The Online Library of Liberty

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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

SUMMARY

• Equity - - - - - - - -
• chapter 1.The Early History of Equity - - - -
• chapter 2.The Formative Period - - - - -
• chapter 3.The Work of the Chancellors - - - -

EQUITY

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.