This piece is released as part of a broader book project currently soliciting funds via Kickstarter.

Aequitas sequitur legem: equity follows the law, which concept expresses the victory of common law over its equitable counterpart. There is good reason for this win, for the ancient law of equity was administered by the Lord Chancellor, a royal officer whose court in chancery also served as a clearinghouse for royal records. Modern rhetoric about the rule of law absolutely avoids this kind of confusion; Montesquieu’s doctrine about the separation of powers prevails. This classificatory system, like common law, emphasizes the impersonal, monolithic qualities of industrial government. Adam Smith, for example, lauded impersonal justice as the great strength of England’s legal system: ‘When the judicial is united to the executive power, it is scarce possible that justice should not frequently be sacrificed to what is vulgarly called politics’. Smith’s observation is, indeed, the case, yet the independence touted by English jurists is itself a political stance against personal government and the irregularities of personal conscience.

Personal conscience, however, may humanize justice systems when such systems openly account for judges’ consciences in the face of strict legal rules. The ancient discourse surrounding equity founds this theory; its application in common law may derive from the equally ancient rhetoric surrounding the honour of the Crown. Much more theorization in this vein is, of course, needed before judges’ conscience is valued in legal discourse and education. The present work introduces equity and the honour of the Crown. It then details necessary scholarly and practical innovations to renew interest in legal conscience.


Of Equity

The system of law administered by Chancery courts in England and its colonies vied against common law courts for power and judges’ fees. Its roots, however, lie in the religious disposition of successive chancellors: Thomas More (d. 1535) was the first Lord Chancellor of England who was not also a bishop. The King’s chief recordkeeper was a cleric, which over time entitled him to dispense justice in the name of conscience rather than law. This different emphasis gave at first onto a supplementary branch of private law. Common law enforced damages; the Chancellor required subjects to comply with their obligations. These were complementary systems that have since been amalgamated, but not before common law proved ascendant over equity. The short history offered here contextualizes this historic change while underscoring the creative potential that gave equity its start.

The Chancellor’s legal duties were an expression of executive government that evolved into a separate branch of judicature. Fleta, the thirteenth-century commentaries on the law of England, describes the Chancellor’s power to hear and examine subjects’ supplications and quarrels with a view to doing justice by the King’s writs (Bk. 2:13). This formula refers to the Chancellor’s role as clerk to the Crown and the Crown’s representative justiciar. The Chancellor’s conscience over time developed into a set of remedies that corrected the law by virtue of the King’s grace. Joseph Story’s tome on equity thus dates this legal field between the reigns of Henry V (r. 1413-22) and Henry VIII (r. 1509-47). A wide range, but one understandable in terms of centralizing royal power. Henry VIII’s power, for example, allowed him to break from Rome and entrain Parliament in his scheme. His Chancellors, Cardinal Wolsey, Thomas More, the Lord Audley, and Thomas Wriothesley, were some of the first lawmen to occupy the office. Wolsey was the last cleric to enjoy the title.

The battle between common law and equity turns on this new approach to staffing the Chancellor’s office. The incoming Stuart reigns oversaw a growing administrative apparatus that required increased taxes on the population; personal justice via the Chancellor dispensed the Crown’s grace where no legal rule existed. Special cases were reserved to the Crown. The Chancellor did justice against common law according to his conscience. Matthew, chapter 5, summarizes the Chancellor’s mission:

17        Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil.

Authorized Version

The King’s grace supplements his law. Such grace cannot, however, stand in the Renaissance as religious belief becomes increasingly fractious. Edward Coke, in the Case of Prohibitions ([1610] 12 Co Rep 63), says that ‘the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace’ (p. 65). This report out of King’s Bench belies the notion of personal grace or dispensation from law. Grace falls further out of favour when the Glorious Revolution (1688) brings the Whig idea of the rule of law into political rhetoric. Law must be predictable and subjugate all, including Lords and Crown.

The rhetoric of regularity inspired by common law’s dominance through the eighteenth and nineteenth centuries served, if Marxist historians are to be believed, a merchant class. This rhetoric particularly worked against the landed aristocratic interest that waned through the seventeenth century. The monarchy, of course, was the apex for this interest. The mercantile view of the rule of law eliminated class boundaries, thus reducing, in a rhetorical sense, the Crown’s ability to dispense discretionary justice via equity.

Most modern scholars laud the end of royal influence. Equity was, in fact, made re-ascendant over any legal interest by legislation. In Canada and the United Kingdom, equity returned to prominence in the late nineteenth-century. Courts were mandated to consider equitable remedies in all common law proceedings with the amalgamation of Chancery, King’s Bench, Common Pleas, and the Exchequer courts.

Equity was not, however, the same after the nineteenth century. Its slow ossification from its origins up to modern times means that equity is now just another set of legal rules. The rule of law has colonized judges’ consciences. Doing right, then, in a moral or ethical sense must conform to the rational tenets legal systems. Lawyers laud this approach; Pierre Bourdieu argues that lawyers’ enthusiasm for their own rules is self-aggrandizing. Duncan Kennedy might bill such zeal as a claim to non-existent objectivity. His contribution—one to which I have alluded in terms of law and poetics—highlights the need for emotion in legal reasoning. James Boyd White has made similar appeals as a literary critic of legal rhetoric. Emotion and equity go hand-in-hand if equity is viewed as the creative approach to dispute resolution that once animated the rhetoric of royal clemency.

Theories of conscience are the battleground for this debate. ‘Conscience’ refers to personal moral conviction, whether informed by systematic belief or not. This personal mechanism has been billed as a ‘secular morality’ (R v Morgentaler, [1988] 1 SCR 30, p. 179) that operates via reason. This characterization, however, may not give conscience its due. Conscience may, to riff on Georg Wilhelm Hegel, actuate between the infinitely subjective internal states of thought and emotion and the objective world. If conscience is conceived in these terms, it is not a concept borne of reason, nor can it be said to explicitly relate to morality. Conscience may instead be considered as a metaphysical bridge between mind and body, reason and emotion. Such an understanding eschews any normative discourse based on morality. It instead asks judges, litigants, and counsel to search within themselves for knowledge and emotions that resonate with the wider community. Knowledge and emotion constitute norms, which only inspire faith in legal institutions when rules resonate in the community. Law, in other words, becomes less confrontational and more deliberative if conscience takes on renewed metaphysical significance. The search for a community’s norms lies at the heart of each legal question.

These appeals to knowledge and emotion, however, do not reach for legal precedents that could nuance the rule of law.


Honour of the Crown – Forgotten Precedent

Precedents exist, I think, in the chivalrous concept of the honour of the Crown. The Crown’s honour, in Commonwealth jurisdictions, refers to the Crown’s legal infallibility. The Crown dispenses its grants and favours to subjects, and these gifts could not be disputed. The honour of the Crown, however, holds the Crown to its word. It emerges from centuries that saw a romantic resurgence in chivalric norms. Truth and justice were essential components of chivalry; they remain features of the administration of justice. Common law courts used the chivalric renaissance against the fountain of these honours. The Crown’s promises were enforceable if they were clear and freely given. Modern courts may use these precedents to hold the Commonwealth’s sovereign to a still higher standard of truth and justice, because these chivalric standards of conduct are granted out of the sovereign’s gift to specific appointees. The sovereign’s grant of power requires the appointee to exercise prudence and compassion (other chivalric virtues), and these tend toward truth and justice.

In earlier times, subjects had no appeal from the Crown’s decisions. The royal prerogative was much stronger before the seventeenth-century revolutions. Courts of common law and equity innovated to grant relief. In 1598, the Exchequer Court laid down a presumption we continue to apply to statutory interpretation:

note the gravity of the ancient sages of the law, to construe the King’s grant beneficially for his honour, and the relief of the subject, and not to make any strict or literal construction in subversion of such grants.

Molyn’s Case, 77 Eng Rep 261

Edward Coke reported a similar conclusion out of Queen’s Bench in 1600:

In many cases the King’s grant ex certa Scientia & mero motu, shall be construed beneficially for the patentee, but such words shall never produce a violent or strainable construction, or any construction which is against the intent and purpose of the King in his grant, but the grant notwithstanding those words shall be taken in an usual and common sense and understanding.

Alton Woods, [1600] 76 Eng Rep 89

The courts enforced royal grants, typically of property, in favour of the subject for whom the grant was intended. This rule departed from the strict common law forms of its time. Equity was a corrective to legal formalism. The grant of some conscientious adjudication paired with judicial recognition of the Crown’s feudal position. The Crown was infallible, but its honour was preserved by its judges, who were fallible creatures resolving disputes among still other fallible creatures.

The House of Lords had occasion to pronounce on this issue in Egerton v Earl Brownlow. The Lords adjudicated an estates case where an honorific was to pass from the deceased to the legatee. The will was challenged as against public policy because the honorific may have been acquired through bribery of the Crown’s ministers. Lord Brougham framed the Crown’s infallibility for the House:

the Crown is, in law, by praesumptio juris et de jure, incapable of being affected by any improper influence, a presumption of law which is not to be rebutted or averred against. That the Crown is the fountain of honour, and the sovereign incapable of giving a wrong direction to its streams, is an undeniable principle of the constitution, an undoubted position of law. But there is another, quite as irrefragable, which supersedes it and precludes its application to the present question. The sovereign can only act by the advice and through the instrumentality of those who are neither infallible nor impeccable,—answerable indeed for all that the irresponsible sovereign may do, but liable to err through undue influence, and to be swayed by improper motives.

[1853] 10 ER 359, p. 428

A minister advising the Crown incorrectly or for corrupt reasons is fallible in her or his office. Judges, in the British system, are ministers of the Crown. The are appointed under the same kind of instrument as a member of Cabinet. The Crown’s honour, in the executive or judicial context, must be preserved by its agents.

The preservation of the Crown’s honour tends toward equity because an honourable Crown is one that deals fairly with its subjects. Administrative lawyers concern themselves with formal fairness, but equity courts typically concern themselves with the underlying fairness of a matter where legal rules do not suffice. The law is to be fairly applied in administrative tribunals. Courts in equity aim to do fairness on the parties.

Can a ruler—in the Commonwealth, the Crown, but the American constitution may operate in similar wise with reference to the people—apply legal rules without reference to a person’s actual condition? In other words, does the rule of law set personal circumstances aside when a legal rule controls the case? Aequitas sequitur legem, but this response may not be good enough at the start of a century of sweeping technological change.

The law must be fulfilled, as the Book of Matthew might say, with regard to the people it pretends to govern, hence the Canadian Supreme Court’s recent concern with the ‘public confidence in the administration of justice’ (British Columbia (A.G.) v Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, para. 117). This concern, or so the court says, is fundamental to the rule of law. The law can be regularly applied with sometimes unjust results. Public confidence is notionally maintained by the rhetoric of regularity. True confidence, however, is obtained by the community’s acceptance of a judicial result as just. The rule of law, on this view, acknowledges the emotive appeal that judges’ decisions must maintain. If the community disagrees with a judge’s decision, the applied rule comes to naught. It is a violence perpetrated on the community and the individual.


Conclusion

The operation of pure reason—law’s historical domain—cedes some ground to equity, where equity is the creative pursuit of fair outcomes. Judges are already animated by these concerns, yet that old sticking point still obtains: aequitas sequitur legem. The judge is duty-bound to apply the law. The honour of this duty has been little recognized. In Canada, at least, the legislated promise that rules of equity prevail over rules of law still denies equity a creative place. The ossified, predictable rules of equity continue in a profession of rule-makers and rule-followers. The Crown, in Commonwealth fashion, vests its plenipotential ability to do justice in its judges. People are made subjects of an appointee, who has the concomitant responsibility to do justice in a manner befitting the Crown’s honour.

Fulfilling the law, instead of simply following it, however, requires flashes of creativity, for only through this more equitable method may each person be seen by their society. The courts appointed to keep the peace do so best when they treat litigants as people rife with emotion; the inherent unknowns of a creative approach to adjudication are not reason enough to crush these essential responses to everyday life. A court can instead appeal to emotion alongside reason in the creative space that pure equity affords. Indeed, it might turn out that the judge’s duty to uphold the sovereign’s honour demands no less.

Scholarly and practical innovations

Defining a judge’s duty with reference to their conscience and to the honour of the Crown—or, at the very least, to their sovereign—requires a strong definition of conscience. Canadian scholars are beginning to accomplish this work with reference to the Charter of Rights and Freedoms. United Kingdom and American scholars are defining conscience, like Canadian academics, as a right to hold and express moral tenets independent from religion. Further definition in this regard enhances the notion that equity must again be done through the individual judge’s beliefs about law and justice.

These beliefs have often been considered by legal theorists and political philosophers. The question of moral conviction as a means of arriving at legal decisions is fraught; much theorizing and argument is still required to show that morality’s emotive appeal can be a legitimate basis for judicial decision-making.

Any academic discussion of this high theory needs roots in professional life. Lawyers too often use reason and objectivity as legitimating ideas; legal sterility is touted in law school and among lawyers. More published stories are needed to illustrate the deep emotional and conscientious investments that lawyers and clients make with each other. Personal accounts of deep connections in practise implicitly value those connections, which value asks other professionals and students to buy into a new way of thinking.

Publishers and editors, of course, play a huge role disseminating new ideas. They are gatekeepers that set the tone for professional and scholarly conversation. Academic arguments that valorize conscience must speak to practitioners, judges, and publishers.

The proposed vehicle for conscience, the sovereign’s honour, must also be better theorized. Precedents need to be re-examined with reference to chivalric norms and law (chivalry is governed by a distinct civil code system). Further academic research is needed to ground the link between modern-day conscience and chivalry in precedents.


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