There is much confusion in what is the common law.... and I feel we should try be clear as to what we mean so that we are not fighting between use, but move forward with unity and a common understanding.... HISTORICALLY I LAYOUT MY UNDERSTANDING to show natural law is closer to "ancient laws and customs" (or in the monarchs promises "respective laws and customs"), and common law evolved from laws in common , to feudal property claims which is the foundation of today's common law system of laws created by the courts. EQUITY reflects natural law and conscience, and provides lawful excuse to legal claims and thereby "provides mercy in judgements", and thereby creating judicial precedence which is known as common law (i.e. people provide equitable arguments to attain a fair and just settlement) 1.1. CREATION OF LAWS IN COMMON : Alfred the Great (847/849 – 26 October 899) was King of Wessex from 871 to c. 886 and King of the Anglo-Saxons from c. 886 to 899. After ascending the throne, Alfred spent several years fighting Viking invasions. He won a decisive victory in the Battle of Edington in 878 and made an agreement with the Vikings, creating what was known as the Danelaw in the North of England. Alfred also oversaw the conversion of Viking leader Guthrum to Christianity. He defended his kingdom against the Viking attempt at conquest, becoming the dominant ruler in England 1.1.1. In the late 880s or early 890s, Alfred issued a long domboc or law code consisting of his own laws, followed by a code issued by his late seventh-century predecessor King Ine of Wessex 1.1.2. Alfred's introduction includes translations into English of the Ten Commandments , a few chapters from the Book of Exodus , and the Apostolic Letter from the Acts of the Apostles (15:23–29). The Introduction may best be understood as Alfred's meditation upon the meaning of Christian law. [95] It traces the continuity between God's gift of law to Moses to Alfred's own issuance of law to the West Saxon people. https://en.wikipedia.org/wiki/Alfred_the_Great#Legal_reform 1.1.3. to which he prefixed the Ten Commandments of Moses and incorporated rules of life from the Mosaic Code : "You shall do no injustice in judgment! You shall not be partial to the poor; nor defer to the great! But you are to judge your neighbour fairly!" ( Leviticus 19:15 ) and 1.1.4. By doing so, it linked the past to the historical present, and represented Alfred's law-giving as a type of divine legislation, hence ‘Divine rights of Kings’, and a relationship with the growing power the church. 1.1.5. Confirming ancient laws, rights and customs including: 1.1.5.1. Thereby establishing the principles of a peaceful society over 1000 years ago when creating his "Books of Dooms" (which at the time was what acts of the rulers were called) by Alfred the Great summarised as follows; 1.1.5.2. "The law should express universal principles of fairness, truth and common sense. 1.1.5.3. Just law depends on the inherent dignity and freedom of every individual and the principles of fairness, responsibility, reason and truth. 1.1.5.4. People have to be confident that when a person breaks the law they will be punished. 1.1.5.5. They have to trust that the law is impartial and constant. 1.1.5.6. Civilisation rests on trust between people. 1.1.5.7. Trust is created by a shared culture of honesty, promise-keeping, compassion and forgiveness. 1.1.5.8. Treat others as you wish to be treated . " 1.2. CREATION OF COMMON LAW – JUSTIFICATION OF FEUDALISM: D uring the first three centuries after the Norman Conquest (1066) (occupation enforced with violence) the common Iaw rules were developed by the royal courts as a system applicable to the whole country, mainly concerned with establishing a strong central administration and safeguarding the royal revenues, converting property claims previous established by local customs. 1.3. TRIAL BY JURY OF 12 Assize of Clarendon 1166 created trial by jury, initially with "Twelve "of the more lawful men" [3] of the locality were summoned by the king's sheriff to determine, upon their own knowledge, who was entitled to the property" https://en.wikipedia.org/wiki/Assize_of_Clarendon 1.3.1. Petit Jury : "In common law , a petit jury (or trial jury ) hears the evidence in a trial as presented by both the plaintiff (petitioner) and the defendant (respondent). After hearing the evidence and often jury instructions from the judge , the group retires for deliberation , to consider a verdict." https://en.wikipedia.org/wiki/Petit_jury 1.3.2. Grand jury : "the more recent grand jury that presents information for an indictment. [11] The grand jury was later recognized by King John in Magna Carta in 1215 on demand of the nobility. [12] " https://en.wikipedia.org/wiki/Grand_jury EQUITY 1.4. Birth of Equity “...to provide mercy in all judgements...”- courts of conscience: In 1348 [1] the King, unable to give personal attention to so many petitions, finally in 1474 by decree [2] conferred upon the Chancellor full authority to give relief in all matters of "Grace" , as these applications for redress were termed; and from this period petitions began to be addressed to the Chancellors themselves, and not to the King. [1] HENRY R. GIBSON, A.M., LL.D., A TREATISE ON Suits in Chancery (1907) §3 [2] Snell’s Equity 29th Edition (1990), Part 1, §2 at 1(b). 1.4.1. A body of advisers surrounding the Ki ng (the curia regis) split, creating the first permanent royal court - the 'Court of Exchequer’, sitting at Westminster to hear disputes “in rem” – claims against titles , concerning property claims and the revenues, the origin of today’s criminal courts , and 1.4.2. To settle disputes between the people ‘in personna’ – claims between people , a second permanent royal court was set up at Westminster, the 'Court of Common Pleas’, the origin of today’s civil courts . This was initially independent from influence by the monarch as they had their own courts to collect revenue 1.4.3. Defining equity; 1.4.3.1. “... The principles on which the Chancellor based his decisions were those of Honesty, Equity and Conscience . By "Conscience" was meant those obligations one person is under to another to exercise that good faith the other has a right to expect....” 1.4.3.1.1. Ibid, 411. Fides est obligatio conscientiw aliening ad intentionem alterius. ( Good. faith is an obligation binding the conscience of one party to a transaction according to the understanding of the other party.) 1.4.3.2. Ibid, 346. The matters thus brought before the King were decided according to reason and conscience; and when matters were referred to the Chancellor, either by the King or by Parliament, he was required to do "that which right and reason, and good faith, and good conscience demanded in the case." The term 'conscience" embraced all those obligations which rested upon a person , who, from the circumstances in which he was placed towards another, and the relations subsisting between them, was bound to exercise good faith in his conduct and dealings with that other person. 1.4.3.3. 1 Spence Eq. Jur. 411. The early Chancellors decided, as a rule, according to this conscience, but, in process of time, a system of rules and general principles, based on reason and conscience, were evolved from the adjudications of the Court, or were adopted by the Chancellors from the jurisprudence of the Civil Law, as formulas to specify the nature and limit the extent of their equity jurisdiction. 1.4.3.4. On an application to Parliament for redress, the petition was referred to the Chancellor, with the command: "Let there be done, by authority of the Parliament, that which right and reason, and good faith and good conscience, demand in the case.” HENRY R. GIBSON, A.M., LL.D., A TREATISE ON Suits in Chancery (1907), Part 1, §4 1.4.4. Individuals right to contract: ‘...Lord Nottingham (1673-82) was "stiled the Father of Equity owing to the systematisation of rules under his chancellorship... in 1672 Lord Nottingham remarked in a case where it was sought to establish a trust: "With such a conscience as is only naturalis et intema, this court has nothing to do: the conscience by which I am to proceed is merely civilis et politica, and tied to certain measures; and it is infinitely better for the public that a trust, security, or agreement, which is wholly secret, should miscarry, than that men should lose their estates by the mere fancy and imagination of a chancellor ." Snell’s Equity 29th Edition (1990), Part 1, §2, at 2(b). 1.4.5. ‘...It is not part of nor the role of the court to dissolve or vary contracts thought to be harsh on the basis of so called equitable principles. It’s role is to prevent the defendant from insisting on his strict legal rights when, owing to his behaviour, it would be unconscionable or inequitable to allow him to do so...' Snell’s Equity 29th Edition (1990), Part 1, §2, at 2(e). 1.4.6. Unconscionability overrules doctrine : ‘... courts are returning to the principle of unconscionability where the detailed rules previously refined have proved too restrictive...’ Snell’s Equity 29th Edition (1990), Part 1, §2, at 2(e). 1.4.7. Lord Romily Cooper V Jarman (1866) Ch.D. 3 Esq. 98 at 102 “ The legal duty , as in this case, as I believe it is in all cases where it is fully understood and examined, is a moral duty ” Snell’s Equity 29th Edition (1990), Part 1, § at 3. 1.4.8. A classic eighteenth century statement is that " Equity is no part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigour, hardness, and edge of the law, and is a universal truth; it does also assist the law where it is defective and weak in the constitution (which is the life of the law) and defends the law from crafty evasions, delusions, and new subtleties, invented and contrived to evade and, delude the common law, whereby such as have undoubted right are made remediless; and this is the office of equity, to support and protect, the common law from shifts and crafty contrivances against the justice of the law. Equity therefore does not destroy the law, nor create it, but assist it ." Snell’s Equity 29th Edition (1990), Part 1, § at 3. 1.4.9. ‘...To give effect to any native law or custom ”such law or custom not being repugnant to natural justice, equity and good conscience”....construed as merely referring to what is fair .’ Snell’s Equity 29th Edition (1990), Part 1, §1 at 4. 1.4.10. The monarchs “conscience ”: ‘...This appears to have been an importation of the canon law; almost all the medieval Chancellors were ecclesiastics . "Conscience" was in theory based on universal and natural justice rather than the private opinion or conscience of the Chancellor...” Snell’s Equity 29th Edition (1990), Part 1, §2, at1(c). 1.4.11. “...the vital principle from which the Court sprung was the prerogative doctrine that the King was the "fountain of justice ;" and that, when a citizen could not get justice in the ordinary Courts, he might come to this fountain.52 The King, in administering justice in such cases, deemed himself above all the laws and customs of his realm, and bound only by his conscience and his will .” HENRY R. GIBSON, A.M., LL.D., A TREATISE ON Suits in Chancery (1907), Part 1, §8 1.4.12. As the Chancery was the office out. of which all writs at common law issued, the Chancellor retained cases for his own disposition when the facts were such that no common law writ was adapted to the requirements of the case, or when the common law Courts were unable to furnish adequate relief ; and some contend that herein originated the extraordinary jurisdiction of the Chancellor. In this class of cases, the Chancellor determined the matters in dispute, so that the court of the King might not be deficient in doing justice. HENRY R. GIBSON, A.M., LL.D., A TREATISE ON Suits in Chancery (1907), Part 1, §9 1.5. Judge Brian wrote in 1466: "In my opinion, if a man does a thing he is bound in such a manner that by his deed no injury or damage is inflicted on others." https://en.wikipedia.org/wiki/Henry_de_Bracton#Common_law_and_ecclesiastic_courts 1.5.1. Establishing ancient laws, rights and customs including: 1.5.2. Common law Do no harm , and 1.5.3. Equitable doctrine of those who create liability must provide remedy. 1.6. COMMON LAW PRECEDENCE: ‘... Lord Ellesmere ( 1596-1617 ) began to apply the same principle in all cases , instead of following the inclination of the moment under the name of conscience...’ Snell’s Equity 29th Edition (1990), Part 1, §2, at 2(b). 1.6.1. “1-014 1. Common law, equity, statute. The origin of the law of real property is the origin of common law itself 23. In this context, “common law” means the law which was applied to the country as a whole by the king's ordinary courts, as opposed to the local feudal and customary laws which varied from place to place and were administered in each locality free from central control until the mid 12th century. The centralised judicial system established in the 2 centuries after the Norman Conquest - particularly in the reign of Henry II - resulted in a body of new and uniform rules , although some of the old customs survived in the form of local variations of common law24. The new rules were laid down and developed by the decisions of the judges in particular cases . Centralised records were kept and a systematic body of doctrine began to develop. “ Common law” came to mean the ordinary judge made law of the three central royal courts. 25. This was then contrasted with statute.. With time these statutes came to be regarded as of a piece with the judge made rules, and the “common law” might in a suitable context include these ancient statutes, for the purposes of contrast with more modern parliamentary legislation” Megarry & Wade The law of real property 8th edition. Chapter 1, Section 3. The Basis of the Law of Real Property 1.6.2. Over time the Court of the Exchequer expanded their business into the Court of Common Please resulting in the creation of the King’s Bench (and by monarchs succession the Queen’s Bench) Oxford Dictionary of Law 9th Edition (2018) common Iaw Megarry & Wade The law of real property 8th edition. Section 3. The Basis of the Law of Real Property 1-014 and 1-015
