IV
While the rationale, the maxims, and the precedents
for equitable adjudication are all part of our ancient
Hebraic-Greek-Roman heritage, which flowed directly
into the canon law, and into the secular law where
the Church had influence, it was in the Anglo-Norman
and Anglo-American legal systems that equity won its
clearest formulation.
Before the Norman conquest, the courts of the
Angles, the Saxons, and the other peoples of England
administered the tribal, customary laws peculiar to
each tribe or social group. With the Normans came
the feudal social order, and beginning in 1178 the
successors of William organized royal courts to admin-
ister the King's justice according to the law common
to all England—perhaps something comparable to the
Roman conception of jus gentium, “the sum of the
common ingredients in the customs of the old Italian
tribes” (Maine, p. 29)—what came to be known as “the
common law.” These courts exercised considerable
discretion out of a sense of equity or fairness, and
adopted procedures to meet new conditions. But in the
middle of the fourteenth century the expansion of the
common law seems to have stopped, and the courts
said that if the law is to be altered in any respect,
Parliament must take the initiative.
Parliament did not respond to the challenge; yet
considerations of equity could not be indefinitely re-
pressed or repulsed. The stultification of law in the
royal courts created the royal remedy: the Chancellor,
the surrogate for the King in the administration of the
government, established in his office—the Chancery—
an agency to hear grievances which the royal courts
administering common law would not hear. The Chan-
cellor said that, when he took jurisdiction of a cause,
it was a matter of grace or conscience, and that he
would render justice, not according to the technicalities
of the common law but according to the dictates of
equity. Since the Chancellor was usually a cleric—the
last clerical Chancellor was Bishop John Williams
(1621-25)—he was naturally much more familiar with
the equitable principles of the canon law of the Church
and with the praetorian edicts in Roman law than with
the law and legal forms administered by the King's
Bench. The equitable basis of the Chancellor's juris-
diction was marked by the basic guideline that equity
could be sought only in cases where the common law
remedy was inadequate.
The common law courts exercised their jurisdiction
through “writs” which directed the sheriff to seize the
defendant's property and use it to satisfy a judgment
against him, or through other writs which affected
rights in rem; but Chancery acted only in personam,
on the person directly. This was consistent with the
theory that equity makes its appeal to the conscience
of the party. A disobedient party was held by the
Chancellor to be in contempt of the King, and thus
in a way a rebel. Since the Chancellor could order
the parties before him to do what equity demanded,
he could keep a matter in controversy indefinitely
before him, and decree various steps or actions affect-
ing it. Thus he could order specific performance of a
contract, while a court of law could only award dam-
ages for a breach. Unlike the King's courts of law,
Chancery could enforce trusts by compelling the
trustee to act in accordance with the demands of fair-
ness or conscience. In due course, certain maxims came
to be associated with equitable jurisdiction, among
them: “He who seeks equity must do equity.” “He who
comes into equity must come with clean hands.” “Eq-
uity suffers not a right to be without a remedy.”
There was, naturally, criticism of a court that
candidly admitted that it sought guidance in con-
science, as, in the famous statement by John Selden
in the seventeenth century (Selden's Table Talk, 1689):
Equity is a roguish thing. For Law we have a measure, know
what to trust to. Equity is according to the conscience of
him that is Chancellor, and as that is larger or narrower,
so is Equity. 'Tis all one as if they should make the standard
for the measure we call a 'foot' a Chancellor's foot; what
an uncertain measure that would be! One Chancellor has
a long foot, another a short foot, a third an indifferent foot.
'Tis the same thing in the Chancellor's conscience.
In the reign of James I the contest between the
common law courts and Chancery broke out in the
open, and the King himself, in 1616, resolved it by
throwing his weight on the side of the latter. Equity,
however, now began to restrain itself and to impose
an order on its work. Francis Bacon, as Chancellor
(1617-21), contributed to this effort. Before long equity
itself became a system of precedents and itself began
to suffer from rigor juris. The conscience of the
Chancellor was, it was said in 1672 by Lord Chancellor
Nottingham, not his natural or personal, but his civil
and official, conscience.
After the Puritan Revolution, when the struggle
between royal power and Parliament was resolved in
favor of the latter, the Chancellor, as the voice of the
King's conscience, naturally declined; the common law
courts, which had sided with Parliament, gained in
prestige and authority. They now benefited from Sir
Edward Coke's earlier struggle against James I, in
which Coke was the champion of the supremacy of
the common law against prerogative.
Beginning in the eighteenth century the common
law courts proceeded to introduce doctrines and pro-
cedures which for centuries had been limited to
Chancery. These reforms were effected sometimes by
statute and sometimes by court decision. In time it
became apparent that there was little if any justifica-
tion for the two systems of courts, and a movement
got under way to combine the two into a single court
system. This was accomplished by the Judicature Acts
of 1873 and 1875, which, among other things, fused
law and equity.
