The Origin of the Common Law

I WILL get back to the discussion on Haiti some time later, but this week I will give you a short history of the law which is applied in our courts today.

England was a well organized country, and most regions had their own laws when it was conquered by the Normans under William the Conqueror in the year 1066. In an attempt to unify the country, William the Conqueror, who became king, introduced his own laws which were ‘common’ throughout the country. He set up the Curiae Regis (Latin for the King’s Council), where some of his courtiers administered the law.{{more}} He himself sat on the bench to listen to cases where his people put forth their grievances. The King’s Council developed with time. Three main courts came into being to administer the Common Law. These were the Exchequer to deal with cases pertaining to the royal revenue and the collection of taxes; the Court of the King’s Bench which dealt with criminal and civil matters, and the Court of Common Pleas which dealt with dispute between private individuals.

Although many of King William’s successors appreciated and promoted the Common Law system, not all of them wanted to administer the law personally, and professional judges from the clergy and laity were appointed.

The main feature of the Common Law is that it consists of a body of judge made laws or judicial precedents. This means that cases are heard by lower and high courts and the decisions of the highest Court become precedents. Thus lower courts must follow the precedents until they are overruled with time at the same level where they were made in another case.

By 1189, the Common Law was well established. It later became so formalized and rigid that it failed to meet certain needs in changed circumstances. There were those who could not afford the expenses of the Common law court and would petition the King to redress their grievances, and although it was the practice to pass on the petition to a member of parliament it was eventually given to the Lord High Chancellor who was regarded as the keeper of the King’s conscience. Eventually the Court of Chancery was set up to deal with those cases and it dispensed equity to those who asked and were worthy of it.

“He who comes to Equity must come with clean hands.”

The main principle of the Court of Chancery was fairness and justice. Several maxims developed over time, but the maxim given above is perhaps the most popular. Any one who seeks the remedy of the court must himself be above reproach, that is, he must not have committed any fraudulent act or be guilty of any wrong doing in the matter. He had also to show that he could not get justice at Common Law and there was no delay. The Court of Chancery provided injunctions, equitable redemption of mortgages and specific performance, among other remedies. For example, if a vendor makes an agreement with a purchaser to sell his property and thereafter refuses to sell, then the purchaser could approach the court for specific performance, forcing him to carry out his original commitment to sell. A Common law court would provide some form of compensation for the wrongs suffered by the purchaser but Equity will compel the vendor to sell the property to the purchaser.

By the Judicature Act of 1873, the Common Law was merged with Equity and it was decreed by Parliament that where ever the two conflict, the law of equity should be supreme. Today equity is dispensed by the Chancery Division of the High Court in England. In St. Vincent and the Grenadines the High Court could constitute itself as a court of equity when it is necessary to do so.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com