AT the last annual meeting of the Association of American Law Schools, Professor Walter W. Cool( contributed an
interesting address on Equity and its relation to Law. Taking as his more specific subject, "THE PLAcE or EQUITY IN OUR LEGAL SYSTEM," the speaker began his discussion with an extensive quota¬tion from MAITLAND'S LECTURES ON EQUITY,--a work cordially welcomed by that distinguished scholar's many admirers upon its posthumous publication in the fall of 19o9. The latter part of the quotation was as follows :
"I do not think that any one has expounded or ever will expound equity as a single, consistent system, an articulate body of law. It is a collection of appendixes between which there is no very close connection. If we suppose all our law put into systematic order, we shall find that some chapters of it have been copiously glossed by equity, while others are quite free from equitable glosses. * * *
"When. some years ago, the new scheme for our Tripos was settled, we said that candidates for the second part were to study the English Law of Real and Personal Property and the English Law of Contract and Tort, with the equita¬ble principles applicable to these subjects. It was a question whether we ought not to have mentioned equity as a sepa¬rate subject. I have no doubt, however, that we did the right thing. To have acknowledged the existence of equity as a system distinct from law would in my opinion have been a belated, a reactionary measure. I think, for example, that you ought to learn the many equitable modifications of the law of contract, not as part of equity, but as part, and a very important part, of our modern English law of contract."
After quoting these words, Mr. Cool( continued:
"I need not tell you that an examination of the announce¬ments of our American law schools reveals no signs of any disposition to adopt Mr. MAITLAND'S view. We are, in his phraseology, acknowledging the existence of equity as a systern distinct from law, and so are following—if he be right —a 'belated and reactionary' course of procedure. Take up the catalogue of almost any American law school, and what do you find? As a typical example—selected because it is typical, and in no respect whatever exceptional or peculiar—let us read from the catalogue of the Law School of Stanford University:
`Equity I.—Historical development of equity; relation be¬tween equitable rights and powers and legal rights and pow¬ers; general principles relating to jurisdiction, procedure and remedies; specific performance of contracts with special em¬phasis on the relations between vendors and purchasers of realty; introduction to mortgages; bills for an account ; spe¬cific reparation and prevention of torts, including waste, trespass, nuisance, disturbance of easements, infringement of patents and copyrights, interference with business relations.' [Italics are those of present writer.]
* * * "My thesis this evening is that Mr. MAITLAND is right, and that our American treatment of equity is belated and reactionary, because it is unscientific, both from the point of view of analysis and from that of educational ex¬pediency."'
The present writer having been absent from the meeting referred to, he of course missed the opportunity of hearing or discussing the address in which the foregoing appears. That being so, he now takes pleasure in saying, at the very outset, that he finds himself in substantial accord with many of the views expressed by Mr. COOK, and he believes that law teachers are indebted to the learned speaker for a number of helpful suggestions relating to the law school curriculum. At the same time it would seem that. in his enthusiastic conversion to MAITLAND'S views, Mr. Coot( has gone rather far in assuming and asserting that all American law schools have heretofore failed to recognize the fundamental ideas so justly emphasized by the lamented English scholar, and that these schools have hitherto "acknowledged the existence of equity as a system distinct from law."
As the present writer must confess to the authorship of the above-quoted announcement from the Stanford law catalogue—including, of course, the part now italicized—perhaps he will be pardoned for saving that, on reading the report of Mr. CooK's address, he was immediately reminded of certain language used some years ar.o by Professor John C. CRAY in replying to a friendly critic :
"I sincerely approve of my learned friend's general criticism ; that I -do not think his illustration a happy one, is perhaps natural enough. To applaud a sermon, but to believe that one's neighbors need it rather than one's self, is nothing new."2
it so happens that, ever since assuming charge of the above-mentioned course in equity some years prior to the appearance of MAITLAND'S hook,—in connection, more especially, with that part of the course reading "relation between equitable rights and powers and legal rights and powers," etc.,—the present writer, after "de¬veloping" the various points by student discussion of decided cases and historical reading, has been in the habit of using with his classes both an analytical synopsis and a diagrammatic sketch,—each en¬titled "THE POSITION OE EQUITY IN THE LEGAL SYSTEM," and each intended to enforce not only those matters now emphasized by Mr. CooK, but also certain other phases of the subject believed to be in need of recognition and emphasis.3 Some of the fundamental and general problems of equity thus treated—that is, those concerning the complicated relations and delicate interplay of rules of equity and rules of law--while always fascinating to students, are by no means free from intrinsic difficulty. Accordingly, in view of the new interest aroused by Mr. COOK'S address, it has occurred to the writer that the above-mentioned synopsis and the accompanying diagram might not be without interest to some of the readers of this law review, especially as so many of the latter are law school students still actively endeavoring to understand and to solve the wonderful intricacies and problems that for various historical reasons have become imbedded in the Anglo-American dual system of law and equity.
Because of the fact that the latter class of readers are primarily in view, it has seemed best, for the sake of clearness and perspec¬tive, to preserve the analytical and compendious form of presenta¬tion, and to add in "supplemental notes" such historical and ex¬planatory discussions, quotations, and references as might be help¬ful to students of the subject. With the same idea in mind, many additional "examples" have been incorporated in the text in order to indicate more adequately "the conflict between equity and law." The quotations in the supplemental notes are made largely from the standard historical works. Here and there in the notable volumes of POLLOCK & MAITLAND, HOLDSWORTH, KERLY, JENKS and others, there are valuable passages recording and explaining the essential causes underlying the development of equity ; but these are at pres¬ent so scattered among the several works named as to be very inconvenient, if not inaccessible, for the average student. Even with the various quotations and discussions appended, however, the present article is, of course, intended merely as an introductory sketch ; the "filling in" must come from the study and discussion of concrete cases and problems.
Despite what has thus far been said, there would be considerable hesitation in presenting these mere working materials, were it not for those parts relating to "the conflict between equity and law" and "the supremacy of equity over law." It is only in these matters that the writer finds it necessary to take issue with the views ex¬pressed by Professor MAITLAND and other well-known writers. Our distinguished English author, throughout his entertaining ser¬ies of lectures, maintains, with ever-recurring emphasis, that the relation between the rules of equity and the rules of law, with only one or two possible exceptions, "was not one of conflict."4 In order to have an adequate statement of Professor MAITLAND'S views before us, it will be necessary to give a fairly lengthy quotation from his LRCTURES
"Then as to substantive law the Judicature Act of 1873 took occasion to make certain changes. In its 25th section it laid down certain rules about the administration of insolvent estates, about the application of statutes of limitation, about waste, about merger, about mortgages, about the assignment of choses in action, and so forth, and it ended with these words :
`Generally in all matters not hereinbefore particularly men-tioned, in which there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail.'
"Now it may well seem to you that those are very impor¬tant words, for perhaps you may have fancied that at all mariner of points there was a conflict between the rules of equity and the rules of common law, or at all events a var¬iance. But the clause that I have just read has been in force now for over thirty years, and if you will look at any good commentary upon it you will find that it has done very little —it has been practically without effect. You may indeed find many cases in which some advocate, at a loss for other argu¬ments, has appealed to the words of this clause as a last hope; but you will find very few cases indeed in which that appeal has been successful. I shall speak of this more at large at another time, but it is important that even at the very out¬set of our career we should form some notion of the relation which existed between law and equity in the year 1875. And the first thing that we have to observe is that this relation was not one of conflict. Equity had come not to destroy the law.. but to fulfil it. Every jot and every tittle of the law was to be obeyed, but when all this had been done something might yet be needed, something that equity would require. * * *
"Let me take an instance or two in which something that may for one moment look like a conflict becomes no conflict at all when it is examined. Take the case of a trust. An examiner will sometimes be told that whereas the common law said that the trustee was the owner of the land, equity said that the cestui que trust was the owner. Well here in all conscience there seems to be conflict enough. Think what this would mean were it really true. There are two courts of coordinate jurisdiction—one says that A is the owner, the other says that B is the owner of Blackacre. That means civil war and utter anarchy. Of course the statement is an extremely crude one. it is a misleading and dangerous state¬ment—how misleading, how dangerous, we shall see when we come to examine the nature of equitable estates. Equity did not say that the cestui que trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust. There was no conflict here. Had there been a conflict here the clause of the Judicature Act which I have lately read would have abolished the whole law of trusts. Common law says that A is the owner, equity says that B is the owner, but equity is to prevail, therefore B is the owner and A has no right or duty of any sort or kind in or about the land. Of course the Judicature Act has not acted in this way ; it has left the law of trusts just where it stood, because it found no conflict, no variance even, be¬tween the rules of the common law and the rules of equity."
The same views seem to have been entertained by Professor LANGDELL, in whose SUMMARY Or EQUITY PLEADING, we find the
following:
"Indeed, it may be said without impropriety that equity is a great legal system, which has grown tip by the side of the common law, and which, while consistent with the latter, is in a great measure independent of it."
And in the same learned author's BRIEF SURVEY OF EQUITY JUR-
ISDICTION :
"Equity cannot therefore, create personal rights which are unknown to the law * * * nor can it impose upon a person or a thing an obligation which by law does not exist * * *. To say that equity can do any of these things would be to say that equity is a separate and independent system of law, or that it is superior to law."'
So also, similar ideas seem to have been expressed by Mr. ADAMS in his treatise on EQUITY,8 and, perhaps, by Professor Salo-FIELD in his reply to Professor Coox.g
As against the proposition of these various scholars that there is no appreciable conflict between law and equity, the thesis of the present writer is this : while a large part of the rules of equity harmonize with the various rules of law, another large part of the rules of equity—more especially those relating to the so-called exclusive and auxiliary jurisdictions of equity—conflict with legal rules and, as a matter of substance, annul or negative the latter pro tanto. As just indicated, there is, it is believed, a very marked and con¬stantly recurring conflict between equitable and legal rules relating to various jural relations; and whenever such conflict occurs, the equitable rule is, in the last analysis, paramount and determinative. Or, putting the matter in another way, the so-called legal rule in every such case has, to that extent, only an apparent validity and operation as a matter of genuine law. Though it may represent an important stage of thought in the solution of a given problem, and may also connote very important possibilities as to certain other, closely associated (and valid) jural relations, yet as regards the very relation in which it suffers direct competition with a rule of equity, such a conflicting rule of law is, pro tanto, of no greater force than an unconstitutional statute."
If all this be so, it would seem to follow that the brilliant historian's discussion of the eleventh and last subdivision of the 25th section of the Judicature Act of 1873 is inadequate and misleading. If this particular subdivision, considered as an isolated entity, has, as asserted by MAITLAND, "produced very little fruit," one sufficient explanation would be that this last provision was evidently added only out of abundance of caution. Even if it had not been enun¬ciated in ipsissimis verbis, such a provision would have been im¬plicit in the language and intent of the act as a whole. But, more than that, the full content of subdivision II had already been cov¬ered, with explicit and industrious formality, by the seven subdivisions of section 24 and the first ten subdivisions of section 25. Although, in these preceding subdivisions, nothing was said in yen, terms concerning the conflict of law and equity, it is clear that they were intrinsically sufficient for that purpose, and that the fram¬ers of the act thought that they had been regulating precisely that sort of conflict; for do they not say in the final subdivision of section 25:
"Generally in all matters not hereinbe fore particularly men-tioned, in which there is any conflict or variance between the-rules of equity and the rules of the common law with refer¬ence to the same matter, the rules of equity shall prevail."
The reasons already given would seem adequate to explain why subdivision 1 1, considered as a separate entity, has appeared to have so little effect. But, in addition, it is well to remember that the Common Law Procedure Act of 1854, in providing both for equit¬able defenses and for equitable replications had at that comparatively early day brought about a partial "fusion" of law and equity; so that already for two decades prior to their enactment the essential scope and operation of the Judicature Acts, and likewise many of the concrete problems involved, had been made familiar to the bench and bar of England. The fundamental idea of subdivision II of section 25 was anything but a novelty !li
The more concrete presentation of the typical cases of "conflict" between law and equity and the "supremacy" of the latter over the former will be found in the appropriate parts of the analytical synopsis immediately following, and in the supplemental notes relat¬ing thereto.12
This synopsis, intended, as heretofore stated, merely to give the student a concise introduction to the subject of equity, consists of three divisions, namely :
Part I : The Position of Equity in the Legal System. Part II : Historical Sketch of Equity.
Part III: Fundamental Characteristics of Equity.
PART I.
THE POSITION OF EQUITY IN THE LEGAL SYSTEM.
I. The term "equity" as used in legal discussions is not to be confused with equity in the sense of natural justice; on the contrary the term is em¬ployed to denote a certain division of the law.'
II. Law (in the broad sense) is divisible "vertically" into law, or common law (in the narrow sense) and equity!
A Law, or common law (in the narrow sense), consists of that part of the law (in the broad sense) which has been developed in the so-called courts of law (or common law courts).
B Equity consists of that part of the law (in the broad sense) which has been developed in courts of chancery (or courts of equity).
III. Private law (in the broad sense), including both law and equity, is divisible "horizontally" into the various subjects indicated by the dia¬gram accompanying this outline ;2 this list is not intended to be ex¬haustive.
IV. From the foregoing, it follows that for an adequate treatment of any subject in the law such, e. g., as property, contracts, or torts, it is neces¬sary to consider both the law and the equity relating to such subject.
PART II.
HISTORICAL SKETCH OF EQUITY. General References:
SPME, EQUITABLE JURISDICTION (1846), Vol. I., pp. 321-349• KERLY, HISTORY OF EQUITY (1890), Chapters I.-V.
POLLOCK & MAITLAND, HISTORY OP ENGLISH LAW (2nd ed., 1905), Vol. I., pp. 150-151; 17o-171; 189-197.
HOLDSWORTH, HISTORY OF ENGLISH LAW (1903), Vol. I., pp. 194-263. POLLOCK, THE EXPANSION OP THE COMMON LAW (1904), pp. 53-80; THE SCALES OP JUSTICE.
I. The dual system of law and equity can be understood only by reference to its historical development.
A Such a system was not inherently necessary, as, conceivably, all rules of law (in the broad sense) might have been developed in a single system of courts! (Compare infra, the "fusion of law and equity," part II., H., B.)
B The system is to be accounted for by the incidents of history'
II. Origin and development of equity.
A Earlier development and administration of equity.
r. Courts of equity and their doctrines were made necessary by the
retarded development of the law courts and their doctrines.
a. Characteristic features of the law courts in the latter half of the 13th century, when equity took its origin.
i The king's powers of administering justice: from time immemorial it was the king's prerogative to administer justice to his subjects either in person or by delegation to others.'
ii The king made a partial delegation of judicial power to appointed judges,—the king's courts consisting, in the latter part of the 13th century, of the King's Bench, the Common Bench (or Common Pleas), and the Ex¬chequer.
iii Delegation of such power was made specifically in each case by writ issued from the office of the chancellor in the name of the king.'
iv The case in court had to conform to the writ, the com-mon law judges having final power to quash the writ whenever it was deemed defective or inadequate to cover the facts of the plaintiff's case'
v In the latter half of the 13th century the chancellor's powers of inventing new writs to meet the advancing needs of society received radical checks, and a greatly retarded development of law ensued.'
b. Resultant defects of above system of law courts and their doctrines.
i Defects of substantive law : inadequacy of rights, both pri¬mary and remedial. (This topic to be exemplified in the treatment of the various branches of the law.)
ii Defects of the adjective law : inadequacy of the common law procedure and remedies.'
c. Attempts to remedy these defects.
i Results of legislative action, Statute of Westminster II., 13 Ed. I. (1285), c. I, sec. 24, inadequate."
ii Gradual establishment of new system of courts success¬ful: courts of chancery, or courts of equity.
The •important stages in the earlier development of courts of equity.
a. By reason of his judicial prerogative,—his "residuary juris-diction,"—the king could directly exercise judicial powers in cases where complainants could not, for some reason, gain relief from the ordinary courts."
b. The prerogative jurisdiction was exercised originally by the king himself in conjunction with his select council, consist-of the chancellor, judges, and other high officials.'
c. This extraordinary jurisdiction was gradually delegated to the chancellor and his subordinates.
i The office of chancellor existed before the conquest and was continued by William I.
ii After the conquest the chancellor became the most im-portant officer of the king's government, being his per¬sonal adviser and representative—"the king's secretary of state for all departments."'
iii From early times the "original writs" had been issued from the office of the chancellor;" and by the reign of Edward III, (1326-1377) he had acquired a limited ordinary, or common-law, jurisdiction. This ordinary jurisdiction must be distinguished from his extraordi¬nary, or equitable, jurisdiction."
iv By the reign of Edward I. (1272-1307) cases were oc-casionally referred by the king or the select council to the chancellor for his sole decision, he being specially competent to deal with such cases by reason of his familiarity with legal and judicial matters.
v By the reign of Edward II. (1307-1326) such reference was very common; and by the reign of Edward III. (1326-1377) the chancery was regarded, in some meas¬ure, as a regular court.
vi In 1349 Edward III., by a general writ addressed to the sheriff of London, directed that petitions relating to the grant of the king's grace should be brought before the chancellor or the keeper of the privy seal.
vii For a long time, however, the judicial functions of the chancellor and those of the council continued to be closely associated; and not until the latter part of the 15th century did the equitable jurisdiction become ex¬clusively that of the chancellor."
viii The struggle for supremacy between the court of chancery and the courts of law was marked, from the beginning of the reign of Richard II. (1377-1399), by numerous petitions presented by the Commons against alleged abuses on the part of the chancellor; and by various Acts of Parliament recognizing his jurisdiction and to some extent regulating it,—more especially the Stat. 4 Hen. IV. (1403), c. 8 and the Stat. 4 Hen. IV. (1403), c. 23.'T
ix The supremacy of the court of chancery in relation, more especially, to the granting of injunctions against the bringing of actions and the enforcing of judgments at law was settled when, after the notable controversy between Lord Chancellor ELLSMERE and Chief Justice Cola, James I., by •a prerogative decree issued in 1616, upheld the jurisdiction of the chancellor."
B Later development and administration of equity: the "fusion of law and equity." (Compare supra, Part IL, I., A.)
r. In the rgth century radical changes were made in the adminis-tration of equity and law.
2. In regard to substance, as distinguished from form, these changes in administration have not, for the most part, modified the con¬joint operation of legal and equitable primary rights, or the conjoint operation of legal and equitable remedial rights: they have simply affected the modes by which legal and equitable rights are defined and vindicated.
3. The modern system of "reformed procedure" resulting from these changes.
a. In England, since the Supreme Court of Judicature Acts of 1873 and 1875, going into effect in 1875, there has been a single system of courts administering both law and equity, —a single, simplified system of procedure and pleading be¬ing adopted as far as practicable."
b. In America there are now three typical systems for admin¬istering law and equity."
i In some states, e. g., New Jersey, there is still the dual system Of law courts, with the two respective kinds of procedure.
ii In the federal organization and in a number of states, e. g., Illinois, there is but a single system of courts ad-ministering both law and equity; but the forms of ac¬tion, modes of pleading, etc., in a legal proceeding differ from those in an equitable proceeding. [The rules for equity practice in the federal courts have recently been greatly improved and simplified.]
iii In many states, e. g., New York and California, there is but a single system of courts administering both law and equity and having, in general, as regards both legal proceedings and equitable proceedings, approximately the same forms of procedure, pleading, practice, etc.
u David Dudley Field's New York code of 1848 and the simple "civil action."
v This code is the model for the procedural codes of
California and numerous other "code states."
w There are still certain differences in procedure. Ex¬ample: when "legal" issues are involved, trial' by jury is guaranteed by the state constitution; where¬as in the case of "equitable" issues, questions of fact (as well as of law) are tried by the judge.'
PART III.
FUNDAMENTAL CHARACTERISTIC'S OF EQUITY.
I. Guiding ideas and maxims.
A In the early development of equity the guiding ideas were "con-
science," "good faith," "reason," and, more rarely, "equity.'
B The following maxims are still of some influence in the determina¬tion of cases not decisively governed by more specific rule or prece¬dent: they are, however, mere "guide-posts" and must not be taken literally.
Equity will not suffer a right to be without a remedy.
2 Equity regards that as done which ought to be done.
3 Equity looks to the intent rather than to the form.
4 Equity imputes an intent to fulfil an obligation.
5 Equality is equity.
6 He who seeks equity must do equity.
7 He who comes into equity must come with clean hands.
8 Where there are equal equities the first in time shall prevail.
9 Where equities are equal the legal title will prevail:
so Equity aids the vigilant, not those who slumber on their rights.
is Equity follows the Law. (That is, in dealing with "equitable
estates" equity follows in large measure the analogy of "legal
estates.")
C The general principles and specific rules of equity are now for the most part defined by a large and well organized body of precedents, so that the above general ideas and maxims are, at the present time, of comparatively slight importance.'
II. Characteristic features of equitable remedies and procedure: these may best be seen by contrasting equity and law as they now exist.
A Equitable remedial proceedings and decrees contrasted with legal remedial proceedings and judgments in relation to the general char¬acter of the relief granted.
Prevention vs. reparation.
a Legal remedies generally consist of mere reparation for the violation of a right.
b Equitable remedies, when necessary, consist in preventing the threatened violation of a right.
2 Specific reparation vs. non-specific reparation (damages).
a At law, if a right has been violated, the remedy is non-specific reparation (i.e., damages) except in the following cases of specific reparation:
i Recovery of possession of realty: ejectment, etc.
ii Recovery of possession of specific personal property: re¬plevin, etc.
iii Recovery of damages for breach of an obligation to pay money. (In this case the specific character of the relief is a coincidence.)
b In equity specific reparation for a right already violated is granted unless there is good reason for granting merely non-specific reparation (i. e., damages).
B Equitable remedial proceedings and decrees contrasted with legal remedial proceedings and judgments in relation to the powers of courts and parties in securing their performance or satisfaction.
