B. Common Law and Equity

Author:John D. McCamus
Profession:Professor of Law. Osgoode Hall Law School, York University

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For outsiders to the common law system, it is no doubt a startling fact that until the latter part of the nineteenth century, the central institutional framework of the English legal system consisted of not one court system but two. The Royal Courts of common law - King’s Bench, Common Pleas and Exchequer - developed a body of jurisprudence that has come down to us as common law in the narrow sense. For much of the history of the common law, however, there was a parallel court system, the Court of Chancery, which developed the jurisprudence referred to, at least for the past few centuries, as "equity."

The origins of equity jurisprudence are to be found in the medieval office of the Chancery, that is, the royal secretariat, and in the residual authority claimed by the King, in the early era, to administer justice personally outside the system of the common law courts.11Those who were dissatisfied with their treatment at common law could petition the King for relief. By the fourteenth century, the volume of such petitions or bills was such that the practice of referring them to the Chancellor had begun. The Chancellor possessed a discretion to intervene in such situations by decree and by the end of the next century issued such decrees in his own name. For present purposes, it is not necessary to record the detail of the evolution of Chancery jurisdiction from the ad

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hoc and discretionary interventions of the Chancellor to the establishment of a court system and, in turn, to the establishment of that body of jurisprudence that came to be called equity. The historical origins of equity jurisprudence, however, assist in explaining the fact that its role was largely seen as being a corrective to the harshness of the common law. In 1615, the presiding Chancellor explained: "the office of the Chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs and oppressions of what nature soever they be, and to soften and mollify the extremity of the law."12

For petitioners, the attractions of Chancery were not only that they might achieve different results from that attainable at common law. In the early period at least, Chancery procedures were less cumbersome than those of the common law. The Chancellor could grant decrees ordering parties to do whatever conscience required rather than as, at common law, merely ordering the payment of damages. Indeed, it should be noted that Chancery did not, as a general matter, award damages or compensation in the manner of the common law courts. "Damages" was a remedy of the common law. Over time, the role of discretion and conscience diminished as equity jurisprudence matured into a system of rules and precedent. Chancery cases began to be reported in the late-seventeenth century. The first text on equity appeared in 172713 and by the opening of the nineteenth century the doctrines of equity, like the doctrines of common law before them, had hardened into legal principles and rules. Nonetheless, the oddity remained that...

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