Selden's description is well known: "Equity is a roguish thing. 'Tis all
one as if they should make the standard for measure the chancellor's
foot." Lord Nottingham in 1676 reconciled the ancient theory and the
established practice by saying that the conscience which guided the
court was not the natural conscience of the man, but the civil and
political conscience of the judge. The same tendency of equity to settle
into a system of law is seen in the recognition of its limits--in the
fact that it did not attempt in all cases to give a remedy when the rule
of the common law was contrary to justice. Cases of hardship, which the
early chancellors would certainly have relieved, were passed over by
later judges, simply because no precedent could be found for their
interference. The point at which the introduction of new principles of
equity finally stopped is fixed by Sir Henry Maine in the chancellorship
of Lord Eldon, who held that the doctrines of the court ought to be as
well settled and made as uniform almost as those of the common law. From
that time certainly equity, like common law, has professed to take its
principles wholly from recorded decisions and statute law. The view
(traceable no doubt to the Aristotelian definition) that equity
mitigates the hardships of the law where the law errs through being
framed in universals, is to be found in some of the earlier writings.
Thus in the _Doctor and Student_ it is said:
"Law makers take heed to such things as may often come, and not to
every particular case, for they could not though they would;
therefore, in some cases it is necessary to leave the words of the law
and follow that reason and justice requireth, and to that intent
equity is ordained, that is to say, to temper and mitigate the rigour
of the law."
And Lord Ellesmere said:
"The cause why there is a chancery is for that men's actions are so
divers and infinite that it is impossible to make any general law
which shall aptly meet with every particular act and not fail in some
circumstances."
Modern equity, it need hardly be said, does not profess to soften the
rigour of the law, or to correct the errors into which it falls by
reason of its generality.
Public-domain text, read in full here on John Shaqi.
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