Law Student: Equity

This post is a summary of how morality – derived from Christianity – influenced equity.

Why Christianity, you may ask. The answer is very simple. Christianity and the law grew together side-by-side, hand-in-hand over the past several centuries. At the time that the common law was taking root in England, Christianity was already entrenched as the majority religion.

Christian doctrine can arguably be credited with introducing equity’s core characteristic – conscience.
The increasing influence of the church on matters of state following the Norman Conquest in the eleventh century did herald a proliferation of ecclesiastical ideology into many areas of the administration. This included, under the reign of Henry II, an emerging and relatively settled system of common law established in civic courts. Thus, with this proliferation came an emphasis on conscience as one of the central precepts of apostolic thought.
It has been suggested that the office of Chancellor had long been the preserve of church men, notably monks that had first accompanied St Augustine from Rome around the sixth century. Timothy Endicott (1989) suggests that, as chancellors, these men possessed two characteristics that would prove vital to their success in the office. Moreover, they were the same characteristics that would so resolutely inform the judicial role of the Lord Chancellor in the Court of Chancery of later centuries. First, as literate men they were employed to manage the king’s correspondence, his letter-writing and diplomatic affairs. Second, as chaplains they were also keepers of the king’s conscience.
The first practising lawyer to assume the office of Chancellor was Ranulf Flambard (‘the torch’), during the reign of William II, known as William Rufus (1087–1100).
However, it was Thomas à Becket who would cement its legal and political significance by holding the office while also the Archbishop of Canterbury (1161). Thus Becket made Chancery that which ‘set the law of the Church as the standard for the king’s conscience’ (Endicott, 1989, p. 552).

When citizens could not obtain justice at the regular courts (King’s Bench, Common Pleas, Exchequer) – there were a limited number of writs available (we will learn about this later on) – they could petition the king for relief. These petitions were sent to the various Chancellors whose decisions over the next few centuries added to the body of the common law.

It should be noted that up to this point, chancellors were guided by their own individual conscience. However, that changed when Sir Thomas More became Chancellor. More held a series of debates with a fellow lawyer, Christopher St Germain who advocated a more objective and "legal" form of conscience; debates which were later published as Doctor and Student.

This more objective approach resulted in individual conscience being suppressed, and a rise instead of objective "rules" – vague, but rules nevertheless – that represented "conscience". The Judicature Acts of 1873 and 1875 merged or fused equity’s administrative jurisdiction in the Court of Chancery with the common law, thus largely creating the High Court of Justice we know today, and transforming the Court of Chancery into the Chancery Division. For a list of the maxims of equity, see below:

1 Equity sees that as done what ought to be done

2 Equity will not suffer a wrong to be without a remedy

3 Equity delights in equality/Equality is Equity (Aequalitus est quasi equitas)

4 One who seeks equity must do equity

5 Equity aids the vigilant, not those who slumber on their rights

6 Equity imputes an intent to fulfil an obligation

7 Equity acts in personam or persons

8 Equity abhors a forfeiture

9 Equity does not require an idle gesture

10 He who comes into equity must come with clean hands

11 Equity delights to do justice and not by halves

12 Equity will take jurisdiction to avoid a multiplicity of suits