Collins Dictionary of British History

TASK V a) Fill in the gaps with the following verbs:

granted, administered, held, emerged, observed, dispensed, enforced, refused, decided

1. Despite its early popularity, equity as … in the Chancery was subject to criticism. 2. Its initial flexibility led to uncertainty in the seventeenth century, and the jurist John Seldon … that “Equity varies with the length of the Chancellor`s foot”. Whatever the demerits of the common law, it was possible to estimate a probable verdict by considering similar cases already and the statutes. 3. Equity, which was … as a matter of conscience, was unpredictable and the relief … by one Chancellor, might be … by his successor. Between flexibility and certainty there is much tension. Flexibility was advantageous because it gave relief from the rigidity of law, but could be disadvantageous if it led to uncertainty and hardship.

4. Eventually equity … from vagueness and conscience and became formalized. Lord Nottingham (Lord Chancellor in 1673-1682) … that equity should be … where possible in accordance with known principles and not by arbitrary discretion. Only where there was no precedent or where there was conflict in the rules or principles should conscience settle the matter.

5. Nottingham`s work was carried on by others, in particular Lord Hardwicke (Lord Chancellor in 1736- 1756) who … that a judge exercising equity jurisdiction should follow existing principles. With the adoption of the system of precedent, equity became predictable and intelligible.

b) Explain why equity was often subject to criticism and what was done to do away with its flaws.

TASK VI Comment on the statement:

Justice is truth in action.

Benjamin Disraeli (1804-1881)

The following issues will help you to answer the exam question HISTORY AND SOURCES OF ENGLISH LAW and to write your essay:

1. The main sources of English law

2. Historical development of Common law

3. Historical justification of Equity Law.

4. English law is judge-made law.

5. Advantages and disadvantages of case law

UNIT II

CONSTITUTION

TEXT 1 THE DEVELOPMENT OF THE UK CONSTITUTION

The modern UK constitution is usually regarded as dating from the “Glorious Revolution” of 1688. However, its main principles and institutions can be traced to medieval times or even earlier. In 1688 James II, the last monarch to claim to be superior to Parliament, having previously dissolved Parliament, fled the country, throwing the Great Seal into the Thames on his way. He was replaced by William of Orange and his wife Mary who were invited by a self-appointed group of anti-Catholic politicians to reign subject to the overriding power of Parliament. Mary was the daughter of James II, so that continuity was preserved. However James also had a son - a Catholic - who was his lawful heir. Principles which had been fought over earlier in the century were enshrined in the Bill of Rights 1689. These prohibit the monarch from exercising key powers without the consent of Parliament, such as the power to tax, the power to keep a standing army in peacetime, and the power to override legislation. It was generally accepted that ultimate legal power should be with Parliament thus laying the foundations of the modern representative democracy. Church and state were also linked by requiring the monarch to be a Protestant.

In 1688 Parliament was not a democratic body in the modern sense. The House of Commons was largely made up of landowners and professional people elected by their own kind, it but at least embodied the principle that ultimate power should lie in the hands of a representative body, a principle that applies only in a minority of countries even today. The basic legal framework laid down in 1688 remains today, but its political content, and particularly the political balance between its main elements, Crown, House of Lords, and House of Commons, has changed radically.

The self-appointed group that invited William and Mary to reign had no legal authority whatsoever under the previous constitution. It included former members of Parliament and other leading citizens. William and Mary's invitation was backed up by the presence of the Dutch Navy off the coast. Thus 1688 marked a complete break in the constitution. On the other hand in political terms the 1688 constitution was a relatively conservative affair. This is perhaps one reason why there is still no written constitution.

Events earlier in the seventeenth century are relevant here. A series of quarrels between kings (James I and Charles I) and Parliament turning upon religion and the kings' claim to raise taxes independently of Parliament, reached a compromise solution in 1641. This lasted less than a year, and the Civil War of 1642-8 temporarily dismantled the constitution. From the end of the Civil War until the accession of Charles II (1649-60), England and Wales were governed essentially as a military dictatorship. During this period Oliver Cromwell created a written constitution – “the Instrument of Government” - which was effective only for a few years. By 1660 it became clear that chaos could best be avoided by restoring the old traditional constitution. Cromwell's constitution was expunged from the official records and Charles II and James II ruled on the basis of inheritance from Charles I and of the 1641 compromise, thus illustrating that 'legality' depends on your perspective. This uneasy stalemate was broken when James began to assert what the Protestant establishment regarded as similar notions of absolute monarchy to those that had cost Charles I his head.

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