections in the E159 series, but also scattered in among other suits in the CP40s and, but less so, in the KB27s.

4. Structure of Remedies. Instead of litigation that worked in separate, relatively isolated and parallel structures, disputes about land title often began in chancery but were resolved by chancery order to the parties to bring and resolve without delay a particular kind of action with a pre-set issue at common law. The parallel structures were thrust together, and lawyers had to work in multiple courts on a single case. In common law courts process went beyond the manipulation of legal rules of the second legal system (that allowed the development of the use and penal and performance bonds) into full-fledged fictions, such as the developed action of ejectment and the final form of the Bill of Middlesex that under Elizabeth greatly expanded the docket of king's bench.

5. The Way Lawyers Worked. Medieval process at common law, whether first or second legal system, had dictated vigorous actions prior to trial, whether trial by jury, compurgation, or decision by the justices on a demurrer. Those vigorous actions were in mesne process and pleading. Mesne process required the sheriff through his bailiffs to seek out and distrain, attach, or arrest the defendant to compel him to answer the plaintiff: the sheriff had to search out the defendant and that necessity extended process interminably. Once the defendant appeared, oral pleading settled issues of law and attempted to narrow down the range of disputes to, hopefully, one issue of fact to submit to the jury. The jury's verdict would clearly indicate the judgment; the judgment could follow automatically from the verdict without further consideration. That Medieval process began to change in the late fifteenth century. Process in the third legal system was formally similar, but in fact completely different. The sheriff no longer had to search out the defendant in most cases. In debt and trespassory cases, although a summons, attachment, or arrest would be ordered, nothing was actually done or expected to be done. The first serious stage of process was the order for outlawry accompanied by proclamations, one of which was in the defendant's parish of residence. To stop the outlawry process the defendant had to find the relevant sheriff and render security that he would appear: mesne process, from the sheriff's perspective, reversed so that the defendant was desperate to find, not to avoid him. Oral pleading disappeared in favor of exchange of standard-form paper pleadings exchanged between lawyers under the guise of emparlments. The resolution of legal issues waited until after the trial on demurrers to the evidence or motions for judgment non obstante veredicto. The focus for serious legal thought was now at and after trial instead of at pleading.

6. Interface Concerns. Since the ecclesiastical courts now fell under the king's authority and were no longer courts reporting to a "foreign" authority, the relationship between the common law courts and the ecclesiastical courts had to be re-defined. Coke's role in this re-definition was central, and emphasis fell on new-style writs of prohibition and the common law justices' right to determine the meaning of statutes. The conflict was also joined with the other prerogative courts. The interaction was conflictual partly because of the personalities, but in reality because the courts--common law, chancery, requests, admiralty, and church courts--were thrust ever closer together. In a sense, the breadth of the conflict made it seem a revival of Fyneux's campaign between 1495 and 1517; in fact, the conflict took place in a different social, political, and institutional context, so that the issues seemed much more pressing.

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