Page:Harvard Law Review Volume 4.djvu/26

10 10 HARVARD LAW REVIEW, the courts of law in England showed themselves capable of equi- table procedure.^ Glanville and Bracton are full of allusions to it. The foreclosure process to which allusion has been made above, allowing the debtor to pay and redeem, even after default and suit brought, was a distinctly equitable, as distinguished from a legal, proceeding, and very likely represented the result of a very ancient struggle between courts and creditors, just such as we are now describing, a struggle repeated time and again in the history of the human race.^ It was not all at once, of course, that the courts began to recognize as a general right, in every case of a deed on condi- tion given for security, such a thing as an " equity of redemption." Very likely the general judgment of men may have been, at the outset, that no such general right, amounting in its fixedness to an equitable estate in the land, was called for ; and perhaps the auto- matic foreclosure, at a day fixed, of a security by conditional deed may have seemed to our ancestors no more harsh than the abrupt and final cutting off of an equity of redemption after the end of a fixed period allowed after entry, seems to us. It was only as the result of a very long succession of decisions, in re- peated instances, that such a general right came to be recognized and given a name. At last, however, and long ago, as we all know, the right of him who had given a deed on condition for the purpose of securing payment of a debt, or otherwise of providing assurance, ceased to be discretionary, and came to be a fixed equitable estate in the land. At a period, therefore, prior to the settlement of this country, the law of security on land had gone through several stages. It had begun with the plain and simple system of pledge of the Roman and Saxon law, with a foreclosure procedure equitable to the debtor. It had gone through successive stages of devices by creditors to cut down the debtor's right, and it had ended with a system by which the debtor's substantial rights were guarded very much as they had been at the time of the Conquest, — a sys- tem, however, which employed a form of instrument most ill adapted to its purpose, making him who really should have had only a lien, the owner of the land at law, and involving the neces- 2 As to the employment of substantially this device, to avoid the Roman law of pledge, see Moyle, Imp. Just. Inst., vol. i. pp. 315, 316.
 * 3 Bl. Com. 49-52.