Document Type

Article

Publication Date

1918

Abstract

IT is now more than thirty years since Justice Holmes in a brilliant and daring essay set on foot an inquiry which has revealed the remote beginnings of English equity. Equity and common law originated in one and the same procedure and existed for a long time, not only side by side, but quite undifferentiated from each other. Their origin is to be found in the system of royal justice which the genius of Henry II converted into the common law; but this royal justice was in the beginning as much outside of, or even antagonistic to, the ordinary judicial system of the Anglo-Norman state as was ever the later equity of the Chancellor. There was no equity as a separate body of law; for the king's justices felt themselves able to dispense such equity as justice require. In fact to speak of law and equity is to import into the twelfth and thirteenth centuries a modem distinction which is absent. Just as Bracton was inclined to see in the King's Bench and Council but one court, so he regarded equity as an active, mitigating principle working in and through the administration of royal justice. The manner in which equity in this sense disappeared from the common law is become common knowledge. The jealousy of parliament, which may be but the reflection of the attitude of the community at large, the realization that the power to make new writs is a power to make new law, forced the writs into a closed cycle, and put an end to the free development of the common law. Without doubt the judges, who seem to become more conservative as ecclesiastics sit more rarely on the bench, furthered this restrictive movement. At all events the law became so rigid and inflexible, its practitioners were so absorbed in nice questions of form and pleading, that there was no longer room for equity. This has become the situation early in the fourteenth century; as a result a new field for the royal prerogative is found and equity is administered in the council from which in the next century the Court of Chancery breaks off.


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