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1 An Introduction to Equity 1.3 A BRIEF HISTORY OF EQUITY

To understand why we have two different streams of judge-made law at Common Law and in Equity we need to go back to the Middle Ages. 14 This was the period during which judge-made law started to develop rapidly. Before this period, the law was local, being administered in local courts. Various Kings developed a legal system that was common to all of England, known as ‘common law’. It was during this period that legal principles, some of which are still relevant today, started to emerge. But the general attitude of the judges was strict and inflexible. Although there was room for judicial creativity, the judges tended to interpret the law rigidly and developed it through the elaboration of ever more complicated rules. In particular, claims brought by individual litigants had to fall within clearly established forms of action; if they did not, they would fail. Claims were initiated by writs, and cases were heard in front of a judge and jury. Claimants were bound by very strict rules of pleading and proof. This common law system was restrictive. But if no remedy was awarded, or was even available, it was possible to petition the King to seek justice in a particular case. Eventually, this function was delegated by the King to his chief minister, the Lord Chancellor. Originally, the Lord Chancellor was an ecclesiastical figure who presumably had regard to Biblical no tions of fairness and justice to determine whether a remedy should be awarded in an indi vidual case, but he would have been influenced by Greek and Roman authors too, notably the works of Aristotle and Homer. Ultimately, however, the Lord Chancellor’s decision was influenced by the exercise of his own conscience. It was through the exercise of conscience that the characteristic of Equity as a discretionary system emerged. This was famously de scribed by John Selden, a legal author writing in the seventeenth century, as follows: Equity is a roguish thing: for law we have a measure, know what to trust to; equity is ac cording to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. [It is] as if they should make the standard for the measure we call a foot a chancel lor’s foot; what an uncertain measure would this be! One chancellor has a long foot, an other a short foot, a third an indifferent foot. Tis the same in the chancellor’s conscience. 15 Eventually, so many petitions came to the Chancellor that it was necessary to establish a separate court, known as the Court of Chancery, to deal with them, and it was the law that was developed and applied in this court that became known as Equity. This law was very different from that administered by the Common Law courts. It was much more discretionary, but, crucially, the judges in the court benefited from distinct powers and remedies that had been developed by the Lord Chancellors. Two of these were especially significant. First, the court could make an order against litigants, known as a subpoena, to require them to be interrogated in the court. That made it easier to determine what the fair result should be as between the parties. Second, whereas the remedy typically awarded in the Common Law courts was pecuniary to compensate for loss suffered, in Equity the Lord Chancellors had fashioned the injunction, which enabled the court to compel a party to act or to desist from acting in a particular way. 16 Failure to comply with the terms of the injunction would constitute contempt of court, for which the sanction could be imprisonment. Over the years, the distinction between the Common Law and Equity approaches to decision-making became so marked that there developed a struggle between the Common © Oxford University Press

14 Baker, Introduction to Legal History (5th edn, Oxford: Oxford University Press, 2019), 114–24. 15 Table Talk of John Selden , ed. Pollock (London: Selden Society, 1927), 43. 16 See further Section 1.4.6, p. 15.

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