Equity X

To restrict oneself to common law or statutes, without taking into account the evolution of the English Legal System, and without having a clear and concise view of English history, would be to adopt an overly simplistic approach.

English Law as it is today is not a result of an act or a series of acts but rather a culmination of numerous events that started well before 1066 and whatever the situation may be today, we have to understand its roots and its origins in order for us to acquire a comprehensive understanding, not only of the English Legal System, but also of the spirit of the law, i.e. the true motivation behind laws (theoretically speaking) which is the need to do what is good and right and the notion that right must always prevail over wrong or to take it a step further, good must always prevail over evil which goes back to the tenets of the Christian Church.

The Law obviously has to change with time to meet the needs of the people but the fundamentals are always more or less the same.

Copyright © 2018 by Dyarne Jessica Ward

Equity IX

Those that were disappointed or those that were denied justice however were not without recourse and they began petitioning the king who is the highest authority in the kingdom appealing to his sense of justice and fair-play. Equity itself is synonymous to justice and fair-play and the word simply means fair and impartial.

Initially the king dealt with the petitions himself but as the number of petitions increased the task was delegated to the Chancellor who became known as the keeper of the king’s conscious. When a litigant seeks an equitable remedy, he or she is in fact appealing to the conscious of the king. The Chancellor, on behalf of the king, decided the cases on what was morally right, and it would be fair to say that equity blurs the lines or the distinction between what is morally right and legally right and while it is common enough to hear people say that what is morally wrong is not legally wrong, English Law is not so cut and dry especially in cases and instances that concern minors, or where there is clear evidence of oppressive or suppressive behavior.

It is important to note that because equity came about to remedy the inability of the common law to provide a just and fair solution, if there is a conflict between common law and equity, equity will prevail. This is simply because, more than anything, equity is concerned only with what is right.

Copyright © 2018 by Dyarne Jessica Ward

Equity VIII

With the advent and subsequent stifling of the writ system, defects in the common law, the principle that like cases should be treated in like manner, became more apparent.

For starters judges and juries adhered too strictly to precedent and decided in line with past cases, without taking into account other facts and factors regardless of how compelling they were.

Furthermore, the process of jury vetting at the time did not exist or was not as comprehensive as it is today, and members of the jury were at times prone to be corrupt and were not averse to intimidating the parties at a trial.

In terms of remedies the only remedy that was available was damages and remedies like specific performance and injunctions (equitable remedies) were not available.

In addition to that the process was overly lengthy with too much attention being paid to what was written and what was not, and the common law courts did not recognize trusts.

Copyright © 2018 by Dyarne Jessica Ward

Equity VII

In 1285 the Statute of Westminster II (De Donis Conditionalibus) authorized clerks to issue writs but it was with regards to Writs of Formendon which restricted the sale of land that is inherited and protects the land from being sold, in the form of a trust, and causes it to pass automatically to a heir predetermined by a deed.

While it did complicated matters somewhat (a large portion of the cases that were dealt with at the time were with regards to land) it did protect the rights and the interests of the predetermined heir, especially in cases and instances where the intended heir was a minor, and we also have to look at it in light of the fact that many of the feudal landowners were involved in the crusades (1021 – 1291) at the time, and often left behind young heirs.

Copyright © 2018 by Dyarne Jessica Ward

Equity VI

Because of the drawbacks of the writ system, in 1258, the Provisions of Oxford were issued, which expressly forbade the issue of new writs without the permission or consent of the King in Council.

The start of the Provisions of Oxford 1258 reads as follows: –

It has been provided that from each county there shall be elected four discreet and lawful knights who, on every day that the county is held [i.e. the county court], shall assemble to hear all complaints touching any wrongs and injuries inflicted on any persons by sheriffs, bailiffs, or any other men, and to make the attachments that pertain to the said complaints until the first arrival of the chief justiciar in those parts: so that they shall take from the plaintiff adequate pledges for his prosecution, and from the defendant for his coming and standing trial before the said justiciar on his first arrival; and that the four knights aforesaid shall have all the said complaints enrolled, together with their attachments, in proper order and sequence — namely, for each hundred separately and by itself — so that the said justiciar, on his first arrival, can hear and settle the aforesaid complaints singly from each hundred.

To read the full text please click on the link below: –

The Provisions of Oxford 1258

Copyright © 2018 by Dyarne Jessica Ward

Equity V

Over time the judges began to develop a writ system i.e. they issued a written order compelling an individual to take specific action and only allowed individuals remedy under certain circumstances or certain instances.

The writ system however was too simplistic and there were no remedies that were available if the offence did not comply with what constitutes an offence as stipulated by a writ and therefore a plaintiff though he may have been genuinely aggrieved, may not be able to obtain a remedy because the offence was not committed in the manner that was stipulated or laid out in the writ.

Copyright © 2018 by Dyarne Jessica Ward

Equity IV

During the reign of Richard I or Richard the Lionhearted, in 1195, the office of “Knights of Peace” was created through a Royal Proclamation. King Richard spent most of his life in the crusades and was probably its most notable commander especially in the Third Crusade.

It would be to some degree or extent fair to say that most of King Richard’s decisions were based on the canons of the Christian Church.

The office of the “Knights of Peace” was created to assist the sheriffs, who were tasked by the king to keep the peace in their respective shires or counties on behalf of the king and these sheriffs had some judicial authority and were give the duty of not only enforcing the law but were also empowered to deal with minor crimes.

Copyright © 2018 by Dyarne Jessica Ward

Equity III

Initially the courts carried out the functions of all three limbs of government (the legislative, executive and the judiciary), (this is prior to the birth Montesquieu (1689 – 1755) and the doctrine of separation of powers).

The courts however adhered to and continue to adhere to the doctrine of Stare Decisis, a Roman legacy, and the doctrine simply states that cases with identical or similar facts are to be approached in an identical or similar manner (common law is founded on the doctrine of Stare Decisis).

Things remained that way until the reign of Henry I (1068 – 1135) after which the function of the courts were divided among three separate bodies.

The court of Exchequer dealt with the collection of revenues, the court of common pleas dealt with common disputes or disputes among individuals and the judges who belonged to the King’s Council or the assize judges continued to travel through the country.

Copyright © 2018 by Dyarne Jessica Ward

Equity II

Following the Norman conquest of England local laws (which later became known as common law), these were not laws that were created but rather preexisting laws that were incorporated, laws that existed during the Roman occupation of the British Isles, most of which were ecclesiastical based or founded on church law (canon law), historically English Law or English Common Law had the principles of the Christian Church as its cornerstone, were enforced by the King’s Council and that led to the emergence of the Royal Courts.

The Royal Courts began to take over the function of the local courts, or the preexisting adjudicating mechanism. It was a process that occurred over a period of time and a practice of sending judges around to hold assizes or sittings locally, to hear the cases and to ensure that all cases were decided in accordance with the law, was created.

Trials per se were adversarial and both parties were given the opportunity to prove their case or disprove the other and that transfer of authority from the hands of the local courts to that of the assize judges occurred over a period of two hundred years.

Copyright © 2018 by Dyarne Jessica Ward

Equity I

English law as it is applied today starts with the conquest of England by William I – Duke of Normandy, a region in France, in 1066. William I was of Viking descent. He became Duke of Normandy in 1035, and after a bitter struggle to establish his authority which culminated is his success; he managed to establish his authority by 1060, he launched his campaign to secure the British Isles and was successful six years later (1066) and those that followed him from Normandy became known as the Normans.

The first inhabitants of the British Isles were the Anglo-Saxons who were a Germanic tribe that began migrating to the east and south of England from Denmark after the Romans began withdrawing from England in 5 AD. The first King of England was Egbert (802) (Anglo-Saxon)

Though the Norman-Anglo Saxon distinction has little or no significance in modern day England and most historians choose to discard it, England is far too complex for that, it is something that is worth knowing.

Copyright © 2018 by Dyarne Jessica Ward