The justice or injustice of the cause is to be decided by the judge.

                                                                 Samuel Johnson.       

 

TEXT 3 EQUITY

In ordinary language, equity simply means fairness, but in law it applies to a specific set of legal principles, which add to those provided in the common law. It was originally inspired by ideas of fairness and natural justice, but is now no more than a particular branch of English law. Lawyers often contrast 'law' and equity, but it is important to know that when they do this, they are using 'law' to mean common law. Equity and common law may be different, but both are law. Equity is an area of law which can only be understood in the light of its historical development.

The common law was developed after the Norman Conquest through the 'itinerant justices' traveling around the country and sorting out disputes. By about the twelfth century, common law courts had developed which applied this common law. Civil actions in these courts had to be started by a writ, which set out the cause of the action or the grounds for the claim made, and there grew up different types of writ. Early on, new writs were created to suit new circumstances, but in the thirteenth century this was stopped. Litigants had to fit their circumstances to one of the available types of writ: if the case did not fall within one of those types, there was no way of bringing the case to the common law court. At the same time, the common law was itself becoming increasingly rigid, and offered only one remedy, damages, which was not always an adequate solution to every problem – if a litigant had been promised the chance to buy a particular piece of land, for example, and the seller then went back on the agreement, damages might not be an adequate remedy since the buyer really wanted the land, and may have made arrangements on the basis that it would be acquired. Consequently, many people were unable to seek redress for wrongs through the common law courts. Many of these dissatisfied parties petitioned the king, who was thought of as the 'fountain of justice'. These petitions were commonly passed to the Chancellor, the king's chief minister, as the king did not want to spend time considering them. The Chancellor was usually a member of the clergy, and was thought of as 'keeper of the king's conscience'. Soon litigants began to petition the Chancellor himself, and by 1474, the Chancellor had begun to make decisions on the cases on his own authority, rather than as a substitute for the king. This was the beginning of the Court of Chancery. Litigants appeared before the Chancellor, who would question them, and then deliver a verdict based on his own moral view of the question. The Court could insist that relevant documents be disclosed, as well as questioning the parties in person, unlike the common law courts which did not admit oral evidence until the sixteenth century, and had no way of extracting the truth from litigants. Because the Court followed no binding rules, relying entirely on the Chancellor's view of right and wrong, it could enforce rights not recognized by the common law, which, restricted by precedent, was failing to adapt to new circumstances. The Court of Chancery could provide whatever remedy best suited the case -the decree of specific performance, for example, would have meant that the seller of land referred to above could be forced to honour the promise. This type of justice came to be known as equity.

Not surprisingly, the Court of Chancery became popular, and caused some resentment among common lawyers, who argued that the quality of decisions varied with the length of the Chancellor's foot - in other words, that it depended on the qualities of the individual Chancellor. Because precedents were not followed and each case was considered purely on its merits, justice could appear arbitrary, and nobody could predict what a decision might be. On the other hand this very flexibility was seen as the great advantage of equity - where any rules are laid down, there will always be situations in which those rules produce injustice. The more general the rule, the more likely this is, yet it is impossible to foresee and lay down all the specific exceptions in which it should not apply. Equity dealt with these situations by applying notions of good sense and fairness, but in doing so laid itself open to the charge that fairness is a subjective quality. The common lawyers particularly resented the way in which equity could be used to restrict their own jurisdiction. Where the common law gave a litigant a right which, in the circumstances, it would be unjust to exercise, the Court of Chancery could issue a common injunction, preventing the exercise of the common law right. An example might be where a litigant had made a mistake in drawing up a document. Under common law the other party could enforce the document anyway, even if they were aware of the mistake but failed to draw attention to it. This was considered inequitable, and a common injunction would prevent the document being enforced. Matters came to a head in 1615 in the The Earl of Oxford's Case, where conflicting judgments of the common law courts and the Court of Chancery were referred to the king for a decision; he advised that where there was conflict, equity should prevail. Had this decision not been made, equity would have been worthless- it could not fulfill its role of filling in the gaps of the common law unless it was dominant. Nevertheless, the rivalry continued for some time, but gradually abated as equity too began to be ruled by precedent and standard principles, a development related to the fact that it was becoming established practice to appoint lawyers rather than clergy to the office of Lord Chancellor. By the nineteenth century, equity had a developed case law and recognizable principles, and was no less rigid than the common law.

Once equity became a body of law, rather than an arbitrary exercise of conscience, there was no reason why it needed its own courts. Consequently the Judicature Acts of 1873—75, which established the basis of the court structure we have today, provided that equity and common law could both be administered by all courts, and that there would no longer be different procedures for seeking equitable and common law remedies. Although the Court of Chancery remained as a division of the High Court, like all other courts it can now apply both common law and equity.

 

   LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I a) Consult a dictionary to find the meanings of the following words and word combinations

ACTIVE VOCABULARY:

equity, writ, to fit the circumstances to the writ, litigant, remedy, to offer a remedy, to seek redress, to petition, verdict, to deliver a verdict, specific performance, charge, jurisdiction, to restrict jurisdiction, High court

b) Use the above words and word combinations to complete the following sentences:

1. The prisoner refused to recognize the … of the court.

2. They presented the … with a million of signatures to Parliament asking for the law to be repealed.

3. The jury took two hours to reach their … .

4. A plaintiff sometimes asks the court to force the other contractor to carry out the contract. In English law this is called … … .

5. The … against him were withdrawn.

6. A plaintiff is seeking … through the courts.

7. The company issued a … to prevent the trade union from going on strike.

8. In England and Wales the … … is divided into three divisions: the Queen`s Bench Division, the Chancery and the Family Division.

 

TASK II Match the words with their definitions:

1. equity                                a. person who brings a lawsuit against someone

2. writ                                    b. way of repairing harm or damage suffered

3. litigant                                c. money claimed by a plaintiff from a defendant as compensation for harm done

4 remedy                              d. legal document which begins an action in court

 

5 damages                                e. fair system of laws or system of British law which developed in parallel with the common law to make it fairer 

6 redress                              f. written application to a court

7 wrong                                g. decision of a jury or magistrate

8 petition    h. court order compelling someone to stop doing something

9 verdict                               i. remedy, relief

10 injunction                         j. an illegal or immoral act   

 

TASK III Put the following events in the right order:

1. The Chancellor begins to make decisions on the basis of his own authority.

2. The king advises where there is conflict between equity and the common law, equity should prevail.

3. Equity becomes no less rigid than the common law.

4. Common law courts are developed.

5. The Judicature Acts establish the court structure Britain has today.

 

TASK IV Compare the following definitions of "equity" with the one given in the text. Which of them do you fund the most precise?

 

Justice administered according to the fairness as contrasted with strictly formulated rules of common law. It is based on the system of rules and principles which originated in England as an alternative to the harsh rules of Common law and which were based on what was fair in a particular situation… Equity is a body of jurisprudence , or field of jurisprudence , differing in its origin, theory and methods from common law, though procedurally, in the federal court and most federal courts , equitable and legal rights and remedies are administered in the same court.

                                                                                  Black`s Law Dictionary

 

The part of English Law originally administered by the Lord Chancellor and later by the Court of Chancery, as distinct from that administered by the courts of common law. The common law did not recognize certain concepts and its remedies were limited in scope and flexibility since it relied primarily on the remedy and damages. In the Middle Ages litigants were entitled to petition the king, who relied on the advice of his Chancellor to do justice in each case. By the 15^th century, petitions were referred directly to the Chancellor, who dealt with cases on a flexible basis; he was more concerned with the fair result than with rigid principles of law.

                                                                               Oxford Dictionary of Law

 

 

The system of laws or system of British law which developed in parallel with the common law to make the common law fairer, summarized in the maxim: “ Equity does not suffer a wrong to be without a remedy”.

                                                       English law Dictionary

                                                  Peter Collin Publishing

 

The principle that a fair judgment must be made in a situation where the existing law does not provide an answer.

                                           Longman Dictionary of Contemporary English

 

 

The body of law established by judicial precedents in the Court of Chancery, concerned with providing remedies for wrongs not covered by the Common law.

                                                                   Collins Dictionary of British History

 

TASK V a) Fill in the gaps with the following verbs:

granted, administered, held, emerged, observed, dispensed, enforced, refused, decided

1. Despite its early popularity, equity as … in the Chancery was subject to criticism. 2. Its initial flexibility led to uncertainty in the seventeenth century, and the jurist John Seldon … that “Equity varies with the length of the Chancellor`s foot”. Whatever the demerits of the common law, it was possible to estimate a probable verdict by considering similar cases already and the statutes. 3. Equity, which was … as a matter of conscience, was unpredictable and the relief … by one Chancellor, might be … by his successor. Between flexibility and certainty there is much tension. Flexibility was advantageous because it gave relief from the rigidity of law, but could be disadvantageous if it led to uncertainty and hardship.

4. Eventually equity … from vagueness and conscience and became formalized. Lord Nottingham (Lord Chancellor in 1673-1682) … that equity should be … where possible in accordance with known principles and not by arbitrary discretion. Only where there was no precedent or where there was conflict in the rules or principles should conscience settle the matter.

5. Nottingham`s work was carried on by others, in particular Lord Hardwicke (Lord Chancellor in 1736- 1756) who … that a judge exercising equity jurisdiction should follow existing principles. With the adoption of the system of precedent, equity became predictable and intelligible.

 

b)  Explain why equity was often subject to criticism and what was done to do away with its flaws.

 

TASK VI Comment on the statement:

 

            Justice is truth in action.

                                                              Benjamin Disraeli (1804-1881)

 

The following issues will help you to answer the exam question HISTORY AND SOURCES OF ENGLISH LAW and to write your essay:

1. The main sources of English law

2. Historical development of Common law

3. Historical justification of Equity Law.

4. English law is judge-made law.

5. Advantages and disadvantages of case law

 

UNIT II

CONSTITUTION

TEXT 1 THE DEVELOPMENT OF THE UK CONSTITUTION

 

The modern UK constitution is usually regarded as dating from the “Glorious Revolution” of 1688. However, its main principles and institutions can be traced to medieval times or even earlier. In 1688 James II, the last monarch to claim to be superior to Parliament, having previously dissolved Parliament, fled the country, throwing the Great Seal into the Thames on his way. He was replaced by William of Orange and his wife Mary who were invited by a self-appointed group of anti-Catholic politicians to reign subject to the overriding power of Parliament. Mary was the daughter of James II, so that continuity was preserved. However James also had a son - a Catholic - who was his lawful heir. Principles which had been fought over earlier in the century were enshrined in the Bill of Rights 1689. These prohibit the monarch from exercising key powers without the consent of Parliament, such as the power to tax, the power to keep a standing army in peacetime, and the power to override legislation. It was generally accepted that ultimate legal power should be with Parliament thus laying the foundations of the modern representative democracy. Church and state were also linked by requiring the monarch to be a Protestant.

In 1688 Parliament was not a democratic body in the modern sense. The House of Commons was largely made up of landowners and professional people elected by their own kind, it but at least embodied the principle that ultimate power should lie in the hands of a representative body, a principle that applies only in a minority of countries even today. The basic legal framework laid down in 1688 remains today, but its political content, and particularly the political balance between its main elements, Crown, House of Lords, and House of Commons, has changed radically.

The self-appointed group that invited William and Mary to reign had no legal authority whatsoever under the previous constitution. It included former members of Parliament and other leading citizens. William and Mary's invitation was backed up by the presence of the Dutch Navy off the coast. Thus 1688 marked a complete break in the constitution. On the other hand in political terms the 1688 constitution was a relatively conservative affair. This is perhaps one reason why there is still no written constitution.

Events earlier in the seventeenth century are relevant here. A series of quarrels between kings (James I and Charles I) and Parliament turning upon religion and the kings' claim to raise taxes independently of Parliament, reached a compromise solution in 1641. This lasted less than a year, and the Civil War of 1642-8 temporarily dismantled the constitution. From the end of the Civil War until the accession of Charles II (1649-60), England and Wales were governed essentially as a military dictatorship. During this period Oliver Cromwell created a written constitution – “the Instrument of Government” - which was effective only for a few years. By 1660 it became clear that chaos could best be avoided by restoring the old traditional constitution. Cromwell's constitution was expunged from the official records and Charles II and James II ruled on the basis of inheritance from Charles I and of the 1641 compromise, thus illustrating that 'legality' depends on your perspective. This uneasy stalemate was broken when James began to assert what the Protestant establishment regarded as similar notions of absolute monarchy to those that had cost Charles I his head.

 

NOTES TO THE TEXT

Glorious Revolution (Dec 1688-Feb 1689) – the name given to the events during which James VII and II fled from England, effectively abdicating the throne, and William III and Mary II were established by parliament as joint monarchs. The title, coined by Whigs who in the long term benefited most from it, celebrates the bloodlessness of the event, and the assertion of the constitutional importance of parliament.

James VII and II (1633-1701) – King of Scotland, as James VII, and of England and Ireland – as James II (1685-1688). The second son of Charles I of England, he escaped to Holland nine months before his father’s execution.

William III, “of Orange” (1650-1702) – King of Great Britain (1689-1702). Born in the Hague, he was the son of William II of Orange by Mary, the eldest daughter of Charles I of England. In 1677 he married his cousin, Mary, the daughter of James VII and II.

Charles I (1600-1649) – King of England and Ireland (1625-1649). He failed in his attempt to marry the Infanta Maria of Spain, marrying instead the French princess, Henrietta Maria (1609-69). This disturbed the nation, since the marriage articles permitted her the free exercise of the Catholic religion. Three parliaments were summoned and dissolved in the first four years of his reign; then for 11 years (1629-40) he ruled without one.

English Civil Wars (1642-8) – The country’s greatest internal conflict, between supporters of parliament and supporters of Charles I, caused by parliamentary opposition to what it considered growing royal power.

Charles II (1630-85) – King of England and Ireland (1660-85). He was the son of King Charles I.

 

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