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                            EQUITY

     The common law administered in Common Pleas and King's Bench
     lost its flexibility at the end of the 13th century. Plaintiffs
     began to petition the king for remedies, and the chancellor had
     the task of properly disposing of their requests. By the end of
     the 14th century, the chancellor was presiding as a judge in
     his own court of Chancery, and a branch of the law called
     EQUITY began to grow as a supplement to common law.

     The work of a court of equity was easily justified by the
     argument that rules of law must of necessity be general, but
     that circumstances are infinitely variable and require that in
     some cases the strict letter of the law be set aside to avoid
     injustice or a result contrary to reason. In various ways
     Chancery developed a character of its own.

     At the beginning of the 16th century, the Chancery was
     supplementing rules of common law to arrive at results in line
     with a doctrine of conscience. An important writing for this
     formative period was the dialogue Doctor and Student by
     Christopher Saint- German (c.1460-1540). "Equytie is ordeyned,"
     the Doctor says, "to tempre and myttygate the rygoure of the
     lawe . . . and so it apperyth that equytie rather foloweth the
     intent of the lawe then the wordes of the lawe." So long as
     common-law courts were inflexible about matters of wills or
     trusts and uses of land and contracts without a seal, equity
     courts filled a need.

     In Chancery a mispleading was not fatal, and in cases where no
     remedy existed at common law, the Chancery was free to act by
     what was called the law of right and conscience. Equity
     supplemented the common law; it did not contradict it.

     Of the greatest importance for an Englishman's rights in
     property was Chancery's enforcement of trusts and uses. For
     example, if A grants property to B to hold for the use of C,
     the common law would take B to be in seisin of a freehold; but
     Chancery would protect the interest of C, the beneficiary.
     Chancery was also responsive to complaints about fraud and
     deceit. In the administration of estates of the deceased and
     the development of equitable interests in property, Chancery
     courts made significant contributions to law in England. At
     times the coexistence of courts of law and equity seemed to
     give English subjects two kinds of justice, and from the 17th
     century onward reformers urged that English law and courts be
     simplified.

     This finally came about in 1875, when a single high court of
     justice was created. Other reforms abolished the writ system.
     In the United States during the 19th century the majority of
     state constitutions provided for one action at law and equity.

     EXPANSION OF THE COMMON LAW

     Common law crossed the Atlantic with the English language and
     served English colonial settlements whenever conditions
     permitted. Occasionally it had to yield in favor of religious
     beliefs or local customs. Judges in early America often lacked
     professional knowledge of the law; to be a man of property
     respected in his own community was sufficient qualification for
     the bench.

     Prior to 1776 a few colonists went to England for legal
     education at the Inns of Court. The victory of the colonies in
     the American Revolution did not result in a rejection of
     English common law; however, the attitudes of individual
     Americans toward common law were full of contradictions. At one
     extreme were men like John Dudley, associate justice of the
     Supreme Court of New Hampshire (1785-97), who believed that
     "common sense is a much safer guide for us than common law." He
     boasted that he had read neither Blackstone nor Littleton, and
     never would.

     At the other extreme was George Wythe, law tutor to Thomas
     Jefferson and the first professor of law at the College of
     William and Mary. Among his students were John Marshall, James
     Monroe, Edmund Randolph, and Henry Clay. Wythe used Blackstone
     as a textbook, and his lectures compared English and Virginia
     law.

     In the United States in the early 19th century, lawyers faced
     considerable hostility and suspicion. On one hand, the public
     demanded codification of the law as a means of achieving
     simplicity and certainty. On the other hand, it sought to
     democratize the profession of law by removing educational
     requirements for a license to practice. The latter proposal was
     actually put into effect in New Hampshire (1842), Maine (1843),
     Wisconsin (1849), and Indiana (1851). In these states any
     person could practice law who was a citizen more than 21 years
     of age, or a resident of the state, or a voter "of good moral
     character." It was argued that a citizen had the natural right
     to earn a living in any business, profession, or calling.
     Moreover, the abundance of open land profoundly affected
     American society, producing a fairly equal distribution among
     many landowners.

     On the frontier it was easy to conclude that common sense was
     enough. Inevitably, the development of law in the United States
     came to reflect much that was distinctive in the American
     environment. For example, very early in the history of the
     United States, American jurists favored the recognition of
     so-called common-law marriages. James Kent stated, in Fenton v.
     Reed (1809), that "A contract of marriage per verba de presenti
     {words in the present tense, for example, "I do."} amounts to
     an actual marriage, and is as valid as if made in facie
     ecclesiae {in church}." Free consent, the meeting of minds,
     made a valid contract. Kent's opinion was almost universally
     accepted.

     On the frontier, where churches were few and ordained ministers
     scarce, common-law marriage was expedient. The Married Women's
     Property Act of 1875 and statutes of state legislatures gave an
     American wife control of her separate earnings. This
     legislation broke up irreparably the older common-law doctrine
     of the unity of husband and wife, a doctrine that had given the
     husband control of his wife's property. American legal
     reformers also sought to replace laws created by judges with
     legislation in broad areas. The 19th-century jurist David
     Dudley Field drafted a civil procedure code, a penal code, and
     a criminal procedure code that were adopted by New York State
     and widely copied elsewhere.

     A Uniform Commercial Code has been adopted by every state
     except Louisiana, which has a civil-law system reflecting its
     French tradition. Although there are many differences between
     English common law and American variations on it, the legal
     system of the United States bears many important marks of the
     common law. The professional language used by American lawyers
     is understood in Great Britain. Printed reports of U.S. cases
     show that courts have applied and still apply the doctrine of
     precedent (Stare decisis) associated with common law.

     Rules of equity supplement the common law in Great Britain, and
     an action at law and equity is used in the United States. In
     the United States, persons who fear that they may be deprived
     of their rights will demand "due process of law" and an
     observance of "the rule of law," principles essential to common
     law, and juries are judges of the facts in important cases. The
     United States thus remains one of the common-law countries.

     TREATISES

     Many lawyers of great learning, intellectual power, and
     literary skill have written on the common law. Among these
     writers three would probably appear in any short list of
     treatises.

     The first was Henry de Bracton (d. 1268), a royal judge who
     served as a justice in eyre courts and in the court of King's
     Bench. His book De legibus et consuetudinibus Angliae ("On the
     Laws and Customs of England") was the first systematic
     treatment of the common law. Bracton was strongly influenced by
     ROMAN LAW, as shown by the structure though not the substance
     of his treatise.

     Thomas Littleton (c.1422-81), a well-known counsel,
     sergeant-at- law, justice of assize in northern circuit, and
     justice of Common Pleas, wrote a treatise, Tenures, the
     earliest printed treatise on English law. It is a masterful
     discussion of estates in land and is notable for its excellent
     arrangement. Sir Edward Coke, himself a treatise writer, who
     lived not quite two hundred years after Littleton, praised it
     as "absolute perfection in its kind, and as free from error as
     any book that I have known to be written of any human
     learning."

     Sir William BLACKSTONE wrote four volumes of legal Commentaries
     (1765-69). Although historians do not accept all of
     Blackstone's historical materials, he is universally admired
     for the boldness and completeness of his design, which was to
     present a general sketch of the whole of English law.
     Blackstone's work is the classic treatment of the full
     development of the common law. He translated the technical
     professional language of his authorities into readable English
     that faithfully presents the heart of the matter.