Sec. 21. Function Of The Courts

The courts are the constituted tribunals for the trial of cases according to the law as interpreted by them.

In our scheme of government we have the legislature to make the law, the judiciary to interpret and apply it to cases, and the executive to execute it. We have already seen, that the judges in their declaration of the common law, practically assume the function of law makers upon matters of fundamental principles where the legislature has not spoken, although theoretically they have no law making power, and practically also they have none except in the sense indicated - that is to apply the customs that have become established and the principles of right which are generally accepted. The interpretation of statutes and their application to varying sets of fact constitutes an essential adjunct to the statutory law and must always be considered in the understanding of the law.

We have also seen that it is the function of courts to determine whether statutes are constitutional or not.

The courts sit for the trial of cases and it is only in the consideration of actual events that call for the application of the law that they will render any opinion upon it.

Sec. 22. Courts Of Law And Courts Of Equity

In English and American jurisprudence rights, titles and remedies are of two classes: those developed in the so-called courts of law; and those which are of the kind developed in the courts of equity.

The courts of law in England, established by the King to constitute the judicial system of the realm, except as he might himself dispense justice as a part of his prerogative, developed a jurisdiction based upon precedent, which was well enough and the theory of our own judicial law today, except that they permitted themselves to be limited, fettered and hindered by such precedents in the law of pleading - they came to think of a right and a remedy in terms of a "form of action." The word action means suit, and a form of action is the form of pleading in which one must bring his suit. These forms became established by precedents and then were limited by those precedents. A suitor had no right of action unless he could find a form of action to suit his case; if he could find no such form, he had to twist, warp or limit his right until it did conform; and if he could not even do this he was without remedy. Forms of action as they came to be developed were chiefly of three sorts.

(1) Real actions, for the recovery of one's real estate;

(2) Personal actions ex contractu;

(a) Covenant, or suit for damages on a sealed promise;

(b) Debt, or suit for money debt;

(3) Personal actions ex delicto;

(a) Trespass;

(b) Detinue, or suit for damages for wrongful detention of personal property.

Each of these forms of action had definite rules to govern it, violation of which was fatal, as though pleading were a game for the sharpest to win at.

Not only were the forms of action thus limited; but it will be noticed how narrow the court's power by way of remedy. If one's real property were withheld from him by one who had no right thereto, he could obtain a judgment for its recovery; if one's personal property were wrongfully detained he could recover it or its value in an action of detinue; if the limited kinds of contracts recognized by the forms of action were broken, or if the limited number of torts so recognized were committed he could have damages. Damages, recovery of one's property - these were the only remedies recognized as within the court's power to give.

In the time of Edward I, to relieve this situation, Parliament enacted the Statute of Westminster which authorized and directed the issuance of new writs, and by virtue of this statute common law pleading took a long step forward and became far more elastic and permitted the development of the common law into the admirable structure that it came to be. Forms of action known as Actions on the Case were devised and cases founded on negligence, which today forms so large a body of law, could be brought; also actions for the breach of executory unsealed contracts in which damages are unliquidated until assessed by a jury were recognized, and thus came into being our simple bilateral contract as we have it today.

But still the courts in spite of this statute, enforced with great rigidity the rules of pleading, and forbade the multiplication of forms of actions except where similar to those already existing, and limited their remedies as theretofore.

But in the meantime English law was finding an outlet otherwise. The King still had his jurisdiction of litigation if he chose to exercise it. He was the fountain of justice. Litigants who could not obtain redress in the established courts of law petitioned it of the King, reciting as the basis of their right, that they had no adequate remedy "by the hard and fast rules of the common law."

Such petitions came to be referred to the Chancellor "the keeper of the King's Conscience," to whom in course of time the petitions were made directly and thus came to be formed the Court of Chancery.

Now the Court of Chancery being a court of conscience established its jurisdiction on the theory of equity, and so also came to be known as the Court of Equity. It put in force many equitable maxims, as "He who wants equity must do equity"; "he who comes into equity must come with clean hands"; "equity aids the vigilant and not those who slumber on their rights"; "equity will not suffer a wrong without a remedy"; "equity abhors forfeitures"; and a number of others.

Wherein did the court of equity give a more adequate remedy than the court of law? In three broad general ways: It recognized rights which the law courts knew not of, rights based on mistake, accident, fraud, and the like; it recognized and established titles the law court did not know, title by assignment, trusts, etc.; it enforced remedies of a great range - injunctions, specific performances, accountings, cancellations, partitions, removal of clouds on titles, discovery of evidence, administration, receiverships, and so on. One can readily see how in the matter of remedy it brought about an administration of justice far superior to that exercised by the courts of law.

This jurisdiction was based upon the inadequacy of the legal remedy. In other words if a suitor made a case which showed he had an adequate remedy at law, the chancellor refused to touch it. When is a remedy adequate at law ?

The remedy of the law courts is considered adequate when one seeks the recovery of real estate wrongfully withheld from him.

The remedy of the law courts is adequate when one seeks the recovery of, or value of, personal property belonging to him and wrongfully taken and withheld from him.

The remedy of the law courts is adequate where one bases his action upon the breach of a contract (with some exceptions) ; damages are an adequate remedy.

The remedy of the law courts is adequate where one bases his action upon injury sustained by him in the commission of a past tort; damages will compensate him.

In all of these cases the court of equity will refuse to listen.

The court of equity as it developed was looked upon with disfavor by the common law courts, who feared its inroads; but gradually it became recognized that the mission of the court of chancery, being based on the inadequacy of the legal remedy was not to replace, but to supplement the common law jurisdiction. And so came harmony and co-operation.

Today we have in some states an attempted abolition between courts of law and courts of equity. In other courts the distinction is still preserved, although the same court exercises the law jurisdiction and the equitable jurisdiction, having a law side and an equity side. A judge may hear law cases one day and chancery cases, the next. In the Federal Courts the distinction is clearly maintained between law cases and equity cases.