Front Page Titles (by Subject) CHAPTER 2: THE FORMATIVE PERIOD - A Concise History of the Common Law
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CHAPTER 2: THE FORMATIVE PERIOD - 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 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