An essay in nine easy tablets
Some years ago, I wrote a book called ‘The Common Law, A History’. I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law. That in my view is worse than sad. This essay is not a précis of that book. It is an introduction written for the general reader. People at large should have an interest in the history that underlies and underwrites our way of life. It also represents the bare minimum of what law students should be taught. The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy. I will publish the essay by nine consecutive posts on this website. I hope you get some of the enjoyment in reading it that I got in writing it.
4 Forms of action (common law) and a release valve (equity)
Lawyers have a saying – hard cases make bad law. If you stretch the law to fix an unhappy problem at the edge, you may make the law worse – if for no other reason than that you are adding to it – and making it more complicated and harder to find and apply. But that is just how the common law developed – by applying a precedent to a similar case.
And you do not have to be a lawyer to understand that cases arise that fairly call out for the law to be extended to deal with them – in the interests of justice overall. So, for a long time the law hesitated before allowing someone other than the person who bought defective goods to sue them for damage suffered as a result of the negligence of the manufacturer. But what happens when someone gets badly hurt when the wheels fall off a Buick? Or when a lady is violently ill after partaking of a ginger beer bought for her by a friend – and the drink contained a decomposed snail? Every law student quickly learns that the modern law of negligence began with the developments made by these two decisions.
The law has doctrines to prevent people resiling from their stated position where that would be unfair to the other side. (They are called estoppel and waiver.) Many Australian sailors died or were injured as a result of a naval collision – a national tragedy. They sued the Commonwealth of Australia. Someone sued out of time can waive the right to plead the Statute of Limitations. The Commonwealth did so. Then it sought to amend its defence to plead the Statute. The case got to the High Court, and counsel for the Commonwealth knew they were in for a lacing. Which they got. The Commonwealth lost, but although they had no judge in their favor on the result, it looked as if it had a majority on each issue in its corner. You could hardly say that the law was improved by this ‘hard case’.
Most cases turn within a simple moral frame. You should not deliberately hurt another person. You should avoid hurting another by your carelessness. You should keep your promise. If you are in a position of trust, you owe higher obligations of integrity.
Most of the capital of the world ultimately depends on promises. You would therefore think that a great mercantile nation like England would have settled its law of contract before all others. It did not so until about the time of Napoleon. Merchants were largely left to their own devices. The main problems came from the preoccupation with the forms of action and the devices found by judges to escape them.
The great legal historian F W Maitland published lectures under the heading The Forms of Action at Common Law. It has I fear bedeviled students for more than a century. Which is a pity, because the author states the history with the clarity he was so famous for. The barest outline will do here.
We start with the notion that the law had to seek to put an end to the vendetta. There was a very basic criminal process. (At the start, the law did not distinguish between criminal and civil process.) From that process, we got the Writ of Trespass. Think of trespass as in the Lord’s Prayer or transgressio. It could be to the person or land or perhaps cattle or chattels. It was like our wrong or tort.
But the victim had to allege that the trespass was committed vi et armis – by force of arms – et contra pacem regis – against the King’s peace. This was fundamental – a private wrong had become a public crime, which it was the function of the king to put right – to preserve his peace – his first and paramount duty. But the technical arguments flowing from those limitations would vex litigants up to the nineteenth century.
There never was a writ (form of action) for contract or negligence or trust. Litigants had to finesse their way around writs of Account, Covenant or Debt. For trusts, they had to go to a completely separate court and body of law. Can you imagine the human cost?
Historians are not agreed about how new avenues of complaint were opened. A statute allowed Chancery clerks to issue a writ where the complaint was in consimile casu – in a similar case – as an existing writ. These were called ‘actions on the case’ – but when you think about it, that is how the common law had to develop.
Plaintiffs began to allege that the defendant undertook to do something – assumpsit. This opened the way to actions for failure to deliver on a bargain. After they began to allege a prior debt –indebitatus assumpsit – the action of contract was on foot. The doctrine of consideration – you have to earn the right to sue – emerged over the centuries. It can be tricky, but it is not as mystical as the Roman causa. Finally, after the wheels came off the Buick, and the lady threw up on the snail, the law of negligence had arrived. It had taken about 800 years. And if you think these actions had got tricky, those relating to land were even more dense – in large part because of the feudal inheritance.
A lot of this movement on the forensic carousel involved artifice – or fictions. To get around technical issues, the judges allowed plaintiffs to make allegations that could not be traversed. The wrong of conversion was for a long time called Trover (after the French trouver for ‘to find’.) The plaintiff alleged that he ‘casually lost’ goods, that the defendant ‘found’ them, and was now refusing to hand them back. And he would toss in a casual allegation of fraud – which is now verboten.
You do not have to be a lawyer to see that building deceit into the system will lead to serious problems in the witness box. And the ‘sporting theory’ of justice is not a theory at all. When the punters believe that they are part of a game that the lawyers are playing with them, for profit – we have all lost.
But an even more fundamental split or division opened up. Outsiders would call it schizophrenic. The Greeks understood that you would have to be mad to think that you could make laws to meet every contingency. But in the name of doctrinal purity, innocent people were getting badly hurt by the fraud of others or their own accidents; and the common law did not recognize trusts. And people were being denied a remedy by a pitiless, technical common law.
Such cases were downright unconscionable. Could the king, as the fountain of justice, or his senior minister, the Chancellor, answer these calls of conscience and provide a remedy to those denied relief at common law? Over time, the Chancellor developed a body of law in the Court of Chancery, a jurisprudence we know as Equity in an attempt to ease the pain left by the common law.
The Chancellor acted on the conscience of the defendant – in personam. He developed the subpoena and the process called discovery – when parties were compelled to produce documents or answer questions on oath – where to do so might cost them their case, and their tenderness would cause discomfort between them and their lawyers.
You will see immediately that they were much more inquisitorial than the common lawyers. Evidence was led in writing – which has always led to serial lying. And the equity judges were not brought back to earth by a jury. Instead, they adumbrated refined theories on ethics and legal personality. They became immured in worse delay and obfuscation than the system they were meant to relieve.
There were ugly turf wars. The equity crowd had trouble burying the notion that they looked like they felt morally and intellectually superior. They became victims of their own unreal subtlety. Lawyers generally know that they are in for it if the judge says that their argument is ‘subtle’, ‘nuanced’, or ‘ingenious.’
This has not been the case with the Whisperers – as some call them. Too many of them in our time were up to their eye-balls in appallingly convoluted and artificial tax schemes that disgraced the profession until first the judges and then the legislators got their act together. And I am not alone in thinking that their processes and leaning toward the inquisition have been the principal causes of the failings of our trial system.
By the time Dickens wrote novels like Bleak House, the appalling screams of the victims could no longer be ignored. A Victorian parliament ordered the two systems to ‘fuse’ – but the notion of fusion is an invitation to the dance for some in the colonies, who might remind us of the observation of Sir Lewis Namier that the United States was a refrigerator for ideas that had passed their use-by date in the old country.
So what? The common law is truly a thing of wonder. But there are two ineluctable truths. The most important person in the court is the loser. And at least one side in these contests has to lose. The common law was built on the blood and bones of the broke, the wounded, the mad, and the dead. We lawyers might have a Remembrance Day in honor of the millions of our losers.
Legal history – rule of law