Common Law Legal System

Common Law and Equity:A Very Short Historical Overview

Why is the history important?

● Why is case law a source of law in the common law legal system?

● Why are juries used in the common law legal system?

● Why do judges have powers to grant remedies that have no basis in statutory or even common law?

● To answer these questions, you need to know a little history!

Basic Meaning

● The common law forms a major part of the law of many countries, especially those with a history as British territories or colonies. It is notable for its inclusion of extensive non-statutory law reflecting a consensus of centuries of judgments by working jurists.

source: Wikipedia

Before Common Law:Anglo-Saxon Era

● Generally the period from 550 to 1066.

● Organized in small kingdoms

● “Law” during this time was written (codes)– influenced by Roman

law.

– created by local “kings”

● Shire courts were primarily responsible for administration of kingdom.

● Hundred Courts– below shire court– probably had

administrative and judicial role.

Before Common Law: The Normans

● Normans invade in 1066 bringing new culture and language

● By 1080s Normans establish well organized counties which “administer local law” and set up “local courts.”

William the Conqueror

Norman Times (1066-1150): Court System

● Court of the King – the king was basically the law when he wanted to be.

● Local Courts – held over from the Anglo-Saxon system.– County courts presided over by a Sheriff.– Hundred courts: dealt with very local matters,

overseen by heads of families.

● Feudal Courts – dealt with all disputes within the manor, overseen by feudal lord.

● Ecclesiastical courts – Catholic Church courts.

Henry I

● Beginning of the 12th century, Henry I started sending his court judges to preside over local disputes.

● First signs of centralization and procedural consistency.

The Beginnings

● Many historians credit Henry II (1154-1189) for putting in place the foundations of the common law system.

● Yet, well before him, kings decided disputes brought to them, and magistrates did so at a local level.

The England Henry II Inherited

● The crusades created legal problems.– landowners were off

fighting in the crusades.

– this invited squatters to unlawful reside on vacant land

– this created land disputes among heirs of landowners killed in crusades.

Crusade Knight from the time of Henry II

Assize of Clarendon

● Discontinued the practice of trial by ordeal.

● Discontinued the practice of trial by battle.

Assizes in Practice

● The Assizes of Clarendon established procedures to be used in local courts to deal with disputes related to everything from land rights (civil) to murder (criminal)

● The goal was to create a consistent, reliable, efficient practice for settling disputes and handing out justice.

● To use an assize, the plaintiff had to obtain a writ from the King to proceed and the process was administered by a royal judge.

Three Ways Henry II Created the Foundations

● Firmly established a permanent court in Westminster.

● Created panel of regularly traveling justices.– they presided over local issues

– decided local cases based on principles used in Westminster court.

● Began integrating local courts into a nationwide system through the issuance of writs and other procedural reforms.

Medieval Times (1150-1700)

Characteristics of the Early System

● Concerned more with procedure than substantive law or rules.

● “Case Law” was understood as a matter of the “common culture” of a unified and learned profession NOT as binding precedent.

● Records were not kept until a century later.● No Precedent

Sources of Law

● The main source of law in classical common law was the King:– He and his council were judiciary, legislature and

executive.

– When we talk about “parliament” during the early development of common law, we are talking about the King's Council.

– When we talk about a high court during this time, we are talking about the same Council

The Court System

● The Royal Courts– Privy Council – king's closest advisers

– Court of Assizes – the king's traveling judges, mostly dealt with criminal matters.

– Court of Exchequer (Chancery) – more on this later.

– Court of Common Pleas – dealt with private actions based on common law and “statutes.”

– King's Bench – dealt mainly with criminal matters and matters concerning the King.

● The Local Courts – slowly folded into the royal court system.

Writs

● Writs: Permission from the King to use his courts.– Circumstances that

entitled a hearing before the common law court.

– Fixed the jurisdiction of the early royal courts.

– If your issue didn't fall within one of these predefined circumstances, then you likely could not get redress in courts

The Early Writ System

● Roughly 40-75 common law writs (number varied)

● Courts used of ‘legal fictions’ to expand the their jurisdiction

● This jurisdiction limit led to the increase in the use of the Chancery Courts.

The Writ System Generally

● Three groups of actions, according to remedy:– real: recovery of the

thing (property title)

– personal: recovery of damages

– mixed: recovery of both the thing and damages

Writ Examples

● Often very narrow as illustrated by these property examples:

● writ of replevin – used in those

situations where the goods had been wrongfully acquired in the first instance

● the writ of detinue– available for the

recovery of goods that originally had been rightfully acquired by the defendant, but later wrongfully retained

vs.

The Legal Profession

● Court staff started off as close advisers to the King

– Knights or clergy appointed by the King

● Over a few generations (by the mid 1200s) judges were being appointed based upon their experience as clerks for earlier judges.

● During this same period of time a quasi-professional class of advocates started appearing in courts on behalf of parties.

Early Use of “Lawyers”

● Early common law required litigants to tell their stories to the court.

● Court language was formal Latin and French.

● “Advocates” were storytellers/translators

Common Law in Practice

● Classical common law judges did not see themselves as “making law.”

● The Classical Lawyer found Common Law in:– judicial decisions– Act of Parliament– local custom

● Common law was deliberative process, discourse played key role.

Classical Pleadings

● Case always began with the “appearance” of the defendant in court.

● Case began with Plaintiff's attorney opening with the giving the “count.”– basically amplifying the issue under which the Writ

was granted.

● The of the lawyers were to help formulate the “issues” for the jury.

● Only matters truly in dispute went before the jury.

Early Juries

● The right to a jury was enshrined in the Magna Carta of 1215.– Yet, juries were used

locally well before then.

– Juries continued to be constituted by “peers”

– Juries were asked to judge behavior based on local custom.

The Evolution of Modern Common Law

● Key Factors in the Creation of Modern Common Law– the gradual irrelevancy of manor courts and the end

of feudalism

– the development and distribution of the printed word

– formalized education of law practitioners

Gradual Changes

● Stare Decisis (to stand by things decided) wasn't recognized in England before the 18th Century. It became more prevalent as:– court records became more detailed

– the court system became more organized– commonly used decisions became accepted as

being “grounded in the law.”

Equity

● As the Common Law system was becoming better organized, it faced a new challenge . . .

● What to do about the increasing usage of Equity to settle disputes

● What is Equity?

Uses of the Word Equity

● body of rules administered by courts of equity● justice and fairness● stockholder's proportionate share, or share in a

limited company● value of property over and above

encumbrances● an equitable right or claim, such as an 'equity of

redemption'

Late 13th Century

● Three great courts existed– King's Bench

● heard matters dealing with the Crown

– Court of Common Pleas

● heard all other matters

– Exchequer● heard petitions to king

Exchequer

● King's administrative office, consisting of:– Exchequer (treasury)

– Chancery, head by the Chancellor

● scribe and keeper of the great seal

● issued writs, initiating actions in the law courts

● assisted the king and his Council with petitions

Henry Booth, 2nd Baron Delamere (1652-94) Chancellor of the Exchequer (1689-1690)

When Was Equity Used

● Person cannot get remedy in courts– usually because he was poor (writs cost money) or

his adversary was too powerful.

– Petition would plead 'for the love or God'

– As Chancellor's power grew, petitioners stopped going to King and went to Chancellor directly

● Chancellor could:– create new writ (the weaker the king, the harder it

was to grant new writs)

– provide some other remedy after hearing the party

Example

● The concept of a “trust”:– Philip, about to head on a long and hazardous

journey, gives land to his friend Thomas, for Thomas to hold for Philip’s baby son Theo (who cannot own property) until Theo is grown up. Philip’s ship sinks without trace.

– Common law regards Thomas as the owner – he has the relevant papers and Philip transferred the land to Thomas.

– Equity would prevent Thomas from selling the land for his own benefit but would require Thomas to hand the land over when Theo becomes an adult.

16th Century

● More is known about Chancellors because records improved.

● At this time Chancellors applied 'rules of equity and good conscience.'– not bound by precedent– often used common law rules, consulted judges and

lawyers.– also started using maxims of jurisprudence

borrowed from canon and civil law.

Late 16th Century

● Jurisprudence of Chancery became settled.

● could enjoin parties to cases in common law courts.– could actually send

someone to jail for trying to enforce common law judgment.

King James

● Wanted to exercise authority over courts.

● issued decree favoring Chancery

● Chancery never claimed to be superior, merely just and fair.

Fast forward

● So do common law systems still have a Court of Chancery or Equity Court?– England = no (Judicature Acts of 1875)

– U.S. federal = no (merged around same time)

– U.S. states● historically the northeast states never had equity courts

but the southeast did.● Only four states have separate courts (DE, MS, AK, TN).● Common Law and Equity are merged.

Does Equity Still Matter?

● Yes. It never really was a self-sufficient, separate system.

● Equitable claims and remedies still exist today– Either adopted by courts– or codified into law

● Equitable principles are still used by courts when required by fairness.

Abraham Lincoln's 5000 cases

At Law

● assumpsit (1,240 cases)

● debt (667 cases)

● criminal (27 cases)

● appeals before the Illinois Supreme Court (400)

● cases in the federal district

● and circuit courts (at least 340)

At equity

● mortgage foreclose (more than 200 cases)

● petition for injunction to partition real estate (142 cases)

● petitions to sell real estate to pay debts (75 cases)

● divorce cases (145)

● dower petitions (44)

Some Principles of Equity

● equity acts in personam

● equity acts on the conscience

● equity aids the vigilant

● equity will not suffer a wrong without a remedy

● equity looks at the intent, not at the form

● he who seeks equity must do equity

● he who comes to equity must come with clean hands

● equality is equity

● equity looks on that as done which ought to be done

Modern Codes & Equity

● California Civil Code (a few examples)– For every wrong there is a remedy = (maxim) equity

will not suffer a wrong without a remedy.

– The law helps the vigilant = (maxim) equity aids the vigilant.

– The law respects form less than substance = equity looks at intent, not at form.

Equitable Remedies

● What is an equitable remedy?– generally, relief other than money (damages)

● Injunction – still used frequently by courts● specific performance – still used, although not

frequently.● rescission – rarely used