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EQUITY.LAW
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EQUITY
The common law administered in Common Pleas and King's Bench
lost its flexibility at the end of the 13th century. Plaintiffs
began to petition the king for remedies, and the chancellor had
the task of properly disposing of their requests. By the end of
the 14th century, the chancellor was presiding as a judge in
his own court of Chancery, and a branch of the law called
EQUITY began to grow as a supplement to common law.
The work of a court of equity was easily justified by the
argument that rules of law must of necessity be general, but
that circumstances are infinitely variable and require that in
some cases the strict letter of the law be set aside to avoid
injustice or a result contrary to reason. In various ways
Chancery developed a character of its own.
At the beginning of the 16th century, the Chancery was
supplementing rules of common law to arrive at results in line
with a doctrine of conscience. An important writing for this
formative period was the dialogue Doctor and Student by
Christopher Saint- German (c.1460-1540). "Equytie is ordeyned,"
the Doctor says, "to tempre and myttygate the rygoure of the
lawe . . . and so it apperyth that equytie rather foloweth the
intent of the lawe then the wordes of the lawe." So long as
common-law courts were inflexible about matters of wills or
trusts and uses of land and contracts without a seal, equity
courts filled a need.
In Chancery a mispleading was not fatal, and in cases where no
remedy existed at common law, the Chancery was free to act by
what was called the law of right and conscience. Equity
supplemented the common law; it did not contradict it.
Of the greatest importance for an Englishman's rights in
property was Chancery's enforcement of trusts and uses. For
example, if A grants property to B to hold for the use of C,
the common law would take B to be in seisin of a freehold; but
Chancery would protect the interest of C, the beneficiary.
Chancery was also responsive to complaints about fraud and
deceit. In the administration of estates of the deceased and
the development of equitable interests in property, Chancery
courts made significant contributions to law in England. At
times the coexistence of courts of law and equity seemed to
give English subjects two kinds of justice, and from the 17th
century onward reformers urged that English law and courts be
simplified.
This finally came about in 1875, when a single high court of
justice was created. Other reforms abolished the writ system.
In the United States during the 19th century the majority of
state constitutions provided for one action at law and equity.
EXPANSION OF THE COMMON LAW
Common law crossed the Atlantic with the English language and
served English colonial settlements whenever conditions
permitted. Occasionally it had to yield in favor of religious
beliefs or local customs. Judges in early America often lacked
professional knowledge of the law; to be a man of property
respected in his own community was sufficient qualification for
the bench.
Prior to 1776 a few colonists went to England for legal
education at the Inns of Court. The victory of the colonies in
the American Revolution did not result in a rejection of
English common law; however, the attitudes of individual
Americans toward common law were full of contradictions. At one
extreme were men like John Dudley, associate justice of the
Supreme Court of New Hampshire (1785-97), who believed that
"common sense is a much safer guide for us than common law." He
boasted that he had read neither Blackstone nor Littleton, and
never would.
At the other extreme was George Wythe, law tutor to Thomas
Jefferson and the first professor of law at the College of
William and Mary. Among his students were John Marshall, James
Monroe, Edmund Randolph, and Henry Clay. Wythe used Blackstone
as a textbook, and his lectures compared English and Virginia
law.
In the United States in the early 19th century, lawyers faced
considerable hostility and suspicion. On one hand, the public
demanded codification of the law as a means of achieving
simplicity and certainty. On the other hand, it sought to
democratize the profession of law by removing educational
requirements for a license to practice. The latter proposal was
actually put into effect in New Hampshire (1842), Maine (1843),
Wisconsin (1849), and Indiana (1851). In these states any
person could practice law who was a citizen more than 21 years
of age, or a resident of the state, or a voter "of good moral
character." It was argued that a citizen had the natural right
to earn a living in any business, profession, or calling.
Moreover, the abundance of open land profoundly affected
American society, producing a fairly equal distribution among
many landowners.
On the frontier it was easy to conclude that common sense was
enough. Inevitably, the development of law in the United States
came to reflect much that was distinctive in the American
environment. For example, very early in the history of the
United States, American jurists favored the recognition of
so-called common-law marriages. James Kent stated, in Fenton v.
Reed (1809), that "A contract of marriage per verba de presenti
{words in the present tense, for example, "I do."} amounts to
an actual marriage, and is as valid as if made in facie
ecclesiae {in church}." Free consent, the meeting of minds,
made a valid contract. Kent's opinion was almost universally
accepted.
On the frontier, where churches were few and ordained ministers
scarce, common-law marriage was expedient. The Married Women's
Property Act of 1875 and statutes of state legislatures gave an
American wife control of her separate earnings. This
legislation broke up irreparably the older common-law doctrine
of the unity of husband and wife, a doctrine that had given the
husband control of his wife's property. American legal
reformers also sought to replace laws created by judges with
legislation in broad areas. The 19th-century jurist David
Dudley Field drafted a civil procedure code, a penal code, and
a criminal procedure code that were adopted by New York State
and widely copied elsewhere.
A Uniform Commercial Code has been adopted by every state
except Louisiana, which has a civil-law system reflecting its
French tradition. Although there are many differences between
English common law and American variations on it, the legal
system of the United States bears many important marks of the
common law. The professional language used by American lawyers
is understood in Great Britain. Printed reports of U.S. cases
show that courts have applied and still apply the doctrine of
precedent (Stare decisis) associated with common law.
Rules of equity supplement the common law in Great Britain, and
an action at law and equity is used in the United States. In
the United States, persons who fear that they may be deprived
of their rights will demand "due process of law" and an
observance of "the rule of law," principles essential to common
law, and juries are judges of the facts in important cases. The
United States thus remains one of the common-law countries.
TREATISES
Many lawyers of great learning, intellectual power, and
literary skill have written on the common law. Among these
writers three would probably appear in any short list of
treatises.
The first was Henry de Bracton (d. 1268), a royal judge who
served as a justice in eyre courts and in the court of King's
Bench. His book De legibus et consuetudinibus Angliae ("On the
Laws and Customs of England") was the first systematic
treatment of the common law. Bracton was strongly influenced by
ROMAN LAW, as shown by the structure though not the substance
of his treatise.
Thomas Littleton (c.1422-81), a well-known counsel,
sergeant-at- law, justice of assize in northern circuit, and
justice of Common Pleas, wrote a treatise, Tenures, the
earliest printed treatise on English law. It is a masterful
discussion of estates in land and is notable for its excellent
arrangement. Sir Edward Coke, himself a treatise writer, who
lived not quite two hundred years after Littleton, praised it
as "absolute perfection in its kind, and as free from error as
any book that I have known to be written of any human
learning."
Sir William BLACKSTONE wrote four volumes of legal Commentaries
(1765-69). Although historians do not accept all of
Blackstone's historical materials, he is universally admired
for the boldness and completeness of his design, which was to
present a general sketch of the whole of English law.
Blackstone's work is the classic treatment of the full
development of the common law. He translated the technical
professional language of his authorities into readable English
that faithfully presents the heart of the matter.