ETHICAL I'KINCIl'LE OF EQUITY- 333 



band. The contrary fact, tliat she remained physically a separate 

 j^erson, led to the employment of many equitable subterfuges^ 

 which were very confused and complicated at first. 



This is an example of one of the devices of the medievd 

 lawyer, to reconcile legal justice and equity in the thirteenth 

 century. '* 



The decisions of the Courts of equity aui'noriscd the -.vife to keep 

 as Iier personal lielongings certain properties ( separate estate) h}- con- 

 fiding them to trustees or tiduciaries. At law the wife has no possessioiis 

 of her own, in equity she becomes independent of her inisband, through 

 the intervention of trustees, and to the extent of her separate estate. 

 The motives which justified tliis, even caused in time the recognition of 

 the fact, that the wife had a riglit to demand a separate estate independent 

 of any agreement. 



Later, in many countries the civil emancipation of tl;e 

 married woman was introduced into the letter oif the law. In 

 this way the old law was practically abolished by the li»ng pres- 

 sure of equity. 



But in the 1\idor j:)eriod of English History, we have one 

 ii>stance in which the innate vigour of equity in the hands of 

 strong Chancellors was able to resist successfulh- not only the 

 law, but a whole system of law. According to the feudal idea, 

 the actual possessor of land could not disix:)se of it by inheritance 

 without his lord. Land trusts had been excogitated to evade this 

 right of the barons, and to hand on lands from the actual 

 possessor to his personal heir. The practice became so common 

 that it was a kind of national conspiracy to evade the land laws 

 of the country to the detriinent oi the sovereign. Henry VHI 

 tried to stem the process by a fresh statute, but it became a dead 

 letter. 



Thus says a great English jurist,! " In the name of equity 

 and good conscience the chancellors had been adding an appendix 

 to the common law," and in this matter the chancellors had the 

 united supix)rt of the people for their ordinances. Whatever 

 success the Tudor Sovereigns may have had in /forcing England 

 to follow them, they signally failed in resisting this movement ; 

 for there is nothing in which the peo]>le are more tenacious of 

 justice, than in matters affecting land or money. 



But the struggle between the ethical idea of the equitable 

 and the notion of a strict and unbending law has produced two 

 ideas of the judge's office, which are the two poles between 

 which the judge of real life fluctuates in diff'erent systems and at 

 different times. 



At one of these [poles] the model is the man of science who is making 

 researches, and will use all appropriate methods for the solution of 

 problems and the discovery of truth. At the other stands the umpire of 

 our English games, who is there, not in order that he may invent tests 

 for the powers of the two sides, but merely to see that the rules of tha 

 game are observed. 



* Jean Brassard : " Historv of French Private Law,'" 7S6. 

 t F. W. Maitland : " Collected Papers," 2, 404. 



