There are four historical sources of English law:
- Common law
- Canon law
- The Law Merchant
The most important are the first two: common law and equity.
In the days of Richard II, there were various Royal Commissions, one of them was which consisted of Judges who travelled around the country deciding disputes in relation to both civil and criminal matters. They would return to London and discuss the disputes they had resolved and decided how similar disputes should be resolved in future. This meant that a dispute in any part of the country would be decided in exactly the same way. The law became common to the whole country and replaced the local customs, which is why it’s known as common law.
The common law system had a number of deficiencies:
- The writ system. To commence an action in the common law courts the plaintiff (now referred to as the claimant) had to purchase a writ. If there was no specific writ for their cause, they were unable to bring a claim.
- An obsession with procedure. Any error in the process or the documents meant the action failed and many cases with merit were lost due to minor technical errors.
- Fictions and defences. Certain legal fictions were used by the courts to extend their jurisdiction, such as the Court of the Exchequer pretending that monies owed were owed to the Crown to be able to intervene in money disputed between individuals. Defences were often used to delay action for up to a year by claiming to be unable to attend court for various reasons such as sickness or floods.
- Inadequate remedies. In common law, the only remedy available was damages, that is, monetary compensation. There was no provision for other remedies such as injunctions or specific performance.
- Rigidity. The law was not flexible enough to adapt to situations such as mortgages and trusts.
- Precedent. The courts had to rigidly follow earlier decisions without being able to deviate.
Equity initially developed as a consequence of the number of petitions to the King. In the middle ages, individuals who disagreed with the courts’ decisions often turned to the King. In the beginning, the King dealt with those petitions but then he started passing them over to the Lord Chancellor. Back in those days, the Lord Chancellor was a cleric who dealt with those petitions on the basis of “what was right” rather than in accordance with the common law. The great number of petitions received by the Lord Chancellor resulted in a whole new court being established: the Court of Chancery.
The Court of Chancery dealt with matters where the common law didn’t provide a suitable remedy. Equity supplemented the common law and the Court of Chancery developed the following areas of the law:
- insolvency; and
- estate distribution.
Equity provided the following remedies not available under common law:
- Injunction: An order to perform a certain action (mandatory injunction) or not to do something (prohibitory injunction) such as a restraining order.
- Specific Performance: An order to make someone fulfill their obligations under a contract.
- Rectification: An order to alter alter the provisions of a contract.
- Rescission: An order restoring the parties to the position they were in before entering into a contract.
Unlike common law remedies to which people are entitle to as of right, equitable remedies are discretionary. This means the court has discretion to grant or not to grant the remedy. A number of principles were developed to decide whether an order should be granted or not, these are known as the maxims of equity.
Maxims of equity:
- Equity will not suffer a wrong to be without a remedy. Where the common law does not provide a suitable remedy, equity will provide one, for example an injunction or specific performance.
- Equity follows the law. The courts will look at common law to start with, and if no remedy is available then they will provide a remedy in equity. That means equity does not supersede the common law, just fills in the blanks so to speak.
- He who seeks equity must do equity. This means someone looking for an equitable remedy must behave fairly towards their opponent.
- He who comes to equity must come with clean hands. A party must have acted honestly and fairly and not have been involved in fraud or misrepresentation.
- Delay defeats equity. A party who delays action may not have an equitable remedy available.
- Equality is equity. The courts will treat all parties involved as equals.
- Equity looks to the intent rather than the form. The courts look at the intention of the parties rather than the fine details of legal formalities.
- Equity acts in personam. Equity relates to the person rather than the property.
- Equity looks on that as done which ought to have been done. The courts look at the situation the parties would be in if the contract had been completed.
- Equity imputes an intention to fulfill an obligation. If someone completes an act that can be regarded as fulfilling the original obligation it will be taken as such.
- Where the equities are equal, the first in time prevails. If two parties have the right to possess an object the first one with the interest will prevail.
Many legal concepts had their foundations in the law of the church, known as canon law. Canon is a church decree to regulate morals or religious practices. Until 1857, the Ecclesiastical Courts dealt with marriage and family law and succession. They also tried clergymen accused of criminal offences. The punishment for many offences in the criminal courts of the time was execution, however, the Ecclesiastical Courts were more lenient. This resulted in many people claiming to be clergymen.
The Ecclesiastical Court still exists but it’s jurisdiction is restricted to members of the Church of England and its property and doctrine.
The Law Merchant
The King granted powers to officers of local Boroughs to hold courts in return for the payment of a tax called a toll. These courts appeared in places where fairs and markets were often held and a lot of trade took place, to resolve disputes involving merchants and traders. In towns where certain commodities such as corn, wool, etc. were traded, Staple Courts were established. These courts applied common law and custom relevant to the trade.
The development of negotiable instruments and bills of exchange (such as cheques) along with insurance, agency and partnership, were the biggest contributions of the Law Merchant to English law. Many of the Law Merchant rules were incorporated into the law and later codified into statutes.