Equity
The common law may be admired and copied today, but in centuries gone by it was primitive, and became rigid while circumstances changed. In consequence it came nowhere near to satisfying the growing needs of the people.
Another serious problem was that the use of juries became widespread, even in civil cases, and they could be intimidated, bribed and 'packed' (filled with the friends of one of the parties).
Even after the formation of the common law courts, it was always open to those who felt that they could not receive justice, or afford the expense of going to court, to petition the King to 'redress their grievances'. At first Kings would consider these petitions themselves, or leave it to their Councils, or 'Parliaments', to decide them, but during the fifteenth century this work was delegated to one of the Council members. This was the Chancellor — later to receive the title Lord High Chancellor.
The chancellor did not try criminal cases. He dealt only with civil disputes concerning, for example, matters of property and breaches of contract. The law that was applied in the Court of Chancery was known as equity, a word meaning even – handedness and fairness.
The essential principle by which the Court of Chancery acted was that everyone should receive fairness and justice from the Court of Chancery had to meet:
• He had to show that he could not receive justice in the common law courts
• He had to show that he was himself without blame. This was called coming to court with clean hands
• He had to show that he had not delayed in bringing his case before the court
Judge-made law
Windsor Castle was built as a royal fortress by William the Conqueror towards the end of the eleventh century. The great round tower was built in the twelfth century in the reign of Henry II. Important additions to the palace were made in the reign of the Stuart King Charles II, and the royal apartments were later rebuilt or restored many times under the direction of George III, George IV, and Queen Victoria.
The beginnings and the development of the law in this country have been very much like those of Windsor Castle. The importance of William the Conqueror, not only to island history but also to the story of English legal system, is seen by the fact that some of the foundations of the law which we know today were being laid in the very days that William's workmen were laying the foundation stones of his castle at Windsor.
William was the Duke of Normandy, before he became King of England, and the great 'legal' foundation which he laid was an import from northern France, the Curia Regis (King's Court). This was not just a court of law, but a royal household. William used it as an instrument both to govern the country, and as a court for deciding disputes.
New courts have been built to provide justice in areas where justice was not available before. New ways were invented to enable people who had been harmed to commence legal actions (proceedings)—to bring their grievances before the courts and have them remedied.
The supreme law-making body in England is Parliament, and this has been so for centuries. Parliament passes laws in the form of Acts of Parliament, which are known as statutes. The law created by Parliament is known as statute law.
Nevertheless, judges play an essential part in the lives of individual citizens. UK has a system of law in which judges decisions—have for hundreds of years been recorded in law reports. These reports first appeared in Year Books. Each report begins with a 'headnote', which provides an expert summary of the facts and the court's decision. This summary is followed by the exact words of the judgments given by the judges. The principles of law as stated in these cases must normally be accepted and followed by the next court which has a similar case.
Many thousands of cases have come before the courts, and the decisions of the judges, like the individual stones of a palace—case by case, year by year-have added to the gradual build-up of the law. In this way, over the years and running alongside the laws passed by Parliament, a great body of law, known as judge-made law, has been developed. It is not possible to see it, as we can see a royal palace, where Parliament passes its laws. It is an Invisible Palace, but still it exists—and it plays a vitally important part in the life of english nation.
Another and equally crucial part of our national life is the way in which the UK itself is governed. This may not be widely known, but here also the courts play an essential role. The country is governed according to the rules of the UK constitution. This too cannot be seen. If Invisible Palace has a throne room, the constitution is it, and as we shall see, the judges may be called upon, and counted upon, to protect it should the need arise.
Judge-made law has over the centuries been divided into two main types: common law and equity. And now we will examine something of the beginnings and nature of each of them.
Common Law
In very early times there was no system of justice that applied for the whole country. It wasn’t ruled by a single monarch. But William the Conqueror invaded England in 1066 and grasped the need to reinforce the system of sentral or national government. William made laws which had to be obeyed and could be enforced throughout the land that he could exercise real power and control over all his subjects. For centuries English monarchs traveled through the country with their courts. Almost all the main courts of England can be traced back to William’s Curia Regins. The king sat on the bench and heared casesi n his own court. This is why the most important courts became to known as the Court of King’s Bench.
King Henry II understood that a single system of justice for the whole land under the control of the king gave him great power. He studied how best to achieve this. Henry set the foundations of professional judges, 5 of them decided cases in London and other were sent out on circuits to travel different parts of the country. When the did so they had to apply the laws that had been made by jadges at Westminister. In this way many local laws were replaced by new national laws. These national laws were common to all. And now these laws are known as the common law.
The common law, originally based upon the common customs of the country and gradually developed over the centuries, has become one of the most prized features of our national way of life.
The British Constitution
The way in which country is governed, and power is organised and distributed, is called its constitution. In many countries it is written, the oldest example of it is the Constitution of the USA (1787) and the most recent are Constitution of South Africa (1992) and Ukraine (1998).
In the UK there is no written constitution, but it has been developing for over 700 years, and it continues to do so. It is in part founded upon statue and case law, but mainly upon custom and convention. The main idea of the constitution is that no one person should be given so much power that he or she can become a dictator or tyrant. Power is separated and distributed in such a way that this cannot happen. This principle is called the separation of powers.
The British Constitution is therefore unwritten and it is flexible. It is open to change by Act of Parliament to meet tthe gradually changing needs of the nation.
The Branches of Power (the Legislature, the Executive, the Judiciary)
In the UK power is divided so as to ensure that it never becomes dangerously concentrated in the hands of one person, or even a small group of people. At one time, power and responsibility were said to recside in the Three Estates of the Realm: the Crown, the Clergy and the Laity.
In this separation of powers the idea is to separate and therefore limit the powers of government by splitting government functions into the legislature, executive and judiciary.
The Legislature means the law makers. In UK the chief law maker is «The Queen in Parliament. Members of Parliament swear an oath of allegiance to the Queen on taking offece, and all acts of Parliament must recieve the Royal Assent. The two Houses of Parliament have the executive power.
The Executive is the power which can take the initiative for change: it can take action. The executive in the Local Authotity is formed by the political party which wins the local elections. The national executive (Government) is formed from the winning political party at the nationwide General Elections. (These are MPs). The leader of the winning party becomes Prime Minister. He chooses other members of his party to be in charge for different aspects of government. The Government makes day-to-day decisions about the public life of the country.
National and Local executive are voted in (or out) by the people.
And finally, the Judiciary (judges). They must decide what the law is and prevent an abuse of power. The Prime minister and his Ministers, who are the part of executive, have an enormous power, and it is not unusual for Ministers to be taken to Court and from time to time the courts decide that the Home Secretary has exceeded his powers.
The Monarch (Crown)
The monarch or Crown is extremely important in British constitution.
The Queen is a part of the legislature - here she is known as «the Queen in Parliament». It is the Queen who opens and dissolves (closes) Parliament.
The Queen is head of the executive. Government operatesin her name. It is the Queen whi invites a new Prime Monister to form a Government. The Government Ministers are called «Ministers of the Crown». Even the leader of the largest «minority» party is called «Leader of her Majesty’s Opposition».
Judiciary. The sovereign is the «fountain of justice and mercy». The power of doing justice in the courts is in the hands of the judges but they are called «Her Majesty’s Judges».
Only one other person has straddled the L, E and J. He is the Lord Chancellor, but his active role is no longer considered acceptable in a modern democracy, because it breaches the separation of powers.
The Queen’s position in the constitution may be a ceremonial one, but she is uniquely placed to bind together the most powerful bodies in the country.
The House of Commons
The House of Commons is the chief sourse of British laws. Members of it were ordinary common people, known as «commoners». Even to this day a noble or «peer», who is a member of the House of Lords isn’t allowed to become an MP.
The UK is divided up into 646 geographical parts. Each part is known as a constituency. Everyone who lives in the constituency and who is over the age 18 is entitled to vote when a General Election is held. Those who wish to stand for Parliament are called candidates. Candidate who gets the most votes in the constituency is elected to become MP. Almost every MP belongs to one of the political parties. The party with an overall majority of MPs
will be asked by the Queen to form the next Government. Some candidates, however, are independent of any political party.
The MPs decide which laws to pass. It is the duty of MP to look after the interests of all the people in his constituency. Britain has the system of government by the people, which is called a democracy. The leadership of the Government are Prime Minister, and the other Ministers.
The House of Commons is presided over by Speaker, whose job is to keep order in the House and ensure that its rules are obeyed.
House of Lords
House of Lords is made up of the Peers of the Realm. There are two main groups of Peers. The Lords Spiritual and the Lords Temporal.
The Lords Spiritual are the Arcbishops and Bishops. They are all representatives of the Church of England.
The Lords Temporal are made up of two types of peer, Hereditary Peers and Life Peers.
Hereditary Peers are those whose titles are passed down from generation to generation. They include Dukes, Earls and Viscounts. They are known as «peers by succession». In 1999 Hereditary Peers lost the sit and vote in the House of Lords. But a small number Hereditary Peers have have been made Life Peers.
Life Peers are made peers for their lifetime only. They can’t pass their titles to their children. They are usually people with a successful career in politics, education, business, medicine and the law.
The members of the House of Lords have examune the laws proposed by the House of Commons, and suggest amendments if they tink they are necessary. They also can block or delay a new law, but this power is very limited.
The House of Lords has its own Speaker, named the Lord Chancellor. He presides over debates in the House of Lords (legislature), he is a senior member of the Cabinet (executive), and he is a head of the judiciary.
