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The Invisible Palace—Part 1 'Judge-Made' Law—Common Law and Equity

'The Common Law of England has been laboriously built about a mythical figure—the figure of "The Reasonable Man".' A. P. Herbert, Uncommon Law.

Who is the ordinary reasonable man? Lord Justice Bowen in 1903 famously described him as 'the man on the Clapham Omnibus'. Lord Justice Greer in 1933 pictured him as 'the man who takes magazines at home and in the evenings pushes the lawn mower in his shirt sleeves'. In 1940, Lord Chief Justice Goddard was less romantic: 'Searching for the reasonable man is like a blind man looking for a black hat in a dark room'.

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England is rich in castles and palaces and, if we were taken on a guided tour of some of the greatest, we would quickly discover that the fine buildings we see today were not all constructed at one time, but grew over the centuries as alterations were made to them. A visit to one of the most famous royal palaces, Windsor Castle, may help us to understand something about the foundations and development of our law.

Windsor Castle was built as a royal fortress by William the Conqueror towards the end of the eleventh century. The great round tower was built in the twelfth century in the reign of Henry II. Massive stone fortifications were added in the twelfth and thirteenth centuries. A chapel was built in the fourteenth century and then replaced, by the one we see today, in the early days of the Tudors. Important additions to the palace were made in the reign of the Stuart King Charles II, and the royal apartments were later rebuilt or restored many times under the direction of George III, George IV, and Queen Victoria.

Even now, following the great fire of 20 November 1992, much work has been done to restore and improve Windsor Castle. Historians know that literally dozens of major additions and alterations have been made over the years, but they have been carried out with such care and skill that anyone visiting Windsor today will see a magnificent and beautiful royal palace.

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The beginnings and the development of the law in this country have been very much like those of Windsor Castle. The importance of William the Conqueror, not only to our island history but also to the story of our legal system, is seen by the fact that some of the foundations of the law which we know today were being laid in the very days that William's workmen were laying the foundation stones of his castle at Windsor.

William was the Duke of Normandy, before he became King of England, and the great 'legal' foundation which he laid was an import from northern France, the Curia Regis (King's Court). This was not just a court of law, but a royal household. Its Council comprised the king and some of the most powerful men in the land. William used it as an instrument both to govern the country, and as a court for deciding disputes.

Just as Windsor Castle has been added to and improved over the centuries, so have a succession of kings and queens, governments and parliaments and judges, built up, added to, altered, and improved our laws. New courts have been built to provide justice in areas where justice was not available before. New ways were invented to enable people who had been harmed to commence legal actions (proceedings)—to bring their grievances before the courts and have them remedied.

This too has been done with such care and skill that our laws have been adapted and used as the foundations of the laws of many other nations. As some of these countries were once part of the British Empire, this is hardly surprising; but the fact is that today the legal systems of countries as far apart as Canada, Australia, Hong Kong, Israel, and Kenya draw on our system of laws. In the USA, English law is the basis of the law in every state except Louisiana (where the civil law, like that of France and many other European nations, is based upon Roman Law).

The supreme law-making body in this country is Parliament, and this has been so for centuries. Parliament passes laws in the form of Acts of Parliament, which are known as statutes. The law created by Parliament is known as statute law. Whenever there is any question about the meaning of a law passed by Parliament it is for the judges in the courts to decide what the true meaning is—that is, to interpret it.

During the nineteenth and twentieth centuries Parliament passed a vast number of statute laws, and its law making, both in volume and importance, has greatly exceeded that of the courts. Nevertheless, judges play an essential part in the lives of individual citizens—presiding over cases of those accused of crime, deciding disputes between citizen and citizen and disputes between citizens and the State. We have a system of law in which those very decisions—at least the most important ones decided by the senior courts-have for hundreds of years been recorded in law reports. These reports first

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appeared in what were called Year Books. Some of these were at one time criticised for inaccuracies (see Chapter 11), although they were mostly written with great care. There are now dozens of different publications containing detailed reports of leading cases in all areas of the law. Each report begins with a 'headnote', which provides an expert summary of the facts and the court's decision. This summary is followed by the exact words of the judgments given by the judges. Edited by qualified lawyers, their accuracy is confirmed or 'approved' by the judges themselves. The principles of law as stated in these cases must normally be accepted and followed by the next court which has a similar case.

Many thousands of cases have come before the courts, and the decisions of the judges, like the individual stones of a palace—case by case, year by year-have added to the gradual build-up of the law. In this way, over the years and running alongside the laws passed by Parliament, a great body of law, known as judge-made law, has been developed. It is not possible to see it, as we can see a royal palace such as Windsor, or indeed the Palace of Westminster, where Parliament passes its laws. It is an Invisible Palace, but still it exists—and it plays a vitally important part in the life of our nation.

Another and equally crucial part of our national life is the way in which the country itself is governed. This may not be widely known, but here also the courts play an essential role. Our country is governed according to the rules of our constitution. This too cannot be seen, for unlike many other countries, we do not have a written constitution that we can take out and study (although we do now have an important statement of our 'human rights'). If our Invisible Palace has a throne room, the constitution is it, and as we shall see, the judges may be called upon, and counted upon, to protect it should the need arise.

We will be looking in Chapter 5 at Parliament, our chief law-making body, and the way in which it passes new laws. In this and the next chapter we will concentrate upon our system of judge-made law, and the constitution. Judge-made law has over the centuries been divided into two main types: common law and equity. In this chapter we will examine something of the beginnings and nature of each of them.

THE COMMON LAW

In very early times—before King Alfred the Great (reigned 871-99)—there was no system of justice that applied to the whole of the country. It was not ruled by a single monarch. The population was small. There was no transportation as we know it today and communications were available to the few. Most

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people never travelled more than a few miles from their homes, and only a tiny number could read and write. There were no law books. It was not possible for the whole country to be ruled according to a single set of laws. Nevertheless, despite the limitations of the time, the Anglo-Saxons created the Kingdom of England and its counties (or shires) headed by sheriffs.

When William the Conqueror invaded England in 1066, he took over the most efficiently governed kingdom in Europe, but he soon grasped the need to reinforce its system of central or national government. This meant trying to provide some central system of justice over which the king had control, for William understood that it was only by making laws which had to be obeyed and could be enforced throughout the land that he could exercise real power and control over all his subjects.

For centuries English monarchs had governed the outer reaches of their kingdoms through sheriffs and their officials, but to secure their authority they would have to travel, or 'progress' through the country, taking their court and courtiers with them. When William's court progressed, he and the most powerful courtiers attached to his Curia Regis would listen to those who came to him with their 'grievances'—their complaints or accusations—and they would give judgment. Almost all the main courts we have today can be traced back to William's Curia Regis.

The king would literally sit on a bench to hear cases in his own court. This is why one of the most important courts became known as the Court of King's Bench; but not every monarch made a good judge, or for that matter was particularly interested in his system of justice. In the years that followed, kings delegated their work in the courts to others. They and their advisers in the King's Council set up royal courts, appointing men who became known as judges to sit in them, and leaving it to them to decide many cases which they might previously have tried themselves.

King Henry II (reigned 1154-89) was particularly interested in law and order, and played an outstanding part in the development of the legal system. He understood to a greater extent than his predecessors that a single system of justice for the whole land under the control of the king would not only help to unify the country, but give him great power. He studied how best to achieve this.

Henry set the foundations of 'professional' judges, members of the clergy or laymen Teamed in the law' upon whom he could depend to uphold his laws. There were then 18 judges in the country. He ordered five of them to remain in London and take over from him the task of deciding cases. This resulted in the creation of the King's Bench of judges, who sat at Westminster.

In 1166 Henry issued a Declaration at the Assize of Clarendon (an assize was an early form of King's Council; it later became a 'sitting' or session of the

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court) that the remaining judges should be sent out on circuits to travel different parts of the country. When they did so they had to apply the laws that had been made by the judges at Westminster. In this way many local customary laws were replaced by new national laws. As these national laws would apply to everyone, they would be 'common to all'. These laws therefore became known as the common law.

Henry II himself fell foul of the law. He was accused of ordering the death of his Archbishop of Canterbury, Thomas Becket. The murder of Becket in Canterbury Cathedral by four of Henry's knights made him very unpopular, and in an effort to make amends, and avoid a rebellion, Henry accepted the punishment of a public whipping—perhaps one of the first very dramatic illustrations of the principle that even kings are not above the law.

Henry died on 6 July 1189, and was succeeded soon afterwards by Richard I 'the Lionheart'. 1189 is a date is of some legal interest, for it is the origin of the phrase 'from time immemorial*. This is because in the reign of Edward I (1272-1307) Parliament decided that 'legal memory' should run from the date of Henry's death, and the courts would take no account of any legal transactions which had taken place before it. With the passage of time this was also taken to mean that the courts would not recognise any laws made before 1189.

The system which developed, of judges sitting in London and also travelling the country, became known as the 'Assize system'. It survived in that form for 800 years—until 1971. Although the present 'Circuit system' may have a different name, to this day High Court judges still sit in London for part of the year and then travel the country to hear cases in much the same way as they have done for centuries.

Although judges, when travelling on Assize, would wherever possible put into force the same laws as were being applied at Westminster, they would not altogether ignore the customs of the region. They would learn from them, and if they approved of them they would be prepared to accept them as the law, sometimes even carrying them on to other parts of the country, and back to Westminster itself. The judges sitting in London held their courts in Westminster Hall. In his book Westminster Hall Dorian Gerhold says: 'The English legal system, and thus also the related legal systems of the United States and many other countries, was largely developed in Westminster Hall, and for almost seven centuries the Hall was the centre of that system.'

The Norman and Plantagenet kings spanned the period 1066-1399. During this time three separate Royal Courts grew out of the Curia Regis. They dealt with cases involving the royal revenue and the collection of taxes (Court of the Exchequer), criminal and civil cases in which the king was concerned (Court of King's Bench), and cases which concerned disputes between private

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individuals (Court of Common Pleas). In addition to these three main courts, yet more courts were created to deal with many other aspects of local life, and courts of one kind or another gradually became a focal point in the everyday lives of most citizens. In his Social History of England the historian Alan Harding refers to the use to which courts came to be put in binding together the affairs of the nation: 'The medieval constitution might be described as a network of courts. Everyone had to attend some court regularly... England was in effect a conglomeration of "countries", held together by its legal system/

The courts of the Exchequer, King's Bench, and Common Pleas kept their names and continued to hear cases for many centuries—until 1873. (We still have a division of the High Court which, in the reign of a queen, is called the Queen's Bench Division.) Each court was based at Westminster. King's Bench and Common Pleas occupied a part of the Great Hall, with Exchequer in an adjoining building. So we must picture courts sitting at the same time in different parts of the Hall. King Richard II rebuilt Westminster Hall in its present form at the end of the fourteenth century. The scene of many famous trials, including that of King Charles I, it was the chief law court of England for well over 600 years, from the reign of Henry II until the opening of the Royal Courts of Justice in 1882.

Westminster Hall

Dating from the reign of William Rufus (1087-1100), son of William the Conqueror, Westminster Hall still stands today. In 1999 a ceremony was held in the Hall to celebrate nine hundred years of its continuous use.

Originally, the Hall was designed as a place for feasting and entertaining. It then became the site of the 'Royal Council' of bishops, nobles and ministers —later known as Parliament. In 1265 the first true English parliament to include elected representatives was summoned there by Simon de Montfort. Parliament did not meet in the Hall on a regular basis, but at that time it was the largest Hall in Europe, and this helped to make it the judicial and administrative centre of the kingdom.

Later, the Hall housed the courts of law, and was the site of many notable state trials including those of Thomas More, Charles I, the Gunpowder Plot conspirators and Warren Hastings. With its shops and stalls, selling wigs, pens, books and other legal paraphernalia, it became the centre of London legal life.

The Hall, which is open to the public, is now used for major public ceremonies —such as the presentation in 1977 of Addresses to the Queen on the occasion of her Silver Jubilee, the opening of the Commonwealth Parliamentary Conference in 1986 and a commemoration in 1995 to mark 50 years since the end of World War II. It is also the place of the lying in state of monarchs, consorts and (more rarely) distinguished statesmen. Sir Winston Churchill, whose 80th birthday had been celebrated in the Hall, lay in state there when he died in 1965; and in April 2002 many thousands queued to pay their respects, following the death of Queen Elizabeth, the Queen Mother.

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The common law, originally based upon the common customs of town and country and gradually developed over the centuries, has become one of the most prized features of our national way of life. Many of our most famous judges have been known as 'great common lawyers', committed to the advancement of our laws and the rule of law. The common law has been aptly described as 'The common-sense of the community, crystallised and formulated by our forefathers'. This is because, as we shall see, many of our laws have been based upon what the courts would expect the 'reasonable' man to do and think in certain situations.

THE REASONABLE MAN

The common law is still very much part of our law. It is applied in courts throughout the country. In many instances, when developing the law and deciding cases, in particular in the civil law, judges have tested the behaviour of the people whose cases they were trying against the standards of what might be expected of an 'ordinary, reasonable' person faced with similar circumstances. In Chapter 12 we will see examples of this in both the civil and the criminal law.

In Uncommon Law, a parody of the law and legal system written in 1935, A. P. Herbert puts the following words into the mouth of a fictional judge:

The Common Law of England has been laboriously built about a mythical figure—the figure of 'The Reasonable Man'. He is an ideal, a standard, the embodiment of all those qualities we demand of the good citizen. No matter what particular department of human life which falls to be considered in these courts, sooner or later we have to face the question: Was this or was it not the conduct of a reasonable man?

In considering how this test should be applied in any particular case, the courts are prepared to hear evidence so that they might better understand all the problems involved. They do not expect standards of conduct that are unreasonably high; nor have they allowed people to be judged by standards that are unreasonably low. Their ideas of reasonableness may be based upon 'common sense'; but it is not common sense simply because it is the individual judge's impression of what is right; it is common sense that makes sense, and is reasonable because it has survived the test of thorough argument, and has the force of reason. This is why the common law has a reputation for sound common sense and justice.

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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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became a rival to the common law courts. No one knows precisely when it first came into being, but it was well established by the time of Henry VIII— and it too came to occupy a space in Westminster Hall. There is a touching account of Sir Thomas More, upon his appointment by Henry as Lord Chancellor, on his way to his Court of Chancery, stopping to pay his respects to his aged father, Sir John More, who was also sitting in the Hall as a King's Bench judge. According to Sir Thomas's son-in-law, this he did by 'reverently kneelinge downe in the sight of them all duely aske his father's blessinge'.

The essential principle by which the Court of Chancery acted was that everyone should receive fairness and justice. There were three important conditions that a person seeking justice from the Court of Chancery had to meet:

• He had to show that he could not receive justice in the common law courts.

• He had to show that he was himself without blame. This was called 'coming to court with clean hands'.

• He had to show that he had not delayed in bringing his case before the court.

If he was able to do these things, and to satisfy the court that he had suffered as a result of some wrongdoing by another person, the court would give him a remedy, meaning that it would devise some way to ensure that if possible something was done to put right the wrong that had been done to him. In this way, to use an expression well known to lawyers, it was able to 'redress his grievance'. This example may help to illustrate how the Common Law courts and the Court of Chancery could differ:

• If two people made an agreement (a contract)—one (the seller) to sell a house and the other (the purchaser) to buy it, and the seller broke his side of the bargain and refused to sell, the common law courts would grant the purchaser a sum of money to compensate him for the harm done or inconvenience he had suffered.

In these circumstances, however, money might not be enough. After all, on the promise of a house sale the purchaser might have sold his own house and made many plans. The Court of Chancery assumed the power to order the guilty party (the seller) to keep his side of the bargain fully. He would be made to keep his side of the contract, sell the house, and allow the purchaser to move into it.

The first and most influential of the new courts added to the 'Invisible Palace' was the Court of Chancery, but it was by no means the only one. Several other