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CHAPTER 1: THE EARLY HISTORY OF 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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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.