The Development of the English Legal System

There were many other defects in the Common Law which also caused hardship and injustice. The Common Law was slow and expensive. Writs were limited, expensive and difficult to obtain, meaning some people were unable to obtain justice in the Common Law. There were certain standard defences, Essoins, which delayed a person's claim. An Essoin excused a defendant from court, due to reasons such as, the defendant being off on a crusade, cut off by floods or too sick to attend. Bribery, corruption and oppression of judges occurred the sheriff's judgements were very partial. There were also circumstances in which the injured party was unable to enforce the judgement and recover land or property from his more powerful neighbour. These factors lead to further unfairness in the Common Law, and made justice very hard to obtain. The Common Law did not recognise the concept of Trusts or Mortgages, and the only remedies available were those of damages.

Many recognised that the Common law had become harsh and rigid, the defects were increasing. Those who were unable to obtain justice in the Common Law courts appealed to the King directly. Originally the King would deal with petitions himself, but the workload increased the cases began to be appointed to the King's Chancellor. Being a lawyer and a cleric, he became known as the King's conscience. Pre 1400, the cases were dealt with by the Lord Chancellor in the three Common Law courts, Exchequer, common Pleas and King's Bench. The Chancellor based his decisions on principles of natural justice and fairness, making the decisions he believed to be 'right' in that particular case other than on the strict following of previous precedents.

Due to increased workload in the 15th century, a special court was established, the Court of Chancery. Equity was dispensed here and like the Common Law courts was independent of the King.

At first the determining factor for the person bringing the case was the Lord Chancellors view of the merit of the claim. However, lack of consistency was the result of him applying such a flexible approach. It was said that 'the judgements of the Chancellor varied with the length of his foot' implying that he took a very informal approach to dispensing justice. Eventually the element of certainty was provided by the Maxims of Equity. These were a form of guidelines in the Chancery, which allowed the Lord Chancellor to dispense consistent rules and judgements as to avoid much common feeling of unfairness and injustice when deciding a case. These maxims were reflective on the meaning of Equity and the suggestion that Equity was a system of fairness. The maxims included:

"Equity will not suffer a wrong to be without a remedy" This first maxim claimed that if equity could help it would and would not refuse Equitable relief to any case worthy of it.

"He who seeks Equity must do Equity" was another maxim stating that if a person required an Equitable remedy, they must be willing to act fairly towards the opponent in order to obtain such relief.

The maxims also included that there will be no assistance to a person who has party to a fraud. This was displayed in the maxim "He who comes to Equity must do so with clean hands."

A person coming to Equity would be required to act with a degree of urgency or he would be presumed to be in no immediate of Equitable relief. The maxim was passed as "Delay defeats Equity"

The final maxim that lead the Chancellor to display a more consistent stream of judgements was "Equality is Equity" This includes the rule that as a minor is unable to receive a specific performance, then the minor can not seek Equitable relief.

The Lord Chancellor was not bound by the Common Law remedy of damages and he began to devise a system of his own. These remedied that grew through him were not available in the Common Law courts and included;

Specific Performance-an order compelling a person who had broken a promise to complete this promise, Injunction-an order preventing somebody from doing something, Rectification-an order requiring the alteration of a document so that it reflects the true intentions of the parties involved and Rescission-the restoration of parties to a contract pre-contractual positions.

These remedied excluded the award of damages and were praised as a significant development in the legal system, and achievement of Chancery.

The two systems of Common Law and Equity existed and operated quite separately, but the overlapping of the two systems lead to conflict. The Court of Chancery began issuing Common Law Injunctions, which forbade anyone from bring action into the Common Law courts and forbade the enforcement of a common law judgement. The Common Law courts retaliated when the Chancellor imprisoned people by issuing writs of Habeas Corpus, which was a writ to obtain the release of a wrongly imprisoned person.

This back and forth argument continued until in 1615 the Lord Chief Justice Lord Coke, challenged the jurisdiction of the Chancellor. The challenge was taken up by James 1 on the advice of Lord Bacon and culminated in the Earl of Oxfords Case (1615), were the King rule that wherever the two systems were in conflict, "Equity should prevail", meaning that the decision made in Chancery was that the one which should be followed by both parties.

This rule was later confirmed by the Judicature Acts 1873. Despite this new rule, Equity still suffered it's problems such as, too few judges, too many delays and corruption. Another problem that existed despite this new rule was that a case would sometimes start in the court as originally, Equitable and Common Law remedies had to be heard in their own separate court. These problems eventually led the Judicature Acts 1873-5 which began to reform the legal system. The court structure was re-organised and formally brought together the Common Law courts and the Court of Chancery. These Acts created a High Court of Justice with five divisions. A Supreme Court of Judicature was established which comprised of the Court of Appeal and the High Court of Justice. These acts gave the power to all courts to administer the principles f Common Law and Equitable remedies as the circumstance of the case demanded. Consequently the old conflict no longer arises, although the Common Law and Equity principles still do exist.

Today, he availability of discretionary remedies means that Equity still fulfils it's traditional function of supplementing the Common Law, providing just and practical remedied where the Common Law alone is not enough.

An example of a major development in our legal system that was created by Equity are Mortgages and Trust funds. These provide very practical economic solutions to many situations and society today would be a very different place without them. Injunctions and Specific Performance are examples of extremely beneficial remedies and have changed the lives of many people who could not benefit from an award of damages.

However, comments administered by Newman (1965) suggest that according to mainstream legal theory, Equity seeks to apply general rules or principles to particular cases. These rules or principles are assumed to be generally fair, resulting in reasonable outcomes in most cases. Occasionally, however, because of idiosyncratic case characteristics or other factors, application of the general rule results in an outcome that is clearly unfair. The strict view of the rule of law holds that these unfair results are merely the 'unfortunate price we pay for a system of law'. This view by Newman who conducted research into the system of Equity in law suggests that the rule of Equity is not always fair and that we are forced to accept this and be grateful that we have a system of law in existence.

This suggestion that Equity is in contradiction with it's own rules i.e. Equity means fairness, yet the Equitable outcome in a case is not always fair, has some scope for criticism. However when examining the benefits that's I have mentioned, such as Mortgage, I believe that the role of Equity of today is very beneficial to the growth of our society. Though some errors have occurred in the system, the positive factors that have been brought to our legal, far out weigh the negative.

Sarah Messenger 11/10/05

As Law