Introduction
Remember that a Plaintiff goes to Court for a Remedy. Sometimes the common law remedy (damages) will not suffice. He may want an equitable remedy such as an injunction, rescission or specific performance. All of these remedies have a shared history and shared principles.

The Early Years
The history of the Common Law starts in 1066 with the Norman Conquest of England. The King’s judges administered law on circuit and there were three courts: the Kings Bench, the Court of Common Pleas and the Exchequer. The Court was not yet “hampered” by many statutes or case law and had flexibility in granting remedies. However, as case law grew, the Courts became fettered by precedent and there were times when the legal remedy did injustice to the plaintiffs.

For example the common law courts could not deal with trusts. Whoever held the legal title to the land was entitled to dispose of it under the common law even if he really held it in trust for someone else. In addition, the common law would not take into account the conduct of the parties or any other factors. Disgruntled litigants soon started petitioning the King who was the fount of justice. Eventually, as the number of petitions grew, the King appointed a Chancellor to respond. As time passed, the Chancellor came to be supported by an entire administrative unit called the Chancery, which had its own judges.

In exercising its jurisdiction, the Chancery used what came to be known as equitable principles. Originally, the Chancellors were ecclesiastics trained in Church law. They exercised their powers using what was called “conscience”. This was not intended to be based on personal opinions but rather was in theory based on universal and natural justice. Nevertheless, the perception arose that the idea of conscience depended on who was administering it, and the 17th century jurist John Seldon famously joked that equity varied with the Chancellor’s foot.

As time passed the Chancery came to be separate from the Church. Equity became completely secular, but nevertheless, the concept of "conscience" remained.

The Work of the Chancery
The Chancery had three jurisdictions:
1. The exclusive, where it enforced rights which the common law courts failed to enforce. There were certain causes of action which could only be brought in the Chancery such as breach of trust, breach of confidence and equitable fraud.
2. The concurrent, where it gave new remedies for existing common law actions. These remedies included specific performance, injunctions, etc;
3. The auxiliary where it used different procedures from the common law courts, eg, joining third parties and compelling discovery.

The Chancery also had different rules. For example, where personal representatives lost estate assets, whether or not through their default, they were automatically personally liable in the common law courts. The Chancery had the power to enquire into the circumstances. In the Chancery, they were only held liable in cases of wilful default. In the common law courts, time was always considered to be of the essence of a contract, but the Chancery was more indulgent, and time was only deemed to be of the essence where this was expressly provided. A third example arose in written leases which were not executed according to the laws (ie, which were not under seal). In the common law court, the lease was treated as a periodic one according to the period of the tenancy, while the Chancery gave full force to the unexecuted lease.

Hint: In answering questions on the topic "Equity came to fulfil the law" or "Equity acts as a gloss on the common law", you should highlight this area. The Chancery judges did not see themselves as displacing the law, but merely as filling in the gaps which gave rise to injustice.

Equity becomes more structured
There were two forces which led to the rules of equity becoming more structured. First, an increasing amount of case law came to be published, and, as more common law lawyers began to practise and adjudicate in the Chancery, the doctrine of precedent became more important.

Second, the Chancellors themselves undertook a series of reforms. Lord Ellesmere at the end of the 1500s began to apply the same principles in all cases rather than following the inclination of the moment, and Lord Nottingham in the late 1600s began to systematize the rules. He was known as the “Father of Equity.” He remarked in Cook v Fountain (1676), “with such a conscience as is only naturalis et interna this court has nothing to do; the conscience by which I am to proceed is merely civilis et politica and tied to certain measures; and it is infinitely better for the public that a trust, security or agreement, which is wholly secret, should miscarry, than that men should lose their estates by the mere fancy and imagination of a chancellor.”

Lord Eldon, who was Chancellor from 1801 to 1827 continued the work of systematisation. When he retired, he said “the doctrines of this Court ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this court varies like the Chancellor’s foot.”

Hint:In answering questions on how equity became more structured, rigid, or mature, you should highlight this area. Was it inevitable that it should develop in this way given that the common law already had?

The Tension between Law and Equity
NB: After a Claimant wins his case (e.g., the Court orders the Defendant to pay him $10,000), he must then enforce that judgment (e.g., by selling the Defendant’s house / vehicle / chattels or by garnishing his salary, etc.)

In historic times, after a Claimant obtained his judgment in the Common Law Court, the Defendant might run to the Chancery who would then issue an injunction, preventing the Claimant from enforcing that judgment. This is exactly what happened in the Earl of Oxford’s Case (1615) where the Claimant obtained a judgment by fraud. Lord Ellesmere said:

The Office of the Chancellor is to correct Men’s consciences for Frauds, Breach of Trusts, Wrongs and oppressions, of what Nature soever they be, and to soften and mollify the Extremity of the Law, which is called sunimum jus.

And for the judgment, &c., law and equity are distinct, both in their courts, their judges, and the rules of justice; and yet they both aim at one and the same end, which is to do right; as Justice and Mercy differ in their effects and operations, yet both join in the manifestation of God's glory.

… when a Judgment is obtained by Oppression, Wrong and a hard Conscience, the Chancellor will frustrate and set it aside, not for any error or Defect in the Judgment, but for the hard Conscience of the Party

The two courts became locked in a stalemate. It was referred to AG Sir Francis Bacon. By authority of King James I, the common injunction was upheld and it was decreed that if there was a conflict between the common law and equity, equity would prevail.

Fusion
Eventually, and especially as the principles as equity became more settled, the Common Law judges began giving equitable remedies. This saved the litigants from having to shuttle back and forth between the Court running up legal fees.

Finally, the two courts were fused by the Supreme Court of Judicature Acts of 1873 and 1875, and the common law judges gained the express power to administer equity. The Acts provided that in certain named cases the new combined court was to use its equitable jurisdiction, such as in dealing with wardship of children, for which the Chancery previously had jurisdiction. It expressly provided that for time in contracts, administrators in estates, etc, the Chancery jurisdiction was to be used. Finally, in a catch all phrase, the Act provided that wherever there was a conflict between the rules of law and the rules of equity, the rules of equity were to prevail.

This ends the History Chapter. We look more at Fusion in the next section of the Tutorial.