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Published online by Cambridge University Press: 28 October 2011
The refrain that law and equity cannot peaceably cohabit the same court is familiar and persistent. In his 1790 treatise on contracts, Joseph Powell protested that blending law and equity was “subversive of first principles.” He claimed, “That a right in itself purely legal cannot be the proper subject of discussion in a jurisdiction purely equitable, and that a right purely equitable, cannot be the proper subject of a purely legal jurisdiction, are axioms that cannot be denied,” adding for good measure: “It is a proposition as self-evident as that black is not red, or white black.” Almost two centuries later, in a provocative 1974 essay called The Death of Contract, Grant Gilmore asserted that the legal doctrine of consideration in contract law and the equitable doctrine of promissory estoppel were like “matter and anti-matter,” and “The one thing that is clear is that these two contradictory propositions cannot live comfortably together: in the end one must swallow the other up.”
1. Powell, J. J., Essay Upon the Law of Contracts and Agreements, 2 vols. (London: For J. Johnson and T. Whieldon, 1790), 1: viii.Google Scholar
2. Ibid., ix.
3. Gilmore, Grant, The Death of Contract (Columbus: Ohio State University Press, 1974), 61.Google Scholar
4. 36 & 37 Viet., c. 66.
5. Augmented by additional provisions in the Judicature Act 1875.
6. See generally Polden, Patrick, “Mingling the Waters: Personalities, Politics and the Making of the Supreme Court of Judicature,” Cambridge Law Journal 61 (2002): 575.CrossRefGoogle Scholar
7. Lobban, Michael, “The Strange Life of the English Civil Jury, 1837–1914” in “The Dearest Birth Right of the People of England”: The Jury in the History of the Common Law, ed. Cairns, J. W. and McLeod, Grant (Oxford and Portland, Ore: Hart Publishing, 2002), 173.Google Scholar
8. Lobban, Michael, “Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part I,” Law and History Review 22 (2004): 422–23.Google Scholar
9. Ibid., “Part II,” n. 94 and 584.
10. Ibid., 568, 570, 573.
11. Ibid., 582–83. In passing, it could be noted that a chronology of enacted reform measures would be extremely helpful to readers. Lobban's narrative moves through a blizzard of proposals, some of which succeeded, but most of which did not, and it is easy to get lost in the many parliamentary meanderings.
12. Ibid., 569 (describing the documentary research of Edwin Field, which supported the case being made for additional judges).
13. Emphasis added. Eldon's notebooks, manuscripts, and monographs are in the collection of the Georgetown University Law Library.
14. James, Croake [Paterson, J.], Curiosities of the Law and Lawyers (London: Low, Marston, Searle, and Rivington, 1882), 86–87.Google Scholar Leach, Hart, Parker, and Cooke were leading barristers of the day. Cooke was the author of a well-known treatise on bankruptcy, which is undoubtedly the book he was citing.
15. Lobban, “Part I,” 408 (quoting critic John Williams).
16. Ibid., 393.
17. Ibid., 404, quoting The Times, 8 March 1811.
18. Ibid., 408.
19. Ibid., 409.
20. Mitford, John, A Treatise on Pleadings in Suits in the Court of Chancery by English Bill (London: W. Owen, 1780).Google Scholar
21. See Holdsworth, William, History of English Law, 17 vols. (London: Methuen 1903–1972Google Scholar; reprint 16 vols., London: Methuen, Sweet and Maxwell, 1966), 12:185; Dictionary of National Biography, compact ed., 2 vols. (Oxford: Oxford University Press, 1975), s.v. John Mitford (quoting the appraisal of Sir Thomas Plumer [Jacob & Walker Reports, ii 151–52] that Mitford's treatise reduced “the whole subject to a system with such universally acknowledged learning, accuracy, and discrimination, as to have been ever since received by the whole profession as an authoritative standard and guide”). Lord Eldon himself reportedly described Mitford's book as “a wonderful effort to collect what is to be deduced from authorities speaking so little what is clear.” Dictionary of National Biography, s.v. Mitford.
22. Mitford also served as Solicitor General of England, 1793–99, and as Attorney General, 1799–1802, before his appointment as Lord Chancellor of Ireland.
23. Lobban, “Part I,” 417.
24. Ibid., 422.
25. Apart from those that have been mentioned was the crushingly inefficient requirement that all parties with any interest whatever in a case attend the court for any hearing of any aspect of the case.
26. Edinburgh Review 14 (1875): 179, 180, as quoted in Manchester, A. S., A Modem Legal History of England and Wales, 1750–1950 (London: Butterworths, 1980), 149.Google Scholar
27. Ibid., 148–49.
28. Ibid., 149.
29. Ibid.
