DOCSLIB.ORG

Equity: System Or Process?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Equity: System Or Process? The Catholic Lawyer Volume 3 Number 1 Volume 3, January 1957, Number 1 Article 10 Equity: System or Process? Philip A. Ryan Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons This Reprint is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. The place of Equity in modern procedure and in the curriculum in present day law schools will be discussed in a series of three articles, of which this is the first. EQUITY: SYSTEM OR PROCESS?* PHILIP A. RYANt T HE NATURE OF EQUITY has troubled legal scholars for many years. It has been viewed as a closed but flexible department of our juris- prudence, and it has been equated with procedure. No matter what the framework of discussion, however, everyone recognizes a value, intangible and compelling, which surpasses strict legal rules. This consensus on the value but disagreement on the nature of Equity invites the effort to obtain a satisfactory personal insight. As pointed out by Professor Chafee, "Equity is a way of looking at the administration of justice."' It is also true that there are different ways - at least three - of looking at Equity. Each may be necessary and useful, depending on the problem to be solved. But distinction and differentiation are important if we are to use the right tools for the right problems. The first and traditional view is that "Equity is that body of rules which is administered only by those courts which are known as courts of Equity."' 2 This is only partially true historically,3 and the truth that is in the statement does not go beyond giving us a catalog of such rules as are found in numerous texts and treatises and collections of cases. In this view, Equity is a "department" or an "established branch of our American *Reprinted, with permission, from 45 GEORGETOWN LAW JOURNAL 213 (1956-1957). tB.A., Georgetown University (1941); LL.B., Harvard Law School (1948); Pro- fessor of Law, Georgetown University Law Center. 1 SELECTED ESSAYS ON EQUITY iii (Re ed. 1955) (hereinafter cited as Re); see also Stevens, A Brief on Behalf of a Course in Equity, 8 J. LEGAL ED. 422 (1956), wherein are discussed the "equitable attitude" and "the equitable way of dealing with a case." 2 MAITLAND, EQUITY 1 (Brunyate ed. 1936), quoted in Glenn and Redden, Equity: A Visit to the Founding Fathers,in Re 12, 15. 3 See Adams, The Origin of English Equity, in Re 1; Keigwin, The Origin of Equity, 18 GEO. L. J. 15 (1929); Spence, The History of the Court of Chancery, in 2 SELECT ESSAYS ON ANGLO-AMERICAN LEGAL HISTORY 219 (1908). 3 CATHOLIC LAWYER, JANUARY, 1957 as well as of the English jurisprudence. ' '4 As Pomeroy and others have reiterated, It is in every sense of the word a "system" this system of principles is flexible enough to which "it is impossible that any new gen- to meet the needs of the times. As it is eral principles should be added. ."5 It is handed down to us, however, it may need thought that to go further would turn the elucidation, and the judges may need prod- Chancellor into a legislator - which indeed ding to use to the fullest its marvelous adap- he once was - contrary to the spirit of the tability. Old principles may need explana- times and the constitutional separation of tion, and, upon occasion, a long-accepted powers.6 However, the principles embraced principle may turn out to be in conflict with in the system are said to possess "an inherent another principle of the system. This eluci- capacity of expansion, so as to keep abreast dation and prodding generally come from of each succeeding generation and age." 7 those steeped in the "system" in the best This view necessarily limits the capacity of sense of the word. Witness Pound's mas- Equity, as a tool for a more perfect admin- terful analysis' 0 of the dictum of Gee v. istration of justice, to the inherent potency Pritchard" that Equity would protect only of the general principles already encom- property rights, and his arguments against passed within the "system." 8 It remains to this maxim as an absolute. Some years later be seen whether that is all the potency we we find the matter being clarified in a case need. in the District of Columbia in which Judge But leaving aside for the moment the Edgerton stated: validity of this view, it nevertheless gives us The doctrine that equity jurisdiction is a useful tool for determining such an issue limited to the protection of property rights conflicts with the familiar principle as the right to jury trial. To quote Professor that equity may give preventive relief when the Chafee: "There is only one genuine reason legal remedy of money damages, if available today for distinguishing an action at law at all, is inadequate to redress a wrong.12 from a suit in equity - the constitutional In brief, the view that Equity is a closed right to jury trial in civil cases."9 system with an inherent capacity for flexible adaptation to new needs is productive of 4 1 POMEROY, EQUITY JURISPRUDENCE § 46 (5th ed. 1941). fruitful results in limited areas. The difficulty 5 lid. § 60. remains whether such a view is adequate in 6 Cf. 1 id. § 35; 1 STORY, EQUITY JURISPRUDENCE a time when it may be said that "legislators § 19 (14thed. 1918). 7 1 POMEROY, EQUITY JURISPRUDENCE § 67 (5th are properly preoccupied with public affairs; ed. 1941). they have little time to spend on curing de- s Ibid.: fects in private law."13 Its great underlying principles, which are the constant source, the never-failing roots, of its par- A second way of looking at Equity in- ticular rules, are unquestionably principles of volves us directly in the classical jurispru- right, justice, and morality, so far as the same can dential debate between Langdell-Ames- become the elements of a positive human juris- prudence; and these principles, being once incor- Maitland and Spence-Pomeroy-Hohfeld on porated into the system, and being essentially un- 10 Pound, Equitable Relief Against Defamation limited, have communicated their own vitality and and Injuries to Personality,in Re 364. power of adaptation to the entire branch of the 11 2 Swanst. 402, 36 Eng. Rep. 670 (Ch. 1818). national jurisprudence of which they are, so to 12 Berrien v. Pollitzer, 83 U.S. App. D.C. 23, 24, speak, the substructure. 165 F.2d 21, 22 (1947). 9 Re iv. 1- Re iv (Foreword by Chafee). EQUITY whether Equity did or did not conflict with cannot be ignored .... If a party can allege and then recover upon the common law. 14 With the fusion of law one cause of action another, his complaint would serve no use- theoretical de- 16 and Equity, this seemingly ful purpose."' bate has become important for the practic- This argument "seems to be based . on ing lawyer. an idea that under the code we still have Should a complaint under a code-merger 'courts of law' and 'courts of equity.' 17 system of pleading be dismissed if the theory This, of course, is not true under a merged -of the complaint is an equitable action for system, and the decision seems to stem from partnership accounting which fails of proof the Langdell view that equitable rights are at trial, but the facts proved show a hiring a fiction. If this is true, no legal cause of and agreement to pay for services? In action being stated, there was nothing for 5 Jackson v. Strong,1 the court dismissed the the judicial powers to operate upon, regard- complaint: less of what was proved. The inherent and fundamental differences Certainly there are differences between between actions at law and suits in equity law and Equity as historically developed. As 14 The substance of this debate is best derived pointed out, we must know these differences from the words of the debaters themselves. Lang- as our society preserves the right to dell: as long Shutting our eyes then to the fact that equitable jury trial in legal actions. But is there a con- rights are a fiction, and assuming them to have an flict between the two? Long ago in the great actual existence, what is their nature, what is their quarrel between Coke and Ellesmere it was extent, and what is the field which they occupy? 1. They must not violate the law. 2. They must thought that there was, and Equity emerged follow the analogy of one or more classes of legal as the superior system.' But in later times rights. 3. There is no exclusive field for them to legal semanticists have said that there was occupy; for the entire field is occupied by legal rights. Legal and equitable rights must, therefore, no such conflict and that "legal and equit- exist side by side, and the latter cannot interfere able rights must, therefore, exist side by with, or in any manner affect, the former. Lang- side, and the latter cannot interfere with, or dell, Classification of Rights and Wrongs, 13 in any manner affect, the former."' 9 Others, HARV. L. REV. 659, 673 (1900); quoted in Cook, Equitable Defenses, in Re 38, 40, n.8. looking at our jurisprudence as a whole and Hohfeld: relying on the principle of contradiction, []n case of conflict, as distinguished from con- that we have one system made up currence, a jural relation is finally determined' by have said the equitable rule rather than by the legal.
Load more

Recommended publications
  • The Supreme Court and the New Equity
    Vanderbilt Law Review Volume 68 | Issue 4 Article 1 5-2015 The uprS eme Court and the New Equity Samuel L. Bray Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Supreme Court of the United States Commons Recommended Citation Samuel L. Bray, The uS preme Court and the New Equity, 68 Vanderbilt Law Review 997 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol68/iss4/1 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW VOLUME 68 MAY 2015 NUMBER 4 ARTICLES The Supreme Court and the New Equity Samuel L. Bray* The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprisinghas happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted directly contrary to this conventional wisdom. These cases range across many areas of substantive law-from commercial contracts and employee benefits to habeas and immigration, from patents and copyright to environmental law and national security. Throughout these disparate areas, the Court has consistently reinforced the line between legal and equitable remedies, and it has treated equitable remedies as having distinctive powers and limitations. This Article describes and begins to evaluate the Court's new equity cases.
    [Show full text]
  • The Restitution Revival and the Ghosts of Equity
    The Restitution Revival and the Ghosts of Equity Caprice L. Roberts∗ Abstract A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases for "suits at common law" satisfying specified dollar amounts. Restitution originated in law, equity, and sometimes both. The Restatement notably attempts to untangle restitution from the law-equity labels, as well as natural justice roots. It explicitly eschews equity’s irreparable injury prerequisite, which historically commanded that no equitable remedy would lie if an adequate legal remedy existed. Can restitution law resist hearing equity’s call from the grave? Will it avoid the pitfalls of the Supreme Court’s recent injunction cases that return to historical, equitable principles and reanimate equity’s irreparable injury rule? Losing anachronistic, procedural remedy barriers is welcome, but ∗ Professor of Law, West Virginia University College of Law; Visiting Professor of Law, The Catholic University of America Columbus School of Law. Washington & Lee University School of Law, J.D.; Rhodes College, B.A. Sincere thanks to Catholic University for supporting this research and to the following conferences for opportunities to present this work: the American Association of Law Schools, the Sixth Annual International Conference on Contracts at Stetson University College of Law, and the Restitution Rollout Symposium at Washington and Lee University School of Law.
    [Show full text]
  • Equity in the American Courts and in the World Court: Does the End Justify the Means?
    EQUITY IN THE AMERICAN COURTS AND IN THE WORLD COURT: DOES THE END JUSTIFY THE MEANS? I. INTRODUCTION Equity, as a legal concept, has enjoyed sustained acceptance by lawyers throughout history. It has been present in the law of ancient civilizations' and continues to exist in modem legal systems.2 But equity is no longer a concept confined exclusively to local or national adjudication. Today, equity shows itself to be a vital part of international law.' The International Court of Justice--"the most visible, and perhaps hegemonic, tribunal in the sphere of public international law" 4-has made a significant contribution to the delimitation,5 development of equity. Particularly in cases involving maritime 6 equity has frequently been applied by the Court to adjudicate disputes. Equity is prominent in national legal systems and has become increas- ingly important in international law. It is useful, perhaps essential, for the international lawyer to have a proper understanding of it. Yet the meaning of equity remains elusive. "A lawyer asked to define 'equity' will not have an easy time of it; the defimition of equity, let alone the term's application in the field of international law, is notoriously uncertain, though its use is rife."7 Through a comparative analysis, this note seeks to provide a more precise understanding of the legal concept of equity as it relates to two distinct systems oflaw: the American and the international. To compare the equity administered by the American courts with that administered by the World Court, this note 1. See sources cited infra notes 10, 22.
    [Show full text]
  • The Federal Equity Power
    Florida State University College of Law Scholarship Repository Scholarly Publications 1-2018 The Federal Equity Power Michael T. Morley Follow this and additional works at: https://ir.law.fsu.edu/articles Part of the Courts Commons, and the Jurisdiction Commons THE FEDERAL EQUITY POWER MICHAEL T. MORLEY INTRODUCTION ............................................................................................................................ 219 I. THE ORIGIN AND DEVELOPMENT OF EQUITY............................................................................. 224 II. AMERICAN EQUITY PRIOR TO ERIE .......................................................................................... 230 A. Equity Jurisdiction .............................................................................................................. 232 B. Equity Procedure ................................................................................................................ 236 C. Equitable Remedies............................................................................................................. 238 D. Equity and Substantive Rights ............................................................................................. 241 III. EQUITY IN THE POST-ERIE WORLD ......................................................................................... 244 A. Erie and General Law ......................................................................................................... 244 B. Guaranty Trust and Equity .................................................................................................
    [Show full text]
  • Equity Investment Agreement
    Equity Investment Agreement THIS EQUITY INVESTMENT AGREEMENT (the "Agreement") is dated as of DATE (the "Effective Date") by and between ________________________________________________, a Delaware business corporation, having an address at _________________________________________________________________ ("Company") and Cornell University, a non-profit New York corporation, having an address at Day Hall, Ithaca NY, 14850 ("Cornell"). WHEREAS, Company is developing technologies that it represents are consistent with the educational, research and economic development objectives of Cornell; and WHEREAS, Company would benefit from a relationship with Cornell and its Kevin M. McGovern Family Center for Venture Development in the Life Sciences, (the "McGovern Center"), whereby the McGovern Center would provide Company with assistance in accessing elements of the McGovern Center's network of public and private commercialization resources (the "McGovern Center Network"); and WHEREAS, the McGovern Center is willing to provide such assistance, subject to the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties covenant and agree as follows: Article 1. Equity Partner Program 1.1 As a part of its equity partnership with Company, the McGovern Center agrees, from time to time upon the request of Company, to: (i) Provide Company with timely information that the McGovern Center reasonably believes to be of benefit to Company including information related to capital
    [Show full text]
  • Mere Equities’
    WHAT IS A MERE EQUITY?: AN INVESTIGATION OF THE NATURE AND FUNCTION OF SO-CALLED ‘MERE EQUITIES’ Jack Wells PhD University of York Law January 2019 Abstract This thesis will examine the type of equitable claim known as a ‘mere equity’. The basic characteristics of a mere equity are well established. A mere equity is ‘proprietary’ in that it can be enforced against certain third parties and is capable of alienation in favour of certain third parties. Despite its proprietary flavour, however, a mere equity does not amount to an interest in any property to which it relates. The main consequence of this is that a mere equity is postponed to any interest, legal or equitable, subsequently purchased for value and without notice of the mere equity. While the core features of mere equities are settled, there is much confusion over the underlying legal nature and practical function of these claims. This confusion has produced the criticism that mere equities are an anomalous category, and brought into question whether mere equities should even exist as a juridical concept. This state of affairs is clearly unsatisfactory, especially given that mere equities are the admitted basis of a sizable body of equitable doctrines, including rescission, rectification and proprietary estoppel. This thesis aims to demystify mere equities. It will show that the existing scholarly literature has not adequately engaged with the concept of a mere equity. It will then look afresh at the primary legal materials in order to fill in the conceptual gaps. In short, the thesis will argue that a mere equity is an equitable right of action: a simple claim to pursue a particular equitable remedy against a particular defendant.
    [Show full text]
  • In Law Or in Equity?
    In law or in equity? By Eric Lindquist, Of Counsel to Fox Horan & Camerini LLP © Eric Lindquist 2020 St. Thomas More, English Chancellor 1529-1532 Lawyers and businesspersons around the world read contracts every day that provide for indemnity against, or the release of, claims “in law or in equity.” Based on my conversations with civil lawyers and with business executives in the US and abroad, it seems that many of them haven’t really thought about what “equity” means in this context. Here are the basics. Equity jurisdiction arose in England during the Middle Ages to balance the excessive rigidity of the common law courts by allowing a royal official, the Lord Chancellor, to decide disputes based on broad concepts of fairness and good conscience. The distinction between law and equity is important because: (a) equitable claims are decided by a judge, not by a jury, (b) claims in equity are subject to different defenses from legal claims (the defenses of “unclean hands,” “laches,” or “undue hardship,” e.g.), (c) equitable relief being viewed as an “extraordinary remedy,” the standards of pleading and proof are generally stricter than for legal claims, requiring greater specificity and clearer evidence, (d) courts can retain jurisdiction over equitable matters long after judgment is entered, allowing them to modify or dissolve injunctions, or to appoint receivers to manage property or special masters to monitor compliance, (e) equitable judgments are enforceable by sanctions for contempt of court, and (f) equitable judgments are discretionary and therefore especially difficult to overturn on appeal. Most claims arising “in equity” ask the court for an injunction, that is, an order that the respondent do something or refrain from doing something.
    [Show full text]
  • Magna Carta and the Law of Nature
    University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2016 Magna Carta and the Law of Nature Richard H. Helmholz Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard. H. Helmholz, "Magna Carta and the Law of Nature," 62 Loyola Law Review 869 (2016). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. +(,121/,1( Citation: 62 Loy. L. Rev. 869 2016 Provided by: The University of Chicago D'Angelo Law Library Content downloaded/printed from HeinOnline Sat Apr 8 00:43:53 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information BRENDAN BROWN LECTURE MAGNA CARTA AND THE LAW OF NATURE R. H. Helmholz* INTRODUCTION' My subject is an appropriate one for a lecture series established by Brendan F. Brown. From first to last, he was "an advocate and defender of the natural law and its school of jurisprudence." 2 He sparked an interest in the subject among his students, he wrote books and articles to demonstrate its value, 3 and he compiled an historical survey of the subject that remains useful today.4 Coming to his scholarly maturity in the years immediately following the Second World War, Professor Brown was optimistic about the future of this subject.
    [Show full text]
  • 20191223115738971 18-1501 Liu V SEC Restitution Scholars Brief.Pdf
    No. 18-1501 In the Supreme Court of the United States CHARLES C. LIU et al., Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent. __________ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________ BRIEF OF REMEDIES AND RESTITUTION SCHOLARS AS AMICI CURIAE IN SUPPORT OF NEITHER SIDE __________ Douglas Laycock Counsel of Record 2406 McBee St. Austin, TX 78723 512-656-1789 [email protected] QUESTIONS PRESENTED This brief addresses two questionss: 1. Whether “equitable relief” in the securities laws includes the longstanding equitable remedy of disgorgement, also known as accounting of profits, and 2. Whether disgorgement in the securities laws should be measured by the longstanding rules of equity, a measure that both petitioners and respondent appear to reject. i TABLE OF CONTENTS Table of Authorities .................................................. iv Interest of Amici ..........................................................1 Summary of Argument ...............................................2 Argument .....................................................................5 I. Each Party’s Position Seriously Overreaches ......................................................5 II. Disgorgement, or Accounting for Profits, Is a Long-Established Equitable Remedy That Imposes Liability for the Wrongdoer’s Net Profits—Not Gross Profits or Gross Receipts .............................................................9 A. Disgorgement of a Wrongdoer’s Profits Is a Longstanding Equitable Remedy.
    [Show full text]
  • The Case Against Equity in American Contract Law
    Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2020 The Case Against Equity in American Contract Law Jody S. Kraus Columbia Law School, [email protected] Robert E. Scott Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Contracts Commons, Criminal Law Commons, Criminal Procedure Commons, and the Legal Remedies Commons Recommended Citation Jody S. Kraus & Robert E. Scott, The Case Against Equity in American Contract Law, 93 S. CAL. L. REV. 1323 (2020). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2537 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. THE CASE AGAINST EQUITY IN AMERICAN CONTRACT LAW JODY P. KRAUS* & ROBERT E. SCOTT† The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective—such as the penalty, just compensation, and forfeiture doctrines—were created by equity in the early common law to police against abuses of the then prevalent penal bond. However, when the industrial revolution pushed courts to accommodate fully executory agreements, and parties abandoned the use of penal bonds, the exclusively ex ante focus of the new contract law that emerged rendered the ex post doctrines obsolete.
    [Show full text]
  • 674KB***Accessory Liability in Tort and Equity
    (2015) 27 SAcLJ Accessory Liability in Tort and Equity 853 ACCESSORY LIABILITY IN TORT AND EQUITY Unlike the position in criminal law, there does not currently exist a general doctrine of accessory liability in civil law. Thus, a person may be liable as an accessory in equity for dishonestly assisting with a breach of trust, but there is no tort for dishonest assistance. Rather, one who participates in another’s tort will only be liable if he is a joint tortfeasor acting pursuant to a common design with the primary tortfeasor. This article examines the reasons for this divergence and evaluates the case for their assimilation. It observes that, contrary to common perception, the scope of participatory liability in both spheres does not materially differ. It also concludes that the case for assimilation is not made out if the overarching principle for civil accessory liability is defined principally by reference to criminal concepts of complicity. Such an approach overlooks the fundamental distinctions between civil and criminal processes and threatens to extend civil liability beyond acceptable bounds. LEE Pey Woan* LLB (Hons) (London), BCL (Oxford); Barrister (Middle Temple), Advocate and Solicitor (Singapore); Associate Professor, School of Law, Singapore Management University. 1 In civil as well as criminal law, a person may be liable when he participates in the wrong of another. Such liability is variously described as “accessory”, “secondary” or “derivative” because it is contingent upon a wrong being committed by the primary wrongdoer. In criminal law, a general doctrine of accessory or secondary liability exists which applies uniformly to all crimes.
    [Show full text]
  • The Dark Sides of Magna Carta from Working Law to Spiritual Guide
    The Dark Sides of Magna Carta From Working Law to Spiritual Guide Eight hundred years on and we are still discussing Magna Carta. What began as a grubby deal, forced out of a recalcitrant John by rebellious barons (and rapidly repudiated with Papal blessing) forced itself into national and international consciousness by the underlying importance of the circumstances of its creation; a king, who considered himself to hold absolute authority in temporal matters, had been obliged to acknowledge limits to his power. Transcending the medieval context of its creation and medieval preoccupations of many of its clauses, Magna Carta was long regarded as a central feature in the common law system of England and Wales. It became the platform on which adherents to an “ancient constitution” explanation of the governance arrangements in the British Isles built their arguments from the seventeenth century onwards. When in 1628 the two houses of parliament drafted their Petition of Right, rooted among other things in their interpretation of Magna Carta, the Lords attempted at the last minute to insert a clause recognising the monarch’s “sovereign power, wherewith your majesty is trusted, for the protection, safety, and happiness of your people”.1 This was viewed in the Commons as an assault on Magna Carta, with Sir Edward Coke memorably explaining that [I]t weakens Magna Charta, and all the Statutes; for they are absolute, without any saving of ‘Sovereign Power’; and should we now add it, we shall weaken the foundation of law, and then the building must needs fall. Take heed what we yield unto: Magna Charta is such a fellow, that he will have no ‘Sovereign’.
    [Show full text]