Essays on the History of Equity

This volume presents various facets of the history of equity in England between the 14th and 20th centuries.

Writing a history (or histories) of equity automatically raises difficult questions of philosophy and theology, as well as jurisprudence and legal history. When one speaks of ’equity’, for example, do we mean Aristotelian epieikeia, civilian aequitas, a theological/juridical conscience, the common law concept of the ’equity of the statute’, or merely the rules applied by the court of chancery before 1875?

This terminological problem is compounded when we consider how these ideas were developed over time. Whilst conscience had been an organising concept for St German, the political disputes surrounding the Earl of Oxford’s case introduced the prerogative into contemporary understandings of the chancery’s jurisdiction. The emergence of clear, doctrinal rules governing (inter alia) the equity of redemption and the beneficiary’s right under a trust may well be attributable to the complex interplay of theory and practice in the central courts of equity at this time.

If the earlier history of equity remains somewhat obscure, the same is no less true of developments in the 18th, 19th, and 20th centuries. Whereas the historian of the 14th century might search in vain for new material, the modern era poses the opposite problem. The overwhelming glut of undigested information in the later period - treatises, court records, reports, pamphlets, practice manuals - raises obvious issues of source selection when generating new narratives for the period.

Whether by investigating the historical foundations of the modern law, the jurisprudential underpinnings of the equitable jurisdiction, or the socio-political context of discrete legal developments, this collection of essays exposes the strands of thought which ’equity’ comprises and the mechanisms by which its rules evolved. In so doing, this collection provides a useful way-marker for future studies in the nature and history of English equity.

D Foster is Lecturer in Property Law and Legal History and C Mitchell is Professor of Law, both at University College London, UK.