Introduction:
The natural and logical fact in early age,
whether looked at from the side of that Equity and Common Law originated in one
and the same procedure, that during the first two hundred years of their
history, they were not distinguished from one another, and that if we now
distinguish between them during that period, we do it artificially, by the
application of tests impossible to the contemporary procedure or from the side of
the courts in which the procedure was employed.
The Common Law originated, as is well enough
known, in the new procedure and new judicial machinery brought into England at the
Norman Conquest.Its growth as a continuous development was due to the rapid
expansion in character and extension in the application which was given in England
to old Frankish forms and institutions which had existed in a somnolent
condition for many generations .1
In this new legal evolution, the following principle is fundamental from the very beginning;the new procedure and the new
machinery is the king's private property; they are no part of the public the machinery of the state to which any individual may appeal in his personal need
as he might to the shire or hundred courts. This principle applied just as truly
to the case of the baron who was bound to the king by the tie of feudal
vassalage, and consequently a member of the central curia regis, as of the
common free- man, or of the knight who was a rear-vassal only; he could not use
the new procedure as a matter of right, for this was no part of the procedure
of the curia regis, and was never used by it during the first hundred and fifty
years unless by a special commission of the king's.
Historical Backdrop of Equity:
Common-Law and Equity originated together as
one undifferentiated system in the effort of the king to carry out his duty of
furnishing security and justice to all in the community by making use of his
prerogative power through his prerogative machinery.2 The identity
of the two systems at the beginning, their origin in the same prerogative
action can be clearly seen in this: the essential characteristic of Equity the procedure of a later date is that it begins with a petition asking the king to
interfere to secure justice where it would not be secured by the ordinary and
existing processes of law. But it was the essential characteristic of all
Common-Law actions in the eleventh and twelfth centuries that they began with a petition asking the king to interfere to secure justice where it would not be
secured by the ordinary and existing processes of law. In some form, it does
not matter in what because forms were not yet fixed, nor the following of a
definite form regarded as a matter of importance, the man who wished to have
the advantage of the king's prerogative procedure and the use of the king's
machinery3, that is, who desired a remedy not provided him by the ordinary judicial system, just ask for it and obtain permission to use it; and
the permission must be granted in so demonstrable a way as to authorize or command
the royal officials to act in the case.
Equity can be broadly described as being just or fair,
whereas the legal meaning of the term equity refers to the rules determined to
mitigate the severity of the common law rules and those issues that are not be
covered under the common law jurisdiction. Throughout
the 13th and 19th centuries, the common law
system was developed and advanced in England. Common law is largely
uncodified. It is extensively based on precedents or the judicial decisions
made in comparable cases. Generally, the decisions of higher courts entrust the
judges of the common law system with an enormous role in shaping the law. These
precedents are recorded and documented as case laws though yearbook, and legal
reports.4
To attempt to counteract this discrepancy remedies could be
obtained by petitioning the King, who had residual judicial power (certain power delegated to others) to deal with
such matters. The King began delegating the function of dealing with such
petitions to the Chancellor. The post of Chancellor at this time was usually a
clergyman and King’s confessor. The Chancery evolved into a judicial body known
as the Court of Chancery until by the end of the 15th century the
judicial power of the Chancery was fully recognized. The Court of Chancery was
in effect developed as a court of conscience to counteract the defects that
existed in the common law system. The rules of equity varied from Chancellor to
Chancellor until the end of the 16th century.
In the past, the common law largely depended on the judicial
precedents, which were much formal and rigid. The inflexibility of the common
law system left the people distressed since they were unable to obtain relief
from the King's Bench which administered the legal system. Many litigants were
disappointed by the common law system when their complaints were dismissed on
the basis of non-compliance to the procedures of the court, or due to the lack
of precedents on the particular issue. The aggrieved citizens then started
petitioning to the King who was positioned at the apex of the legal system,
also known as the “Fountain of Justice.” These petitions appealed the king to
do justice on certain issues that were not addressed or were not justly dealt
by the Kings Bench.5 With the increase of petitions made to the
King, he gave the task of inquiring on these requests to the “Keeper of the
king’s Conscience” or the Chancellor who headed the Chancery. The Chancellor
usually determined the petitions based on moral grounds. In other words,
chancery would either issue or withhold relief according to his sense of what
is right and wrong or on a merit basis, unlike based on the judicial precedents
of the common law courts.6
The independence of the court
of chancery was established in the year 1474 when the chancellor had issued the
first decree in his own name. The chancellor was not bound by the English writ
system to use juries during the trials.7 He had the sole discretion
and authority to summon the people to inquire on the cases, order disclosure of
documents, to decide the cases based on what is morally right.8
By the 17th century only
lawyers were appointed to the office of Chancellor. From 1529 onwards when Sir
Thomas Moore was appointed as Chancellor Records of proceedings in Courts of
Chancery was kept which led to the development of equitable doctrines.9
We must say not that Equity originated in
Common-Law, but that Common Law originated in Equity, in the desire to secure
justice for all more surely than existing law would do it, to establish an
equitable procedure and to furnish equitable remedies. When we go on into the thirteenth century, we pass into a time when the older system of law and courts
was rapidly falling into insignificance before the advance of the newer system.10
The body of law has its foundations in the
court of Chancery, in general, a concern with issues of conscience and natural
justice, and imposing flexible reliefs on a discretionary basis.11
·
Informed by
conscience
·
Discretion and
remedial
·
The result of
long historical process.
Later, the Court was formally led by the Lord Chancellor, assisted by the
judges of the common law courts. The staff of the court included a large number
of clerks, led by the master of Rolls who regularly heard cases on his own. In
1813 a vice-chancellor was appointed to deal with the Chancery's
increasing backlogs, and two more were appointed in 1841. 12
Concluding
Remarks:
The Court of
Chancery originated, as did the other High Courts before 1875, in the Norman or
King's Council, maintained by most early rulers of England after 1066. The
Chancery came to prominence after the decline of the Exchequer, dealing with
the Law of Equity, something more fluid and adaptable than the Common Law.13
The early Court of Chancery dealt with verbal contracts, matters of land
law and matters of trust, and had a very liberal view when setting aside
complaints; poverty, for example, was an acceptable reason to cancel a contract
or obligation. By 1345 the Lord Chancellor began to be seen as the
leader of the Court of Chancery, rather than as a representative of the King,
and writs and bills were addressed directly to him. From the Legal
system to Remedial Procedures that the court of equity or the Chancery court
system is an element of English Law.
Here are a few terms used in this
article like:
Curia Regis: is a term meaning "royal
council" or kings Court.
The master of Rolls: The Master of the Rolls was initially a
clerk responsible for keeping the "Rolls" or records and was known as
the Keeper of the Rolls of Chancery.
Feudalism: was a combination of legal, economic, military and cultural
customs that flourished in medieval Europe between the 9th and 15th
centuries.
References:
1.
Such portions of
the older law and procedure as survived for any considerable time did so in the
end because they were taken up into, or originally formed a part of, this newer
System.
2.
Bigelow, The procedure, 76-79; Adams, Origin Engl. Const., 96-105. "Glanvill, Bk. I.,
c. 6.
3.
The equitable
character of the praecipe writ is seen even more clearly in the form used to
enforce the payment of a debt, Glanvill, Bk. X.
4.
Pearce,
R and Stevens, J, The Law of
Trusts and Equitable Obligations, 2nd Ed p4 – 7
5.
T.
Cockburn, T, Harris, W, & Shirley, M, Equity
& Trusts, 2005,Butterworths
6.
Holdsworth,
W, History of
English Law, 7th Ed, 1956,
Mathuen & Co Ltd
7.
J.D Heydon and
Leeming, Equity: Doctrines and Remedies (4th Edition) 2002.
8.
Sir Anthony
Mason. ‘ The place of Equitable remedies in the contemporary common Law world’
1994
9.
John C.P Goldberg
, Equity and Law, Cambridge University Press, July 2019
10.
Sarah Worthington,
Equity, Oxford University Press, 2006.
11.
Phillip H.
Pettit, Equity and The Law of Trusts, Oxford University Press, August 2012.
12.
Alastair Hudson,
Taylor and Francis, July 2015.
13.
Dan Dobbs, Law of
Remedies: Damages, Equity and Restitution, November 2017.
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