The equitable jurisdiction of the Court of Chancery was founded on the supposed superiority of conscience and equity over the strict law. The appearance of equity in England is in harmony with the general course of legal history in progressive societies. What is remarkable is that, instead of being incorporated with or superseding the common law, it gave rise to a wholly independent set of tribunals. The English dislike of the civil law, and the tendency to follow precedent which has never ceased to characterize English lawyers, account for this unfortunate separation. The claims of equity in its earlier stages are well expressed in the little treatise called Doctor and Student, published in the reign of Henry VIIL :—“Conscience never resisteth the law nor addeth to it, but only when the law is directly in itself against the law of God, or law of reason? So also King James, speaking in the Star Chamber, says, “Where the rigour of the law in many cases will undo a subject, then the chancery tempers the law with equity, and so mixes mercy with justice, as it preserves a man from destruction.” This theory of the essential opposition between law and equity, and of the natural superiority of the latter, remained long after equity had ceased to found itself on natural justice, and had become as fixed and rigid as the common law itself. The jealousy of the common lawyers came to a head in the time of Lord Ellesmere, when Coke disputed the right of the Chancery to give relief against a judgment of the Court of Queen’s Bench obtained by gross fraud and imposition. J ames I., after consultation, decided in favour of the Court of Equity. The substitution of lay for clerical chancellors is regarded by Mr Spence (Equitable Jurisdiction of the Court of Chancery) as having at first been unfortunate, inasmuch as the laymen were ignorant of the principles on which their predeeessors had acted. Lord Nottingham is usually credited with the first attempt to reduce the decisions of the court to order, and his work was continued by Lord Hardwicke. By the time of Lord Eldon, equity had become fixed, and the judges, like their brethren in the common law courts, strictly followed the precedents. Henceforward chancery and common law courts have exhibited the anomaly of two co-ordinate sets of tribunals, empowered to deal with the same matters, and compelled to proceed in many eases on wholly different principles. The Court of Chancery could in most cases prevent a person from taking advantage of a common law right, not approved of by its own system. But if a suitor chose to go to a court of common law, he might claim such unjust rights, and it required the special intervention of the Court of Equity to prevent his enforcing them. In many cases also a special application had to be made to chancery for facilities which were absolutely necessary to the successful conduct of a case at common law. Another source of difficulty and annoyance was the uncertainty in many cases whether the chancery or common law courts were the proper tribunal, so that a suitor often found at the close of an expensive and protracted suit that he had mistaken his court and must go elsewhere for relief. Attempts more or less successful were made to lessen those evils by giving the powers to both sets of courts; but down to the consolidation effected by the Judicature Act, our judicial system justified the sarcasm of Lord Westbury, that we set up one tribunal to do injustice and another to stop it. In one of the last cases, the custody of an infant, which had been granted by the Queen’s Bench to one claimant, was transferred by the Court of Chancery to another. The payment of a sum of money into court for the benefit of the child made her a ward of court, and enabled the judge in chancery to apply the principles of equity to the case.

The equitable jurisdiction of chancery was commonly divided into exclusive, concurrent, and auxiliary. Chancery had exclusive jurisdiction when there were no forms of action by which relief could be obtained at law, in respect of rights, which ought to be enforced. Trusts are the most conspicuous example of this class, and are, in fact, the main staple of the business of the court. It also includes the rights of married women, infants, and lunatics. Chancery had concurrent jurisdiction when the common law did not give adequate relief, eg., in cases of fraud, accident, mistake, specific performance of contracts, <fcc. It had auxiliary jurisdiction when the administrative machinery of the law courts was unable to procure the necessary evidence.

The Judicature Act, 1873, enacts (§24) that in every civil cause or matter commenced in the High Court of Justice, law and equity shall be administered by the High Court of Justice and the Court of Appeal respectively, according to the rules therein contained, which provide for giving effect in all cases to “equitable rights and other matters of equity.” The 25th section declares the law hereafter to be administered in England on certain points, and ordains that “generally in all matters not hereinbefore particularly mentioned in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.”

. Previous to being merged in the New Supreme Court of Judicature, the Court of Chancery consisted of the Lord Chancellor, the Master of the Rolls, two Lords Justices of Appeal, and three Vice-Chancellors. The Vice-Chancellors and Lords Justices of Appeal are comparatively recent creations.

Notwithstanding the fusion of the courts the great division between common law courts and chancery is not obliterated. The chancery judges form a division by themselves, to which all the pending business of the old court has been transferred, and to which all causes and matters which, but for the Act, would have been within the exclusive jurisdiction of that court are assigned. The Chancery Division still is, and probably will for a long time be, distinguished from the others by the peculiar nature of its business, by the peculiar nature of its administrative arrangements, and by having a separate bar. Another distinction is making itself apparent, and will assume great importance if finally established. The Chancery Division seems to be unwilling to try cases by jury; and in a recent case there has been a direct collision of opinion on this subject between the Chancery and the Common Law Judges.