The English Legal System

In England before 1066 the law was really very regional and not uniform across the country, what existed was common and local custom laws. When William 1st invaded and conquered England his idea was not just to conquer but to stay in power. How did he do this? Well he came up with the Feudal System1. Along with the Feudal System William 1st set about introducing the foundation to the present form of the English government today. At first he only trusted his closed friends in the task of administering the country, so he set up what was called Curia Regis Latin for "King's Council".

William's main palace was in London in the parish of Westminster, where the current seat of government is still today. The 2nd thing he did was to set about consolidating the legal system in England. This took over a century, and began with what William called General Eyre. This encompassed representatives of the King which were sent out to all the regions of England and Wales. At first they handled mostly the tax collecting and recording the wealth of the counties, and to adjudicate in disputes when presented by them. Gradually the resolution of disputes became more important than the administrative role.

From the beginning it was the practice that when the Kings Representatives returned from their travels they would discuss the disputes and decided the way in which similar disputes in the future would be handled. This over time gave the English law system what is today known as Common law. It soon became necessary to establish courts to deal with particular disputes that emerged. The first court to emerge was the Court of the Exchequer, dealing with the collection of revenues by the time of Henry II it had become a court of Law in its own right.

The second court to be permanently established at Westminster was the Court of Common Pleas, established to deal with disputes between commoners; The Court of Royal Pleas was between the crown and the subject. The last and most durable court to emerge from the beginnings of the Curia Regis was the Court of the King's Bench (or Queen's Bench depending on who was on the throne at the time) In the beginning it was the King who sat on the bench to determine disputes. It did and still does have supervisory jurisdiction over the activities of lower courts, government bodies and officials by means of Prerogative Writs2

As other courts grew they all competed for business as it was the custom for the litigants to pay the courts. It became cut throat and at times events called "legal fiction" 3caused one court to cease jurisdiction from another court. It became clear that all was not right, the corruption and bribery was rife and all the courts where in competition for revenue. There are 6 main defects which have been identified in the common law system: Precedent was something which started in the very early days, called stare decisis7. Followed by the court so rigidly without the ability to be flexible in the decisions.

So what was the solution, as the King was the head and ruler of the country it was only natural that these disputes would land on his doorstep. To begin with, in the 13th century, the King did preside over these and give judgements, however it soon became too much of a burden on his time. Thus he passed this on to his chief official, the Lord Chancellor. The Lord Chancellor had two functions as well as being the Kings chief officer he was also the King's chaplain. So in the early days he was a cleric of the Catholic Church. This is important to the development of equity.

It is as a result of the Lord Chancellor being a cleric that equity materialised. As a cleric; when he made decisions, he did the most equitable thing to do depending on each circumstance. So this court, Court of the Chancery, was born to deal with those matters where common law had no remedy. The procedure was inquisitorial8. This court became very popular; however the consequence of this was it became unpopular with the other courts. In the 17th century a dispute called The Earl of Oxford's Case (1615), resulted in a decision which stands today; where there was a conflict between common law and equity, then equity should prevail.

Equity supplements common law where common law might be flawed, never superseding. In the latter part of the 19th Century was a period of reform in the judiciary and culminated with the Judicature Acts 1873-75. Not only where the Courts reorganised, there were changes made in the administration of law and equity. All Courts under the Supreme Court were empowered to administer law and equity and to grant legal or equitable remedies. In essence the Acts ensured that in the future the two systems should be administered in the same courts.

he common law did not recognise what is called a Trust, in today's law Trusts are still only recognised in equity. If for example I was under 18 and had been left a house in someone's will. I could not in the past nor today own the legal estate in that house. The house will be vested to a Trustee who would hold the legal estate in trust until I was over 18, and then would be bound to legally transfer the legal estate over to me. Thus I would be a beneficiary of the trust. If the Trustee refused to compile I would have remedy in equity to compel him to do so.

Before equity however the minor had no remedy if the Trustee refused to compile, he could sell the legal estate and the beneficiary could do nothing as a Trust is not recognised in common law and the Trustee is the owner of the legal estate. It is obvious to see why the remedy in equity was needed. There are many more such examples where common law does not recognise a cause for action but equity does. 1 He claimed ownership to all land in England. He then started by giving great expanses of the land to those who had helped him in the conquest of England and to the existing English Barons who had acquiesce to his control.

In return the noblemen had to provide services to the King. In that time land was very important as the economy was mainly driven by agriculture. The noblemen held onto their land provided they where loyal to the king, if they were not loyal the land was confiscated and given to another nobleman. Since being disloyal was akin to treason this meant they would also be executed. The King also gave large expanses of land to those who were close to him. These large expanses were called "shires".