Odger's English Common Law

THE GROWTH OF EQUITY. 57
said to form part of it." 1 " When a general usage has been judicially
ascertained and established," says Lord Campbell in Brandao v. Barnett*
" it becomes a part of the law merchant, which Courts of justice are bound
to know and recognise."
Out of these discordant elements arose our common law.
And side by side with it grew up its younger sister, equity.
At. the close of the thirteenth century the three superior
Courts of common law were firmly established at Westminster
and busily engaged in disposing of all ordinary causes of
action. But the King was still regarded as the fountain of
justice. In him and his council there yet resided jurisdiction
to redress any wrongs with which the ordinary Courts were
powerless to deal. Hence, whenever a private individual
suffered a grievance for which no remedy or no adequate
remedy existed at common law, he was wont to petition the
King in Council for redress. The King usually referred such
petitions to his Chancellor. This officer was at first an
ecclesiastic ; he was always, whether lay or ecclesiastical,
the most learned man of the King's Council, and had the
custody of the King's great seal; he eventually came to
be "the keeper of the King's conscience." In the four-
teenth century it became" the rule for petitioners to address
themselves directly to the Chancellor, 3 and to beg his
assistance " for the love of God and in the way of charity."
Then, when trusts of land became common, the Law
Courts recognised only the legal owner and afforded no
remedy for any breach of trust which he might commit
by appropriating to his own use the profits of the land. Xo
writ in consimili casu and no legal fiction could be devised to
punish such a breach of confidence. So the beneficiaries
naturally turned for aid to the new jurisdiction of the
Chancellor. He, with the general approval of lawyers and
laity alike, began to enforce by summary process the duty
that lay upon the conscience of a trustee. Towards the
end of the reign of Henry VIII. the Chancellor became
i Per cur. in Goodwin v. Robarti (1876), L. R. 10 Ex. at p. 346.
a (1846), 12 CI. & F. at p. 805.
8 See an Ordinance passed in 22 Edw. III.