a) Explain the history of common law and equity.
Prior to the Norman Conquest in 1066 there was no unified system of law in Britain, different areas of the county were governed by different rules. Law was based on local customs within the shires and hundreds. The local customs were enforced and administered over by the shire court which was presided over by the sheriff who was a representative of the King.
When William I came into power one of the main aims of the Normans was to centralise the legal system and unify local customs into one common law to create a basic structure of a court system. This was because they needed to find an easier way to manage the whole country’s legal system that would be fair everywhere. The writ system was important as they were a document necessary to start an action in a court. You could get writs from the Chancery Writ Office and if there wasn’t one to cover the claim then a person would have to pay the clerks extra to produce a writ for their claim. William I set up a court called the Curia Regis (King’s Court) which formed the central administration and he would pick his most powerful barons and allies to be in the court. The King also appointed his own judges and he would send them to towns around the country to decide important cases. They would come back to Westminster and discuss the laws they used for each case. Over time the judges picked the best and most effective customs that became uniform throughout the whole country, this is where the phrase ‘common law’ came from.
Over time the Curia Regis developed into a more complex court so there were various specialists that began separating into their own departments. There were different courts of common law. They were the Court of Exchequer (1200) which dealt with revenue disputes, the Court of Common Pleas (1272) which dealt with actions by one person against another and the Court of King’s Bench which was the only court to have a criminal jurisdiction.
One of the main problems with common law was the writ system. It caused so much confusion within common law. The Provisions of Oxford 1258 and the Statute of Westminster 1285 had limited creation of new writs for new actions, this meant that a lot of people could not start an action if it did not already have a writ for the claim. Also, the wording of the writ had to be exact otherwise the claimant would lose the action like in the case of Pinnel (1602). A large amount of the population could not read or write in the 13th century, the writs were written in Latin and there was no oral evidence given in court so this made most people avoid going there. In some common law actions if the defendant could muster up enough support then they could win the case over the claimant with the valid claim. This was called a ‘wager of law’ but there were complaints about bribery, corruption and the threatening of jury members. Also, sometimes a claimant could be unable to enforce a judgment if the defendant was powerful. Another defect of common law was that people could only get damages as a remedy which was not always the best way to put matters right. The whole procedure was time consuming and expensive.
The problems in common law gradually brought in equity to balance them out. These were rules and remedies that were devised in the court of the Lord High Chancellor. Claimants that didn’t obtain justice through common law courts would ‘petition the King’ who was obliged to see that justice was done because of their coronation oath. The king was regarded as the ‘fountain of justice’. As petitioning the King got more popular the King gave his duties to the Chancellor who would deal with them in a less formal