Front Page Titles (by Subject) NOTE F.: EQUITY. - Ancient Law, its connection with the early history of society and its relation to modern ideas
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NOTE F.: EQUITY. - Sir Henry Sumner Maine, Ancient Law, its connection with the early history of society and its relation to modern ideas 
Ancient Law, its connection with the early history of society and its relation to modern ideas, with an introduction and notes by Sir Frederick Pollock. 4th American from the 10th London edition (New York: Henry Holt and Co., 1906).
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A peculiar historical development has given this word a technical meaning among English-speaking lawyers. “Reasonableness,” as mentioned in the last note, appears to be the primary and general idea. This conception, when embodied for practical use as an appeal to the common sense of right-minded men, is closely akin to that of natural justice, and further resembles it in being traceable to Aristotle. It is of the utmost importance in many branches of our modern law; but we have specialised the name of Equity for one application of it, namely that administration of extraordinary justice by the king with the advice of his Chancellor and Council, and afterwards through the Chancellor alone, which produced the Court of Chancery. Maine, when he wrote “Ancient Law,” seems to have doubted the historical truth of “the king’s general right to superintend the administration of justice” (p. 68); but in “Early Law and Custom” (ch. vi., “The King and Early Civil Justice,” p. 164), it is fully recognised. The king was held to retain a “pre-eminence of jurisdiction . . . as well for amendment as for supply of the Common Law,” though he could not alter a regular jurisdiction once established; this “supplementary or residuary jurisdiction,” as Maine aptly calls it, was exercised to form the Court of Chancery, and in due time it was held, as was inevitable, that this also had become an established Court, that the king’s power to do equity as well as strict legal justice had been completely delegated, and that accordingly he could not create any new equitable jurisdiction. It was no less inevitable that after this Equity should become a technical system (cp. Pollock, “The Expansion of the Common Law,” pp. 67-73).
Maine pointed out (E. L. and C., p. 166) that the early Roman law, “a stiff system of technical and ceremonious law,” “underwent a transformation through this very residuary or supplementary royal authority,” which under the Roman Republic was vested in the Praetor. “What has descended to so large a part of the modern world is not the coarse Roman law, but the Roman law distilled through the jurisdiction of the Praetor, and by him gradually bent into supposed accordance with the law of nature.”
As to the relation of our Court of Chancery to the law of nature, I endeavoured to sum it up two years ago in a course of lectures given in America: “The early Chancellors did not disclose the sources of their inspiration; probably they had as good grounds of expediency for not talking about the law of nature as the common lawyers.” The law of nature was intimately associated with the canon law, and for English lay people in the Middle Ages canon law signified obnoxious meddling of foreign ecclesiastics with English benefices and revenues, besides the vexatious and inquisitorial jurisdiction of bishops’ and archdeacons’ courts. “Certainly [the Chancellors] intended and endeavoured to follow the dictate of natural reason; and if their version of natural justice was somewhat artificial in its details, and bore a decided civilian or canonical stamp, this was only to be expected. Some centuries later, when British judicial officers in India were instructed to decide, in the absence of any native law applicable to both parties, according to “justice, equity, and good conscience,” the results bore, even more manifestly, the stamp of the Common Law” (“The Expansion of the Common Law,” p. 114).
Chapter IV. Page 70.