Common Law & Equity
Douglas Harris
UBC Law
Origins
“The common law is the by-product of an
administrative triumph, the way in which the
government in England came to be centralised and
specialised during the centuries after the Conquest.”
S.F.C. Milson, Historical Foundations of the Common Law, 2nd
Ed. (1981) 11.
Origins
Local/Communal Courts
Origins
Feudal/Seigniorial Courts
Origins
Feudalism
“A state of society in which the main social bond is between
lord and man, a relation implying on the lord’s part protection
and defence; and on the man’s part protection, service and
reverence, the service including service in arms. This personal
relationship is inseparably involved in a proprietary relation,
the tenure of land—the man holds of the lord, the man’s
service is a burden on the land, the lord has important rights
in the land.”
F.W. Maitland, The Constitutional History of England (1908), p. 143
Royal Courts
Exchequer
Common Pleas
King’s Bench
Chancery
Equity
“men’s actions are so diverse and infinite that it is impossible
to make a general law which may aptly meet with every
particular and not fail in some circumstances. The office of the
chancellor is to correct men’s consciences for frauds, breaches
of trust, wrongs and oppressions of what nature soever they
may be, and to soften and mollify the extremity of the law.”
Earl of Oxford’s Case (1615) 1 Rep. Ch. 1 at 6
Equity
“Equity is a roguish thing: for law we have a measure, know
what to trust to; equity is according to the conscience of him
that is Chancellor, and as that is larger or narrower, so is
equity. ‘Tis all one as if they should make the standard for the
measure we call a foot, a Chancellor’s foot; what an uncertain
measure would this be? One Chancellor has a long foot,
another a short foot, a third an indifferent foot: ‘tis the same
thing in a Chancellor’s conscience.”
John Selden, Table Talk (1689)
Law & Equity Act
44 Generally in all matters not particularly mentioned in this
Act in which there is any conflict or variance between the
rules of equity and the rules of the common law with
reference to the same matter, the rules of equity prevail.