EQUITY and COMMON LAW – two separate streams of law running in the same channel
“The two streams of jurisdiction, though they run in the same channel, run side by side and do not
mingle their waters”
Ashburner’s Principles of Equity, 2nd Ed, p18.
Introduction
History tells us, in brief, that Equity has its origins in the old English Courts of Chancery (namely the
court of the Chancellor). Due either to the inability of the Kings justices to enforce judgments against
powerful individuals (some noble families were very much a law unto themselves in their Earldoms,
Dukedoms etc during the Medieval period) or, with increasing frequency in later years, defects or undue
harshness of the common law people were driven to submit petitions to the King, who was considered
to be a repository of ‘Divine justice’. Such petitions were often passed over to the Lord Chancellor, who
would dispose justice in the name of the King. With the passage of time such petitions were directed to
the Chancellor and his office of the Chancery began to function as a court of law. A significant aspect of
the Equitable principles developed in these courts of Chancery was that they were so developed by
Priests (most Chancellors of the medieval period were ‘men of the cloth’). This ensured that the
principles of Equity were fundamentally based on the concept of ‘natural justice’ in keeping with the
lines of the Christian tradition of Good and Evil, and indeed in ancient usage the word Equity means
‘natural justice’
The different views taken in certain situations, by the principles of Common law and the principles of
Equity, naturally led to conflict and confusion. In the reign of King James the First it was held that
decisions of the courts of Chancery would have overriding authority. While Equity was initially free of
the concept of ‘precedent’ from the late 1500s to the mid 1800s a body of precedent, of cases based on
equitable principles began to take shape, and the rules or principles of equity took their final form with
clear lines and with the introduction of the Judicature Acts of 1873 and 1875 the Court of Chancery,
along with the other Courts such as Kings/Queens Bench, Common Pleas, Exchequer, Exchequer
Chamber, Court of Appeal in Chancery were absorbed by the Supreme Court.
It would be fair to say that the Judicature Act played the role of ‘fusing’ the system under which both
the Common law and Equity was administered, namely an amalgamation of the different courts under
one. This can be equated to the reference made in the statement that sets the theme for this article,
the ‘two streams of jurisdiction’ meaning the common law and Equity, ‘run in the same channel’
meaning the administration of both within a common system of courts.
“The two streams of jurisdiction, though they run in the same channel, run side by side and do not
mingle their waters”
Ashburner’s Principles of Equity, 2nd Ed, p18.
Introduction
History tells us, in brief, that Equity has its origins in the old English Courts of Chancery (namely the
court of the Chancellor). Due either to the inability of the Kings justices to enforce judgments against
powerful individuals (some noble families were very much a law unto themselves in their Earldoms,
Dukedoms etc during the Medieval period) or, with increasing frequency in later years, defects or undue
harshness of the common law people were driven to submit petitions to the King, who was considered
to be a repository of ‘Divine justice’. Such petitions were often passed over to the Lord Chancellor, who
would dispose justice in the name of the King. With the passage of time such petitions were directed to
the Chancellor and his office of the Chancery began to function as a court of law. A significant aspect of
the Equitable principles developed in these courts of Chancery was that they were so developed by
Priests (most Chancellors of the medieval period were ‘men of the cloth’). This ensured that the
principles of Equity were fundamentally based on the concept of ‘natural justice’ in keeping with the
lines of the Christian tradition of Good and Evil, and indeed in ancient usage the word Equity means
‘natural justice’
The different views taken in certain situations, by the principles of Common law and the principles of
Equity, naturally led to conflict and confusion. In the reign of King James the First it was held that
decisions of the courts of Chancery would have overriding authority. While Equity was initially free of
the concept of ‘precedent’ from the late 1500s to the mid 1800s a body of precedent, of cases based on
equitable principles began to take shape, and the rules or principles of equity took their final form with
clear lines and with the introduction of the Judicature Acts of 1873 and 1875 the Court of Chancery,
along with the other Courts such as Kings/Queens Bench, Common Pleas, Exchequer, Exchequer
Chamber, Court of Appeal in Chancery were absorbed by the Supreme Court.
It would be fair to say that the Judicature Act played the role of ‘fusing’ the system under which both
the Common law and Equity was administered, namely an amalgamation of the different courts under
one. This can be equated to the reference made in the statement that sets the theme for this article,
the ‘two streams of jurisdiction’ meaning the common law and Equity, ‘run in the same channel’
meaning the administration of both within a common system of courts.
