Equity

In 1800, and indeed up to 1870, the property rights of a married woman were mainly determined by rules contained in two bodies of judge-made law, namely, the Common Law, and Equity.

a father) who gave to, or settled property on a woman, to ensure that she, even though married, should possess it as her own, and be able to deal with it separately from, and independently of, her husband, who, be it added, was, in the view of equity lawyers, the “enemy” against whose exorbitant common-law rights the Court of Chancery waged constant war.

The rules of equity, however, have done much more than delay for a certain period the complete reform of the law governing the property of married women, or than fix the method in accordance with which that reform should be carried out.

The next instrumentality by which the adaptation of law to social wants is carried on I call Equity, meaning by that word any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles.

The Equity of the Romans and the Prætorian Edict by which it was worked into their system, will be considered in the next chapter.

The early history of one of them, Equity, is universally obscure, and hence it may be thought by some that certain isolated statutes, reformatory of the civil law, are older than any equitable jurisdiction.

Very soon it will cease to be possible for a man to have a reputation for skill in the Common Law without at least an elementary knowledge of equity.

the last quarter of the sixteenth century saw, concurrently with the steady growth of equity jurisdiction, a great revival of the Courts at Westminster, based on clear and proud consciousness of their historical authority and doctrine.

We have next to speak of Equity and the equitable, and of their relation to Justice and to what is just respectively.

The source of the difficulty is that equity, though just, is not legal justice, but a rectification of legal justice.

It is now plain what the equitable is, and that it is just, and that it is superior to one sort of justice.

It would seem that, in these early times, however much the administration of justice might be organised, even though a system of law-courts might exist competing with the King’s justice and quite independent of him, even though all or some part of the law might have been set forth in writing, yet there was always supposed to be what may be called a supplementary or residuary jurisdiction in the King.

In judging of the will by natural reason, Aristotle, who has treated the subject with great accuracy, makes the mind the seat of judgment, and the will the seat of equity, which he nobly defines to be the correction of that, wherein the law, by reason of its universal nature is defective.

The need of equity too will appear in cases, where following the literal meaning of the words will not be absolutely unlawful, yet, upon a fair estimation, will be found too hard and intolerable.

The clearest proof we can have of a want of equity, is where following the literal meaning of the words would be unlawful, that is, repugnant to natural or divine precepts.

Former concurrent jurisdiction of common law and equity to give compensation for fraud.

Specific orders and prohibitions in the form of injunctions or otherwise were (with few exceptions, if any) in the hand of the Chancellor alone, and the principles according to which they were granted or withheld were counted among the mysteries of Equity.

and their jurisdiction required a supplement, which was supplied by the genesis of the Court of Chancery, dispensing, not common law, but equity, which professed to give (and, for a short time, actually did give) redress on the merits of each case as it arose, unrestrained by precedents and legal subtleties.