The second great branch of English law; a supplement to the common law.
Equity is based on a judicial assessment of fairness as opposed to the strict and rigid rule of common law.
For example, strict common law rules would not recognize unjust enrichment, which was a legal relief developed by the equity courts.
In fact, most legal historians hold trust law to have been the most important child of equity.
Law professors hold that equity acts only in personam.
The typical Court of Equity (also known as Court of Chancery) decision would prevent a person from enforcing a common law court judgment.
The kings delegated this special judicial review power over common law court rulings to a judge called chancellor, the court the Chancery. Later, this was too much work for a single judge and more judges were appointed, called chancellors.
The term Chancellor is still in use in England today and now refers to the British minister of justice.
Thus, a new branch of law developed known as equity', with their decisions eventually gaining precedence over those of the common law courts.
In the Halsbury's Laws of England, equity is stated to have begun during the reign of Edward I, or about 1300 and:
"... because of deficiencies of the common law courts. Powerful litigants could, by bribery or intimidation of juries, render their proceedings abortive. I cases where the courts were thus at fault, petitions for redress were presented to the King .. and convenience required that these should be dealt with by a special tribunal ... the Court of Chancery."
The Court of Chancery has a rich history.
At first, its members were clergy or untrained judges, with decisions having no consistency whatsoever, based on a case-by-case basis on the judge's arbitrary exercise of his "conscience".
Thomas More, when he became Chancellor, finally insisted that all Chancery judges be selected from trained lawyers.
The Court of equity battled the common law courts for centuries until the split came to a head in 1615 and James I gave the equity court precedence, but not without creating tensions that would last for centuries. In 1769, in Perrin v Blake (1 Coll. Jurid. 283), Lord Mansfield wrote:
"If courts of law will adhere to the mere letter of law, the great men who preside in Chancery will ever devise new ways to creep out of the lines of the law and temper with equity".
In The Origins of Equity, F.. Maitland wrote:
"Equity was not a self-sufficient system. At every point it presupposed the existence of common law. Common law was a self-sufficient system.
"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 laws would have been barbarous.... but still the great elementary rights ... would have been decently protected.
"On the other hand, had the legislature said 'common law is hereby abolished', this decree ... would have meant anarchy.
"At every point, equity presupposed the existence of common law."
In the 1870s, England and its colonies merged the courts but not the doctrines (in statutes called "judicature"). Although under the umbrella of a unified judiciary, where the principles conflicted, equity was stated to have precedence over the common law.
Ontario's initiative is a good sample, now known as the Courts of Justice Act (1990 RSO Chapter C-43; v. 2007), where at ¶96:
- It gives equity rank over the common law ("where a rule of equity conflicts with a rule of the common law, the rule of equity prevails");
- Merges the Courts by requiring that there shall no longer be a separate court for equity ("Courts shall administer concurrently all rules of equity and the common law"); and
- Only federally-appointed judge, also known as "superior-level courts", may consider equity claims or grant equity relief ("only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided").
Equity had a good run by itself - from 1300 to about 1875.
A whole set of equity law principles were developed based on the predominant fairness, reason and good faith characteristics of equity as reflected in some of its maxims: equity will not suffer a wrong to be without a remedy or he who comes to equity must come with clean hands.
Many legal rules and doctrines, in countries that originated with English law, have equity-based law such as the first sparks of what is now family law, the rich law of estates and trusts and mortgages.
But equity has its obvious limitations, as Blackstone wrote:
"Law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law, which would make every judge a legislator, and introduce most infinite confusion, as there would be almost as many different rules of action laid down in our courts as there are differences of capacity and sentiment in the human mind." (I Blk. Comm. 62)
REFERENCES:
- Buckland, W. and McNair, A., Roman Law and Common Law (Cambridge: University Press, 1965).
- Maitland, F. W., The Origina of Equity (1908).