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

new courts appeared, and in some cases later disappeared. These included another court of equity, the Court of Requests, a younger sister for the Court of Chancery.

The Court of Requests—'The court for Poor Men's Causes'

For many years the Court of Chancery had a good reputation for delivering justice, but as its popularity grew it could not cope with the volume of petitions presented to it. A second 'court of conscience' was created. Known as the Court of Requests, its judges were men trained in the civil law—bishops, doctors of law, and almoners.

This court was established to provide justice to those who were too poor to have their cases heard in the other courts. By the 1530s the Court of Requests was extremely busy. Known as 'The court for poor men's causes', it operated on similar lines to the Court of Chancery. In 1580 the Elizabethan, William Lambarde, wrote, 'In that the Court of Requests handleth causes that desireth moderation of the rigour which the common law denounceth, it doth plainly participate in the nature of the Chancery.

The Court of Requests came under mighty attack from the common law courts, jealous of its success, for it attracted much business away from the common lawyers working in the Court of Common Pleas. They cast doubt on the validity of its judgments. In 1599 the Court of Common Pleas declared that 'Requests has no power of judicature* (no power to make judgments which the parties must obey). In 1606 Sir Edward Coke, when Chief Justice in the Court of King's Bench, refused to convict of perjury a man who had lied on oath in the Court of Requests, on the ground that it was 'not a court'.

In these ways, people who had been ordered by the Court of Requests to redress some grievance were encouraged to claim that as they had not been tried in a proper court they were free to disobey its orders. The judges in the Court of Requests were not men of great influence. They did not have the authority to fight off these attacks. Its work gradually diminished, and by 1643 it had ceased to exist.

As the years went by the Court of Chancery (now the Chancery Division of the High Court) tended to specialise in certain areas of the law. In Chapter 11 we will see the main types of work done by the different courts. The work of the Chancery Division is now confined mainly to cases of company law, partnership, conveyancing (transfer of land and buildings), wills and probate (administration of the property of persons who have died), patent and copyright law, and revenue (taxation). As we will see in Chapter 12, another important aspect of Chancery work is the administration of trusts.

There were, however, serious problems with the old Court of Chancery too—the reverse side of the legal coin. In contrast with the common law courts, where judges were obliged to follow the decisions of their predecessors, the Lord Chancellors in their Court of Chancery were free to do as they thought right in each individual case. This depended entirely on their own personal ideas of justice—their own 'consciences'. This meant that although

lawyers who had to advise people of their rights at least knew what the common law courts were likely to do in a particular situation, it was much more difficult to predict what the Lord Chancellor would do in his court. In the Court of Chancery the law had no certainty, and lawyers therefore felt unable to advise their clients properly. This is why it was said with scorn that decisions of the Court of Chancery 'varied according to the length of the Chancellor's foot. The historian and jurist John Selden (1584-1654) in his remarkable book Table Talk wrote: 'Equity is a roguish thing. For law [common law] we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor and as that is larger or narrower so is equity/

There developed another and even greater problem. Despite its good intentions and early popularity, as the work of the Court of Chancery grew, it earned a bad reputation for expense and delay. This became critical during the long period in office of one Lord Chancellor, Lord Eldon, who was Chancellor from 1801 to 1827. For many years, both as a politician and judge, Eldon opposed law reform and religious liberty. He was a slow and ponderous judge, and he hated the jibe about the Chancellor's foot.

Under Eldon's influence the Court of Chancery, like the common law courts, did have to regard, and follow, its previous decisions. Its work became increasingly formalised, or, as we would now say, bound up in 'red tape'. Cases became bogged down in interminable delays. In 1823 the House of Commons debated delays in this court. When Lord Eldon was asked why he had not yet given judgment in a case which he had heard in 1817, he admitted that he had 'entirely forgotten it. (One hundred and eighty years later, in 1998, a judge of the Chancery Division resigned following severe criticism by the Court of Appeal that he had kept the parties waiting 20 months for a judgment.)

• The failures of the old Court of Chancery were savagely satirised by Charles Dickens in his novel Bleak House. There he relates the case of Jarndyce v Jarndyce. This was a probate action (in which the parties were arguing about their rights to property left in a will). It lasted so long and was so expensive that eventually all the property, which had been left in the will, was spent on paying the lawyers' fees. Describing the progress of the case, Dickens said: 'Equity sends questions to Law [the common law courts], Law sends questions back to Equity; Law finds it can't do this, Equity finds it can't do that; neither can so much as say it can't do anything, without a solicitor instructing and this counsel appearing'. He ends a tirade of abuse against the Court of Chancery with the words: 'Suffer any wrong that can be done to you, rather than come here'.

• There is a hold in wrestling—it is called 'a Chancery', and it means getting your opponent's head locked under your arm. This expression stems from the days of the

0 • THE INVISIBLE PALACE —PART I 'JUDGE-MADE' LAW

bare-fisted fights, when it was said that once a man got his case into the 'Chancery' court, the lawyers had him in a stranglehold and could pummel him for as long as they liked, and he would not be able to get free.

In 1873, the Judicature Act 'merged' common law and equity, and although one of the divisions of the High Court is still called the Chancery Division, since that time all the courts have been permitted to administer both, parliament decreed that where there was a conflict between the common law and the laws of equity, equity should be supreme.

We now have a system of laws, whether common law or equity, in which cases decided by judges have been handed down from generation to generation. They are laws which relate to many different aspects of our lives. Judges have usually (but not always) respected and followed the decisions of their brethren'—a term used for their fellow judges (we would now say 'sisters' and 'brothers'). In particular, where legal rulings (decisions) have been made by the highest courts in the land, as we will see in Chapter 11, they must be accepted and followed by the lower courts. Only Parliament can change these laws.

Our judge-made laws are one of our national treasures. The efficiency and popularity of the common law courts and the courts of equity may have varied from century to century, and we should not become too starry-eyed about our judges, some of whom, by modern standards, exhibited a terrifying insensitivity to human suffering, and made few concessions to changing times. Nevertheless, over the years the judges in our courts have handed down many remarkable judgments, examples of independent and careful thinking, which have led to much important social change. The result is that our legal history is paved with landmark cases in which judges of the common law courts in particular, now revered as 'great common lawyers', have recognised and advanced the causes of freedom.

In the course of this book we will come across some notable cases of judge-made law. One is Bushell's Case (Chapter 15). Heard in 1670, it decided once and for all that a jury could return any verdict it believed to be right. Almost exactly one hundred years later another great case put an end to slavery in this country. This was the case of James Somerset:

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