COMMON LAW
The Relation of Common Law to Equity
In the English system, Equity has acquired a technical connotation and we are accustomed to think of it as a whole jurisdiction distinct from Common Law principles.
For better or for worse, the stream of English Law divided into two channels, not without considerable disturbance of the soil and morbidity of the waters.
But the interdependence of Law and Equity has never wholly disappeared.
We ought not to think of Common Law and Equity as rival systems. Equity was not a self-contained system, at every point it presupposed the existance of Common Law.
The principle on which the Court of Equity granted relief
If we look for one general principle which more than any other influenced the Equity developed by the Chancery, we find it in a philosophical and theological conception of conscience.
The English Equity begins to be systematized under the guidance of a governing moral principle of conscience.
Not that we can suppose that all the Chancellors were assidious and consistent in the pursuit of that principle. Under the Tudors, some Of them behaved with complete arbitrariness. These occasional aberrations may have inspired Seldon’s oft quoted, but probably only half serious quip about the length of the Chancellor’s foot. But they were not typical, the ‘conscience’ which the Chancellor set before him was normally something more constant and imperishable than the mere caprice of his own whim. A ‘hardening’ process sets in. By 1676 we find Lord Nottingham expressly repudiating the notion that the conscience of the Chancellor is merely naturalis et interna, and in 1818, Lord Seldon summarily repudiates any notion of mere