Memory Lane History Of Equity

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The period immediately after the Norman conquest saw the birth and the early growth of the common law. It was one of the  great achievements of the Norman Kings that, under their rule, a system of law “common” to the whole of England was consolidated. These laws were administered by the King’s justices on circuit and by the three common law courts (King’s Bench, common pleas and Exchequer).

A key figure in the administration of justice was the lord chancellor, one of whose functions was the issuing of royal writs  which began every action at common law. The rule was that a plaintiff had no cause of action unless his claim came within the scope of an existing writ.

By issuing new writs and varying existing ones, the chancellor was able to influence the development of the common law. Nevertheless, this influence was a limited one since even if a plaintiff acquired a writ to fit his claim, the writ could be declared invalid by a common law judge,. By about 1250 the common law judges were becoming more conservative in their attitude to new developments, and the practice of declaring new writs to be invalid increased, culminating in the provisions of Oxford 1258, which provided that no new writ was to be issued without the consent of the council, the King’s governing body.

These fetters on the growth of the law were loosened somewhat by the statute of Westminister II 1285 but the position was still highly unsatisfactory in that a plaintiff, even if he did obtain a suitable writ, might yet be defeated by the power or influence of his opponent, since in those harsh times “might” all too often meant “right”.

A plaintiff who failed to obtain redress through lack of a remedy or failure to administer it could petition the King council, praying that the king might exercise his wide discretionary power to do justice among his subjects. It was the chancellor, as the king’s chief minister, who dealt with these petitions. Gradually the chancellor came to determine matters raised in the petitions independently of the king in council, so that, by the end of the 15th century, petitions were addressed directly to him, the issues were tried in his own court, and decrees were made in his name. This was the beginning of the equitable jurisdiction of the court of chancery.

In the early days of chancery jurisdiction, there were no set rules or procedures. The chancellor decided each case on its merits and according to “conscience,” and his judgments were founded not on precedent but on his own individual sense of right and wrong, hence the famous remark of John Selden.

“Equity is a roguish thing. For law we have a measure … equity is according to the conscience of him that is chancellor, and as that is longer or narrower, so is equity. ‘Tis all one as if they should make the standard for the measure a chancellor’s foot.”

That equitable decrees were originally based on “conscience” is not surprising in view of the fact that almost all the early chancellors were bishops, concerned more with relieving hardship in individual cases than with formulating a body of defined rules and principles. It was not until chancellors began to be drawn from the ranks of lawyers that precedents began to appear and rules were laid down.

This process began with Lord Ellesmere (1596-1617) and was continued by Lord Nottingham (1673-82) known as the “Father of Equity”, under whose chancellorship many of the modern principles of Equity were systemized. There then followed lord Hardwicke (1737-56) and finally, lord Eldon (1801-27). All these chancellors were under their guidance. Equity should have developed from its original formlessness into a system of rules almost as rigid as the common law itself – Kodilinye, G.