The Early History of Equity
Bill Long 12/10/04
This essay will not do justice to equity, but will indicate a few features of its early history in order to sharpen issues for future consideration. I will only take equity until about 1615 because separate essays will treat the quarrels between law and equity in 1615-1616.
For most of the history of the common law, there were two "sets" of courts: the courts of law and of equity. These were merged in the 19th century, but equity had a vigorous separate existence for nearly 500 years. Before about 1400, however, the functions of equity (to dispense "mercy," or to soften the rigors of law by applying principles of "fairness" to a case) were incorporated into the three common law courts: King's Bench, Common Pleas and Exchequer. The Chancellor, who would later be the "judge" in the court of equity, was the King's secretary, and he ran the administrative apparatus of the state. Chancery was the office from which the common law writs were issued.
When we mention writs, we are at the essence of the common law. Instead of law as we conceive of it in 2004, where substance and procedure are separable and substance is seen to be the more "substantial" part of law, the common law tradition at first did not distinguish the two. As prominent a scholar as Maine (writing in the 1860s) could say that for the common law "substance is secreted in the interstices of procedure." FW Maitland, the most significant historian of the common law of a century ago, gave a series of lectures on the common law forms of action, and his point was similar, that the common law was generated by the forms of action, and that forms of action combined substance and procedure. A writ, obtained from chancery, structured according to a fixed form, initiated a cause of action.
The Rigidity of the Common Law
As the writs developed during the 13th and 14th centuries, then, most scholars talk about the developing rigidity in the common law courts. In other words, if your cause of action didn't fit specifically into one of the approved writs, you had no remedy for a wrong. In addition, if you by chance secured the improper writ for the facts of your case, you could be nonsuited. Cubbyhole justice, you could call it, but during the reigns of Edward I (1272-1307) and his successors this was apparently the order of the day. I will need to examine this further in other essays.
It was as a response to the limited sphere of the common law courts that the Statute of Westminster II in 1285 developed a broader concept of the writ. That statute authorized the office of Chancery to issue writs if they were "in consimili casu" or "in like case" to the forms of action already existing. The text of the statute reads:
"And whensoever from henceforth it shall fortune in the Chancery, that in one Case a Writ is found, and in like case falling under like Law, and requiring like Remedy, is found none, the Clerks of the Chancery shall agree in making the Writ; or adjourn the Plaintiffs until the next Parliament..."
As with everything in life, however, statutes are a "matter of interpretation," and this "in like case" phrase of Westminster II was narrowly construed by Parliament, thus preventing the common law judges from easily expanding the catalogue of remedies. In short, the complaint around 1400 was that the common law was terribly rigid and limited, and that another and separate venue was needed to enforce "mercy" or the "conscience of the King." Hence, a separate equity court developed.
Fast Forward until 1600
For most of its first 200 years of separate existence, the court of equity flourished independently of the common law courts. "Justice" could be dispensed in Chancery. The most powerful device available to the court of equity was the injunction--to forbid, or command, someone to do something or refrain from doing something. This power exceeded that of the common law courts, which were only set up to award damages for wrongs already perpetrated. Thus, a kind of complementarity developed between the courts of law and of equity in the 15th and 16th centuries.
As legal historian Daniel Coquillette points out, there were four critical differences between law and equity. First, the equitable petition was in the form of a "bill," a rather simple statement of one's problem, rather than in a more formally drafted complaint, to which the other side might demur or reply. Second, the Chancellor had the authority to issue a subpoena to the individual defendant, which commenced an in personam action (in contrast to the in rem character of law). Third, no jury was available in equity. Finally, the Chancellor put the parties under oath and extracted testimony from them (unlike the courts of law, where parties could not testify). The later requirements of interrogatories and answers was the outgrowth of the Chancellor's power to examine parties and witnesses.
Under the Chancellorship of the illustrious Thomas More in the mid-16th century, the cordial relationship between law and equity was at its acme. Yet after his death, a major cause of friction between the two, which had raised its head intermittently before, now broke into the open: Chancery's ability to issue injunctions. It wasn't, however, the ability to issue injunctions in the abstract that angered the law courts; it was Chancery's increasing desire to enjoin actions at law either while they were going or or, especially, before execution on a judgment. Because the Chancellor was supposed to act "on the conscience," he had authority to cancel or enjoin "unconscionable" actions or "sharp practice."
A case from 1482, described by Professor David Raack in an article on the history of the injunction before 1700, illustrates this tension. In Russell's Case, the defendant committed a trespass of the plaintiff's goods. Damages were set at 20 pounds, and judgment was awarded to the plaintiff. Before execution on judgment, defendant went to Chancery and got an injunction forbidding execution. After a while, one of the judge's in King's Bench, where the case was heard and adjudged, asked the plaintiff's attorney if he wanted to pray for a judgment, but the attorney was hesitant to do so because he might be imprisoned for disobeying a Chancellor's injunction. The King's Bench judge then said that even if this was the case, the law courts had the authority to release him by habeas corpus. Thus, a judicial ping-pong match, with potentially dramatic and acrimonious consequences, was set up with the rival jurisdictions and courts.
Hostility broke out sharply between the law and equity courts in 1615-16. The next essay describes some of that conflict.
Copyright © 2004-2008 William R.Long