Common Law and Equity

Equity is frequently referred to as a supplement to the common law. Cruzon defines Equity as a system of law developed by the court of chancery in parallel with the common law. It was designed to complement it, providing remedies for situations that were unavailable at Law. Because of this, Equity provided a dimension of flexibility and justice that was often times lacking because of the common law's rigidity.

This rigidity stems from the fact that, while courts sometimes altered their jurisdictions and procedures, the fundamental premises and noticeable forms of the common law went largely unchanged between the 13th and 19th centuries. The common law was regarded as a birthright for all Englishmen; however, as the Crown continued to impose new jurisdictions, many statues sought to protect the peoples' right to due process. In 1215 the Magna Carta was issued which sought to protect a free man's right to life, liberty, and property except by the due process of the law.

These statutes meant to limit the power of the crown, the very power that had introduced the common law as an alternative to the previous localized form of justice, and characterized a shift in the common law. Yet, due process legislation could only be invoked where the common law was considered to be deficient, and petitions were sent to the king, seeking his grace, when this was thought to be the case.

Gradually the number of these petitions increased so much that they had to be reserved for special councils of the parliament, and as they continued to increase, only the most significannot petitions were reserved for the parliament. The rest, mainly private suits, were passed on to individual councilors such as the chancellor, admiral, or marshal. These councilors grew in importance as petitioners began approach the appropriate individual directly.

Out of the councilors' arrangements for dealing with these cases, along with their added significance, developed several distinct courts. The most important of these was that of the chancellor as it developed its own jurisprudence. The Chancery began as the royal secretariat. Originally it was a department where royal writs and charters were drawn and sealed. Much of the chancellor's later power stemmed from the fact that he had custody of the great seal of England, which was used to authenticate these documents. Because the writs originated from this department, the chancery was associated with the administration of justice.

The jurisdiction of the chancellor, however, grew from the jurisdiction of the king's council to deal with bills of complaint, rather than the departmental work of the chancery. Little by little the chancery developed into its own court of law. In the 14th century, bills complaining of interference with the common law were passed on to the chancery. It was a convenient clearing-house for all types of business in this regard. By 1400 people simply went straight to the chancellor. The Chancellor gained popularity due to the fact that as the saying went, "no deserving plaintiff would be sent out of the chancery without a remedy." (J.H.Baker. An Introduction to English Legal History, pg. 117) One possible remedy, as Baker describes, was a new form of the original writ.

The bill would then be sent on to parliament for a legislative solution. However, many times the remedy was "ad hoc," arising from the special facts of that particular case. It was in these instances that the chancery issued decrees that only applied to the parties in the suit. At first these decrees were made in the King's name, and then they were by the court in the presence of judges, sergeants, councilors, and advisors. However, later, around the time of the 15th century, the chancellor began to issue decrees in his own name. In making these decrees, the chancellors did not regard themselves as administering a law any different from the common law of England. Rather, they saw themselves reinforcing the existing law, protecting justice in places where the regular procedure came up short, or in the worst case hindered it.

Because the chancery tended to deal with specific cases, each case relied its own facts, and the chancellor did not interfere with the rules observed in the courts of law. It came to be considered a court of consciousness, in contrast to the common law, which was a strict and unbending law. In entertaining the plight of the small man, the chancery greatly continued to increase in popularity. While enjoying a steady flow of business in the 15th century, business sharply increased in the 16th century, so much that it became the 3rd largest court in Westminster Hall.

The fact that people viewed the chancery as its own court helped lead to this as reality. Complaints went from weakness and poverty, and abuse of a position by an opponent, to disputes over real property. This rise in popularity was, at that time, perceived as a challenge to the courts of law to change their ways, as the chancery took away from the business of the king's court. Yet, as the king's court started to hear cases on the poor man's complaints, the chancery was too busy and important to concern itself with these petty matters, it had developed into what people perceived as distinct from the very law it originally was trying to enforce.

As Baker puts it, Equity required that ‘written laws' be interpreted according to their meaning rather than word. At first the relationship between the two courts, common law and equity, was harmonious. The chancery eased the burden of the courts of common law by dealing with case of a specific matter that did not fall neatly under the regulations of the common law. However, as time progressed the inevitable tension between the courts became more pronounced. During the reign of the Tudor's with Cardinal Wosley as chancellor, the friction between the courts increased as he had quite a distaste for the common law. However, prominent judges brought about his downfall.

Then under the chancellor ship of Sir Thomas Wriotheirsley in 1546, some common lawyers petitioned complaining that he had tried to introduce civil law into the chancery and that their profession was in jeopardy. Wriothesley was deposed and from then on chancellors had to be legally trained. In 1616, however, the relationship between the two courts took a turn for the worse. J.H. Baker describes the feud that ensued between Ellesmere and Coke. Appointed chancellor in 1596, Lord Ellesmere gradually started antagonizing the judges as Wosley had done before him. He did this by entertaining suits in the chancery after judgment had already been given them at common law. In 1613 Sir Edward Coke (Cooke) went into battle with Ellesmere over this claim of his.

In 1614 Ellesmere appointed Sir Julius Caesar, a doctor of civil law, as master of the rolls, which did not serve to improve his relationship with Coke. Coke did have the law on his side, for the chancery procedure was nothing other than unusual. However, he started releasing prisoners, by habeas corpus, committed by Ellesmere, and encouraged them to then prosecute their opponents for impeaching the original judgments of the king's court. In 1616 the dispute was turned over to James I.

Coke was already in disfavor with the king was dismissed from his office that same year. Ellesmere, with Francis Bacon's help, persuaded the king to issue a decree confirming the chancellor's jurisdiction to hear cases after judgment by common law. However, when Ellesmere died in 1617 and Bacon became chancellor, that decree was found illegal. Bacon tried his hardest to restore good relations between the two courts; yet jurisdictional disputes continued as remedies of equity and legality had to be sought in different courts.

The nature of equity as a corrective to the common law was such that it should not be tied to rules. However, this notion of the role of equity led to the problem that if no principles were observed then parties in like cases would not be treated the same. In other words, the measure of equity seemed to be the chancellor's own choice. Moreover, combined with utter success of the equity jurisdiction, the chancellors increasingly came to regard their consciousness as ordered by law.

While equity was more flexible than the common law, the intellectual capabilities of the chancellors, the detailed reports, and attention to ascertain all of the facts, collectively rendered equity as certain as science. One can't help but see the irony that the court, which was created as a remedy to the problems of the common law procedure, in its later years, created problems far worse than those that it intended to resolve. However, people had no choice other than the chancery.

While "the chancery had become synonymous with despair" (J.H. Baker, Pg 128.), it was better than the common law system which was unable to even attempt a fair judgment of the specific natured cases.In the 19th century radical reforms of the judicial system attacked the practical flaws of the chancery. In 1813 the supreme power of the chancellor was checked by the appointment of a vice-chancellor. Later, this effort was continued by increasing the power of the Master of the Rolls, and the abolition of many of the offices in the court. By reducing the spread of the court and once again streamlining business, hopes were for joining the two courts and, once and for all, eliminating the rivalry between them.

After 500 years, however, the chancery still left a bad taste in peoples' mouths, and under Victorian legislation, the power of the supreme courts was increased to administer the law and equity: the chancery and the common law courts were abolished, forever ending the age old dispute between the two. While the chancery was abolished, equity has taken on a broader meaning and still survives today in England and the US. It is that approach to justice giving more precedent to particular facts of a case. Equity is important because it gave increasing protection to the individual, and represented a breaking away from the medieval notion of the all-powerful feudal lord.

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