“We the people” are who declared our independence from England in 1776, and it is “we the people” who judge the claims of our fellow citizens as jurors in our court system. As Americans, we take great pride in a system that allows us to be judged by peers and not the aristocratic or authoritarian figure of a judge. Juries, in a sense, embody the desire for governance by the people, for the people. While the system makes an exception for the appellate review of judges, at the trial level, it is our friends, neighbors, and peers who decide who pays and who gets paid, who is guilty and who is innocent. Interestingly, this picture is not only factually inaccurate, but ironically it is so because the colonist chose to maintain the unusual structure of English law. An explanation of this phenomenon requires a foray into the history of law in England.

Early English law had two main components – the courts of law and the courts of equity (also known as the Court of Chancery). An individual could bring a civil dispute to a law court where the system of law was applied or instead to the Chancellor’s court of equity where principles of equity were applied. Historically, courts of law had very rigid rules about how a claim could be brought. Often legitimate claims were not adjudicated because they did not fit within the narrow structure of the court’s pleadings system. Additionally, law did not offer avenues of remedy for numerous common disputes. Equity became an essential part of the common law scheme because of these inadequacies of law courts.

The usage of injunctions, a standard tool in our modern legal toolbox, did not exist in sixteenth-century England in courts of law. A trespasser could continue to cross their neighbor’s property and suffer only the minor repercussion of a small payment for the financial harm caused by their actions. The Chancellor, however, acting as a court of equity would issue an injunction. A violation of the injunction could land the offender in jail for contempt of court.

Injunctions are but one example where the courts of equity were able to provide a solution where there was no adequate remedy at law. Injunctions also highlight equity’s ability to prevent future problems while law only deals with issues that are in the past.

A critical distinction between law and equity, especially for the purposes of this article, is the role of the jury. Cases heard at law were subject to jury trials. Historically the Chancellor (a judge), not a jury, heard cases that the court of equity adjudicated. Equity’s role being somewhat extra-judicial was not subject to the jury system.  Equity was established as an opportunity to plead to the Chancellor directly without the interventions of the court system, and as such, it was the Chancellor who made the decision not a jury.

This two-court system lasted for hundreds of years in England. It was in no way a perfect system, but its two-system approach offered an avenue of resolution for almost all cases and controversies. Law offered a rigid and predictable system while equity provided a more flexible, but somewhat unpredictable approach. The system had its critics. Charles Dickens devotes a good portion of his novel, The Bleak House, to mocking the inefficiency of the courts of equity. It was a good enough however, that it existed for hundreds of years before any serious considerations of dismantlement or modification were made.

In the United States, the Seventh Amendment of the Constitution declares; “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” USCS Const. Amend. 7. Indiana’s Constitution provides: “[i]n all civil cases, the right of trial by jury shall remain inviolate.” Ind. Const. Art. 1, § 20. The United States Supreme Court has interpreted the Seventh Amendment as preserving the jury right as it existed in 1791 when the amendment was adopted. Similarly, Indiana’s Constitution has been interpreted to include a right to a jury trial in cases that one would have been provided under common law in 1852.

The federal courts and most state courts did not operate separate courts of law and equity. Instead, depending on the type of action, courts would act and follow procedures as if they were a court of law or equity. Cases with juries took place while the court was in “law” mode and decisions made only by a judge could take place in “equity” mode.

With time, a movement developed to merge courts of equity and courts of law. By removing the separation between the two courts, parties would no longer have to decide whether equity or law offered them a better resolution. Additionally, advocates of the merger wanted to use equitable principles to remedy some of the inefficiencies and perceived injustices found at law. England fused its courts of equity and law in the 1870s. In the United States, the adoption of Federal Rules of Procedure in 1938 led to the merger of the two courts in the federal system. Indiana, along with forty-four other states have merged their courts as well. While the merged court is the predominant approach, courts have adopted different procedures in which they maintain the historical distinctions between equity and law in their modern-day courts.

Even in merged court systems, remedies that were historically available through a court of equity have distinct rules from their law counterparts. The most apparent distinction is the lack of a jury right. A suit to prevent future harm, by way of an injunction, can be decided by a judge and not a jury.  There are less noticeable distinctions as well, including the need to show that there is no adequate remedy available at law. In cases where issues involve equity and law, state courts have developed different strategies to decide which set of rules apply.

The distinctions between law and equity are antiquated, yet they live on. Navigating these two distinct bodies that have been fused as one, is a complex task that requires the assistance of an attorney who is adept at traversing their murky waters. While it may seem strange, it is clear; we never declared independence from the oddities of the English legal system.

Written by Avrohom Kram under the supervision of Andy Spalding. Avrohom is a Summer Associate at May Oberfell Lorber and is a rising third-year law student at Notre Dame Law School. Andy Spalding is a partner at May Oberfell Lorber with extensive trial and litigation experience.

 This article is for information purposes only and is not intended to constitute legal advice.