The Invisible palace —part I 'judge-made' law

EQUITY

We have learned that with the passage of time new courts were added to our system of justice, to provide justice where the ancient royal courts had failed. 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. In his book England under the Tudors, the distinguished historian G. R. Elton writes:

The common law is certainly one of the glories of England, and it was perhaps the chief legacy of the Middle Ages. But by the late fifteenth century the courts were in a bad way... The procedure of the common law courts was slow, highly technical and very expensive: a trivial mistake in pleading [setting out the case] could lose a good cause, and a good lawyer could drive a coach and four through the law by exploiting technicalities.

Another serious problem was that the use of juries became widespread, even in civil cases, and juries could be intimidated, bribed, and 'packed' (filled with the friends of one of the parties).

How could people obtain justice, if not in the common law courts? The answer seems almost to echo the beginnings of the common law courts. 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 appeal to or petition the king to 'redress their grievances'. This meant pleading with him directly to hear their complaints and provide a remedy for them. 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.

Because the Lord Chancellor decided petitions addressed to the king, he became known as the 'Keeper of the King's Conscience'; and because there were so many petitions, he came to preside over his own court. It was called the Court of Chancery. The Chancellor did not try criminal cases. He dealt only with civil disputes concerning, for example, matters of property and breaches of contract. He set out to do justice in these cases where the parties (people involved in a case) were able to show that the common law courts were not able or prepared to do justice. The law that was applied in the Court of Chancery was known as equity, a word meaning even-handedness and fairness.

Eventually, the work of the Court of Chancery grew to the point where it

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