Encyclopaedia Britannica, 11th Edition, "Equation" to "Ethics" / Volume 9, Slice 7

by Various

English equity has one marked historical peculiarity, viz. that it established itself in a set of independent tribunals which remained in standing contrast to the ordinary courts for many hundred years. In Roman law the judge gave the preference to the equitable rule; in English law the equitable rule was enforced by a distinct set of judges. One cause of this separation was the rigid adherence to precedent on the part of the common law courts. Another was the jealousy prevailing in England against the principles of the Roman law on which English equity to a large extent was founded.

When a case of prerogative was referred to the chancellor in the reign of Edward III., he was required to grant such remedy as should be consonant to honesty (honestas). And honesty, conscience and equity were said to be the fundamental principles of the court. The early chancellors were ecclesiastics, and under their influence not only moral principles, where these were not regarded by the common law, but also the equitable principles of the Roman law were introduced into English jurisprudence. Between this point and the time when equity became settled as a portion of the legal system, having fixed principles of its own, various views of its nature seem to have prevailed. For a long time it was thought that precedents could have no place in equity, inasmuch as it professed in each case to do that which was just; and we find this view maintained by common lawyers after it had been abandoned by the professors of equity themselves. G. Spence, in his book on the Equitable Jurisdiction of the Court of Chancery, quotes a case in the reign of Charles II., in which chief justice Vaughan said:

“I wonder to hear of citing of precedents in matter of equity, for if there be equity in a case, that equity is an universal truth, and there can be no precedent in it; so that in any precedent that can be produced, if it be the same with this case, the reason and equity is the same in itself; and if the precedent be not the same case with this it is not to be cited.”

But the lord keeper Bridgeman answered:

“Certainly precedents are very necessary and useful to us, for 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. We shall suppose they did it upon great consideration and weighing of the matter, and it would be very strange and very ill if we should disturb and set aside what has been the course for a long series of times and ages.”

Selden’s description is well known: “Equity is a roguish thing. ’Tis all one as if they should make the standard for measure the chancellor’s foot.” Lord Nottingham in 1676 reconciled the ancient theory and the established practice by saying that the conscience which guided the court was not the natural conscience of the man, but the civil and political conscience of the judge. The same tendency of equity to settle into a system of law is seen in the recognition of its limits—in the fact that it did not attempt in all cases to give a remedy when the rule of the common law was contrary to justice. Cases of hardship, which the early chancellors would certainly have relieved, were passed over by later judges, simply because no precedent could be found for their interference. The point at which the introduction of new principles of equity finally stopped is fixed by Sir Henry Maine in the chancellorship of Lord Eldon, who held that the doctrines of the court ought to be as well settled and made as uniform almost as those of the common law. From that time certainly equity, like common law, has professed to take its principles wholly from recorded decisions and statute law. The view (traceable no doubt to the Aristotelian definition) that equity mitigates the hardships of the law where the law errs through being framed in universals, is to be found in some of the earlier writings. Thus in the Doctor and Student it is said:

“Law makers take heed to such things as may often come, and not to every particular case, for they could not though they would; therefore, in some cases it is necessary to leave the words of the law and follow that reason and justice requireth, and to that intent equity is ordained, that is to say, to temper and mitigate the rigour of the law.”

And Lord Ellesmere said:

“The cause why there is a chancery is for that men’s actions are so divers and infinite that it is impossible to make any general law which shall aptly meet with every particular act and not fail in some circumstances.”

Modern equity, it need hardly be said, does not profess to soften the rigour of the law, or to correct the errors into which it falls by reason of its generality.