Front Page Titles (by Subject) PART 5: EQUITY - A Concise History of the Common Law
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PART 5: EQUITY - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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Equity is often spoken of as a supplement or an appendix to the common law; a mediaeval lawyer would perhaps have caught our meaning better if we were to say that it is a sort of gloss written by later hands around an ancient and venerable text. Law books were particularly apt to accumulate such glosses (Coke’s gloss on Littleton is the latest English example). In a sense, the gloss and the text are a unity, an expanded version of the original, and the two must be read together. This does not mean, however, that there may not be conflict and contradiction between text and gloss; still less does it mean that there will be a logical and systematic distribution of material between the text and the gloss. It is commonly observed, however, that the gloss tends to grow in importance. It may corrupt the text at points; it will often be clearer, representing a later state of learning with new facts, and more elaborate thought. It often happened in the end that the gloss was of more practical importance than the original.
The simile we have just suggested is more than a mere figure of speech, for it is in fact a deduction from the mediaeval habits of study. Reverence for authority made it necessary to preserve ancient texts, such as the Corpus Juris, but the practical demands of daily life made it equally necessary to have the gloss which alone made the system workable. This reconciliation between two divergent instincts seems to lie at the root of the scheme of law and equity as it existed, say, in the reign of Henry VII, when the relations between them were fairly friendly. But there were seeds of dissension. When the text is the sacred book of one profession and the gloss the work of another, the unity of the two may be in peril. This happened when canonists wrote a gloss, so to speak (and a distinctly “equitable” one), on the texts of the civilians; and to some extent it happened, too, when chancellors glossed the common law.
Neither theory nor practice required the administration of law and equity to be assigned to different institutions; in practice, courts of law could administer equity whenever the need arose. Thus Beaumanoir1 at the end of his book discusses some situations when law should be tempered with equity. In England (but not in Scotland) equity became the special concern of the chancery which administered equity, while the historical courts continued to administer law.2 Institutional history has therefore had a confusing effect upon the result. More especially, the accidents of history made equity a fragmentary thing. First one point, then another, was developed, but at no time was it the theory or the fact that equity would supplement the law at all places where it was unsatisfactory; consequently it has never been possible to erect a general theory of equity. In the last resort, we are always reduced to a more or less disguised enumeration of the historical heads of equity jurisdiction.
Finally, just as we have spoken of the common law as the custom and practice of the common law courts, so we might, with equal truth, describe equity as the custom of the Chancery. The decisive test for the existence or not of an equitable rule or remedy is to be found in a search of the records and decisions of the court of Chancery and its modern successors. There are indeed a number of maxims which have almost attained the dignity of principles; but deduction alone will not reveal the content of our system of equity. The only authoritative source is the custom of the court, and that must be gathered from an examination of the cases.
THE EARLY HISTORY OF EQUITY
THE RISE OF COURTS OF EQUITY
Of the institutional aspects of equity we have already spoken. Thus we have seen fourteenth-century parliaments occasionally dispensing remedies which later were typical of equity;1 the council, moreover, was so flooded with petitions of every sort that it was there that these new practices inevitably became settled, and, as the council was finally overwhelmed, the task was shifted to the chancellor, who had ampler resources in the way of office staff.2 The need for a supplement to common law procedure was very evident in the fourteenth century,3 and even its doctrine was not above criticism. We have remarked upon the abandonment by the common law judges of their ancient powers of discretion,4 and the feeling among contemporaries that the old institutions were no longer entirely adequate—even the seignorial courts felt the same difficulty, and met it in the same way by erecting councils (often of civilians and canonists) which became courts of equity.5 A long struggle in Parliament failed to check this development either at Westminster or in many seignorial jurisdictions, and in the end the situation was accepted.6 Equity was henceforth tolerated and even strengthened by statute, and the movement continued with increasing vigour. Late in the fifteenth century there was a search for a theory and there was some talk of “absolute power”, “conscience” and “natural law”.7 A century later the spread of equity is still evident: municipal courts of equity begin to appear, such as the Mayor’s court in London1 and the court of equity in the cinque ports,2 while a similar process in the great feudal liberties produced the court of chancery in the palatinate of Durham,3 a court of chancery in Lancashire, and the court of Duchy Chamber which sat in London or Westminster.4 Indeed, it is already clear that one royal court of equity is not enough. So we find such institutions as the court of requests,5 and subsidiary councils with equitable powers for the marches and the north.6 Moreover, this intense activity in the courts of equity affected the common law itself. It was the competition of equity which stimulated the growth of a common law of contract;7 in 1566 a disappointed litigant declared that Catlin, C.J., had made the Queen’s Bench a court of conscience (and was indicted for it);8 that same bench was now beginning to develop such writs as mandamus9 (which might well have become equitable), and in the next century it inherited a wide jurisdiction from the Star Chamber, which was, in a sense, criminal equity.10
Until later in the middle ages it was not yet apparent to contemporaries that there were, or could be, two different and sometimes conflicting systems in England, one of them common law and the other equity. They were, however, well aware of conflicting courts, and on numerous occasions complaints were heard that the chancellor, the council, the steward, the constable, the admiral and other authorities had exceeded their jurisdiction. Moreover, it seems that the council and chancellor were at first concerned principally with the de facto failings of the common law, rather than with its doctrinal shortcomings. It was the over-mighty subject who broke through the net of procedure and controlled juries through his local influence who first taxed the powers of the council. As late as 1618 a decree of Lord Bacon was thwarted by a force of two hundred armed men.11 A later stage is marked when the council and the chancellor apply different rules from those prevailing in the common law courts, and herein lies the principal theme in the history of equity.
We have already noticed the fragmentary character of equity, and in fact its history is even more fragmentary. This is partly due to the fact that the rules were a product of the institution, and so partook of the external accidents which often mould the history of institutions. History would have been very different if the idea of equity had been the cause, instead of the result, of the chancellor’s powers.
EQUITABLE FEATURES IN THE COMMON LAW
In fact, many rules which have since become distinctive of chancery make their first appearance in the common law courts. The application of these principles does not, therefore, imply anything in itself alien to the spirit of the common law, for the common law courts had themselves exercised these powers.
This has been admirably demonstrated by Professor Hazeltine, who observes numerous points upon which equity was anticipated by the common law courts.1 There was a moment when it seemed likely that uses in land might be enforced by the action of covenant2 and uses in chattels by account and detinue.3 In Henry II’s reign we find something like an equity of redemption recognised by the King’s Court, which had vanished, however, by the reign of Edward I.4 Then, too, in a famous case5 Chief Justice Bereford proposed to give relief against a penalty as late as 1309: “What equity would it be to award you the debt when the document is tendered and when you cannot show that you have been damaged by the detention?” he asked. And again: “Moreover this is not properly a debt but a penalty; and with what equity (look you) can you demand this penalty?” And so Bereford told the plaintiff that if he wanted judgment he would have to wait seven years for it. It is true that this case is almost unique, and that Bereford was a judge of remarkable originality and courage;6 but it is still apparent that there is nothing inconsistent with the common law in the idea of limiting recovery of penalties to the measure of damages actually sustained, if such there were. Indeed, in 1307 the court of exchequer (in which Bereford was in fact present) reduced a statute merchant on the ground that it was “only security”.7 Twice in one roll we find the defence that the maker of a charter was “deceived” in doing so;1 the King’s court will not allow the requirements of a form of action to be used as part of a fraud;2 it will order the cancellation of a deed;3 it will not entertain matters which have been unreasonably delayed;4 the court of exchequer would give to a litigant copies of documents he needed which were in the hands of his adversary.5
When we come to the question of specific performance it is important to observe that some of the oldest common law actions were of this character.6 The action of covenant will give specific restitution to a lessee whose lessor has broken the agreement; so, too, covenants to convey land, the provisions of final concords, the obligations of warranty, and obligations to perform or to acquit “foreign service” (a matter of great complication in feudal law) were enforceable at common law by actions which went much further than giving damages, for they concluded with judgments that the defendant was to perform the obligations to which he had been proved liable.7 Once again, then, it is clear that there is no very great reason in the nature of things why common law should confine itself to an action for damages—save that in all these matters the great difficulty of the common law lay in the ancient rule which only allowed it to enforce its judgments by distress, and not by imprisonment on the ground of contempt of court.
Then, too, there were occasions upon which the common law would issue what is really an injunction under the name of a writ of prohibition restraining a party from committing waste in a variety of circumstances;8 upon breach of his prohibition the party is attached to show cause; even in the seventeenth century this aspect of the common law was highly praised by Coke,9 who says of prohibitions of waste, “this was the remedy that the law appointed before the waste done by the tenant in dower, tenant by the curtesy or the guardian, to prevent the same, and this was an excellent law—and this remedy may be used in this day”. The famous Luffield register (c. 1282) contains a writ De Minis which is partly a grant of the king’s peace, and partly an injunction against attacks which had been threatened against him.10 Then in 1308 we find an interesting case where a lord secured a judgment forbidding his tenants from selling their goods elsewhere than in his market;1 and similar judgments could be given on questions arising out of suit of mill, whereby tenants could be compelled to grind at the lord’s mill. As Maitland has remarked, “if this is not an injunction, and a perpetual injunction, we hardly know what to call it”. Professor Hazeltine has observed:
“The early common law jurisdiction in personam by means of prohibitions was not narrow. . . . Parties were not only ordered not to commit waste, not to commit nuisance, not to sell land, not to distrain the plaintiff to do suit of court, not to destroy the wood in which the plaintiff has housebote and haybote, not to expose wares for sale elsewhere than in the plaintiff’s market, not to sue in the ecclesiastical courts; but parties were ordered to repair walls and buildings, to erect houses, to place property in the same condition in which it had been, and to remove existing nuisances.”2
Closely connected with the writs of prohibition were the writs quia timet, which, like the Chancery bills of the same name, aim at preventing a wrong which is threatened before it occurs.3 So also, in the exchequer in 1284, a Christian could plead (and prove by a jury) against a Jew, that he had paid a debt but had lost the acquittance.4
From all this it is clear that many of those features which were later characteristic of equity were once a part to a greater or less degree of the earlier common law. There was, therefore, no fundamental inconsistency between equity and common law: the one was not alien to the other. Professor Hazeltine summarises these results as follows:
“Enough has already been said, I hope, to indicate that not all the ideas which we associate with English Equity were either borrowed from the Roman system by the Chancellors or original with them. The advent of the Chancellor as a judicial officer of the Crown was at a time when the older tribunals, although expanding their own system to meet the needs of a growing society, were nevertheless fettered in their powers by statute and precedent as well as by the conservatism and technicality of the legal profession. The Chancellor’s court, exercising very wide discretionary powers, gradually developed the elaborate and effective system of rules and principles which we of the twentieth century know as English Equity. But, while fully recognising the achievements of the Chancery, let us not forget that the new tribunal built partly upon the older practice of the common law and other courts whose equitable jurisdiction it supplanted. The new tribunal did not originate English Equity, for it simply carried on the work of the older courts by developing in greater fullness and with a different machinery the equity inherent in royal justice.”5
That “equity inherent in royal justice” is frequently mentioned, not only by mediaeval political scientists but also in the course of practical affairs. Thus a statute6 asserts that “the king, who is sovereign lord, shall do right unto all such as will complain”—in spite of procedural and feudal complications, and plea rolls assert the same duty of an overriding equity in the king.1
Indeed, even in the middle of the fourteenth century the common lawyers still occasionally appealed to “conscience”—not merely to those more liberal practical features which we have just described, but to equity in the abstract, apart from any question of its having been embodied in one of their own established rules or procedures.2
THE STRICTER SCHOOL OF LEGAL THOUGHT
It is here that the problem was raised most clearly, and it is here that we can see the fatal hesitation of the common lawyers. They were of two minds. If we cite these references to conscience and equity in the abstract which some of them made, we must also cite other expressions in the opposite sense. The lawyers had a maxim that they would tolerate a “mischief” (a failure of substantial justice in a particular case) rather than an “inconvenience” (a breach of legal principle). To a bishop who brought an unconscionable action, Bereford, C.J., declared “it is a dishonest thing for an honourable man to demand what his predecessor released”; but the bishop’s claim nevertheless succeeded. “Once in the name of good faith he urged the defendant’s counsel to admit a fact that had not been proved. Back came the retort: ‘You must not allow conscience to prevent your doing law.’ ”3 Our common lawyers in fact were beginning to feel the attraction of the “legal mind”,4 the delight of pushing a principle as far as it will go and even further, and were enthusiastic over their first lessons in the rigor juris. This was no doubt the first step in legal wisdom (though certainly not the last); the real question which they had to face was how the future of the law should be developed. Was it to be a system of strict rule, mainly procedural, or was there to be a broader principle of conscience, reason, natural justice, equity? Plainly there were two points of view on this matter in the reign of Edward II, but it must have been fairly evident by the middle of the century that the stricter party had won. The law no doubt grew in content, but its growth was within a framework of technical doctrine and procedure instead of being the outcome of a broad principle of general equity; “logic yields to life, protesting all the while that it is only becoming more logical”.5
EQUITY SEPARATES FROM LAW
The triumph of the stricter school of legal thought was in part the cause, and in part the effect, of the institutional changes which we have already mentioned.1 As a result of those changes the common law courts lost much of their discretion and explicitly abandoned any thought of tempering law with equity, but on the other hand they gained in independence of the Crown.
It must be remembered that just as there were several courts of common law, so there were several bodies capable of administering law modified with discretion or equity. The exchequer may have done so, and the council certainly did. The decline of discretion in the common law courts, therefore, had the effect of throwing increased emphasis upon the discretion which had always been exercised in the council, and so we reached the position, so full of possible dangers, in which justice was partitioned between two bodies, neither of which could completely deal with a matter. Council and Chancery no longer could manage the complicated machinery of writs and pleadings and process; common law courts no longer exercised discretion. This profound schism in the administration of justice had the most momentous effects. Adjudication, like most other questions of human conduct, depends upon a nice balance between law and equity, rule and exception, tradition and innovation. Each of these different principles became exaggerated when it became the badge of an institution, with the result that law and equity instead of being complementary, became rivals in a political upheaval.
THE CONTINUITY OF EQUITY
Such was the general outline of the process. There has been some controversy about one aspect of it, however. The suggestion (which has been made in very guarded language by Professor Hazeltine2 ) that the chancellors drew some ideas, at least, from the pre-existing practices of the common law courts, has been disputed. Sir William Holdsworth has maintained that the chancellor’s equity was “a new, a distinct, and an independent development”.3 In discussing this contention, Professor Adams4 has remarked upon the different appearance of history when viewed from the different standpoints of institutions and of legal doctrine. He is surely right in urging that, in one sense at least, equity is inseparable from the duty of the king to do justice and his power to exercise discretion, and that this duty and power is at least as old as the conquest. The characteristic of our classical equity is the idea of conscience; but are we entitled to say that this idea was so novel that it resulted in a complete break with the past? It is hardly likely. Such scanty material as we have, seems to show that in the early period of chancery the use of “conscience” was no more definite than it had been in the common law courts. Conscience as a juristic theory (such as St Germain propounded) is apparently a late-fifteenth-century growth; and consequently the gulf between the chancery and common law traditions was not a deliberate breach with the past, but rather the slow drifting apart of two institutions.
CHANCERY BILLS AND BILLS IN EYRE
There has been the further suggestion that the justices in eyre exercised an equitable jurisdiction when they heard bills in eyre, and that here also we have a common law origin for equity.1
The greatest difficulty here is to find evidence of the justices in eyre overstepping the bounds of the common law. A good many bills in eyre have survived,2 and so far as we can judge, they neither ask for nor receive any remedy which was not available in the common law. It is moreover clear that the jurisdiction of the justices in eyre was on a par with that of the Common Pleas, and, if anything, inferior to that of the King’s Bench; there is no possibility, therefore, of them using extraordinary powers.3
Nor must the word “bill” receive too much emphasis. Any brief document or memoranda was a bill, and the word seems to imply brevity as its principal characteristic. We have already spoken of bills in the King’s Bench and other courts,4 and bills in eyre seem to have been essentially of the same nature, that is to say, brief written statements initiating proceedings which otherwise would begin with the formal and costly original writ.5 The bill in eyre has an especially interesting history because the reforming barons in the middle of the thirteenth century encouraged the public to make complaints (querelae) to the justices wherever they felt there had been oppression by local officers or magnates.6 The complaint, as a procedure, is very old, as we have seen,7 and a particular class of complaints formed the nucleus of the action of trespass; but this development did not exhaust the possibilities of the querela and the complaints in eyre often covered matter which formal procedure would have expressed as a demand (e.g. debt, detinue). It is difficult to say whether the complaints heard by Hugh le Bigod were oral or written, but during the reigns of Edward I and his two successors we have written complaints still surviving, and it is clear that these were sometimes very informal documents, ill-spelt and ill-drafted, although occasionally there is one which was undoubtedly drawn by a lawyer in the strict form of a common law declaration.
It is true that the eyre expires (and bills in eyre with it) at the crucial moment in the fourteenth century when the common law courts relinquished their discretionary powers, and when the first signs of the chancellor’s jurisdiction appear. But we cannot conclude that the chancellor’s equity came from the eyre; first, because it is very doubtful whether the eyre really administered equity of any sort; and secondly, because the origin of the chancery bill must surely lie close at hand in those thousands of petitions or “bills” which, in the normal course of administration, passed through the hands of the council and the chancellor rather than in the practice of justices in the country, who by now were commissioned only rarely and at long intervals.1
THE SUB POENA AND COUNCIL PROCESS
Just as the bill or petition was originally a prayer for administrative intervention,2 so the next step in the process, the sub poena, was also drawn from administrative origins. This threat of a penalty had been used by the government to stimulate the activity of officials3 as early as 1232; even the common law courts occasionally used a sub poena clause; in 1302 Justice Berrewyk ordered a party to bring an infant before the court “under the pain of one hundred pounds”.4 In the middle of the fourteenth century the Council produced an effective writ by adding the clause of sub poena to the somewhat older writ of certis de causis, which was in effect a simple summons to appear before the Council “for certain reasons”. Quibusdam certis de causis is at least as old as 1346,5 and closely resembles the summons sent to a peer on the calling of a parliament.6 The great objection which common lawyers made to writs in this form was their failure to mention the cause of the summons. It was a principle of the common law that a party should not be brought into court without due notice of the matters which he would have to answer,1 and there is no doubt that the sub poena gave no such warning. Protests in parliament became frequent.2 On the other hand, it must be remembered that in most cases the party must have known the real reason for his summons, for litigation as a rule is preceded by private negotiations, and in any case, having appeared, he was given ample time to prepare his defence. The best justification, however, for the Chancery’s practice, must no doubt be sought in the fact that the common law was a warning example of the mischief which might result if a plaintiff were compelled to state in detail his cause of action in the originating writ, with the almost inevitable consequence that he was unable to make any change once the writ was issued. It was, no doubt, the deliberate policy of the Chancery to avoid this situation, and this policy is constantly adhered to, as witness the freedom with which Chancery pleadings could be amended.
THE FIRST PHASE OF EQUITY
So far, the early history of equity has followed very much the same lines as the history of the common law three hundred years earlier. The common law gradually made a place for itself, although the country was already well provided with an ancient system of law courts; its intervention was at first political and administrative, being designed to safeguard the feudal supremacy of the Crown and even to exploit that situation; its process, the original writ, was of administrative origin, and in its oldest form, the praecipe quod reddat, undoubtedly encroached upon the sphere of already existing institutions. And so it was with equity. It imposed itself in spite of the existence of a well-ordered common law system: the basis of its intervention was at first the enforcement problem of the later fourteenth and fifteenth centuries, the preservation of order and the defence of the weak against the strong, together with the correction of the real or supposed defects of the common law; its process by bill and sub poena was not in its origin judicial, but part of the administrative machinery of the Council; and there was no doubt that the common lawyers had grounds for regarding equity as encroaching upon their province.
THE FORMATIVE PERIOD
THE IDEA OF EQUITY
During the middle ages we do not hear very much of “equity”, although chancery and council are constantly mentioned. It can hardly be said that the modern idea of equity appears at all commonly in the sources until the sixteenth century, when we find a formal theory in Doctor and Student upon the relation of equity to law.1 It remains to be seen whether the legal theory expressed in that remarkable treatise was not in large part the origin of the English idea of equity, rather than a mere historical description of already existing thought.2 In the fifteenth century, when the chancellors were regularly ecclesiastics, it may well have been that they wielded the royal prerogative through the machinery of the council in accordance with canonical ideas. This does not necessarily mean that the chancellors were deeply learned in the technicalities of canon law; it may very well mean, however, that they acted in the spirit of the canon law, which, as we have seen, was impatient of pedantry and inclined to place substance before form. In any case, the ecclesiastical chancellors were certainly not common lawyers, and it must have been a perfectly natural instinct, then as now, for a bishop, when faced by a conflict between law and morals, to decide upon lines of morality rather than technical law. As a chancellor (Cardinal Morton) said in 1489: “every law should be in accordance with the law of God; and I know well that an executor who fraudulently misapplies the goods and does not make restitution will be damned in Hell, and to remedy this is in accordance with conscience, as I understand it”.1 By this time—the middle of the fifteenth century—the chancellors clearly pass beyond the stage of purely administrative and political intervention, and begin to meddle with highly technical matters of legal doctrine. As they were not lawyers, they naturally summoned the common law judges into conference and called upon them to explain the state of the law on a given point. In return, the judges got the views of an intelligent non-lawyer, and doubtless discovered that outsiders do not regard “technical reasons” as an excuse for reaching obviously wrong results. The judges had to admit in several cases that their rules actually favoured iniquity at the expense of the righteous, and themselves advised the chancellor to give equitable relief.2
This voluntary acceptance of equity by the judges was all the more easy in the fifteenth century when, under the Yorkist kings, the increased power of the Crown was largely accepted by the nation voluntarily as a sort of dictatorship which alone could be effective in restoring law and order. It was perhaps this attitude which made possible Catesby’s remark in 1464 that “the law of Chancery is the common law of the land”.3 It will be seen that we are in the presence of a transition between an earlier type of jurisdiction which was more administrative than judicial, and based merely upon the elementary duty of governments to maintain order through administrative forms, and the more developed jurisdiction of classical equity based on the idea of conscience. The transition from one to the other, which is especially noticeable in the early and obscure years of Henry VII’s reign, was doubtless facilitated by the old canonist idea of good faith which easily became transformed into conscience and thence into a formal system of legal philosophy.
EQUITY AND LAW MERCHANT
There is another factor in this transition which deserves particular attention—the circumstance that the council and the chancellor received a good deal of mercantile business. This had to be despatched with an eye to treaty obligations, and according to law merchant. Now that law was regarded at this time as being “equitable” in the sense that neither forms of transactions nor technicalities of law should prevent substantial justice being done according to conscience. Our chancellors may have heard more about conscience and equity from mercantile litigants than they did from lectures on canon law (if indeed any of them had ever received formal instruction in that system).
We have already noticed that mercantile influences were so strong in London that the city courts administered equity as well as law.4 If our common law courts had acquired mercantile jurisdiction in the middle ages, they too might have been driven to the same result; it is certainly significant that when Lord Mansfield finally achieved a reception of mercantile law, he had to import some equity with it. It has recently been suggested that the American colonists were more partial to borough law than to common law,1 and if that is so, then it is clear why so many of their common law courts administered equity concurrently with the traditional system.2
THE BEGINNING OF FRICTION
In the fifteenth century the chancellors therefore made every endeavour to conciliate the common law courts, and we frequently find them consulting with common law judges. The same attitude persisted into the sixteenth century. Wolsey’s exercise of his judicial powers aroused some antagonism, but his successor was of different temper, and we find that Sir Thomas More, when he heard complaints against the Chancery, entertained the judges at dinner:
“And after dinner when he had broken with them what complaints he had heard of his injunctions, and moreover showed them both the number and causes of every one of them in order so plainly, that upon full debating of those matters, they were all enforced to confess, that they in like case could have done no otherwise themselves, then offered he this unto them, that if the justices of every court (unto whom the reformation of rigour of the law, by reason of their office, most specially appertained) would upon reasonable considerations, by their own discretions (as they were, as he thought, in conscience bound) mitigate and reform the rigour of the law themselves, there should from thenceforth by him no more injunctions be granted. Whereupon, when they refused to condescend, then said he unto them: ‘Forasmuch as yourselves, my lords, drive me to that necessity for awarding out injunctions to relieve the people’s injury, you cannot hereafter any more justly blame me.’ And after that he said secretly unto me [his son-in-law, William Roper], ‘I perceive, son, why they like not so to do, for they see that they may by the verdict of the jury cast off all quarrels from themselves upon them, which they account their chief defence; and therefore am I compelled to abide the adventure of all such reports.’ ”3
It is very unfortunate that Roper, a lawyer, should have treated the incident so succinctly, for we would gladly know more of the reasons why the common lawyers refused at this opportune moment to receive some equitable principles into their system. It seems that the judges in some way took shelter behind the jury, but this is certainly not the whole story, nor even the principal reason, probably, for their obduracy. However that may be, in this incident the contrast between law and equity is dramatically expressed; when the chancellor invited the judges to reform the common law by introducing into it the element of discretion and conscience, all the judges could do was to reply with a non possumus. More made it clear that in his view the jurisdiction of Chancery was a moral necessity based upon the duty of government to give not merely law but justice to its subjects. Although, no doubt, a character of More’s idealism found this a sufficient justification for equity, the more practical minded could adduce additional reasons from the political situation. The undercurrent of grave discontent which never ceased from the Peasants’ Revolt in 1381 down to the Pilgrimage of Grace in 1536 had a good deal of its origin in the inefficiency of legal enforcement and the inadequacy of the law itself,1 so that, although an idealist such as More was ready to make conscience the philosophic basis of equity, it was at the same time, no doubt, possible for the statesmen to regard it from the ancient standpoint of the Crown as the fountain of justice, which was compelled to act in this way in consequence of the stubbornness of the common law courts. In Henry VIII’s reign laymen begin to appear again as chancellors and they become the constant rule from Elizabeth’s accession.2 It is more significant that these chancellors were in many cases not merely laymen but also common lawyers, such as Thomas More (1529-1532), Nicholas Bacon (1558-1579) and Thomas Bromley (1579-1587). It is to this fact that we owe, no doubt, the cordial relations which existed during Elizabeth’s reign between common law and equity.
It is in the seventeenth century that we find a conflict forced between them owing to the identification of the Chancery with the other prerogative courts and with a theory of royal absolutism.3 The falseness of this issue is clearly shown in the fact that even the Commonwealth found it necessary to retain the Court of Chancery and to increase its efficiency by procedural reforms.
THE CONDITION OF TUDOR EQUITY
In the fifteenth and early sixteenth centuries we therefore find the development of the rules of equity determined, for the most part, by the procedural or substantive defects of the common law system—its slowness, its expense, its inefficiency, its technicality, its abuse by the mighty, its antiquated methods of proof (for it refused to allow parties or any interested persons to testify, and stubbornly maintained wager of law), its suspicions of volunteer witnesses, and its inability to compel one party to an action to discover evidence useful to his adversary. Among the defects of the common law which were most frequently supplied in Chancery was its inability at this date to give specific relief in actions on contract and tort, and so we find in Chancery bills to secure specific chattels, to compel a conveyance in accordance with a contract of sale, to obtain the cancellation of deeds, and for injunctions against a variety of wrongful acts, especially waste.1 The Chancery’s powers of examining parties and witnesses and of joining all interested persons enabled it to act efficiently in matters of accounting and the administration of assets. Then the complete refusal of the common law courts to consider cases of uses and trusts left a very wide field exclusively to equity. The common law relating to fraud, mistake, accident and forgery was extremely meagre, while in Chancery alone could relief be obtained against penalties.2 In the matter of contract the common law in the fifteenth century consisted largely of the uncertain results of a tangle of procedure, but Chancery was inclined to view the matter from a somewhat different angle and had already developed the additional remedy in certain cases of decreeing specific performance. Chancery jurisdiction, therefore, was based upon the defects of the common law, and even a chancery lawyer such as Lord Bacon at the end of the sixteenth century could look upon the popularity of Chancery as a bad sign;3 the more people resorted to equity, the more obvious it was that law was defective. Some of these defects in the common law were remedied in the course of the sixteenth century, Westminster Hall quietly adopting rules which had originated in Chancery. But this improvement in common law was accompanied by a certain degree of degeneration in equity. Chancery procedure became slower, more technical and more expensive, and ceased to be available to the poor. Some of this, no doubt, was due to a defect which equity never cured—the theory that Chancery was a one-man court, which soon came to mean that a single Chancellor was unable to keep up with the business of the court.4 Not until 1813 do we find the appointment of a Vice-Chancellor.
THE EXTENT OF STUART EQUITY
James I having established equity’s right to exist unhampered by the attacks of the common lawyers, the question henceforward takes the more useful form of ascertaining the proper boundaries between the two jurisdictions.1 The growth of a disposition for common law and equity to settle their respective spheres amicably, produced the natural result that equity should begin to introduce some order into the very miscellaneous mass of rules which it had developed. Bacon himself seems to have effected a great deal, and it is clear from his decisions that he made a practice of co-operating with the courts of law, took notice of precedents in his own court, and achieved some degree of consistency.2 In the later seventeenth century the Restoration chancellors were less inclined to exercise the vague and formless equity which had prevailed a century before; the movement in favour of defining the external limits of equity as against the common law naturally inclined equity lawyers to define the content of equity by expressing its principles in clear and precise form. Consequently equity becomes at last a system, although even here the fact that equity began by supplementing the casual deficiencies of the common law left its mark, and for a long time equity looked less like a single system than several systems upon unrelated topics.
The greatest subject of equity jurisdiction is, of course, the trust and its predecessor, the use. Of these we have already spoken in discussing real property. As for mortgages, equity had begun to intervene at the very beginning of the seventeenth century, apparently on the ground of relieving against a penalty or preventing usury. Already in 1612 we find the equity of redemption3 and a tendency to view the transaction as being designed to give security for a debt instead of construing the legal documents strictly according to their tenor. At the same time Chancery was prepared to decree foreclosure in suitable circumstances. By the end of the seventeenth century this new conception of the mortgage had become established, and a long line of cases begins, some defending it against attempts to “clog the equity”, and others settling the rights of successive mortgagees—a complication which now became possible under the new view of the mortgage. We already find early seventeenth-century cases on consolidation and tacking—subjects whose elaboration was the special mission of the eighteenth-century Chancellors. The Restoration chancellors also developed the family settlement, particularly in the direction of securing the married woman’s property to her separate use, and in enforcing separation agreements and separate maintenance. The court also exercised a wide jurisdiction over infants, which it based upon the royal prerogative and the duty of the Crown as “parens patriae”; in point of fact, however, Chancery was really carrying on the principles of the common law (which gave wide protection to infants), and the practice of the Court of Wards which had been erected by Henry VIII for the control of feudal wardships.
Equity supervision over matters of account1 by this time had grown to a considerable mercantile jurisdiction, including bankruptcy, partnership, the chartering and ownership of ships, and the relations between merchants and factors, principals and sureties, although the commercial community was not entirely satisfied, owing to the delays of Chancery procedure which were already beginning to arouse comment. Much of this power was doubtless exercised by the Chancery as successor to the mediaeval Council. In the administration of estates Chancery captured a good deal of ecclesiastical jurisdiction, and basing itself upon the rules already laid down by the common law courts it developed a very valuable body of law, which, however, was complicated in form as a result of its dual origin. Specific relief continued to be developed and the equitable treatment of contract was less dominated by the Statute of Frauds than that of the common law courts, the principle of part performance being used effectively.
When we come to the close of the seventeenth century, we see the extension of equitable relief against accident, mistake and fraud to include cases of undue influence—a matter which frequently could not be raised at common law. In the law of evidence equity maintained its advantage in having longer experience of handling oral testimony, which it treated with great freedom. We find some cases, for example, in which parole evidence was admitted to prove that the author of a document meant something different from what he had expressed, this step being justified on the ground that it was not admitted as evidence to a jury, but only as evidence to the court, “being to inform the conscience of the court who cannot be biased or prejudiced by it”.2 From this period, too, we find the beginnings of one of equity’s original contributions to the law of property. In the Duke of Norfolk’s Case (1681) originates the modern rule against perpetuities; while by using the trust the newer forms of personal property which became prominent after the Restoration, especially stocks and shares, could be brought into settlement. “Equity treated them as property and allowed them to be assigned as property; and it can hardly be doubted that this divergence between law and equity is the reason why it is so difficult to define a chose in action.”3
EQUITY AFTER THE RESTORATION
It is in the period from the Restoration in 1660 down to the beginning of the eighteenth century that equity finally achieves its new form of a consistent and definite body of rules, and the chancellors accept the conclusion that equity has no place for a vague and formless discretion; in short, equity is now, for practical purposes, a body of law which can only be defined as the law which was administered by the chancellors. The relations of law and equity were now amicable, and even cordial. Hale once said that he regarded equity as part of the common law—a sentiment with a characteristic mediaeval cast1 —but the growing bulk and consistency of equitable rules emphasised the difference of its point of view. The change occurs soon after the Restoration, and we can see it in watching the growth of the principle of precedent in Chancery. As we have seen, Bacon was already moving in that direction, but as late as 1670 Chief Justice Vaughan was surprised that precedents should be cited in Chancery, “for if there be equity in a case, that equity is an universal truth, and there can be no precedent in it”. To this Lord Keeper2 Bridgman replied that “in them we may find the reasons of the equity to guide us; and, besides, the authority of those who made them is much to be regarded. . . . It would be very strange and very ill if we should distrust and set aside what has been the course for a long series of times and ages.”3 And soon afterwards Lord Nottingham declared that the conscience of the Chancellor is not his natural and private conscience but a civil and official one.4 However, the growth of precedent was slow, for the early equity reports are far from satisfactory, and it is not until the eighteenth century is well advanced that they become continuous.
THE EARLY SOURCES
Indeed, the history of equity throughout its course, until late in the eighteenth century, is rendered difficult by reason of the peculiar state of the sources. The early activities of the council, the Star Chamber and Chancery can only be traced through the masses of petitions which still survive in the Public Record Office. There have been great losses, but those which remain are a forbidding mass of material. In many cases they are undated, and it is often uncertain which of these institutions was concerned with a particular case. Selections have been published by the Record Commission,1 the Selden Society2 and others3 from the principal types of this material.
In the sixteenth century Chancery became much more methodical and began to register its decrees in rolls and its orders in books,4 while a system of dockets provides a slender clue through the masses of documents; but in the meanwhile the bulk of the collections easily counterbalances these facilities, while the pleadings themselves are vast in number and verbiage. It must have required immense labour to produce such a calendar (in the form of a modern report) as Mr John Ritchie has published of Bacon’s decisions.5 It is much to be desired that similar volumes should deal with the material from the chancellorships of Cardinal Wolsey, Sir Thomas More and Sir Nicholas Bacon. On the procedural side we fortunately possess a collection of rules,6 owing to the fact that the chancellors had more control over the details of procedure than had the judges of the common law courts.
The year books of the later fifteenth century and those of Henry VII and Henry VIII occasionally give us incidental chancery cases, and so do the common law reporters of the sixteenth and seventeenth centuries, but exclusively Chancery reports begin with Tothill, whose brief notes of cases from 1559 to 1646, arranged alphabetically, were posthumously published in 1649. The following year came Cary’s reports7 based on notes taken by Lambarde, covering the period 1557-1604. Shortly afterwards came the anonymous Choyce Cases in Chancery (1652) covering the years 1557-1606. An anonymous volume of reports appeared in 1693, with a second part the next year, and a third in 1716; subsequent editions published the three parts together, which are commonly cited as Reports in Chancery. They cover the years 1625-1710. A similar collection of separate parts resulted in the Cases in Chancery covering 1660-1687.
The chancellorship of Lord Nottingham naturally attracted the attention of reporters, but the only early publications were Cases tempore Finch, and the reports of Nelson and Vernon. Some valuable material drawn from Nottingham’s own notes was published a century ago as an appendix to Swanston’s reports; Nottingham’s manuscripts are in the British Museum and a further selection from them has long been desired.1 It is significant how long chancery lawyers waited before producing a sound and accurate reporter who gave enough facts and reasoning to make the study of his work really profitable. He at last appeared in Peere Williams, whose reports covering the period 1695-1736 were published in 1740 and were subsequently re-edited and annotated. That was an important period, but it was followed by the still more brilliant term of Lord Hardwicke, which Peere Williams did not live to see. The contemporary reports (Vesey, senior, and others) are only of moderate reputation, but Martin John West began the publication of Hardwicke’s cases from the chancellor’s own notes in 1827—the year in which Swanston’s third volume did the same service for Nottingham. Unfortunately, he only covered three years.
THE LATER LITERATURE OF EQUITY
Of Doctor and Student we have several times spoken. In the main, the literature of equity was jejune and fragmentary. The organisation of Chancery, its clerks, their rights and privileges, the position of the master of the rolls, and little works on practice form the bulk of it, while the obscurities of its history left room for much polemical erudition. An attempt to collect materials was made in 1732 when the work generally referred to as Equity Cases Abridged began to appear, and in 1741 Viner began publishing his General Abridgement of Law and Equity. Not until the close of the eighteenth century do we find systematic works on equity, apart from its practice and pleading (on which there is a large literature). A Treatise on Equity by Henry Ballow (or Bellewe) had indeed been published as early as 1737, but it had little success until Fonblanque relaunched it in 1793 for a successful career. With the new century several writers exercised their skill on the subject, but none of their works equalled in renown and longevity the Commentaries on Equity Jurisprudence of Judge Story, which first appeared at Boston in 1836 and was re-edited many times, the last being in London as late as 1920.2
THE WORK OF THE CHANCELLORS
Some reference to the early history of the office of chancellor is essential if the later development of the office is to appear in its full significance.
Originally a strictly household office, it separated much slower than the exchequer.1 Some of the twelfth-century holders became powerful enough to withstand the King, but their power was not yet derived from the office; on the contrary, it seems that it was they who conferred dignity upon the Chancery. In the hands of a Becket or a Longchamp, the office of chancellor threatened to become a menace to the Crown, and it is not surprising that Henry II kept it vacant for eleven years. On the continent the papacy suppressed the office altogether; in France it was left vacant for generations at a time; in other realms it became attached as an ex officio dignity to certain sees (which at least prevented it becoming hereditary). In England it was common to give the office to clerks who had risen from the lower ranks of the civil service, but early in the thirteenth century there appears the practice of selling the office, the holder repaying himself out of the profits. Henry III stubbornly maintained the tradition that the headship of the Chancery was a household position, to be occupied by professional administrators, and to be shorn of political significance; above all, the chancellor was the King’s man, responsible to him alone.2 His office was therefore partly the headship of an administrative department, and partly that of an informal confidential adviser of the King.
Edward I allowed the chancellorship to take on a new importance with the appointment of Robert Burnell. He was the trusted personal friend and chancellor of Edward even before he came to the throne, and was made Chancellor of England as soon as the new King came home from the Crusade in 1274. For eighteen years he held the Great Seal, and for eighteen years there flowed the vast stream of reforming legislation which extends from the Statute of Westminster the First to Quia Emptores. Burnell (who soon became bishop of Bath and Wells) must have had a large part in the preparation of these statutes, and must be regarded as legally the most eminent of our mediaeval chancellors.1
THE LATER MEDIAEVAI CHANCELLORS
After Burnell’s day the office of chancellor steadily increases in importance. It was not yet a judicial office, and his successors, like Burnell himself, took a prominent part in politics. It soon became clear that the office of chancellor generally implied that its holder was the King’s principal adviser, and since that advice came from the head of the chief government department the chancellors appear as a sort of mediaeval prime minister. This duty of counselling the King involved the chancellor, like the judges, in several political crises, one of which we have already mentioned,2 and as the demands of the baronial opposition to the official class become more clearly defined, they sometimes include a demand that laymen should be appointed chancellors—possibly with the hope that members of the baronial class would be appointed instead of clerical civil servants. This made no difference to the general nature of the office, which continued to be political, whether it was held by a bishop, a knight or a common lawyer. It is only when the equitable jurisdiction of the office made the work of it too arduous that we find the character of the chancellorship changing. Even in modern times the chancellors have frequently had an extremely important influence upon politics, which is a relic of their mediaeval position; at the present day in England the Lord Chancellor is a member of the Cabinet and comes in and goes out with the Government. Henry VIII’s reign contains two notable examples of political chancellors. Cardinal Wolsey (1515-1529) achieved fame as a statesman, although it is also clear that he was deeply interested in equity jurisdiction, for it was he, perhaps, who accentuated the separation between Chancery, Council and Star Chamber, and insisted that Chancery was a court of conscience. Of his activities as chancellor we know nothing save by indirect evidence, but the protests of the common lawyers clearly indicate that he was vigorously extending the jurisdiction of his court, and this, together with his overbearing manner, made him enemies among them and increased his political difficulties.1
SIR THOMAS MORE
Sir William Holdsworth has made the attractive suggestion that the appointment of Sir Thomas More (1529-1532) to succeed Wolsey was dictated by the necessity of conciliating the common lawyers in Parliament,2 for Sir Thomas More was himself a common lawyer and his father (still living) was a common law judge. This may have had some influence, but the King hesitated for a time between Archbishop Warham (an ex-chancellor), the Duke of Suffolk (courtier and soldier) and More. It must have been political considerations which finally prevailed. We therefore have the unusual spectacle for those days of a common lawyer becoming chancellor. More’s saintly character fitted him admirably for the chancellorship at this moment, for equity was still for practical purposes very largely the conscience of the Chancellor, and Lord Nottingham’s distinction, which we have already quoted, was still a century and a half in the future. Moreover, Wolsey’s frequent absences had resulted in heavy arrears, and More chose the judicial side of the office as the more important. He liked judicial work better, and had long administered mingled law and equity as Under-Sheriff of London. As we have seen,3 More made every endeavour to live at peace with the common law courts,4 and the relations he established seem to have lasted for two generations until the days of Coke.
The succeeding chancellors were men of lesser importance. The next distinguished name is that of Sir Nicholas Bacon, who was Lord Keeper for the first twenty-one years (1558-1579) of Queen Elizabeth’s reign. At Cambridge he acquired a love of learning, and in later years endowed a school and provided it with scholarships tenable at Cambridge. As a statesman he won the confidence of Queen Elizabeth; as a judge he strengthened the position of his court both against the common law courts and against the peers, establishing that the latter, like commoners, could be committed for contempt. He reorganised the establishment of the court, which was now large and complicated, and has left us the earliest surviving rules of Chancery procedure.
Of his successors during the same reign the most important was Sir Thomas Egerton, successively Baron Ellesmere (1603) and Viscount Brackley (1616) who held the Seal from 1596 to 1617.1 Egerton was called to the bar in 1572 and enjoyed a large Chancery practice, until Queen Elizabeth (so the story goes) heard him argue in a case against the Crown and was so impressed by his ability that she determined he should never appear again against her, and so made him Solicitor-General in 1581, Master of the Rolls in 1594, and Lord Keeper in 1596; he only became Lord Chancellor in 1603 under James I. His political influence seems to have been considerable, especially with Queen Elizabeth, who had great confidence in him. As with most other prominent people, the accession of James I compelled him to take a side in those controversies which the old Queen had succeeded in repressing, and Ellesmere attached himself to the party of prerogative. In the early years of James I he was obviously trying to treat the new King as a Tudor and to enable him to carry on Elizabeth’s policy. In Chancery he issued numerous orders on the procedure and organisation of the court, especially with a view to shortening pleadings and preventing delay. Rather curiously, he discouraged the taking of accounts in Chancery—which was afterwards to become a notable part of equity jurisdiction. He refused to allow the court’s process to be abused, and even ordered that pauper plaintiffs who sued without cause should be whipped, since it was useless to condemn them to fines or costs. Contempt of the court’s decrees was visited with imprisonment and irons, and when Richard Mylward, an equity pleader, drew a replication in a hundred and twenty pages, when sixteen would have been sufficient, Ellesmere ordered—
“That the Warden of the Fleet shall take the said Richard Mylward . . . into his custody, and shall bring him unto Westminster Hall . . . and there and then shall cut a hole in the midst of the same engrossed replication . . . and put the said Richard’s head through the same hole and so let the same replication hang about his shoulders with the written side outward; and then the same so hanging shall lead the same Richard bareheaded and barefaced round about Westminster Hall whilst the courts are sitting and shall show him at the bar of every of the three courts within the Hall.”2
Ellesmere himself, however, was capable of delivering very lengthy opinions; in Calvin’s Case we are told that “he argued very profoundly and was exceeding long, but read much in his book and had taken infinite pains, for he had wrote a great volume and was almost four hours in his arguments”—which judgment for long constituted his only published work.3 Several small tracts have been attributed to him on insufficient evidence, especially certain Observations on Coke’s Reports. The lack of adequate equity reports at this time makes it difficult to trace his activities save in those cases where emulation with Coke prompted him to preserve his decisions. From such evidence it is clear that the principles expressed in Doctor and Student were regarded, at least by Ellesmere, as the foundation of the court’s jurisdiction; but already he is careful to declare that equity is law and not merely discretion, and to maintain that Chancery, like the other courts, had “usages and customs” to guide its proceedings.
It was during Lord Ellesmere’s tenure of the Seal that the independence of Chancery was finally asserted—for such was the outcome of the great struggle between him and Coke. With two such headstrong antagonists the quarrel soon became vigorous. Coke prohibited suitors from going into equity; Ellesmere enjoined them from pursuing common law judgments. The result was a deadlock, and James I appointed a committee which included Sir Francis Bacon, the Attorney-General, to advise him, and after due consideration decreed in favour of the Chancery. Dissension occasionally broke out between Chancery and the common law courts at various later moments during the seventeenth century, but the position of Chancery could not be seriously assailed after Ellesmere’s victory.
Ellesmere was succeeded in 1617 by Sir Francis Bacon, Lord Verulam (1618), Viscount St Albans (1621) commonly called Lord Bacon.1 It is hardly possible for any one person to form an adequate estimate of Bacon’s achievements, so great and so varied were they. As a man of letters, historian, statesman, lawyer, philosopher, he has many separate titles to fame. In politics in his early days under Queen Elizabeth he had held liberal opinions and had even suggested that the royal prerogative was subject to the control of law, but in her closing years he drew nearer to the court, and by the accession of James I he was recognised as a royalist. His political progress was thus exactly the reverse of Coke’s. Such indeed seemed the only way to office and influence, and it may well be that Bacon had other reasons for desiring office than merely the advancement of his personal fortunes, for he had in mind vast schemes of legal and political reform—the union with Scotland, the civilisation of Ireland, the colonisation of America, the abolition of feudalism, and far-reaching measures for the improvement of the law—and at that time the only possible means of carrying them out was through the active participation of the Crown. Like many others during the early days of James I, he thought that the Tudor idea of government by Crown and Council, with Parliament registering their decisions, was still practical politics, but even Elizabeth was finding this difficult in her later years, and for James it was obviously impossible. Bacon therefore found himself attached to a cause which was hardly worthy of him, and which in the end gave no help in the furtherance of his schemes.1
His early career began at Trinity College, Cambridge, Gray’s Inn, and the British Embassy at Paris. In 1584 he entered Parliament and soon learned that opposing the Queen would block his prospects. His letters are full of attempts to obtain office, which in those days could hardly be got without a good deal of court influence. Bacon at first was not very successful, for his uncle, Lord Burleigh, declined to use his influence on behalf of his nephew, and it was only in 1607 that he became Solicitor-General, and in 1613 Attorney-General, and in that capacity he took a leading part in the victory which Ellesmere had just won for the Chancery. In 1617 he succeeded Ellesmere as Lord Keeper and in 1618 he received the title of Chancellor and a peerage as Baron Verulam. His life at court seems at first sight something unnatural for a man of his temperament, but he was clear-sighted enough to realise that the influence required to carry out his schemes could only be obtained by engaging himself in the welter of intrigue which surrounded James I, and so we find this matchless philosopher taking careful notes in order to train himself in the miserable business of a seventeenth-century courtier. In the midst of all this he found time to lay the foundations of modern scientific thought in a work which the learned James I likened to the peace of God because it passed all understanding (that is to say his own), and which Coke inscribed with a satirical couplet.
Lord Bacon naturally followed the extravagant mode of life fashionable among courtiers and could hardly help adopting the courtier’s morality. Indeed, the only unity running through his life seems to be his genuine belief in the prerogative view of kingship and of the State. Hence state office is to him the highest of all duties, and in the pursuit of power (and therefore of wealth) he conformed to the standards of the new ruling class which dated from Henry VIII. He seems to have permitted the Earl of Buckingham to exercise undue influence in the conduct of Chancery proceedings, if not in the formation of his decisions. In the end, the common lawyers were able to bring and to sustain grave charges against the corruption of Chancery, and when one of the officials of the court was found guilty of forging court orders and dismissed, he took his revenge by accusing the chancellor himself of corruption. He was impeached on twenty-eight charges and pleaded guilty.2 The facts alleged against him he admitted, but maintained that the presents and influence brought to bear upon him had never once perverted his judgment. He was removed in 1621, and died in 1626.
The tragedy of Bacon’s life was that he first sought power for the noble end of carrying out his reforms, but in the endeavour to obtain that power his ideal became clouded and he employed means unworthy of the object he had in view. Worst of all—and this is a point which a clearer-sighted politician might have seen—however much power he attained in the court of James I, there was little probability of his being able to use it for the great purposes he had in mind. The foundation of the courtier’s art is a sound judgment of human character, and Lord Bacon suffered two deceptions. He may perhaps have had no illusions as to the court favourites whose support he sought, but he misjudged Sir Edward Coke, underestimated the strength of the common lawyer’s position, and failed to realise that Coke’s bitter enmity was sufficient to frustrate his designs. Then, too, he misjudged James I. When most men soon discovered that James did not possess the greatness of the Tudor monarchs, Bacon still continued to hope that the King’s influence could be used to further his ideals.
Although Lord Bacon’s public life can hardly be regarded as anything but a failure, the other aspects of his work entitle him to the highest fame. Of his labours in literature and philosophy we cannot speak here, but his work as a jurist deserves careful attention. As a common lawyer he achieved great distinction, which was only the more remarkable for its contrast with his great rival, Sir Edward Coke. His Reading on the Statute of Uses and his Argument in Chudleigh’s Case show his mastery of real property law. Contemporaries are unanimous in praising his eloquence, the masterly manner in which he grasped legal principles, and the clearness with which he presented his arguments. This broad view on legal questions he himself attributed to the results of studying Roman law, which also enabled him to estimate the value of the common law with more accuracy than Coke. His observations upon the defects of the common law are very penetrating. Among the remedies which he suggested were two digests, one of case law and one of statute law, to be followed by works of an institutional character—it is clear that he is thinking of the sort of reforms which Justinian carried out in Roman law.1
Very little was known of Bacon’s decrees as Chancellor until Mr Ritchie published a selection2 of them in 1932. He seems to have imitated the practice of Sir Thomas More in trying to establish better personal relations with the common law judges, and he did his part in establishing goodwill by making orders to prevent the abuse of injunctions. In all this he seems to have been successful. The policy which he outlined when he took his seat in Chancery shows that he intended to keep as far as possible important matters in his own hands; he disapproved of the growing weight given to the reports of the Masters in Chancery, and of the freedom with which orders were made on ex parte applications. The hundred and one orders which he issued in 1619 were the basis of Chancery practice until the nineteenth century, and constitute the one piece of codification which he was able to carry out. And finally, he had that rare merit in a chancellor of keeping level with his work.
“It may be fairly said, therefore, that Bacon left his mark upon the Court of Chancery. As attorney-general he had been largely instrumental in vindicating the independence of the court, and in thus securing the free development of equity. As Chancellor he helped to restore harmony between the Chancery and the courts of common law; and he created from the scattered orders of his predecessors a code of procedure, the formation of which was a condition precedent to the development of a system of equity. Thus he consolidated and completed the work of that school of lawyer Chancellors which had come with the chancellorship of Sir Thomas More. That the development of a system of equity did not make rapid way till after the Restoration was due wholly to political causes.”1
Of the chancellors who succeeded Bacon it is not easy to speak in the absence of adequate reports of their decrees; some of them achieved fame in other fields than that of the law, Lord Clarendon for example. Equity suffered an eclipse during the Commonwealth but it quickly recovered at the Restoration. The chancellors of Charles II after Lord Clarendon (1658-1667) were, first, Sir Orlando Bridgman (Lord Keeper, 1667-1672), an eminent conveyancer who is credited with having contributed to the invention of trustees to preserve contingent remainders2 and the rule against perpetuities.3 Bridgman’s judicial work in equity was undistinguished. He was succeeded for a year by the Earl of Shaftesbury, a courtier and a wit who was prominent in the Cabal ministry, and who was made chancellor in order to deal with the Bankers’ Cases which followed the Stop of the Exchequer; he in turn was succeeded by Sir Heneage Finch (1673-1682) who later became Lord Finch (1674) and Earl of Nottingham (1681). The Finch family had already achieved legal eminence4 and the future Lord Nottingham, after his call to the bar by the Inner Temple in 1645, rapidly acquired a good practice under the Commonwealth. At the Restoration in 1660 he became Solicitor-General, in 1670 Attorney-General, Lord Keeper in 1673 and Chancellor in 1675, holding the Seal until his death in 1682. In politics he was a strong, but not an extreme, royalist. To immense legal learning he added a broad general culture which served as the basis for his policy of conservative reform; as Solicitor-General he introduced the bill abolishing military tenure, and as Chancellor he drafted the Statute of Frauds.1 In spite of his mastery of legal technicalities, he would deliberately place himself in the position of a layman in order to test the reasonableness and fairness of the decisions he was to make in the name of equity; indeed, his attitude both in law and in politics was substantially the same, namely, a determination to keep State policy and legal practice in harmony with contemporary thought and conditions.2
Among his decisions are some notable contributions to international law, but his greatest title to fame is his work in the development of equity. His greatest decision was in the Duke of Norfolk’s Case (1682-1685)3 on the rule against perpetuities. In Cook v. Fountain4 he undertook a logical classification of trusts; in Thornborough v. Baker5 he decided that the executor and not the heir of a mortgagee is entitled to the debt secured by the mortgage, and of this rule he said: “This has long been a controverted point and was never fully settled until my time. . . . Therefore it is not fit to look too far backwards or to give occasion for multiplying suits.” He was well aware of the fact that he was establishing new principles and abrogating old ones which would make the former precedents useless. We have already mentioned his dictum that a Chancellor’s conscience is politic and civil rather than internal and natural, and that therefore equity was a matter of rule and not of discretion; as he said in Cook v. Fountain, “it is infinitely better for the public that a trust, security or agreement which is wholly secret should miscarry, than that men should lose their estates by the mere fancy and imagination of a Chancellor”. Already during the seventeenth century several Chancellors had reached the Woolsack by way of the bench, and so naturally brought with them some of the ideas of the common law, and it was this influence which Lord Nottingham strengthened in making the first serious attempt to fix the doctrines of equity—a process which was not completed until the close of the next century.
“He deserves a place by the side of such Chancellors as Ellesmere and Bacon. His work was different from, and yet a continuation of, theirs. They had organised and systematised the court of Chancery, its practice, and its procedure. He began the work of organising and systematising the principles upon which the court acted; and, as a result of his work, equity began to assume its final form. His success was due partly to his own industry and genius, partly to the fact that the time was ripe for the beginning of such a settlement. The man and the opportunity happily coincided; and so, whether we look at his influence upon the principles of equity, or upon the character of equity itself, we must admit that he deserves his traditional title of the Father of Modern Equity.”6
Of the successors of Lord Nottingham mention must be made of Francis North, Lord Guilford (1682-1685), during the reign of Charles II, and of Lord Somers (1692-1700), the first Chancellor after the Revolution.1 Somers has left the reputation of a very great lawyer; his political career is best known, however, and many of his decisions are upon the important points of constitutional law arising out of the Revolution. The most important case he decided was the Bankers’ Case (1695-1696),2 which he treated from a sound historical point of view, his attitude being in striking contrast to the more practical judgment of Lord Holt. Nevertheless, to both of these two judges we are indebted for the decision reached by different reasoning, that a petition of right can be used to obtain damages for breach of contract against the Crown.
The reigns of Queen Anne (1702-1714) and George I (1714-1727) saw several chancellors whose names are still held in respect for their work in the formation of equity; we may mention Lord Cowper (1705-1708, 1714-1718), Lord Harcourt (1708-1714), and the Earl of Macclesfield (1718-1725), while under George II there were Lord King (1725-1733) and the short term of Lord Talbot (1733-1737).
The greatest legal figure in the reign, however, was Sir Philip Yorke, first Earl of Hardwicke. He was born in 1690 and left school for an attorney’s office. He then entered the Middle Temple and was called in 1715, entering Parliament in 1719 as a protégé of Lord Macclesfield. His political career was that of a Whig supporting the Revolution settlement and the House of Hanover. In 1720 he was Solicitor-General, and in 1724 Attorney-General, where his first official case was to have been the impeachment of his old friend and patron, Lord Macclesfield—a duty which he was allowed to delegate to the Solicitor-General. He was a consistent supporter in the House of Sir Robert Walpole. In 1733 he succeeded Lord Raymond as Lord Chief Justice of the King’s Bench and became Baron Hardwicke. In 1737 he succeeded Lord Talbot on the Woolsack, becoming one of the most influential members of the government and interesting himself greatly in foreign politics. In 1751 he supported the reform of the calendar, and in 1753 he secured the enactment of the Marriage Act,3 usually called Lord Hardwicke’s Act. Contemporaries gave him the reputation of being a conservative and of being conspicuous even in those days for securing rich sinecures for his numerous children; as one of his enemies said: “Touch but a cobweb of Westminster Hall, and the old spider of the law is out upon you with all his younger vermin at his heels.”1 In truth his temperament seems to be fitted rather for gradual judicial reform by way of decision than for the speedier methods of the legislature. As Attorney-General in 1727 he successfully argued in Curl’s Case2 that an obscene libel was a misdemeanour at common law, and that the exclusive power of punishing it was not in the ecclesiastical courts. His decisions as Lord Chief Justice present no special interest, save perhaps one in 1737 which involved a clandestine marriage; this case, it seems, directed his attention to the unsatisfactory state of the law of marriage and prompted him to reform it in later years by statute. As Chancellor he had the great advantage of twenty years’ uninterrupted tenure which enabled him to carry out a systematic policy.
“His restatement of the basic principles of equity, harmonising the precedents with the philosophic notions of his age, almost completed the system. After his day it was possible to advise with some confidence on the probable result of a Chancery suit. He was accustomed to ascertain what questions arose in the cases before him, and then to examine whether the principles to be drawn from the precedents afforded a solution. Often the precedents consisted merely of the record of the proceedings, with no clue as to the reasons which had led to the decree. Sometimes a report was available, and then the reasoning could be followed, though too often in those days the report was inaccurate. Where no guidance could be had from precedent, there was always the Roman law and the modern systems based on that law. The reports diligently gathered these decisions and made them accessible to practitioners. Not all Hardwicke’s judgments have survived subsequent judicial examination, but it is a noteworthy fact that even now the last edition of White and Tudor’s Leading Cases in Equity still retains ten of Lord Hardwicke’s decisions to illustrate the leading principles of equity. Apart from these ten, hundreds of his judgments have become embodied in the very structure of equity and are followed every day in confident reliance upon their inherent justice.”3
Among his decisions was one which allowed a husband to have curtesy in an equity of redemption;4 in another he held that the compromise of a doubtful right is good consideration for an agreement5 —the case had turned upon a family’s effort to conceal the fact that one of its members was illegitimate, and Lord Hardwicke here and on other occasions held that equity was particularly interested in the protection of family honour, which indeed was a logical deduction from a century and a half of history during which equity had busied itself with composing family difficulties. In 1747 he found a way around a recording statute which at first sight looks very much like frustrating it in the name of equity.1 In 1750 we have the great case of Penn v. Baltimore2 involving the boundaries of Pennsylvania and Maryland; as the defendant at the moment happened to be in England, Lord Hardwicke held that the Court of Chancery had jurisdiction by acting in personam to compel him to do equity.
Of Hardwicke’s successors there were many who achieved distinction, but we must now pass to the chancellorships of John Scott, Lord Eldon (1801-1806, 1807-1827), nearly fifty years later. He was the son of a prosperous tradesman of Newcastle. He was educated at Oxford and persuaded his older brother (who afterwards was to become Lord Stowell) to take the same course. His plans were temporarily interrupted by his elopement with a banker’s daughter, which at first brought him into difficulty, although upon regularising the marriage the banker made a settlement upon the couple. For a small salary he undertook to read the lectures prepared by the Vinerian Professor at Oxford,3 and in the meantime studied law and devoted himself to an equity practice. In 1780 his opportunity came. He was given a brief to consent to an order, but perceived that his client had a case which was worth arguing. He argued it and won, and the decision was upheld on appeal by the House of Lords. There is a story that shortly afterwards he was engaged in a case where he was to argue against the point which he had thus established, to which the judge said, “Mr. Scott, I have read your argument in Ackroyd v. Smithson4 and I defy you or any other man to answer it. Sit down, I beg you.” He immediately obtained a large and important practice, and three years later he took silk and entered Parliament. At first unsuccessful, he gradually made his way in politics and tn 1788 he became Solicitor-General and had to deal with the constitutional difficulties caused by the King’s malady. In 1793 the outbreak of the French Revolution caused him to promote a stringent series of statutes for the prevention of sedition, and to conduct numerous prosecutions based upon them. In 1799 he became Lord Chief Justice of the Court of Common Pleas and was raised to the peerage as Baron Eldon. Two years later he succeeded Lord Loughborough as Chancellor. Among other troubles, he had the delicate duty of composing the difficulties in the royal family, attaching himself to Caroline, Princess of Wales. In 1806 he was succeeded by Lord Erskine, but was restored in 1807 and continued to sit for another twenty years. He was now a conservative of the most uncompromising type, and during those twenty critical years the whole of his immense influence was employed in frustrating every possible reform. The same policy was pursued simultaneously by the Chief Justice of the King’s Bench, Lord Ellenborough. Only on one or two occasions did he lend his name to reforming legislation, such as the abolition by statute1 in 1819 of trial by battle, which had been practically obsolete for many hundreds of years—an obvious reform which most curiously was opposed by the radicals, who believed that the liberty of the subject was being thereby attacked—while in 1815 trial by jury in civil cases was introduced into Scotland.2 In 1819 Lord Eldon actively promoted the drastic series of six acts which were calculated to repress political discussion after the Peterloo incident.
In 1820 George IV came to the throne. Lord Eldon received an earldom and abandoned his support of Caroline (whom the King refused to recognise as Queen), and had to undertake the proceedings upon a bill of pains and penalties. Political changes had brought the liberal Canning into the ministry, and when he finally became Prime Minister in 1827 Lord Eldon resigned. Although he was now seventy-six he gathered his strength for his last great fight, and lived to see the enactment of all the measures which he feared most. In 1828 the religious disabilities of Protestant non-conformists were removed;3 in 1829 the Catholic Emancipation Act was passed,4 and in 1832 the Great Reform Act5 laid the foundation of modern democracy.
His work as Chancellor had great merits and great defects. His mind was particularly fitted for drawing fine distinctions and discussing subtleties and niceties, while his scrupulous character would not permit him to decide a case until he had exhausted all its possibilities and examined it from every angle. As a result his decrees, although excellent, became increasingly slow, and the accumulation of business was steadily reducing Chancery to the position which Dickens has described in Bleak House.6 His legal work was to complete the process whereby equity hardened into law, and for work of this type he was admirably fitted. It was his success in this direction which enabled the Judicature Act within fifty years of his death to amalgamate law and equity, and to authorise the administration of both systems by the same court. Of the vast number of his decisions, many are leading cases of present as well as historical importance, and will be encountered by the student in his studies.