Document Type

Article

Publication Date

2004

Abstract

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."

Gilmore and Powell notwithstanding, law and equity have been able to live together successfully, if occasionally uneasily, for well over a century. In England the crucial procedural event, marking the end of a bumpy journey of at least four decades of fits and starts, was the Judicature Act 1873. The fact that fusion was finally achieved in 1873 is well-known. Not well-known, however, has been the story of exactly how this happened. Michael Lobban tells that story in meticulous detail with commendable clarity, starting with the early 1800s and the quarter-century when Chancery was in the hands of John Scott, Lord Chancellor Eldon.

Publication Citation

22 Law & Hist. Rev. 609-614 (2004)