Editing Equity (law) (section)

== Equity in common law jurisdictions (general) ==
In jurisdictions following the [[English law|English]] [[Common law#History|common law system]], equity is the body of law which was developed in the English [[Court of Chancery]] and which is now administered concurrently with the [[common law]].<ref>'Common law' here is used in its narrow sense, referring to that body of law principally developed in the superior courts of common law: [[Court of King's Bench (England)|King's Bench]] and [[Court of Common Pleas (England)|Common Pleas]].</ref> In common law jurisdictions, the word "equity" "is not a synonym for 'general fairness' or 'natural justice{{'"}}, but refers to "a particular body of rules that originated in a special system of courts".<ref name="Farnsworth_Page_105">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=105 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA105 |access-date=November 17, 2020}}</ref>

For much of its history, the English common law was principally developed and administered in the central royal courts: the [[Court of King's Bench (England)|Court of King's Bench]], the [[Court of Common Pleas (England)|Court of Common Pleas]], and the [[Exchequer of Pleas|Exchequer]]. Equity was the name given to the law which was administered in the [[Court of Chancery]]. The [[Judicature Acts]] of the 1870s effected a procedural fusion of the two bodies of law, ending their institutional separation. The reforms did not fuse the actual bodies of law however. As an example, this lack of fusion meant it was still not possible to receive an equitable remedy for a purely common law wrong. Judicial or academic reasoning which assumes the contrary has been described as a "fusion fallacy".<ref name="MGL">{{cite book | first1=J. D. | last1=Heydon | first2=M. J. | last2=Leeming | first3=P. G. | last3=Turner | title=Meagher, Gummow & Lehane's Equity: Doctrine and Remedies | publisher=LexisNexis | edition=5th | date=2014 | isbn=9780409332254 | series=Trusts, Wills and Probate Library}}</ref>

Jurisdictions which have inherited the common law system differ in their treatment of equity. Over the course of the twentieth century some common law systems began to place less emphasis on the historical or institutional origin of substantive legal rules. In England and Wales, Australia, New Zealand, and Canada, equity remains a distinct body of law. Modern equity includes, among other things:<ref name="MGL"/><ref>{{cite book | editor-first=John | editor-last=McGhee | title=Snell's Equity | publisher=Sweet & Maxwell | edition=33rd | isbn=9780414051607 | date=13 December 2017}}</ref>

* the law relating to [[Express trusts in English law|express]], [[Resulting trusts in English law|resulting]], and [[Constructive trusts in English law|constructive trusts]];
* [[Fiduciary|fiduciary law]];
* [[Estoppel|equitable estoppel]] (including promissory and proprietary estoppel);
* relief against [[Penalties in English law|penalties]] and relief against forfeiture;<ref>There is currently a divergence of opinion between the High Court of Australia and the Supreme Court of England on this point. In Australia, the continuing existence of the equitable jurisdiction to relieve against penalties has been confirmed: {{cite AustLII | litigants=Andrews v Australia and New Zealand Banking Group Limited|HCA|30|2012|parallelcite=247 CLR 205}}. In England, this view was not adopted: {{cite BAILII | litigants=Cavendish Square Holding BV v Talal El Makdessi |year=2015 | court=UKSC | num=67}}.</ref>
* the doctrines of [[Contribution claim (legal)|contribution]], [[subrogation]] and [[Doctrine of marshalling|marshalling]]; and
* equitable [[Set-off (law)|set-off]].

''[[Black's Law Dictionary]]'', 10th ed., definition 4, differentiates "common law" (or just "law") from "equity".<ref name="Blacks10thDef4">{{cite book|title=Black's Law Dictionary – Common law|date=2014|edition=10th|page=334|quote=4. The body of law derived from law courts as opposed to those sitting in equity.}}</ref><ref name="GarnerUsageDef2">{{cite book | title = A Dictionary of Modern Legal Usage | url = https://archive.org/details/dictionaryofmode00garn_0 | url-access = registration | last = Garner | first= Bryan A. | year = 2001 | publisher = [[Oxford University Press]] | location = New York | edition = 2nd, revised |page=[https://archive.org/details/dictionaryofmode00garn_0/page/177 177]| isbn = 9780195077698 |quote=Second, with the development of equity and equitable rights and remedies, ''common law'' and equitable courts, procedure, rights, and remedies, etc., are frequently contrasted, and in this sense ''common law'' is distinguished from ''equity.''}}</ref> Before 1873, [[England and Wales|England]] had two complementary court systems: courts of "law" which could only award [[Monetary damages|money damages]] and recognized only the legal owner of property, and courts of "equity" ([[courts of chancery]]) that could issue [[injunction|injunctive relief]] (that is, a [[court order]] to a party to do something, give something to someone, or stop doing something) and recognized [[trust (law)|trusts]] of property. This split propagated to many of the colonies, including the United States. The states of Delaware, Mississippi, South Carolina, and Tennessee continue to have divided Courts of Law and Courts of Chancery. In New Jersey, the appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division. There is a difference of opinion in Commonwealth countries as to whether equity and common law have been fused or are merely administered by the same court, with the orthodox view that they have not (expressed as rejecting the "fusion fallacy") prevailing in Australia,<ref>{{Cite AustLII|litigants=Harris v Digital Pulse Pty Ltd|source=NSWCA|num=10|year=2003|parallelcite=(2003) 56 NSWLR 298, 306 (Spigelman CJ), 325–9 (Mason P, dissenting), 391–2 (Heydon JA)|pinpoint=[21]–[27] (Spigelman CJ), [132]–[178] (Mason P, dissenting), [353] (Heydon JA)}}</ref> while support for fusion has been expressed by the [[New Zealand Court of Appeal]].<ref>{{Cite journal |last=Tilbury |first=Michael |date=2003 |title=Fallacy or Furphy?: Fusion in a Judicature World |url=https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2017/09/26-2-8.pdf |journal=UNSW Law Journal |volume=26 |issue=2}}</ref>

For most purposes, the U.S. federal system and most states have merged the two courts.<ref name="friedmanxix">{{cite book | title = A History of American Law | last = Friedman | first = Lawrence Meir | year = 2005 | publisher = Simon and Schuster | location = New York | edition = 3rd | isbn = 978-0-7432-8258-1 | url = https://books.google.com/books?id=JndnEiydTiYC&pg=PR19 }}</ref>

The latter part of the twentieth century saw increased debate over the utility of treating equity as a separate body of law. These debates were labelled the "fusion wars".<ref>{{cite book | editor-first1=Simone | editor-last1=Degeling | editor-first2=James | editor-last2=Edelman | title=Equity in Commercial Law | publisher=Lawbook Co. | location=Sydney | date=October 2005 | isbn=0-455-22208-8}}.</ref><ref name="Burrows">For an example of the pro-fusionist view, see Andrew Burrows, {{cite journal | title=We Do This At Common Law But That in Equity | first=Andrew | last=Burrows | date=1 March 2002 | volume=22 | issue=1 | journal=Oxford Journal of Legal Studies | pages=1–16 | doi=10.1093/ojls/22.1.1 | jstor=3600632 |  mode=cs2}}.</ref> A particular flashpoint in this debate centred on the concept of [[unjust enrichment]] and whether areas of law traditionally regarded as equitable could be rationalised as part of a single body of law known as the [[English unjust enrichment law|law of unjust enrichment]].<ref>{{cite book | first=Peter | last=Birks | title=Unjust Enrichment | edition=2nd | date=13 January 2005 | series=Clarendon Law Series | publisher=Oxford University Press | isbn=9780199276981}}</ref><ref>{{cite book | first=Andrew | last=Burrows | title=The Law of Restitution | edition=3rd | date=2 December 2010 | publisher=Oxford University Press | isbn=9780199296521}}</ref><ref>{{cite book | first=Graham | last=Virgo | title=The Principles of the Law of Restitution | edition=3rd | date=13 August 2015 | publisher=Oxford University Press | isbn=9780198726388}}</ref>

=== History of equity in common law jurisdictions ===
{{main|History of equity and trusts}}

After the [[Norman Conquest]] of England in the 11th century, royal justice came to be administered in three central courts: the [[Court of King's Bench (England)|Court of King's Bench]], the [[Court of Common Pleas (England)|Court of Common Pleas]], and the [[Exchequer of Pleas|Exchequer]]. The common law developed in these royal courts, which were created by the authority of the [[King of England]], and whose jurisdiction over disputes between the King's subjects was based upon the King's writ.<ref name="Kerly_Page_9">{{cite book |last1=Kerly |first1=Duncan Mackenzie |title=An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery |date=1890 |publisher=Cambridge University Press |location=Cambridge |page=9 |url=https://books.google.com/books?id=xEM0AAAAIAAJ&pg=PA9}}</ref> Initially, a writ was probably a vague order to do right by the plaintiff,<ref name="Kerly_Page_9" /> and it was usually a writ of grace, issued at the pleasure of the King.<ref name="Goodnow">{{cite journal |last1=Goodnow |first1=Frank J. |title=The Writ of Certiorari |journal=Political Science Quarterly |date=1891 |volume=6 |issue=3 |pages=493–536|doi=10.2307/2139490 |jstor=2139490 |url=https://books.google.com/books?id=h2U4AAAAMAAJ&pg=PA493}}</ref>

During the 12th and 13th centuries, writ procedure gradually evolved into something much more rigid. All writs to commence actions had to be purchased by litigants from the [[Chancery (medieval office)|Chancery]], the head of which was the [[Lord Chancellor]].<ref name="Kerly_Page_9" /> After writs began to become more specific and creative (in terms of the relief sought), [[Parliament of England|Parliament]] responded in 1258 by providing in the [[Provisions of Oxford]] that the Chancellor could no longer create new writs without permission from the King and the King's Council (the [[curia regis]]).<ref name="Kerly_Page_9" /> Pursuant to this authorization,<ref name="Kerly_Page_9" /> litigants could purchase certain enumerated writs {{lang|la|de cursu}} (as a matter of course) which later became known as writs {{lang|la|ex debito justitiae}} (as a matter of right).<ref name="Goodnow" /> Each of these writs was associated with particular circumstances and led to a particular kind of judgment.<ref name="Kerly_Page_9" /> Procedure in the common law courts became tightly focused on the [[form of action]] (the particular procedure authorized by a particular writ to enforce a particular substantive right), rather than what modern lawyers would now call the [[cause of action]] (the underlying substantive right to be enforced).

Because the writ system was limited to enumerated writs for enumerated rights and wrongs, it sometimes produced unjust results. Thus, even though the King's Bench might have jurisdiction over a case and might have the power to issue the perfect writ, the plaintiff might still not have a case if there was not a single form of action combining them. Lacking a legal remedy, the plaintiff's only option would be to petition the King.

Litigants began to seek relief against unfair judgments of the common law courts by petitioning the King. Such petitions were initially processed by the King's Council, which itself was quite overworked, and the Council began to delegate the hearing of such petitions to the Lord Chancellor.<ref name="Plucknett_Page_180">{{cite book |last1=Plucknett |first1=Theodore Frank Thomas |author1-link=Theodore Frank Thomas Plucknett |title=A Concise History of the Common Law |date=1956 |publisher=Little, Brown & Company |location=Boston |isbn=9781584771371 |page=180 |edition=2001 reprint of 5th |url=https://books.google.com/books?id=maGWTVyY-ykC&pg=PA180 |access-date=27 February 2021}}</ref> This delegation is often justified by the fact that the Lord Chancellor was literally the [[Keeper of the King's Conscience]],<ref name="Burdick2002">{{cite book|first=William Livesey |last=Burdick|title=The Principles of Roman Law and Their Relation to Modern Law|url=https://books.google.com/books?id=IRkMm73NCEUC&pg=PA79|date=1938|publisher=The Lawbook Exchange|isbn=978-1-58477-253-8|page=79|edition=2002 reprint}}</ref><ref name="Watt_Page_5">{{cite book |last1=Watt |first1=Gary |title=Trusts and Equity |date=2020 |publisher=Oxford University Press |location=Oxford |isbn=9780198854142 |page=5 |edition=9th |url=https://books.google.com/books?id=uKXaDwAAQBAJ&pg=PA5}}</ref> although [[Francis Palgrave]] argued that the delegation was initially driven by practical concerns and the moral justification came later.<ref name="Plucknett_Page_180" /> The moral justification went as follows: as Keeper of the King's Conscience, the Chancellor "would act in particular cases to admit 'merciful exceptions' to the King's general laws to ensure that the King's [[conscience]] was right before God".<ref name="Watt_Page_5" /> This concern for the King's conscience was then extended to the conscience of the defendant in Chancery, in that the Chancellor would intervene to prevent "unconscionable" conduct on the part of the defendant, in order to protect the conscience of the King.<ref name="Watt_Page_5" />  

By the 14th century, it appears that Chancery was operating as a court, affording remedies for which the strict procedures of the common law worked injustice or provided no remedy to a deserving plaintiff. Chancellors often had theological and clerical training and were well versed in [[Roman law]] and [[canon law]].<ref name="Burdick2002" /><ref>{{cite book | first=Sarah | last=Worthington | title=Equity | series=Clarendon Law Series | edition=2nd | publisher=Oxford University Press | date=12 October 2006 | isbn=0199290504 | pages=10–11}}</ref> During this era, the Roman concept of {{lang|la|aequitas}} influenced the development of the distinctly different but related English concept of equity: "The equity administered by the early English chancellors&nbsp;... [was] confessedly borrowed from the aequitas and the judicial powers of the Roman magistrates."<ref name="Burdick2002" />  By the 15th century, the judicial power of Chancery was clearly recognised. 

Early Chancery pleadings vaguely invoked some sort of higher justice, such as with the formula "for the [[love of God]] and in way of [[Charity (Christian virtue)|charity]]".<ref name="Klinck_Page_13">{{cite book |last1=Klinck |first1=Dennis R. |title=Conscience, Equity and the Court of Chancery in Early Modern England |date=2010 |publisher=Ashgate Publishing |location=Farnham |isbn=9781317161950 |page=13 |url=https://books.google.com/books?id=m0c3DAAAQBAJ&pg=PA13 |access-date=November 11, 2023}}</ref> During the 15th century, Chancery pleadings began to expressly invoke "conscience", to the point that English lawyers in the late 15th century thought of Chancery as a court of "conscience", not a court of "equity".<ref name="Klinck_Page_13" /> However, the "reasoning of the medieval chancellors has not been preserved" as to what they actually meant by the word "conscience",<ref name="Klinck_Page_15">{{cite book |last1=Klinck |first1=Dennis R. |title=Conscience, Equity and the Court of Chancery in Early Modern England |date=2010 |publisher=Ashgate Publishing |location=Farnham |isbn=9781317161950 |page=15 |url=https://books.google.com/books?id=m0c3DAAAQBAJ&pg=PA15 |access-date=November 11, 2023}}</ref> and modern scholars can only indirectly guess at what the word probably meant.<ref name="Klinck_Page_17">{{cite book |last1=Klinck |first1=Dennis R. |title=Conscience, Equity and the Court of Chancery in Early Modern England |date=2010 |publisher=Ashgate Publishing |location=Farnham |isbn=9781317161950 |page=17 |url=https://books.google.com/books?id=m0c3DAAAQBAJ&pg=PA17 |access-date=November 11, 2023}} As the title implies, this source is a 314-page treatment of the history of the concept of conscience in the Court of Chancery, to the extent that such history can be inferred from surviving sources.</ref> The publication of the treatise ''[[The Doctor and Student]]'' in the early 16th century marked the beginning of Chancery's transformation from a court of conscience to a court of equity.<ref name="Klinck_Page_44">{{cite book |last1=Klinck |first1=Dennis R. |title=Conscience, Equity and the Court of Chancery in Early Modern England |date=2010 |publisher=Ashgate Publishing |location=Farnham |isbn=9781317161950 |page=44 |url=https://books.google.com/books?id=m0c3DAAAQBAJ&pg=PA44 |access-date=November 11, 2023}}</ref> 

Before that point in time, the word "equity" was used in the common law to refer to a principle of [[statutory interpretation]] derived from {{lang|la|aequitas}}: the idea that written laws ought to be interpreted "[[Legislative intent|according to the intention]] rather than the letter" of the law.<ref name="Baker_Page_114">{{cite book |last1=Baker |first1=John |author1-link=John Baker (legal historian) |title=An Introduction to English Legal History |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780198812609 |page=114 |edition=5th |url=https://books.google.com/books?id=0S0zEAAAQBAJ&pg=PA114 |access-date=August 26, 2023}}</ref> What was new was the application of the word "equity" to "the extraordinary form of justice administered by the chancellor", as a convenient way to distinguish Chancery jurisprudence from the common law.<ref name="Baker_Page_114" />

A common criticism of Chancery practice as it developed in the early medieval period was that it lacked fixed rules, varied greatly from Chancellor to Chancellor, and the Chancellor was exercising an unbounded discretion. The counterargument was that equity mitigated the rigour of the common law by looking to substance rather than to form.{{cn|date=November 2023}}

The early chancellors were influenced by their training in theology and canon law, but the law of equity they applied was not canon law, but a new kind of law purportedly driven by conscience.<ref name="Baker_Page_115">{{cite book |last1=Baker |first1=John |author1-link=John Baker (legal historian) |title=An Introduction to English Legal History |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780198812609 |page=115 |edition=5th |url=https://books.google.com/books?id=0S0zEAAAQBAJ&pg=PA115 |access-date=August 26, 2023}}</ref> Whatever it meant in the medieval era, the word "conscience" clearly carried a subjective connotation (as it still does today).<ref name="Baker_Page_115" />  Complaints about equity as an arbitrary exercise of conscience by nonlawyer Chancellors became quite frequent under the chancellorship of [[Thomas Wolsey]] (1515–1529), who "had no legal training, and delighted in putting down lawyers".<ref name="Baker_Page_115" />  

In 1528, English lawyer and pamphleteer [[Christopher St. Germain]] wrote  first study of the role of equity in English law. Lawyer [[Thomas More]], his otherwise disputer and Lord Chancellor after Wolsey, agreed with him on many of the issues and the emphasis on [[conscience]].<ref>{{cite book |last1=Curtright |first1=Travis |title=The One Thomas More |date=2012 |publisher=Catholic University of America Press |doi=10.2307/j.ctt284wpm |jstor=j.ctt284wpm |isbn=978-0-8132-1995-0 |url=https://www.jstor.org/stable/j.ctt284wpm |access-date=29 July 2023}}</ref> St Germain and More's views on equity owed in part to the 15th-century humanist theologian, [[Jean Gerson]], who taught that consideration of the individual circumstances should be the norm not the exception.<ref>{{cite journal |last1=Mazour-Matusevich |first1=Yelena |title=Some Aspects of Jean Gerson's Legal Influence in Sixteenth Century England: The Issue of Epikeia |journal=Journal of Early Modern Christianity |date=1 April 2017 |volume=4 |issue=1 |pages=47–62 |doi=10.1515/jemc-2017-0003|s2cid=164459672 }}</ref>

In 1546, Chancellor [[Thomas Wriothesley, 1st Earl of Southampton|Thomas Wriothesley]], a nonlawyer, was accused of trying to inject the [[Civil law (legal system)|civil law]] into Chancery.<ref name="Baker_Page_117">{{cite book |last1=Baker |first1=John |author1-link=John Baker (legal historian) |title=An Introduction to English Legal History |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780198812609 |page=117 |edition=5th |url=https://books.google.com/books?id=0S0zEAAAQBAJ&pg=PA117 |access-date=August 26, 2023}}</ref> This was a "wild exaggeration", but as a result, the Crown began to transition away from clergy and nonlawyers and instead appointed only lawyers trained in the common law tradition to the position of Lord Chancellor (although there were six more nonlawyer chancellors in the decades after Wriothesley).<ref name="Baker_Page_117" /> The last person without training in the common law before 2016 to serve as Lord Chancellor was [[Anthony Ashley Cooper, 1st Earl of Shaftesbury]], who served briefly from 1672 to 1673.<ref name="Baker_Page_117" /> ([[Liz Truss]] was appointed as Lord Chancellor in 2016, but this was after the position had been stripped of its judicial powers by the [[Constitutional Reform Act 2005]], leaving the [[Chancellor of the High Court]] as the highest judge sitting in equity in England and Wales.)

The development of a court of equity as a remedy for the rigid procedure of the common law courts meant it was inevitable that the two systems would come into conflict.  Litigants would go "[[jurisdiction shopping]]" and often would seek an equitable [[injunction]] prohibiting the enforcement of a common law court order. The penalty for disobeying an equitable injunction and enforcing an unconscionable common law judgment was imprisonment.<ref name="Watt_Page_5" />

The 1615 conflict between common law and equity came about because of a "clash of strong personalities" between Lord Chancellor [[Thomas Egerton, 1st Viscount Brackley|Ellesmere]] and the Chief Justice of the [[Court of King's Bench (England)|King's Bench]], Sir [[Edward Coke]].<ref name="Baker_Page_117" /> Chief Justice Coke began the practice of issuing writs of ''[[habeas corpus]]'' that required the release of people imprisoned for contempt of chancery orders. This tension reached a climax in the [[Earl of Oxford's case]] (1615) where a judgment of Chief Justice Coke was allegedly obtained by fraud.<ref>{{cite court | litigants=Earl of Oxford's Case | court=Court of Chancery | date=1615 | reporter=I Ch Rep I, 21 ER 485}}</ref> Chancellor Ellesmere issued an injunction from the Chancery prohibiting the enforcement of the common law order. The two courts became locked in a stalemate, and the matter was eventually referred to the [[Attorney General for England and Wales|Attorney General]], Sir [[Francis Bacon]]. Sir Francis, by authority of [[James I of England|King James I]], upheld the use of the equitable injunction and concluded that in the event of any conflict between the common law and equity, equity would prevail.<ref name="Watt_Page_6">{{cite book |last1=Watt |first1=Gary |title=Trusts and Equity |date=2020 |publisher=Oxford University Press |location=Oxford |isbn=9780198854142 |page=6 |edition=9th |url=https://books.google.com/books?id=uKXaDwAAQBAJ&pg=PA6}}</ref>

Chancery continued to be the subject of extensive criticism, the most famous of which was 17th-century jurist [[John Selden]]'s aphorism:

{{quote|Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure we call a foot, a Chancellor's foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: 'tis the same thing in a Chancellor's conscience.<ref>J. Selden, ''Table Talk''; quoted in {{cite book | editor-first1=Michael | editor-last1=Evans | editor-first2=R Ian | editor-last2=Jack | title=Sources of English Legal and Constitutional History | publisher=Butterworths | location=Sydney | date=1984 | pages=223–224 | isbn=0409493821 | mode=cs2}}</ref>}}

After 1660, Chancery cases were regularly reported, several equitable doctrines developed, and equity started to evolve into a system of precedents like its common law cousin.<ref name="Baker_Page_119">{{cite book |last1=Baker |first1=John |author1-link=John Baker (legal historian) |title=An Introduction to English Legal History |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780198812609 |page=119 |edition=5th |url=https://books.google.com/books?id=0S0zEAAAQBAJ&pg=PA119 |access-date=August 26, 2023}}</ref> Over time, equity jurisprudence would gradually become a "body of equitable law, as complex, doctrinal, and rule-haunted as the common law ever was".<ref name="Powell">{{cite journal |last1=Powell |first1=H. Jefferson |title='Cardozo's Foot': The Chancellor's Conscience and Constructive Trusts |journal=Law and Contemporary Problems |date=Summer 1993 |volume=56 |issue=3 |pages=7–27 |doi=10.2307/1192175 |jstor=1192175 |url=https://www.jstor.org/stable/1192175}} At pp. 7-8.</ref>

One indicator of equity's evolution into a coherent body of law was [[John Scott, 1st Earl of Eldon|Lord Eldon]]'s response to Selden in an 1818 chancery case: "I cannot agree that the doctrines of this court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this court varies like the Chancellor's foot."<ref name="Baker_Page_119" /><ref>''[[Gee v Pritchard]]'' (1818) 2 Swan 402, 414.</ref>

Equity's primacy over common law in England was later enshrined in the Judicature Acts of the 1870s, which also served to fuse the courts of equity and the common law (although emphatically not the systems themselves) into one unified court system.

=== Statute of Uses 1535 ===

One area in which the Court of Chancery assumed a vital role was the enforcement of [[use (legal)|use]]s, a role that the rigid framework of [[English property law#Estates|land law]] could not accommodate. This role gave rise to the basic distinction between [[Common law|legal]] and [[equitable interest]]s.

In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive form of trust called the "use" that enabled one person (who was not required to pay tax) to hold the legal title of the land for the use of another person. The effect of this trust was that the first person owned the land under the common law, but the second person had a right to use the land under the law of equity.

Henry VIII enacted the [[Statute of Uses]] in 1535 (which became effective in 1536) in an attempt to outlaw this practice and recover lost revenue. The Act effectively made the beneficial owner of the land the legal owner and therefore liable for feudal dues.

The response of the lawyers to this Statute was to create the "use upon a use". The Statute recognized only the first use, and so land owners were again able to separate the legal and beneficial interests in their land.