History of Equity

Sponsored Links





Writs and the King's Peace.

The extension of royal judicial power was accomplished on the basis of two central ideas. First, King Henry II (reigned 1154–1189) and his successors, calling attention to the essential nature of feudalism封建制度, asserted that because they ultimately owned all the land in the realm, they were entitled to decide all disputes concerning it. If a dispute arose, the king's chancellor would issue a royal order (writ) 令狀 directing where the hearing was to be held. Even if the writ specified a lesser tribunal than the Curia Regis, the prerogative of the king to keep jurisdiction was maintained. Second, the king asserted that certain roads, certain places and certain days were protected by his “peace.” Any disturbance in those roads or places or during the specified days was considered a breach of the king's peace and so liable to be dealt with by the king or his court. This was the foundation of royal jurisdiction over crime. In turn such criminal jurisdiction provided the basis for asserting jurisdiction over disputes between individuals involving a breach of the peace, as where one man committed a trespass against another by assaulting him or breaking into his house or making away with his goods. Gradually the idea of the king's peace was extended to all times and places, and the degree of disturbance serious enough to be called a breach of the peace became purely nominal. Crushing a blade of grass by stepping on another man's land was enough.

Furthermore, over a period extending from the Norman conquest to about the beginning of the 16th century, royal justice was extended far beyond actions concerning land, crime, and trespass to deal with indirect as well as direct injuries, thus covering the entire area of what today are called torts侵權行為 (various “wrongs”) as well as all kinds of breaches of contract.



The Rise of Equity.

The king himself long continued to be a source of English law. Even after the law courts had developed into distinct institutions, people still sometimes petitioned the king for justice. He was regarded as the fountainhead of justice, from whom redress could be sought if the subject felt that he could not get justice in the ordinary courts.

The king delegated the hearing of most such petitions to his lord chancellor司法官. As the work increased, it became institutionalized使制度化 and was delegated to subordinates部下, 屬下 of the lord chancellor, who began to function as a tribunal法院 called the court of chancery大法官法庭 and to administer equity. There was plenty of judicial work to be done, because the common law courts were becoming set in their ways.

In many situations those courts were unwilling or unable to do justice, mostly in the area of civil litigation. While they gave money judgments for wrongs that had already been committed, they had no machinery for preventing future wrongs or for forcing a defendant to perform a contract or other obligation. Some of the rules that they enforced were excessively harsh and contrary to common ideas of fairness.

There was much emphasis on formalism形式主義, and ritual儀式的, particularly in the field of contract and property law, where the tendency傾向 was to insist on a literal interpretation of anything in writing. While trial by jury was a much better method of determining facts than the methods it had supplanted, juries were sometimes incapable of understanding complicated transactions and were sometimes subject to corruption or intimidation恫嚇 by powerful men. Finally some institutions and areas of conduct were not covered by the common law at all, notably trusts and the administration of estates of deceased persons. It was because of such inadequacies in the common law that the Court of Chancery came into being.

At first the chancellor decided cases without reference to any fixed rules of substantive law or procedure. His standard was “equity and good conscience”—a fact that gave rise to a famous quip妙語 that the only measure in chancery was “the chancellor's foot.” Decisions were not systematically preserved and there was no conscious adherence to precedent. During the 17th century, however, it became customary to appoint lawyers rather than ecclesiastics神職者 to the post of chancellor, and to report systematically the decisions rendered in chancery.

Gradually the doctrine of precedent developed, and came to operate in chancery much the same as it operated in the common law courts.

Just as the court of chancery developed its own body of substantive law, it also developed its own special procedure. It differed from common law procedure in many respects, but the most striking contrast was the fact that no jury was used in equity. Perhaps this was because the chancery's intervention was sometimes predicated on the claim that juries were subject to intimidation and corruption, or perhaps it was because much of chancery's jurisdiction was taken over from the ecclesiastical courts基督教會的 (particularly in connection with the administration of estates of decedents, minors, and incompetents) and so its procedure was modeled to a considerable extent on that which prevailed in those courts, where juries were unknown. In any event all issues of fact as well as of law were determined by the judge alone.

In the beginning the chancellor recognized no limitations on his power to dispense justice. He operated in the same areas as the common law courts and gave the same remedies. Such duplication of effort, however, was not long tolerated. During the 14th century the principle was established that the chancellor would not act where there was an “adequate remedy” at common law. This left the court of chancery a large area of discretion, but established some sort of jurisdictional line, blurred at first, but later becoming sharper as precedents were established defining where chancery would act and where it would leave the common law courts to act. As a result equity never became a complete body of law.

It consisted instead of a collection of miscellaneous rules. The point was well made by Frederic W. Maitland, English legal historian: “We ought not to think of common law and equity as of two rival systems. Equity was not a self-sufficient system, at every point it presupposed the existence of common law. Common law was a self-sufficient system. I mean this: that if the legislature had passed a short act saying 'Equity is hereby abolished,' we might still have got on fairly well; in some respects our law would have been barbarous, unjust, absurd, but still the great elementary rights, the right to immunity from violence, the right to one's good name, the rights of ownership and possession would have been decently protected and contract would have been enforced. On the other hand had the legislature said, 'Common Law is hereby abolished,' this decree法令 if obeyed would have meant anarchy混亂, 無政府狀態. At every point equity presupposed the existence of common law. Take the case of the trust. It's of no use for equity to say that A is a trustee of Blackacre for B, unless there be some court that can say that A is the owner of Blackacre. Equity without common law would have been a castle in the air, an impossibility.”

“For this reason I do not think that any one has expounded or ever will expound equity as a single, consistent system, an articulate body of law. It is a collection of appendixes between which there is no very close connexion連接. If we suppose all our law put into systematic order, we shall find that some chapters of it have been copiously丰富地, 充裕地 glossed言理 by equity, while others are quite free from equitable glosses … The law of contract has been … richly provided with equitable appendixes. The power of the Chancery to compel specific performance, and its power to decree the cancellation or rectification of agreements brought numerous cases of contract before it, and then it had special doctrines about mortgages, and penalties, and stipulations約定concerning time. Property law was yet more richly glossed. One vast appendix was added to it under the title of trusts. The bond約束 which kept these various appendixes together under the head of equity was the jurisdictional and procedural bond. All these matters were within the cognizance審理權 of courts of equity, and they were not within cognizance of the courts of common law. That bond is now broken by the Judicature Acts [1873]. Instead of it we find but a mere historical bond—“these rules used to be dealt with by the Court of Chancery”—and the strength of that bond is being diminished year by year.”

Although equity generally supplemented the common law, this was not true where the two came into conflict. The chancellor sometimes presumed to say that a legal remedy was inadequate or improper because the substantive rule on which it was based was unjust. In particular he asserted his right to enjoin a litigant from prosecuting an unjust action in a common law court or from enforcing an unjust judgment already recovered. If the injunction was violated, the offender was subject to imprisonment for contempt. The chancellor, following his normal method of enforcing decrees and avoiding the appearance of any direct attack, did not purport to act directly against the common law courts, but only against litigants who resorted to them.

Nevertheless, his assertion of power did not go unchallenged by the common law judges. Their spokesman was Edward Coke (1552–1634), chief justice of the court of king's bench; his adversary was Lord Ellesmere, the chancellor. Coke said that he would use the writ of habeas corpus to release any person imprisoned by the chancellor for violating such an injunction. The controversy was bitter and notorious. King James I, anxious to assert his supremacy over all the judges, appointed a committee of distinguished lawyers, including Sir Francis Bacon, to advise him how the dispute should be settled. On the basis of their report, he decided in 1616 in favor of chancery. Thenceforth, whenever an equity rule conflicted with a common law rule, the equity rule prevailed.

THE MERGER OF Rules of Common LAW AND EQUITY
This solution was neither wholly satisfactory nor permanent. It made little sense to have two sets of courts administering two separate bodies of substantive law by two differing procedures. Sometimes a litigant had to go to both of them in order to fully vindicate辯護 his legal rights, and sometimes he went to one only to learn that he should have gone to the other. This caused a wholly unnecessary waste of time, effort, and money. The way out of the predicament困局 was to merge the jurisdiction of the two courts.

Reform, though it was long overdue, was slow in coming. It was, in fact, delayed until the 19th century, and then occurred first in the United States. There the law of England had been adapted along with the bifurcation分岐 of jurisdiction between courts of equity and courts of common law. In 1848 the New York legislature enacted a new code of civil procedure drafted by David Dudley Field, a great reformer and enthusiast狂熱者 for codification法典編纂, 法律成文化. The new code was remarkable not only because it marked the entry of the legislature into an area that previously had been almost exclusively the province of the judiciary but also because it inaugurated開創 sweeping一掃而去的 reforms. The code vested in a single system of courts the jurisdiction previously exercised by separate courts of equity and common law. It further provided that a uniform procedure should be used in all types of cases, except that juries were to be available only in those cases that would formerly have been tried in common law courts, while juries were not to be available in those that would formerly have been tried in equity. This qualification was thought to be desirable in view of a provision in the New York constitution preserving the right to trial by jury only to the extent that it had existed theretofore.

The uniform new procedure was a copy neither of the system that had prevailed取胜 in common law nor of that, which had prevailed in equity, but a combination and modernization of the best features of both. By this time both the equity courts and the common law courts had created procedural systems of grotesque奇形怪狀 complexity, almost unintelligible even to the judges themselves. The rights of litigants were all but forgotten in a welter洶涌 of technicalities, while judges and lawyers quibbled and split hairs endlessly. In the Field code, all this was swept away in favor of a relatively simple set of rules expressed in plain, clear language. Substantive rights, however, were not affected.

The same remedies that had previously been available in the two separate sets of courts were still available, and they were granted or denied on the basis of the same principles of law that had been separately developed in those two sets of courts. The New York code was quickly recognized as a great step forward and was soon copied in most of the U.S. states. Its basic pattern still prevails, although now in many states procedural rule-making power has been restored to the courts.

In United Kingdom, by the Judicature Act 1873-75, the old courts of Common Law andthe Court of Chancery were abolished, and replaced by a singleSupreme Court of Judicature, rules of common law and equity wereadministered in the same court.


History of Equity Revised:

From the 13th century, all appeals against decisions of theRoyal Judges were made directly to the King who was regarded asfountain of justice, and was the head of judicial system. Lateron, pressure of the work forced the king to pass these appealsto the principal royal officials, the Lord chancellor, who washis chaplin (keeper of conscience. As a priest, he tended todecide cases on the basis of morality or 'equity' rather than inaccordance with narrow and technical rules of law.


The Chancery Court was established in London, which dealt withappeals from the common courts and certain matters at firstinstance (trust), during the later middle ages it developed intoa secondary system of law, supplementing and sometimes,competing with common law. There were conflicts betweenchancery and Common Law Courts. Judges sometimes issuingcontradictory verdicts. In the Earl of Oxford's Case 1615,


James I (1603-25) forced lord chancellor Ellesmere and theheadof the Common Law system, Lord Chief Justice Coke to present thematter to the A.G. Sir Francis Bacons to arbitrate. On Bacon'srecommendation, James I then ordered that in cases of conflictwith Common Law, equity shall prevail.



More Maxims of Equity

The rules of equity was extremely flexible and the mainprinciples were stated in a series of moral precepts which isthe spirit of equity.


1. Equity will not suffer a wrong to be without a remedy
2. Equity follows the law
3. He who seeks equity must do equity
4. He who come to equity must come with clean hands
5. Delay defeats equity, equity aids only the vigilant
6. Where there are equal equities, the first in time prevails
7. Equity look into the intent rather than the form
8. Equity acts in personam.
9. Equity looks on that as done which ought to be done
10. Equitable remedies are discretionary
eg High Tree Case